<NAME>, J. (President)

1. Appeals No. E/3394 & 3395/98-NB(A) are at the instance of <ORG> and its Director challenging the order passed by the Commissioner of Customs & Central Excise, Rajkot dated 15.1.98. The Appeals No. E/3307 & 3308/99-A at the instance of <ORG> and its Director are directed against the order passed by <ORG>, Rajkot dated 21.5.99.

2. Under the impugned order dated 15.1.98 the Commissioner directed reversal of Modvat credit amounting to Rs. 27,82,213 alleging that the credit was wrongly taken by the appellant. A penalty of Rs. 1,60,000 was imposed on the company and Rs. 50,000 on the Director respectively under Rule 173Q and Rule 209 A of the Central Excise Rules. Under Order dated 21.5.99 direction was to reverse modvat credit of Rs. 28,23,796 on the same allegation. A penalty of Rs. 1,50,000 was imposed on the company under Rule 173Q and Rs. 75,000 on the Director respectively under Rule 209A of the Central Excise Rules. The Commissioner confirmed the demand in both the orders invoking proviso to Rule 57-I(1)(i) of the Central Excise Rules.

2. We have considered a similar order passed by the Commissioner dated 19.1.98 in the case of <ORG> where the allegations against the assessee and its explanations are identical to the present two cases. Apart from taking contentions on merits the appellants herein have also contended that there are no circumstances available to invoke extended period in these cases. In the case of <ORG> pursuant to an inspection made by the officers in the unit of the appellant on 4.8.93 show cause notice was issued on 19.1.96. The period covered is from December 1992 to March 1993. In the case of <ORG> an inspection was made on 20/21.7.93. Show cause notice was issued on 7.12.95 for a period from September 1992 to March 1993.

3. The contentions on the issue of limitation was considered by the Commissioner under the terms identical to the order dated 19.1.98 passed by him in <ORG>

4. Taking into consideration identical allegations raised by the <ORG> against <ORG>, the assessee's reply which is also identical as in the present case and where the view taken by the Commissioner on the issue of limitation was identical we held that the demand cannot be sustained on the ground of limitation. We find no reason to take a different view in the facts of these appeals.

5. In the light of the above, we hold that the demand against the appellants are not sustainable invoking the larger period of limitation. Since the demand cannot be sustained, the penalties imposed on all the appellants also stand vacated.

6. In the result, impugned orders are set aside and the appeals stand allowed.


JUDGMENT <NAME>, <NAME>

1. This appeal by special leave has, been preferred by the State of Uttar Pradesh against the judgment and order of <ORG> dated October 3i, 1973, in Confirmation Reference No. 25 of 1978 and Criminal Appeal No. 634 of 1973, acquitting respondents 1 to 5 in respect of the offences said to have been committed by them under Sections 147, 148, 379, 302 and 302 read with 149 of the I.P.C .

