<CITATION> .

1. The precise nature of the incidence of the Excise Duty and the appropriate manner of recovery of unpaid Excise Duty under the Central Excises and Salt Act , 1944 hereinafter called the Act and the Rules and the Notifications issued there under have to be considered in this case.

2. The excisable goods are enumerated in First Schedule to the Act and the rate of duty is stated against each item therein. Section 3 of the Act levies the duty in such manner as may be prescribed by the Rules and the Notifications laying down the procedure for the imposition of the duty and the collection thereof. Briefly, the duty of excise is levied on goods and not on a person. But it is levied on the process of producing or manufacturing the goods. Its incidence on the goods therefore, falls on the stage at which the goods are in the possession the producer or the manufacturer. The goods cannot be removed out of his possession without the payment of the duty. To ensure this, Rule 9(1) lays down that no excisable goods shall be removed from any place where they are produced or manufactured until the Excise Duty leviable thereon has been paid at such a place and in such a manner as is prescribed in these Rules and except on the presentation of an application in the proper from and on obtaining the permission of the proper officer on the form. Exceptionally, a Statute and the Rules framed there under may provide that the incidence of the Excise Duty is to fall not on the producer or the manufacturer but on the consumer or the purchaser after the goods have been removed from the possession of the producer or the manufacturer by sale etc. But this is not such as exceptional case.

3. The goods in question are manufactured out of iron ore. At an early stage of such manufacture iron ore is turned into steel ingots which are Item No. 26 of the First Schedule. The second stage consists of making of rails. <ORG> made such rails of two kinds namely (1) Those suitable for the laying of rail tracks and (2) those suitable for other purposes such as general fabrication work and re-rolling. The rails suitable for laying rail tracks for the <ORG> were not dutiable but other rails used for re-rolling were dutiable in the hand of <ORG>. Section 37 empowers <ORG> to frame rules to carry into effect the purposes of the Act. Section 38 says that all Rules and Notifications issued under the Act shall have effect as if enacted in the Act. Rule 8 empowers <ORG> to exempt by notification any excisable goods from the whole or part of duty leviable on them. In exercise of this power the Ministry of Finance (Department of Revenue) Notification Central Excise No. 206/63, dated 30.11.1963 was issued by <ORG> exempting from payment of Excise Duty the iron and steel products falling under sub-item 1 (a) of Item No. 26AA of the First Schedule of the Act made from "re-rollable scrap" on which the appropriate amount of Excise Duty has already been paid. <ORG> offered to sell untested rails fit for "re-rolling" (as distinguished from laying of railway tracks).

4. These were purchased by the petitioner who manufactured out of them bars and rods on which duty was payable under sub-item 1 (a) of Item No. 26 AA of the First Schedule. The re-rollable scrap was liable to payment of duty in the hands of <ORG> as it was not fit for laying of Railway tracks. According to the system of the levy and collection of Excise Duty under the Act and the Rules, such re-rollable scrap could not have been removed from the possession of the <ORG> without payment of the Excise Duty. Relying on the working of this system the Excise authorities issued instructions to the users of the re-rollable scrap that they need not follow the usual procedure under Rule 9(1) of the Rules. According to this procedure the bars and rods made out of the re-rollable scrap could not have been removed from the possession of their makers until Excise Duty leviable thereon was paid and except on presentation of an application in the proper form and obtaining the permission from the proper officer on the form. In view of the exemption, the officer would have made Nil assessment on such form called AR 1. <ORG> apparently thought that such a mere formality could be safely dispensed with. Accordingly, the bars and rods manufactured by the petitioner were allowed to be disposed of by it as an exempted article without payment of Excise Duty without the application and the Nil assessment under Rule 9 (1).

5. Subsequently, the Authorities discovered that <ORG> had not paid Excise Duty on the re-rollable scrap which was not fit for the laying Railway tracks even though the said re-rollable scrap was liable to pay such duty. The authorities thereupon issued a notice of demand to the petitioner asking it to pay the Excise Duty on bars and rods as stated in the First Schedule against sub-item i (a) of Item No. 26AA. As the Duty on ingots had already been paid they deducted that duty from the demand. The petitioner protested against the demand on various grounds enumerated in Annexure P 9 to the Writ petition addressed to the Assistant Collector, <ORG>. Briefly, it contended that the bars and rods manufactured by it at the third stage were exempted from duty. If the re-rollable scrap manufactured by <ORG> at the second stage were liable to duty then the duty should be recovered from <ORG>. But this is'no reason why the benefit of the exemption should be denied to the petitioner.

6. The Assistant Collector in his order dated 9-8-1967 at Annexure P 10 to the writ petition admitted that the petitioner manufactured goods falling under Item No, 26AA (i) (a) out of re-rollable scrap. But, according to him, it was a condition of the exemption that the raw-materials from which these goods were manufactured by the petitioner should have discharged the full liability of the end product duty. <ORG> did not pay the duty on the re-rollable scrap and, therefore, the petitioner was not entitled to the exemption from payment of duty on bars and rods. He purported to recover the duty under Rule 10A. The petitioner appealed to the Collector Central Excise, who dismissed the appeal on 25-11-1968 as per Annexure P 12 to the writ petition purporting Under Rule 9 (2) of the Rules. The revision to <ORG> was dismissed on 29-7-1969 without mentioning the particular Rule under which duty was sought to be recovered from the petitioner.

7. In this writ petition it is contended that the demand of the duty from the petitioner is illegal in as much as the products manufactured by the petitioner is illegal in as much as the products manufactured by the petitioner were entitled to exemption from Excise Duty and the exemption could not be denied to the petitioner on the grounds that the re-rollable scrap from which the petitioner manufactured bars and rods had not been assessed, to Excise Duty in the hands of <ORG> though it was so liable. The writ petition is resisted by <ORG> and by the Excise Authorities on the ground that the petitioner was entitled to exemption from payment of the Excise Duty only if the Excise Duty had been recovered on the re-rollable scrap from <ORG>. The exemption not being available to the petitioner the Excise duty on the bars and rods manufactured by the petitioner could be recovered now under Rule 9 (2) of the Rules.

8. The questions for decision, therefore, are as follows :-

1. Whether the bars and rods manufactured by the petitioner were exempted from payment of Excise Duty leviable under Item No. 26AA (a) of the First Schedule in view of the Notification No. 206/63, dated 30.11.1963 ?

2. If not, are the respondents now entitled to recover the said Excise Duty from the petitioner ? If so, under what law ?