2. The prosecution case as revealed toy the evidence led at, the trial may briefly be stated as follows:

The deceased <NAME> and his father <NAME> (P.W. 1) as also all the five respondent-accused have been the residents of village Karmar, P.S. Oral. The deceased <NAME>, his father <NAME> (P.W. 1) and respondent-accused <NAME> (original accused No. (sic) used to practise the profession of <NAME> in villages Karmer, Bambori and surrounding villages. It appears that there was professional rivalry between <NAME> and <NAME> on the one hand and <NAME> (A-3) on the other and for quite some time prior to the incident in question which took place on July 5, 1971, the villagers of Karmer had stopped engaging the services of <NAME> (A-3) for purohiti work and entrusted the same to decease <NAME> and his father <NAME> (P.W. 1) and therefore, <NAME> (A-3) started bearing grudge and ill-will to wards <NAME> and <NAME>. It further appears that there were two parties in the neighbouring village Bamhori., one of <NAME> and the other of Om (sic) the (sic) to the party of <NAME> while the deceased <NAME> to the party of <NAME>. It may be stated that respondents <NAME> (original accused No. l) and <NAME> (original accused No. 4) are real brothers while respondents. <NAME> (original accused No.2) and <NAME> (original accused No. 5) are real brothers and these four in between themselves are cousin brothers. According to the prosecution on account of the professional rivalry as well as party factions the relations between the deceased <NAME> and his father <NAME> (P.W. 1) on the one hand and the respondents-accused on the other had become inimical. It appears that prior to the occurrence on July 8, 1971, there were proceedings under Section 107 , Criminal P.C. between the two parties of <NAME> and <NAME> and <NAME> (A-3) had on December 2, 1970 lodged a complaint under Section 352 , I.P.C . against <NAME> and others. According to the prosecution because of these incidents and the long-standing enmity between deceased <NAME> and the respondent-accused, the former, always apprehended danger to his life and hence he used to carry with <NAME> a rifle for which he held a licence and a belt of cartridges. The incident giving rise to the prosecution of the resporidents-accused occurred on. July 5, 1971 at about 2.30 p.m. in village Karmer. On that day deceased <NAME> and his father <NAME> (P.W. 1) had gone to one <NAME> for reciting <NAME> at his place. After the function of reciting the <NAME> at <NAME> place was over both were returning home; <NAME>, who was carrying a Jholi (cloth bag) containing <NAME>, <NAME>, Idol of Thakurjee with <NAME>, <NAME> book, Coconut, <NAME> etc. and also a riffle and belt of cartridges on his shoulder, was walking ahead white <NAME> was walking 7or 8 paces behind him; while they were proceeding from North to South by a lane, at about 2.30 p.m, .<NAME>, who was walking ahead, reached a spot near Matan-ki-Mathis (a temple). At that time, according to the prosecution, all the respondents-accused were lying in ambush, and <NAME> (A-4) and <NAME> (A-5) suddenly appeared on the road from the temple side and exhorted the other accused to kill <NAME> by shouting "brothers, the enemy has come, kill him", where upon <NAME> (A-1) <NAME> (A-3) and <NAME> (A-3) (sic) the former two having a gun each and the third one having a pistol. <NAME> emerged from the east and fired a shot from his gun, which hit <NAME> and immediately thereafter <NAME> as well as <NAME>, who had emerged from the West, fired a shot each from their respective weapons. All these shots struck <NAME>, as a result of which he fell down with bleeding injuries at that very place. According to the prosecution this incident was seen by <NAME> Narain, <NAME>, Ganga <NAME>, <NAME>, <NAME> and Dhani <NAME>, apart from <NAME> (P.W. 1). All these persons challenged and questioned the respondents-accused as to what they had done but <NAME>, <NAME> and <NAME>. <NAME> (A-l, A-2 and A-3) aimed their weapons at these persons and threatened them that if any one came near he would be shot. After <NAME> fell down, <NAME> (A-4) removed the rifle of <NAME> from his shoulder <NAME> (A-5) snatched the belt of cartridges and thereafter all the accused ran away. As a result of the bleeding injuries, the clothes of <NAME> got stained with blood and the blood had also fallen on the ground. From the Baithak of <NAME>, which was nearby, a quilt was brought and <NAME> was kept on that quilt and with the help of witnesses. <NAME> (P.W. 1) carried <NAME> home on the quilt but on the way he breathed his last. The inmates of the house gathered as also several other persons from the village. <NAME> (P.W. 1) then went to Oral after walking a distance of about seven miles from his village Karmer. He first went to his son <NAME>'s place and dictated the report of incident to <NAME> and after going to the Oral Police Station he lodged that written report {F.I.R. Exhibit. Ka-1) at about 7.15 p. m. whereafter he returned to Karmer. An offence under Section 395 / 396 , I.P.C . was registered and the requisite investigation was undertaken by Inspector, Beni <NAME> Govil, Incharge of Kotwali Orai who visited village Karmer in the night. He prepared inquest Panchnama of dead-body (Exh. Ka-24) and arranged to send the dead-body to the headquarters for postmortem examination. Several <NAME> articles as well as the clothes of <NAME> were taken charge of and statements of <NAME> (P.W. 1) and other witnesses like <NAME> (P.W. 6), Ganga <NAME> (P.W. 9). <NAME>eshwar (P.W. 12), <NAME> (P.W. 13) and Dhani <NAME> (P.W. 14) were recorded and, a Panchnama of the scene of offence was also made and blood-stained earth was taken charge of. Doctor <NAME>, Medical Officer Incharge of <ORG>, Orai performed the postmortem on the dead-body of <NAME> during the course of which he noticed as many as 13 injuries (some entry wounds and some exit wounds), all ante mortem and having been received by fire arm. He also recovered three pieces of wad from the right arm and three pieces of metal from the right hip bone. In his opinion the death was due to shock and haemorrhage resulting from the above injuries. After receiving the Chemical Analyser's report and the report of the Serologist and after completing the investigation, Inspector Beni <NAME> submitted a charge-sheet against the accused on 24-7-1971. After holding inquiry, <NAME>, A.D.M.(J) committed the respondents-accused to <ORG> on 15-12-1971 to stand their trial for offences under Sections 147 , 148 , 302 read with 149 and 379, I.P.C .