9. The answer to question No. 1 depends on the correct construction of the language of the Notification No. 206/63. The crucial words are "re-rollable scrap on which the appropriate amount of Excise Duty has already been paid". It is admitted that the goods manufactured by the petitioner were made from re-rollable scrap. It is asserted by the respondents that the duty of excise on this re-rollable scrap had not actually been paid by <ORG>. As the petitioner has no knowledge, whether <ORG> paid the duty or not, the assertion of the respondent may be taken to be true. On the one hand the respondent urged that it is for the petitioner to prove that the goods manufactured by it were entitled to the exception. To do so he must show that the goods were covered by the language of the notification. According to the respondent the exemption was conditional. The condition was that the Excise Duty should actually have been paid on the re-rollable scrap before the exemption applied to the goods manufactured by the petitioner, <NAME>, the learned counsel stressed the words "has already been paid". According to him the word "already" in this context means "actually." On the other hand, it is arguable for the petitioner that the words "has already been paid" are a part of the description of the goods which are entitled to be exempted and that this is not a condition precedent to the obtaining of benefit of exemption.

<NAME>, learned counsel for the petitioner relies upon the decision of <ORG> in N.B. Sanjana, Asstt. <CITATION> and the other decision in <CITATION> referred to therein. In the first decision the word "paid" in the Rule 10 was construed to mean ought to have been paid" on the ground that it was used mainly to indicate the starting point of limitation of three months prescribed in Rule 10. Similarly, in the second decision the word "paid" was held to mean "ought to have been paid" because the intention in using the word was to indicate the point of time from which interest could be calculated, On the same analogy it is arguable that in the present case the intention being the use of the word already" is to indicate the prior stage at which the duty was payable and, therefore, the word "paid" in the Notification also would have been "ought to have been paid". To understand this reasoning better, it is necessary to consider the precise nature of the incidence of the Excise, Duty. Section 3 of the Act levies the duty on goods and not on person. But is qualifies the goods as those 'which are produced or manufactured" in India. That is to say that the duty is leviable on good produced or manufactured and not on other goods, It further states that the duty is to be collected "in such a manner as may be prescribed"

SULEKH RAM AND SONS V. U.O.I. Jf 529 The manner is laid down inter alia, in Rule 9 (1) which says that no excisable goods shall be removed from any place where they are produced or manufactured until Excise Duty leviable thereon has been paid at such 'place and in such manner as is prescribed and except on proper form, and obtaining the permission of the proper officer on the form. More detailed provisions are contained in Chapter V of the Rules. Under Rule 43, the manufacturer has to give a notice to the Collector before commencing the manufacture of the Excisable goods. Under Rule 44, the Collector may require the manufacturer to make prior declaration of the factory premises in which the goods are to be manufactured. Under Rule 46, the premises are marked by the Collector. Under Rule 47, the goods may be stored in these premises prior to the payment of the duty. Under Rule 48, the manufacturer shall execute a bond for the payment of the duty, Rule 49 says that duty shall be chargeable only on the removal of the goods from the factory premises. Under Rule 50 even non-excisable goods can be removed only with the permission of the Collector. Rule 51 provides for the packing and weighment of the goods on which duty is to be levied.

10. Rule 52 lays down, the procedure for payment of duty after which the permission to remove them would be granted by the Collector. Under Rule 52A, a gate pass has to be issued by <ORG> to be manufacturer for removal of the goods from the factory. These provisions make it clear that even though the excise duty is not assessed on a person but no goods still the duty assessed on the goods have to be paid by the producer or the manufacturer before the goods are allowed to be removed from the premises of the producer or the manufacturer. This was why it was held in <CITATION> by <ORG> that the taxable event with respect to a duty of excise is "manufacture" or "production" and not 'consumption'. <CITATION> the nature and incidence of Excise Duty was extensively discussed in the light of the Indian and Foreign decisions. Note was taken of the <ORG> decision in re the Central Provinces and Berar Act XIV of holding that though the primary and fundamental meaning of an Excise Duty is that it is a tax on articles produced and manufactured yet "there is no reason in theory why Excise Duty should not be imposed even oil the retail sale of an article if the taxing Act so provides" But as observed by the Lord <NAME> in Governor General in Council v. Province of Madras consistently with this decision (of the <ORG> referred to above) their Lordships are of opinion that a duty of excise is primarily a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced". It was held, therefore, that the duty of excise could be levied on the manufacturer retrospectively even after he had parted with the goods and he would have no opportunity to include the Excise Duty in the price of the goods which he had already Sold.

11. We may therefore, conclude that according to the procedure laid down in the Act and the Rules for the levy and collection of the Excise Duty, the incidence of the Excise Duty is on the manufacturer or the producer and not on the person to whom the manufacturer or the producer sells the goods in much as such a purchaser is in the position of a consumer vis-a-vis the manufacturer. In the present case, therefore, the incidence of the Excise Duty on re-rollable scrap was on <ORG>, who manufactured it and not on the petitioner who purchased it.

12. If the Excise Duty on the re-rollable scrap was payable only by <ORG>, namely the manufacturer and never by flick petitioner, namely, purchaser what would be the meaning to be attached to the word "already" in the Notification granting the exemption ? If this word is used to mean "actually" then the exemption would not be available to the petitioner in the present case. Such a construction would, however, be contrary to the system of recovery and levy of Excise Duty under the Act and the Rules. This system secures that in all cases Excise Duty is recovered from the manufacturer before the goods are removed from the factory premises. Purchaser of goods from such a manufacturer are entitled to rely upon the system and to presume that the duty had already been recovered from the manufacturer. The exemption authorities issued instructions to purchasers of re-rollable scrap that goods manufactured by such purchasers from re-rollable scrap could be removed from the premises of such purchasers without observing the procedure prescribed by Rules'9 (1).

13. It would be intolerable if the purchasers of manufactured goods were to be required to ascertain whether Excise Duty on the manufactured goods had already been paid by the manufacturer before the sale of such goods or not. Purchaser would have no means of knowing it. Hundreds and thousands of purchasers of such goods are made and in no case can any attempt be made by the purchaser to know this fact from the manufacturer. This is why <ORG> allowed the petitioner and other persons manufacturing goods from re-rollable scrap to remove their goods from their premises without following the procedure under Rule 9 (1) and without payment of duty under Item No, 26 AA (ia) of the First Schedule. In view of this context it would be proper to construe the words "already paid" to mean that the Excise duty must have been paid at a prior stage or ought to have been paid at a prior stage. They do not mean that the Excise Duty was actually paid at a prior stage.

14. Nor can it be said that there could be any uncertainty about the liability of the re-rollable scrap in the hands of <ORG> There was a clear distinction between rails usable for Railway tracks and other rails. The former first class or better rails used for an important purpose and hence exempted from duty. The latter were second class rails used for a less important purpose and hence not exempted from payment of Excise Duty. The specifications of these two kinds of rails must have been different. There was, therefore, no difficulty either for <ORG> or for the Excise Officers to levy duty on latter and exempt from duty the former kind of rails. In this context, therefore, 1 would construe the notification exempting the goods manufactured by the petitioner should have been such on which the goods were manufactured by the petitioner should have been such on which the proper amount of duty of excise ought to have been paid at a stage prior to the use of the re-rollable scrap by the petitioner. The exemption was, therefore, available to the petitioner even if by the mistake of <ORG> and/or of the Excise Officer, the duty on re-rollable scrap had no actually been paid by <ORG> and recovered by the Excise Officers.