3. To the charges that were framed against them in <ORG>, all the accused pleaded innocence and contended that they had been falsely implicated in the case on account of enmity. In particular, <NAME> (A-l) put forward a plea of alibi. According to him, on the day of occurrence he was not in the village but had gone to Allahabad in connection with the filing of a writ petition of his uncle <NAME> with regard to the suspension of latter's gun licence and had himself sworn an affidavit before the Oath Commissioner at about 7.30 p. m. in the evening on that day in support of the writ petition.

4. At the trial in support of its case the prosecution, examined in all 17 witnesses, out of whom six were material witnesses being eye witnesses to the occurrence, namely, <NAME> (P.W. 1), the complainant and the father of the deceased, <NAME> (P.W. 6), <NAME> (P.W. 9), <NAME> (P.W. 12), <NAME> (P.W. 13) and <NAME> (P.W. 14). All these eye-witnesses, except <NAME> (P.W. 12) who was declared hostile, fully supported the prosecution case and narrated the entire occurrence in terms of the prosecution case as indicated above. Medical evidence regarding the injuries on the deceased was furnished by Dr. <NAME> (P.W. 10), who produced and proved, his post-mortem report at Exh. Ka-26. Since no weapon of offence (fire-arms) was recovered, there was no occasion to examine any ballistic expert. The various steps taken during the investigation were deposed to by Inspector <NAME> (P.W. 17). The Chemical Analyser's Report as well as the report of the Serologist were produced and proved as Exhibits Ka-34 and Ka-35 respectively. Others were formal witnesses, including the <NAME> and the Constables who had merely helped the investigating Officer during the investigation. In support at his plea of alibi, accused <NAME> examined two witnesses, namely, <NAME>, Advocate (D.W. 1) and <NAME>, Advocate (D.W. 2), an Oath Commissioner working in <ORG>.

5. Out of six eye witnesses, <NAME> (P.W. 12) was declared hostile by the prosecution itself; the names of <NAME> (P.W. 6) and <NAME> (P.W. 13) were not mentioned as witnesses in the First Information Report while <NAME> (P.W. 9) was found to have scant respect for truth, and, therefore, the learned trial Judge discarded the testimony of these four witnesses. However, he found the testimony of two eye witnesses, namely, <NAME> (P.W. 1) and <NAME> (P.W. 14.) as reliable and since the same was corroborated by the First Information Report, in which not merely the names of all the accused had been disclosed but also the part played by each of them had been disclosed, as also by the medical evidence, he accepted the same in proof of the prosecution version. He, therefore, convicted <NAME> (A-l), <NAME> (A-2) and <NAME> (A-3) under Section 302 for the murder of <NAME> and sentenced each to death; each of them was also convicted for rioting under Section 148 and sentenced to rigorous imprisonment for two years. He convicted <NAME> (A-4) and <NAME> (A-5) under Section 302 read with Section 149 and sentenced them to life imprisonment; each of them was also convicted under Section 147 and sentenced to rigorous imprisonment for one year; each one of them was also convicted under Section 379 for having removed the rifle and belt of cartridges respectively from <NAME> and sentenced to further rigorous imprisonment for two years each, the substantive sentences being directed to run concurrently. The accused preferred Criminal Appeal No. 634 of 1973 against their convictions and sentences while (he. death sentences on accused 1, accused 2. and accused 3 were the subject-mater of Confirmation Reference No. 25 of 1973 The appeal preferred by the accused was allowed by <ORG> and ail of them were acquitted and the Confirmation Reference was rejected. In allowing the appeal and rejecting the Confirmation Reference <ORG> came to the conclusion that the prosecution had failed to establish its case against the accused principally on three grounds : (1) that there was some delay in lodging the First Information Report (2) that the two eye witnesses, namely, <NAME> (P.W. 1) and <NAME> (P.W. 14) on whom the learned trial Judge had relied were partisan witnesses and (3) that the version given by the eye-witnesses did not tally with the medical evidence. Having taken this view of the prosecution evidence, <ORG> neither dealt with nor ex pressed its opinion on the veracity or otherwise of the plea of alibi put forward toy accused No. 1 and the evidence led in support thereof. The State of U.P. has come up in appeal to this <ORG> by special leave that was granted by this <ORG> on August 22, 1977.

6. Mr. <NAME>, Counsel for the State of U.P., has vehemently attacked the judgment of <ORG> on two or three grounds. In the first place, he has contended that though it was a serious case involving the offence of murder of <NAME> at the hands of the respondents accused, who had used fire-arms like guns and pistol during the incident and though capital punishment of death had been imposed by the learned <NAME> Judge on the first three respondents-accused, who had actually used fire-arms against the deceased, <ORG> has (sic) with and disposed of the entire case very perfunctorily without really discussing and property assessing the testimony of the two eye-witnesses on which the prosecution relied and which had been accepted by the learned <NAME> .Judge. Secondly, he contended that none of the three reasons given by <ORG> tor discarding; the evidence of the two eye-witnesses <NAME> (P.W. 1) and <NAME> (P.W. 14), is warranted or substantiated by the material on the record. On the other band their testimony was consistent with and corroborated by the First Information Report and the medical evidence on record. He also urged that <ORG> erred in doubting the presence of <NAME> (P.W. 1) at the time of the occurrence on flimsy grounds and erroneously regarded <NAME> (P.W. 14) as a partisan witness and assuming that he was a partisan witness his evidence should have been scrutinised with great caution bearing in mind his partisan character but that by itself could not be regarded as sufficient reason to discard his evidence. He, therefore, urged that there was no justification for <ORG> to interfere with the appreciation of the prosecution evidence done by the learned <NAME> Judge as well as his conclusions and, therefore, the convictions as recorded by the learned <NAME> Judge against all the respondent-accused should be restored and the acquittal directed by <ORG> be set aside. It is true that this Court will normally be slow in interfering with an acquittal recorded by <ORG> but as we will point out presently we find considerable force and sub stance in the above contentions urged by Mr. <NAME> before us in support of this appeal.