15. Let us consider the second question on the assumption that the benefit of exemption was not available to the petitioner. The first result of this would be that re-rollable scrap from <ORG> who were liable to pay it (sic.). Absolutely no explanation is given by the respondent why the duty was not recovered from <ORG> as soon as they came to know that it had not been paid by <ORG>. The inference is obvious. The Excise Officers concerned allowed the re-rollable scrap to be removed from the premises of the <ORG> under some inadvertence, error, collusion on mis-construction on the part of some officer or through mis-statement as to the description of the goods on the part of <ORG>. If so, the description be recovered from <ORG> only under Rule 10. But R. 10 can be resorted to only within the prescribed limitation of three months from the date on which the duty was payable. The limitation must have expired before the Authorities became aware of the fact that the duty had not been paid. Their Lordships of <ORG> have already held in <NAME> case (<ORG>) that Rule 10A could not be applied to a case to which Rule 10 was applicable inas much as Rule lOA was a residuary rule. Rule 9 could not be applied for the recovery of the duty from <ORG> Steel as there was no possibility of the re-rollable scrap being clandestinely removed from the factory of <ORG> which is a respectable Government Undertaking. This is why the respondent have sought to recover the duty from the petitioner.

16. But the respondents met with the same difficulties in recovering the duty from the petitioner. The Assistant Collector at first thought that the duty should be recovered under Rule 10A while the Collector thought that the duty should be recovered under Rule 9 (2). In view, none of these two rules are available to the respondents for the recovery of duty from the petitioner on goods manufactured by the petitioner and falling under Item No. 26AA (ia) of the First Schedule. The broad distinction between Rule 9 (2) and Rule 10 is as follows :

17. Rule 9(1) requires that the manufacturer or the producer should make the necessary application for the permission to remove the goods from his premises after payment of duty. <ORG> had dispensed with the making of such an application by the petitioner and other manufacturers of the exempted goods as this was a needless formality. The goods were removed from the premises of the petitioner With the knowledge and the consent of <ORG>. <ORG> had full opportunity to levy and collect duty on these goods if they wanted to do so. Rule 9 (1), therefore, applies only where the goods are removed with the knowledge and consent of <ORG> from the premises of the manufacturer. It is only when Rule 9 (1) is contravened and the goods are removed clandestinely without the knowledge and consent of <ORG> that the penal consequences envisaged by Rule 9 (2) would ensue. Not only is the duty recoverable under Rule 9 (2) but a penalty is also leviable and the goods are liable to be confiscated. This is why their Lordships of <ORG> in <NAME> case, , held that Rule 9 (2) applies to clandestine removal of goods. It cannot apply to removal of goods with the knowledge and consent of the authorities. It is true that in <NAME> I case the petitioner had made an application under Rule 9 (1) and the Excise ' Officer had assessed the goods to 'Nil' duty.

But in the present case it was not done only because the authorities had issued circulars that this formality should be dispensed with. It is admitted in the written statement that the goods were cleared with the knowledge and consent of the authorities and were not clandestinely removed. The respondents cannot, therefore, seek to recover duty from the petitioner in this case under Rule 9 (2). There is an additional reason why Rule 9 cannot apply. It applies only to "excisable goods". The definition of "excisable goods" under Section 2(d) of the Act is "goods specified in the First Schedule" as being subject to duty of excise. The goods manufactured by the petitioner were excisable goods before the issue of Notification No. 206/63 exempting them from payment of duty. The Notification was issued under the Act. According to Section 38 . Rule 8 as well as the exemption Notification "shall have effect as if enacted in this Act". <CITATION> . <ORG> observed that an exemption granted in pursuance of a notification issued under the U.P. Sales Tax Act was considered as having been contained in the parent Act itself. This observation is not affected by the fact that on another point namely, the maintainability of writ petition under Article 32 , this decision was later over-ruled by <ORG> in <NAME> v. State of Uttar Pradesh AIR 1962 SC 1621. In <ORG> v. <ORG>, , <NAME>, J, considered the question, how far subordinate legislation made in the statute could be taken into account for the purpose of interpreting the statute itself. His Lordship observed at page 502 in this connection as follows :-

"In the case of fiscal statute it may not be inappropriate to take into consideration the exemptions granted in interpreting the nature and the scop of the impost...the levy and exemption are parts of the same scheme of taxation. The two together carry into effect the purpose of the legislation. For finding out the true scheme of a taxing measure we have to take into consideration not merely the levy but also the exemptions granted."

On this observation, it is arguable that the goods manufactured by the petitioner cease to be "excisable goods" after they were exempted from payment of duty. For the exemption notification was entitled to be regarded as part of the Act itself. If the Act and the <ORG> are read together, the effect is the goods manufactured by the petitioner were taken out of the First Schedule and, therefore, were not "excisable goods" within the meaning of Section. 2(d) of the Act. If so, Rule 9 could not apply to them,

18. In the present case the utmost that the respondents can argue is that the Excise Officer could make a mistake in thinking that the petitioner was entitled to exemption. As the Assistant Collector had said in his order, this mistake was sought to be corrected latter be the demand. But such a demand has to be made within the period of limitation prescribed by Rule 10. As this was not done by the demand is not tenable under Rule 10. As Rule 10 applies to the facts of this case Rule 10A does not apply inasmuch as it is residuary rule which can apply when no other rule is applicable.

19. The writ petition is, therefore, allowed and the demand notices Nos. 22961/61, dated 4th April, 1967 and 22943/61, dated 25th May, 1969, issued against the petitioner and the orders dated 29th July, 1969 by <ORG>, 25th November, 1968 by the Collector and 9th August, 1967 by the Assistant Collector are quashed. In the circumstances, I make no order as to costs.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 19/01/1967 BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. HIDAYATULLAH, M. VAIDYIALINGAM, C.A. CITATION: 1967 AIR 1167 1967 SCR (2) 423 CITATOR INFO : R 1977 SC1172 (17) R 1978 SC1568 (4) R 1979 SC 339 (3,10) ACT: Code of Criminal Procedure (Act 5 of 1898), ss. 190(1) (b) and 2O7-Magistrate taking cognizance of offence on police report-Jurisdictlion to proceed against accused not sent up by police. Discharge of accused-Whether possible, when accused not included in the charge-sheet. HEADNOTE: The police investigated into a complaint against the appellant and others, accepted the appellant's plea of alibi and filed a charge sheet against the others for offences, under ss. 302 , 201 and 149 I.P.C., before the Sub-Divisional Magistrate. The Magistrate recorded that the appellant was discharged -and transferred the case for enquiry to another Magistrate, who, after examining two witnesses, ordered the issue of a non-bailable warrant against the appellant, for proceeding against him along with the other accused under s. 207-A Cr. P.C. The order was confirmed by <ORG> and <ORG>. In appeal to this Court, HELD:(1) There could be no discharge of the appellant when he was not included as an accused in the charge-sheet submitted by the police. [426 C] (2)The appellant could be proceeded against along with the other accused under S. 207-A . [426 B] The Sub-divisional Magistrate had taken cognizance of the offence upon the written report of the police, that is, under s. 190(1)(b) , Cr. P.C Therefore, the proceeding was instituted under s. 207(a) and not under s. 207(b) . The cognizance, however, was of the offence only and not of the offenders. Having taken cognizance of the offence, he had to find out who the real offenders were, and if he came to the conclusion that apart from the persons sent up by the police some other persons were involved. It was his duty to proceed against those persons also. The summoning of the appellant as an additional accused was part of the proceeding initiated by his taking cognizance of the offence. [427 B-C, 4Z8 <CITATION> .  1 S.C.R. 269, followed. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 189 of 1964.