7. At the outset we may state that we are not at all satisfied with the manner in which <ORG> has dealt with and disposed of such a serious; case involving death sentences imposed upon first three accused. The appeal as well as the confirmation case as has been disposed of by <ORG> in a judgment of only five printed pages out of which the first three pages are taken up for narrating the prosecution case, the defence version and describing the nature of injuries suffered by the deceased <NAME>, as detailed in the post-mortem note produced by Dr. <NAME>, while the entire discussion of the material evidence and the reasoning is to be found in the remaining two pages. Moreover, <ORG> has regarded the presence of <NAME> (P.W. 1), father of the deceased, at the time of the assault on <NAME> as doubtful on the supposition that ordinarily he would not have accompanied his son for the recitation of the Katha at the house of <NAME> because he (<NAME>) was not versed in the recitation of the Katha and as regards <NAME> (P.W. 14), <ORG> has taken the view that his evidence cannot be accepted because he will have to be classified as a partisan witness. In the first place, simply because <NAME> (P.W. 1), father of the deceased, did not know Sanskrit and was not versed in the recitation of Katha, it would not follow that he would not have accompanied his son to the house of <NAME> for the recitation of the Katha. After all he was the father of <NAME> who was to recite the Katha. Besides <ORG> has really ignored the important aspect, which emerged in the evidence. The deceased <NAME> was always apprehending danger to his life due to enmity between the two parties in the village and as such was always carrying a rifle and belt of cartridges with him. Working under a pall of fear it would be natural for him to have his father <NAME> with him whenever he had occasions to go out for recitation of Katha or rendering any other Purohiti service. Further, the defence itself had elicited from <NAME>, in his cross-examination, the fact that every year <NAME> used to go for reciting Katha and he used to go along with him; in other words, it was his practice to accompany his son when eve the latter went out for recitation of (sic) and as such <NAME> would be the most natural witness to the occurrence. Ignoring these important aspects arising from the evidence on record <ORG> has doubted the witness's presence at the time of the occurrence, on very flimsy ground. Similarly <ORG>'s conclusion that <NAME> (P.W. 14) is in the category of partisan witnesses is based upon insufficient material. It is based on the fact that <NAME> (A-3) had lodged a complaint at the Police Station Orai in December 1970 against <NAME>, <NAME> and others under Section 352 , I.P.C , but nothing had been brought on record to show as to what transpired after the lodging of such complaint, whether <NAME> or <NAME> had been sent for by the police in connection with that complaint or had been warned by the police or not; for ought one knows being a non-cognizable complaint no action might have been taken by the Police and the complainant might have been referred to Court. <NAME> has in his evidence stated that he old not know whether any such complaint had been lodged by <NAME> against him and others. In the absence of proper material bringing home the knowledge of such a complaint to the witness having been brought on record, it would be difficult to come to the conclusion that <NAME> knew that <NAME> was antagonistic to him or that <NAME> belonged to the opposite party and had come to give false evidence against the accused particularly <NAME>. In other words, there was no clinching material on the record on the basis of which witness <NAME> could be classified as partisan witness. Even assuming that <NAME> (P.W. 14) was to be treated as partisan witness, <ORG> ought to (have considered his evidence on merits and then could have rejected it if any serious infirmities were found therein. In our view, <ORG> has clearly erred in not approaching the evidence of these two material witnesses properly and considering the same in proper perspective, that is why we have considered it necessary to have a reappraisal of their evidence.

8. As stated earlier the prosecution case rests upon the testimony of these two eye-witnesses, <NAME> (P.W. 1) and <NAME> (P.W. 14), the conduct of <NAME> in lodging the F.I.R. immediately involving all the accused describing the main part played by each and the supporting medical evidence. The principal question would be whether the testimony of these two witnesses suffers from any serious infirmity so as to get discredited.

9. After deposing about the professional rivalry between his son <NAME> on the one hand and <NAME> (A-3) on the other, as well as about the enmity arising out of party-factions in the village, as being suggestive of the motive for the murderous assault on his son, <NAME> (P.W. 1) has described the incident in these words:

It was 2-2 1/2 O'clock in the day. My son <NAME> and I after having recited 'Katha' at the place of <NAME> (blacksmith) of my village were coming. My son was carrying SANKH, JHALAR and a DANDA for ringing the bell (ghanta) contained in a bag. He was also carrying the book of Katha Moorty (idol) of <NAME> together with the Singhasan. He was also carrying with him a piece of new cloth, NARIAL (coconut), wheat and PRASAD and that, on his shoulder he was carrying a rifle and a belt of cartridges. <NAME> was going ahead and I was behind him. There was a distance of 7-8 paces in between him and me. <NAME> and <NAME> were behind us. When <NAME> reached near Maten-ki-Mathia then accused <NAME> and <NAME> challenged saying, "The enemy has come, kill him". <NAME> accused from towards the east fired shot with the gun at <NAME>, which hit <NAME>. After <NAME> fired shot with the gun, and at the same time <NAME> fired shot with the pistol. All these shots struck <NAME> and he fell down at that very place. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> have witnessed this occurrence. All these persons stopped the accused persons. <NAME> having aimed the gun stood there. <NAME> said that if any one came near, he would shoot. <NAME> and <NAME> also having aimed their guns said this very thing. When <NAME> fell down. <NAME> accused then snatched the rifle from his shoulder and <NAME> snatched the belt of cartridges. At the place where <NAME> had fallen he had received injuries there and blood had fallen on the ground.

He further stated that a quilt was brought from the Baithak of Raghubar on which <NAME> was laid and they all carried him to his house but on way he died. He then stated that he went to Orai on foot and after contacting his son <NAME> at his residence at Orai, he got his F.I.R. written by him at his dictation which he lodged at the Orai Police Station at about 7.15 p. m. on that day.

10. It is true that this witness is related to the deceased, being his father and is also inimical to the respondents-accused and, therefore, a partisan witness and as such his aforesaid testimony has to be viewed with great caution but that by itself cannot be sufficient ground to reject it unless the same is found to be untruthful by reason of other infirmities. On examining his evidence from this angle, we do not find any grave infirmity which would go to discredit him, Mr. <NAME>, counsel for the respondents-accused, leveled two or three criticisms against the testimony of this witness. It was urged that this witness knew 'Tooti-Phooti' Hindi, had not passed any Sanskrit examination and was not versed in the recitation of 'Katha' and hence would not have accompanied his son on that day and, therefore, not a natural witness to the occurrence, secondly, there was delay in lodging the F.I.R. which was done at 7.15 p.m. when the incident had occurred at 2.30 p.m. on 5-7-1971 and he could have covered the distance of seven miles from Karmer to Orai within much lesser time; thirdly, there is one omission if his evidence is compared to what he stated to the police or deposed in <ORG>. We have already dealt with the first criticism and have pointed out earlier how in the circumstances he will have to be regarded as the most natural witness. On the second aspect the witness has clarified the position by stating that it was rainy season, that at several places water had collected on the road, that major part of the road was kachha road and because of that he reached Orai late in the evening and that he first went to his son's house, dictated a report to his eon Lallu and signing the same he carried it to the Police Station where he lodged it at 7.15 p.m. with the <NAME> on duty there. Having regard to the explanation given by the witness, it is impossible to agree with the criticism made by the defence and which found favour with <ORG> that there was delay in lodging the First Information Report. It was also suggested to him that the F.I.R. was lodged after consultation or confabulation but he denied it and no material is brought on record to render it reasonably probable. He admitted in cross-examination that he had not contacted the <NAME> of the village with a view to inform him about the incident before proceeding to Orai. As regards the third criticism it may be stated that while deposing in <ORG> he had omitted to state that a quilt was brought to the scene of incident from <NAME>'s place and that they carried <NAME> home after putting him on that quilt. It is true that such an omission in his statement to the police as well as in <ORG> has been brought on record but in our view the omission pertains to such a minor detail that it cannot amount to any contradiction. He was also questioned with regard to the actual assault on <NAME> and he gave certain details in his cross-examination, which do not find place in his First Information Report. In our view, the part played by each accused has been broadly stated and it is not expected that all the details of how, from what distance the assault took place or where the shots landed etc. would be mentioned in the F.I.R. It is thus clear that the aforesaid aspects brought out in his cross-examination are not such as would throw any doubt on the veracity of his version given in examination-in-chief and as such notwithstanding that he is a partisan witness his story is credible and as such <ORG> was not justified in rejecting his testimony.