Appeal by special leave from the judgment and order dated April 10, 1964 of <ORG> in Criminal Revision No. 896 of 1961.

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

The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against the judgment of <ORG> dismissing Criminal Revision No. 896 of 1961 filed by the appellant <NAME>. The relevant facts for appreciating the points raised before us are as follows :- The appellant was one of the 15 persons mentioned as assailants in the First Information Report dated July 29, 1959, lodged by one <NAME>. The police investigated the case and during the investigation the appellant set up an alibi. The police accepted the alibi and did not include his name as an accused in the final report under s. 173 of the Code of Criminal Procedure. His name was, however, mentioned in column No. 2 of the Charge Sheet under the heading "not sent up". On April 5, 1961, the Sub-divisional Magistrate passed the following order "C. S. No. 12 dated 234-3-61 u/s 149/302/201

1. P. C. received against the accused noted in col. 3 and 4 of C. S.

Cog. taken u/s 149/302/201 1. P. C. and case transferred to Sri <NAME>........ class for enquiry under Chapter XVIII Cr. P. C. Accused not sent up for trial is discharged."

On transfer, <NAME>, Magistrate, took up the hearing of the case on May 1961. In the meantime a petition had been filed on April .1, 1961, praying that the appellant be summoned by the Magistrate. On May 2, 1961,. <NAME>, P. W. 1, was examined and in his examinations he implicated the appellant as one of the persons who were present in the mob which is alleged to have killed <NAME>. On the same day <NAME>, P. W. 2, also implicated the appellant in his examination-in-chief. It appears that the counsel for <NAME>, the person who lodged the F.I.R., requested the Magistrate to summon the appellant as well for trial, as prayed for in the petition dated April 11, 1961, The Magistrate, after hearing the Assistant District Prosecutor as well as the counsel for the informant and the accused, passed the following order " <NAME> is named in F. I. R. and as submitted by A. D. P. 5 witnesses have named him before police and P. W. 1 examined before me has also named him. So in my opinion it is , proper to add <NAME>. <NAME> also in this enquiry as accused. 'At this stage one petition has been filed by lawyer of accused that cross-examination of <NAME>s be allowed to be done after appearance of <NAME>. This contention is quite reasonable otherwise cross-examination will have to be done again after appearance of <NAME> and so prayer .of defence is allowed. Examined <NAME> in chief. He has also named <NAME> to be a member of the mob of these accused at the time of occurrence. So issue non-bailable W/A against <NAME> <NAME> according to address given by <NAME> today as the allegation against <NAME> be very serious one. Send the process peon returnable by 3-6-1961. Other accused will reattend."

The appellant challenged this order before the Sessions Judge. it was urged before him that the Magistrate had no jurisdiction to summon the appellant because the Sub- divisional Magistrate had already dismissed a protest petition on merits. The Sessions Judge rejected the argument and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the case.

The appellant then filed a criminal revision before <ORG>. Before <ORG> it was urged, first, that the petition dated April 11, 1961, was';, a petition of complaint and, therefore, summoning the appellant on the basis of a petition of complaint would result in a separate complaint case and he could not be tried along with the other accused under s. 207A of the Code of Criminal Procedure. Secondly, it was urged that the order of the Magistrate was irregular as he had summoned the appellant on the same grounds on which the Sub.divisional Magistrate had discharged him. On the first point <ORG> held that the order of the Magistrate did not result in a separate complaint case against the appellant as "the present case was instituted when the sub-divisional Magistrate took cognizance of an offence reported by the Police, and therefore, the case shall be deemed to have been instituted oft the police report." <ORG> further observed that "it is' therefore, clear from the language of section 190 of the Code that the Magistrate takes cognizance of an offence made out in the police report or in 1 the petition of complaint and there, is nothing like taking cognizance of the offenders at that stage. It has to be decided on the materials on record as to who actually the offenders may be only after cognizance of the offence has been taken. On the facts of the instant case, therefore, cognizance of the offence has been taken on a police report, and the order of the transferee Magistrate summoning <NAME> does not amount to taking cognizance of an offence." On the second point <ORG> held that the Magistrate did not summon the appellant only on those grounds which were before the Sub-divisional Magistrate as the materials before the two Magistrates were not identical. The Sub-divisional Magistrate had acted on the Police report alone but the Magistrate took into consideration the evidence of the two prosecution witnesses examined in court as well. The learned counsel for the appellant, Mr. <NAME>, raises two points before us; first that the discharge of the appellant by the order dated April 5, 1961, by the Sub- divisional Magistrate was final, and secondly, that the proper procedure to be observed on the facts of this case was not under s. 207A but under the subsequent sections in Chapter XVIII of the Criminal Procedure Code . We see no force in these points.

Regarding the first point NV. <NAME> urges that judicial refusal to summon amounts to discharge. There is no force in, this contention because there cannot be any question of discharge when the appellant was not sent' up upon the charge-sheet submitted by the police. Coming to the second point the learned counsel for the ap- pellant contends that no proceeding was instituted against the appellant on a police report within the meaning of s. 207A of the Code because the appellant's name was not included in the charge sheet. He says that although cognizance might have been taken of an offence under s. 190(1)(b) no proceeding as such was instituted against the appellant at this stage; the proceeding was instituted when a non-bailable warrant was issued against the appellant and this proceeding was instituted not on the basis of a police report but on the basis of evidence taken before the Ma- gistrate, and, therefore, he says, t is a proceeding falling within s. 207(b) .

Section 190(i) and 207 of the Code read as follows " 190(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may, take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has beer. committed."

"207. In every inquiry before a Magistrate where the case is triable exclusively by a court of Session or <ORG>, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall-

(a)in any proceeding instituted on a police report, follow the procedure specified in s. 207A ; and

(b)in any other proceeding, follow the procedure specified in the other provisions of this Chapter." It seems to us that s. 207(a) refers back to s. 190(1)(b) ; in other words, the police reportmentioned in s. 207(a) is the report mentioned in s. 190(1) (b), and once cognizance is taken under s. 190(1)(b) , a proceeding is instituted within s. 207(a) . <NAME>, J., speaking for the <ORG>, while considering the interpretation of s. 251-A of the Code of Criminal Procedure in <CITATION> () observed as follows "In our judgment the meaning which is sought to be given to a 'police report' is not correct. In s. 190 , a distinction is made between the classes of persons who, can start a criminal prosecution. Under the three clauses of s. 190(1) , to which we have already referred, criminal prosecution can be initiated (i) by a police officer by a report in writing, (ii) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion, and (iii) upon receiving a complaint of facts. If the report in this casefalls within (i) above, then the procedure under s. 251A , Criminal Procedure Code , must be followed. If it falls. in (ii) or (iii) then the procedure under s. 252 , Criminal Procedure Code , must be followed. We are thus concerned to find out whether the report of the police officer in writing in this case can be described as a 'complaint of facts' or as 'information received' from any person other than a police officer.' That it cannot be the latter is obvious enough because the information is from a police officer. The term 'complaint' in this connection has been defined by the Code of Criminal Procedure and it 'means the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code , that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.' [see s. 4(1) (h].

It, therefore, follows that s. 252 , Criminal Procedure Code , can only apply to those cases which are instituted otherwise than on a police report, that is to say, upon complaints which are not reports of a police officer or upon information received from persons other than a police officer."

(1) [1965]1 S.C.R. 269.

Similarly S. 207(b) Can Only apply if the case was instituted ,otherwise than on a police report. On the facts of this case it is quite clear that the case does not fall within s. 190(1)(a) or s. 190(1)(c) because the Sub- divisional Magistrate had taken cognizance of the offence on April 5, 1961. But, says Mr. <NAME>, that though it is true that cognizance was taken on April 5, 1961, the cognizance was taken of the offence as far as the other accused were concerned and not as far is the appellant was concerned, as a Matter of fact the appellant had been rightly or wrongly discharged. in our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the Conclusion that apart from the persons sent up by the police 'Some other persons are involved it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in <CITATION> (1) the term "complaint" would include allegations made against persons unknown. If a Magistrate takes -cognizance under s. 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted ,even though persons who had committed the offence were not 'known at that time. The same position prevails, in our view, under s. 190(1)(b).

Mr. <NAME>, the learned counsel for the respondent brought

-to our notice some decisions which have taken the same view. <ORG> in <CITATION> ( ), following the <ORG> decision of the Judicial Commissioners, Sind, in <NAME> v. <NAME>( ), held that when a Magistrate takes 'Cognizance under s. 190(1) b) on a police report he takes cognizance of the offence and not merely of the particular persons named in the charge sheet, and therefore, the Magistrate is entitled ,to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the police under s. 161 and the other documents referred to in s. 173 even without examination of witnesses in court. <ORG> in <CITATION> (4) and the

-Allahabad High Court in <NAME> v. The State(5) also expressed a :similar view.

In the result the appeal fails and is dismissed.

<ORG> dismissed.

(1) [1965] 1 S.C.R. 269. (2) A.I.R. 1962 Cal. 133. (3) A.I.R. 1924 Sind 7 1. (4) A.I.R. 1964 Pun. 351. (5) [1963] 1 Cr. L.J. 66.


JUDGMENT <NAME>, J.

1. <ORG>' in short), Coimbatore and the appellants herein are claiming right to a property which is 40' x 80', door No.45, Brough Road, Erode.

2. Each of them filed a suit and the suit ended in favour of the <ORG>. O.S.No.273 of 1984 was filed by <ORG> for a declaration of title and for recovery of possession. The appellants filed O.S.No.1335 of 1982 for a declaration of the first appellant's possessory title and injunction. This was subsequently, transferred to the file of the Principal Subordinate Judge, <NAME> before whom the former suit was pending and numbered as O.S.No.290 of 1985. Before, <ORG> came into existence the Company incorporated under the English Companies Act known as <ORG> ('<ORG>' in short) acquired properties in India and their mission was to spread the gospel of Christianity. When <ORG> wound up, all its assets were transferred to <ORG>. The suit property was purchased sometime in 1930 and the dispute is whether the property belong to <ORG> and thereafter to <ORG> or whether the property never belonged to <ORG>. The plaint in one suit is virtually the written statement in the other.

3. According to the appellant, <ORG> was acquired out of the foreign funds of <ORG> and at that time one T.T. <NAME> of Erode was the secretary of Erode area. During his period, collections were made from the public of Erode and the suit property was constructed in the year 1935. It was managed by a separate committee consisting of prominent Indian Christians and it was used for the furtherance of the religion. The suit property was treated as a separate entity and not as <ORG>. Rev. <NAME>, who was the treasurer and representative of <ORG> at Erode and its Constitutional Head, directed and guided the local committee and was controlling the affairs of the <ORG>. After the death of Mr. <NAME>, the committee became defunct and there was no proper maintenance and upkeep of the property. Mr. <NAME>, the person in whose charge the property was given also did not take care of the property. In these circumstances, Rev. <NAME> handed over possession of the property to the first plaintiff who was a young and enthusiastic christian and from 01-04-1961 it has been in his possession and management. When <ORG> was formed after <ORG> left, <ORG>'s properties were transferred to <ORG> and Rev. <NAME> handed over all the <ORG> Properties to <ORG> Trust Association. The suit property was not included as it was not the <ORG>'s property but the property constructed out of contribution of the local people of Erode. Therefore, according to the appellants at the time of transition, the suit property did not vest with the <ORG>, the respondent herein but only with the first appellant. He alone has been in possession of the suit property paying electric charges. No one else has any right. He leased a portion of the building to one <NAME> for a period of one year and since the tenant sub-leased the portion, the first appellant took immediate action and filed R.C.O.P.No.100 of 1976 to evict him. The tenant locked the premises and absconded. The first appellant wanted to take possession but his ill-health prevented him. In 1982, he initiated proceedings and took possession of the premises to the knowledge of the respondents. The certified copies of execution proceedings, delivery warrant were marked as exhibits. After taking possession, the first appellant claimed the premises and is conducting classes there. Some persons, who are jealous of first appellant misrepresented the state of affairs to the Bishop and the Bishop without further enquiry had instructed the respondents to take possession of the suit property. Consequently, a complaint was lodged to the Police alleging that the first appellant had broken open the suit building. According to the appellant, the respondent was fully aware of his possession of the suit property from 1961 and therefore, he sought declaration of his possessory title and injunction.

4. The case of the respondents on the other hand is that <ORG> transferred all the properties on 14-04-1965 by a registered deed and therefore, the entire suit property was conveyed to the respondent and from 14-04-1965, the respondent is in exclusive possession and enjoyment of the properties belonging to the erstwhile <ORG> Corporation. In or about 1982, since there was a shifting of <ORG>, the first appellant trespassed into the property. He is a seasoned litigant and has fabricated records allegedly to show his possession. All the <ORG> proceedings referred to by the appellant are stage-managed and collusive.

This is, in brief, the case of both the parties.

5. The question that has to be decided now is who is entitled to the suit property, the appellants or the respondents.

6. Mr. <NAME>, learned Senior Counsel appearing for the appellants would submit that while the appellant had clearly stated that the superstructure was put up in 1935, the respondent does not even know the date and merely states, "in or about 1935". To the knowledge of the respondents the possession of the property was handed over to the appellants on 01-04-1961. No action was taken because <ORG> knew that the first appellant alone had the exclusive right. The learned Senior Counsel would submit that the suit filed by the respondents is an ejectment suit and it is for the respondents to prove their title. The Court below wrongly cast the burden on the appellant. He would submit that there was no evidence to show that the respondents had ever been in possession of the suit property. He would also submit that para No.18 of the judgment shows that there is a compound wall and the suit property is outside the compound wall. This itself would show that the suit property does not belong to the <ORG>. He referred to the evidence of <NAME> who is the Manager of the <ORG> properties. Even assuming without admitting the land in T.S.No.587 belongs to the respondents there is no presumption that the superstructure was put up only by the respondents. Further, the respondents do not even know when the superstructure was put up. It goes to show that they cannot have any right in the property. He also referred to Ex-B9 which is written by Tamil <NAME> in which it has been stated that the suit property was constructed by the donations of the <ORG> trust. So this would also belie the case of the respondents that <ORG> had built the property out of their own funds. The learned Senior Counsel submitted that it is not for the appellant to produce documents relating to possession but it is for the respondents to prove their right. The land in T.S.No.587 alone was transferred but not the superstructure and when there is an omission in Ex-A1 to refer to the superstructure it is fatal to the respondent's case and therefore, the appellant must succeed. The other clinching piece of evidence according to the learned senior counsel is R.C.O.P.No.100 of 1986 which is marked as Ex-B19 and the file thereof. According to this, in 1976 when the appellant was taking all steps to recover possession of the suit property, the respondent was no where to be found and this would show that the possession was only with the appellants who let in the tenant and also got them evicted subsequently.

7. The following judgments were relied on:

(1) In <NAME> Vs. Most Rev. Mar Poulose Athanasius (AIR 1954 SC 526) in the last line in para No.34, the Supreme Court held that the majority of the judgments rendered in the long history of litigation between the parties in that case did not deal with the important issue of title and consequently, the maintainability of the suit.

(2) Chakicherla Audilakshmamma Vs. <NAME> where <ORG> of <ORG> held that in a suit for rejection the plaintiff is liable to be non-suited if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not.

8. He also submitted that the suit is barred by limitation the appellant had perfected their title by adverse possession and for this purpose he relied on <NAME> v. <NAME>, 2000 (3) LW 848, <CITATION> 2000 (Suppl.1) SC 575 and <NAME> alias <NAME> v. <NAME>, 1993 L.W. 278.

For all these reasons, he prayed that the appeal should be allowed.

9. Mr. <NAME> learned counsel for the respondent would submit that though in the appellants' suit two plaintiffs are shown, the prayer itself is for a relief in favour of the first plaintiff and therefore, it was not clear why the second appellant was not at all shown as the plaintiff. He referred to the pleadings in the first appellant's plaint at para 5, where it is stated that the construction was made with donations from the public and managed by a separate committee and that the local public of Erode was interested in the property and again in their own written statement in the suit filed by the respondents they have reiterated the same case. He would submit that the suit has not been filed on behalf of the committee. No application under Order 1 Rule 8, CPC has been filed and this goes contra to their evidence where the appellants have stated that "gg;spf; blhnd&d; bgw;W fl;olk; fl;lg;gl;lJ/@ and that the building was in the management of the local committee. He also referred to P.W.1's evidence in which he has stated that there is no municipal tax paid for the property which would only show that it was a trust property. He would refer to the first appellant's own case that <NAME> handed over possession. So, Rev. <NAME> could have only handed over on behalf of <ORG> or <ORG>. Therefore, this itself would show that <NAME> was in possession, atleast until 1961 which is the alleged date on which the first appellant claims to have come in possession. The learned counsel also pointed out to the evidence of D.W.1 where he admits that the service connection is in the name of the Treasurer, <ORG> and he does not know who applied electric connection and at that time he was a student in Salem. One clinching piece of evidence according to the learned counsel was D.W.1's admission, jhth brhj;J London Missionf;fhf ghj;jpag;gl;L ,Ue;jJ.@ It is also his case that in 1968, <NAME> had filed R.C.O.P. against the appellant to evict him from D168 and 169. Ex-B9, the letter written by Tamil <NAME>, as stated earlier would also show that the property was built by the donations of several christians of the community and that tax is paid even till date by <ORG> and the property belongs to <ORG>. This letter is dated 16-01-1975. In his evidence also the appellant admits T.S.No.587 y; jhd; London Mission Bungalow cs;sJ/ ... L.M.S., C.S.I.f;F khw;wp bfhLj;j gj;jpuj;ij ehd; ghh;j;jJ ,y;iy/ Ex-A1 y; item No.4 ,e;j Bungalowit Fwpf;fpwJ ///// jhth brhj;J T.S.No.587 f;F rk;ge;jgl;lJ ,y;iy ///// jhth brhj;J T.S.No.587 gpuhnj brhy;yp ,Ue;jhy; mJ jtW/ The learned counsel then would refer to Ex-A1 the transfer deed in which item No.4 is described.

"London Mission Church in S.No.95B, Natham Poramboke, on an extent of about 3 cents of land, bounded on all sides by S.No.95 B Nathan in Erode Taluk and Registration Sub-District."

The suit schedule also clearly describes T.S.No.587.

10. The following documents were referred to by the learned counsel:

Exs-A35 to A51, electricity demand notices, Exs-A152 to A269 receipt for payment of electricity bill, Ex-A7 and A8, Minutes Books of Area Counsel Working Coimbatore of LMS, Exs-A277 and A282, copies of Account Books maintained by <ORG>. All these were marked through <NAME>, the Clerk in the <ORG> Elementary School Office.

11. The learned counsel would submit that indisputably the evidence shows only one thing and that is, the suit property belongs to the respondent. He would also submit that two suits were filed, one by the respondent for declaration of title and recovery of possession and another by the appellant for declaration of the possessory, title and injunction and therefore, it is not proper to place the entire burden of proving the title on the respondent alone. The burden is equally placed. It was also submitted by the learned counsel that when it is the categoric admission of the appellant that he was put in possession by <NAME> who was admittedly representing the <ORG>, the appellant must necessarily prove when he started asserting his rights in his individual capacity. When the appellant has miserably failed to do this both his appeal must fail.

12. The suit property indisputably lies in T.S.No.587. The respondents' pleadings and the respondents own documents Ex-A19 to A21, which are termed as collusive proceedings show that door No.45, Brough Road lies in T.S.NO.587. Superstructure of land were transferred under Ex-A1 by <ORG> to <ORG>. This is dated 14-04-1965. It is the first appellant's own case that this superstructure was put up by collecting funds from the christians of the community. In any event, it is seen that the property was intended to be the <ORG>'s because though the case of the appellant is that the property was put up from the funds collected by the <ORG> and there is nothing on the side of the respondents to show the source of funds for the building, the various documents referred to above from Ex-A7 and A8, the Minutes book and Ex-A277, A278, A162 to A196 and the electricity charges would all show that it was only <ORG> which was managing the suit property from 1961 to 1963. The building admittedly came up sometime in 1930 and there is evidence to show that the electricity charges has been levied only on <ORG>. The various documents have already been listed and are not listed again. Ex-A9, the letter written by the Tamil <NAME> was relied on by the appellants to show that the suit property was constructed out of the donations collected from the public. This does not help the appellants' case because it does not show that the respondent is not entitled to the suit property on the other hand it only bolsters the case of the respondent that the property was intended to be for the benefit for <ORG> and the appellants have no right to remain in the suit property. The case pleaded by the appellants that this property had a separate entity and was not merged with the other <ORG> properties is not supported by any evidence. This suit has not been filed in a representative capacity on behalf of the committee but by a single person asserting his possessory right. When no proof is forthcoming regarding the right of the committee it only shows that the superstructure was constructed by <ORG>, perhaps with some donations from the public. But, anyway the property belonged to <ORG> and thereafter to <ORG>. There is absolutely no evidence to show that the "alleged" separate committee was ever in possession or management of the suit property. <ORG> held that the omission to mention superstructure in T.S.No.587 cannot detract from the respondents' case. But if item No.4, in Schedule A of Ex-A1 is seen it mentions bungalow, hospital, playground and garden and we can take it that includes the superstructure existing on T.S.No.587. On the appellants' own pleadings the alleged separate committee became defunct after <NAME> died in 1950 and that he was put in possession on 01-04-1961 by Rev. <NAME>. The fact that Rev. <NAME> was in management of the suit property is also seen from the fact that he had taken steps to evict the appellant and his wife from T.S.No.165 and 166.

13. The evidence of <ORG> is replete with references to <ORG> being in charge of the suit property. In @1961 y; D166 y; ,Uf;f ntz;lhk; jhth fl;olj;jpy; ,U';fs; vd;W <ORG> vd;id mDg;gpdhh;/ <ORG> jhth fl;olj;ij ghpghydk; bra; vd;W vd;dplk; xg;gilf;ftpy;iy vd;gJ rhpapy;iy/ 1961 y; <ORG> vd;dplk; jhth fl;olj;ij xg;gilj;jhh;/ <ORG>, London Missonary Societyf;F Power of Attorney Mf ,Ue;jhh;/ 1961y; London Missionary Society brhj;Jf;fs; g{uht[k; <ORG> ghpghydj;jpy; jhd; ,Ue;jJ/@ Therefore, it is clear that till 1961, <ORG> on behalf <ORG> or <ORG> was in full control and had permitted <ORG>, the first appellant to remain in the suit property. Even if the appellants own case were true his possession can only be by permission and unless he is able to prove that he has asserted title in himself hostile to <ORG> and to the knowledge of <ORG> or <ORG> for the required number of years, his suit cannot succeed.

14. On the other hand, it is clear that <ORG> was in possession of the suit property and after <ORG>, <ORG>. The voter's list, Ex-A27, which was also filed by the appellant to show that one <NAME> was residing in the suit property in the year 1966 and D.W.1, the defendant and his family residing in Srinivasa Pillai Street, Erode. Exs-A11 to A26 were filed by the respondent which are counter-foil receipts to show payment of rent. This gains support from the voter's list, Ex-A27. The evidence of D.W.1 with regard to <NAME> refers to <NAME> being in the suit property and he says @mtiu thliff;F ahh; itj;jJ vd;W bjhpahJ/ fpUc&;zd; ehah; vdf;F thlif bfhLf;ftpy;iy/ <ORG> f;F thlif bfhLj;J te;jhh;/@ This shows that <ORG> was in control of the suit property between 1962 and 1967. The appellant would admit to show his possession with the aid of R.C.O.P.No.100 of 1976 allegedly filed by the appellant against one <NAME> who was living in the suit property as a tenant to show that the appellants were in possession and enjoyment of the suit property. To counter this, the respondents have produced Exs-A283 and A284 to show that the said <NAME> was living in <ORG> in Kozhikode and not in Erode. <ORG> or <ORG> are not a party to this R.C.O.P. There is no evidence to show that the so-called tenant <NAME> was ever living in the suit property at the relevant time. The petition apparently had been decreed ex parte. The so-called tenant does not appear and the first appellant had created a document to show that he has "taken possession" from one <NAME>. In the written statement, the respondents' case is that the appellant is a court-bird and can concoct documents of a collusive proceedings. D.W.1 would refer to one tailor <NAME> who was a tenant in the suit property from 1967 to 1975 for which there is no documentary evidence. @thlif rPl;L vGjgltpy;iy/ /// bt';flhryk; bfhLj;j thlif;F fzf;F vd;dplk; fpilahJ/ bt';flhryj;Jf;F rhl;rpahf ehd; brhy;y nghfpnwd;/@ Ofcourse, <NAME> was not examined as defendant's witness.

15. As regards the R.C.O.P., D.W.1's evidence is absolutely vague. ehd; ghy;uh$;kPJ nghl;l R.C.O.P. kDtpy; vjph;thjk; bra;jhuh vd;W bjhpahJ/ jhth fl;olk; jpwe;J ,Ue;jJ/ g{l;o ,Uf;ftpy;iy/ hpf;fhh;l;f;fhf ntz;Lbkd;W E.P. nghltpy;iy/@ If Ex-B20, the document through which the appellants have taken possession is read, " i& RthjPdtPL jpwe;nj ,Ue;jJ/// /// i& jpwe;J ,Ue;j tPl;oy; ve;jtpjkhd $';fk brhj;Jf;fSk; ,y;iy/@ Therefore, a house, totally devoid of any articles or any evidence of human habitation, is alleged to be the property in possession of a recalcitrant tenant who was "successfully evicted" by the appellant. It is extremely difficult to believe that the R.C.O.P. was a genuine contest and the <ORG> below rightly rejected it. Therefore, apart from this, the appellant does not have anything to show that he has ever asserted any right of possession.

16. There is no dispute that on the date of the suit filed by the respondents the appellant was in possession. According to the respondents taking advantage of the fact that the <ORG> office was shifted to Coimbatore, the appellants had trespassed into the suit property. Ex-A275, which is dated 29-11-1982 refers to the trespass allegedly committed by the respondents to the Police Officer. Ex-A276 is a document in which the appellant has addressed a letter to the Bishop, <ORG> referring to the telegram dated 25-11-1982 and also the copy of his petition to the Police Inspector. Here the appellant has referred to himself taking possession of the suit property on 06-10-1982 and also to the complaint by <ORG> that he has trespassed. According to the appellant he took possession on 27-10-1982 is pursuant to the delivery in E.P. and he has also ingeniously sent a telegram, Ex-A274, addressed to the Bishop, <ORG>, stating, "please take notice, I have taken possession of the building No.45, Brough Road, through <ORG> from 06-10-1982." If the first appellant thought this was a smart move whereby he could make his possession lawful he is labouring under a mistake. This only shows that he is not in possession in his own right and it also demolishes his case that these properties at Brough Road retained a separate identity and were not merged with the other <ORG> properties. If that were true, there was no need for him to address this telegram to the <ORG> Bishop when he had already been in possession in his own right. There is no need to mention that he had taken possession through <ORG> in October 1980. It only shows the very clever attempts of a person to use the process of law for his own unjust ends.

17. The judgments relied on behalf of the appellants do not come to their aid since the documents clearly show that the respondents have established their title and are entitled to recover possession whereas the appellant has not established his case to show that he is in any way entitled to possessory, title or for injunction.

18. In these circumstances, the judgment of the <ORG> below need not be interfered with and they stand confirmed. The appeals are dismissed with costs.


CASE NO.: Appeal (crl.) 20 of 2003 PETITIONER: <NAME> RESPONDENT: State of Jharkhand DATE OF JUDGMENT: 28/11/2003 BENCH: <NAME> & <NAME>. JUDGMENT:

J U D G M E N T ARIJIT PASAYAT,J One <NAME> (hereinafter referred to as the deceased) paid price for changing his loyalty from one trade union to another and <NAME> (hereinafter referred to as the 'accused') was said to be instrumental in taking away his life. Four persons faced trial for alleged commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short the ' IPC '). <ORG> convicted them accordingly. The matter was carried in appeal before <ORG> which by the impugned order dismissed the appeal filed by the accused appellant and held that accusations under Section 302  have been made out against him who was accused No.4 before the trial Court. <NAME> (A-1) died during the pendency of the appeal before <ORG>. <NAME> (A-2) and <NAME> (A-3) were given the benefit of doubt and their acquittal was directed.

Prosecution version as unfolded during trial is as follows:

At about 9.30 a.m. on 1.8.1995 the deceased and his son <NAME> (PW-4) had gone to take tea near the shop of one <NAME> (PW-5). <NAME> (PW-1) and <NAME> (PW-2) were also sitting near the shop. Suddenly, the four accused persons came from the side of the road. Accused <NAME> came towards the informant (PW-4) and the deceased and directed that the deceased should be assaulted. On hearing this, accused appellant <NAME> took out a pistol from his waist and fired at the deceased. The bullet hit left eye of the deceased. After such firing all the four accused persons fled away. On receiving the bullet injury, deceased fell down and became unconscious. The informant with the help of others took him to nearby hospital where he was declared dead. According to the information given at the police station on which investigation was started, the four accused persons were working in the Katras Colliery. The deceased was a labour leader. Since he left the union to which the accused persons belonged and joined another union, this has caused annoyance to the accused persons and because of this, the murder was committed. After completion of investigation charge sheet was placed. The accused persons pleaded false implication.

Placing reliance on the evidence of the eye-witnesses, <ORG> convicted the accused persons and the conviction was maintained by <ORG> so far as only the accused appellant is concerned. <ORG> judgment is under challenge in this appeal.

Learned counsel for the appellant submitted that the information given by the informant cannot be treated as a first information report as the police officials had already received information about the incident. Therefore, the statement made was hit by provisions of Section 162 of the Code of Criminal Procedure, 1973 (in short the ' Cr.P.C .'). The place of occurrence has been changed as no blood was seized from the cot where the deceased was purportedly sitting at the time of attack. The so-called eye witnesses had stated that blood had spilled over to the cot. Though the prosecution case is that one bullet was fired, the investigating officer at certain stages in his statement in Court has stated that he recovered a pellet. Bullet and pellet are different things. The prosecution has suppressed the actual scenario and this is evident from the different types of ammunition deposed about. The bullet which was found embodied on the body of the deceased was extracted by the doctor who had handed it over to the police officials. The same was not sent for chemical examination. Therefore, the conviction cannot be maintained. Additionally, the investigating officer had accepted that the accused appellant was found at a distance of about 50 feet from the place of occurrence in an injured and unconscious stage which necessitated his admission to hospital. The injuries on the accused were not explained by the prosecution and the investigation was perfunctory as is evident from the accepted fact that the medical report of the accused-appellant was not even collected and seized bullet was not sent for ballistic examination. Strong reliance was placed on the decision of this Court in <CITATION> (AIR 1995 SC 1601) to contend that same was fatal to the prosecution case. In the statement under Section 313 of the . the accused appellant had taken a definite stand that a shot was fired by the deceased which did not hit him and the deceased and <NAME>, <NAME>, <NAME> and <NAME> assaulted him and made him senseless. The injuries were of serious nature. The defence version was more probable and therefore the conviction should be set aside was the plea.

In response, learned counsel for the <ORG> submitted that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. <ORG> and <ORG> have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 . the plea has been taken.

We shall first deal with the question regarding non-explanation of injuries on the accused. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. <CITATION> (1968 (3) SCR

525), it was observed:

"...In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."

In another important case <CITATION> (1976 (4) SCC 394), after referring to the ratio laid down in <NAME> case (supra), this <ORG> observed:

"Where the prosecution fails to explain the injuries on the accused, two results follow:

(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants."

It was further observed that:

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

In <NAME> case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in <NAME> case (supra) it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non- explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the <ORG> can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this <ORG> in <CITATION> . (AIR 1990 SC 1459).

Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this <ORG> in <CITATION> (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In <NAME> and <NAME>. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the <ORG> in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case.

So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. <ORG> and <ORG> have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the earth.

So far as the effect of the bullet being not sent for chemical examination, it has to be noted that <NAME> case (supra) is not an authority for the proposition as submitted that whenever a bullet is not sent for chemical examination the prosecution has to fail. In that case one of the factors which weighed with this <ORG> for not finding the accused guilty was the prosecution's failure to send the weapon and the bullet for ballistic examination. In the instant case, the weapon was not seized. That makes a significant factual difference between <NAME> case (supra) and the present case.

It has to be noted that there was not even a suggestion to any of the prosecution witnesses that the injuries were sustained by the accused-appellant in the manner indicated by him, as stated for the first time in the statement under Section 313 .

So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor's evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.

Though it may not be having any determinative value, certain suggestions given to the witnesses make interesting reading. A question was put to PW-4 in cross examination which reads as follows:

"x x x x x It is not correct that Hira, Ravindra did not run to catch the accused persons, rather they themselves ran away".

This in a way probabilises the prosecution version and does not in any way establish the defence version as is indicated for the first time in the statement under Section 313 . and has pleaded before this Court to be a ground for doubting the veracity of the prosecution version.

The well reasoned judgments of <ORG> and <ORG> do not need any interference. The appeal is without any merit and is dismissed.