11. The other witness <NAME> (P.W. 14) has deposed about the occurrence in almost similar terms as has been done by the complainant <NAME> (P.W. 1) and he has fully supported the complainant. At the time of occurrence this witness was doing the work of laying tiles on the roof of cattle-shed of one <NAME> and it was from that place, which was at a distance of about 7 paces, that he witnessed the assault. As regard this witness; two criticisms were made. First, that he was a partisan witness, and, secondly, being a resident of Orai he would not ordinarily be in Karmer on the day of the incident much less near the cattle-shed of <NAME> and hence his evidence should not be accepted. As regards the first criticism we have discussed in the earlier part of this judgment as to why this witness cannot be regarded as a partisan witness for want of clinching material being brought on record but even if it were assumed that the witness is to be regarded as a partisan one there is no material elicited in his cross-examination which would go to show that he is an untruthful witness. As regards the suggestion that the witness was a resident of Orai and not of Karmer and as such could not have been at Karmer at the house of <NAME> on the day of the occurrence, the said suggestion was based on a contradiction, which was brought out in his cross-examination. It appears that in his evidence the witness claimed to be a resident of Karmer whereas in his police statement he has stated that he was originally a resident of Orai and that during the last harvesting season he had gone to Karmer and had since then been doing labour work at the place of <NAME>. That he had stated so to the police has been proved by Inspector <NAME> (P.W. 17) but the witness when confronted by it stated that he could not ' say why such a wrong statement came to be recorded. However, in view of the facts that the witness had purchased a house at Karmer from one <NAME> some four or five years prior to his giving evidence, that he was actually staying in that house, that his name had been included as a voter in the <ORG> of that village and that he had actually voted from that village at the general elections that were held in 1971, it does appear that the witness has been a resident of Karmar from the time he purchased the house in that village and, in fact, it is quite possible that before purchasing a house in Karmer and going to live there, he might be originally a resident of Orai. In other words, there is really no contradiction as such between his statement to the police and his evidence at the trial. It was elicited in his cross-examination that he had not mentioned to any one that accused No. 1 had fired a gun shot at the stomach of <NAME> but he asserted that he had not given these details because no one had asked him about it. Nothing else has been elicited in his cross-examination and that being so, it is difficult to accept <ORG> view that the evidence of this witness is liable to be discarded simply because he could be, if at all, classified as a partisan witness. In our view, the testimony of the aforesaid two eye-witnesses inspires confidence since both of them were natural witnesses to the occurrence and had deposed to what they had actually seen. The so-celled improvements made by them in their evidence with regard to the manner of assault are really nothing but matters of details which they furnished during their cross-examination and cannot really be regarded as improvements in real sense of the expression. The evidence of both of these witnesses, therefore, clearly establishes the prosecution case that on July 5, 1971 all the accused persons were lying in ambush on either side of the lane running North-South and at about 2.30 p.m. when <NAME> came near the Matan-ki-Mathia at the exhortation of accused Nos. 4 and 5, accused Nos. 1, 2 and 3 fired shots-accused Nos. 1 and 2 with their guns and accused No. 3 with his pistol-at <NAME>, which shots caused several injuries to <NAME> resulting in his death. The manner in which they were lying in wait, the fire-arms they were having with them, the exhortation by accused 4 and accused 5, followed by three shots aimed at <NAME> by accused 1, 2 and 3 from short distance, threats given by accused 1, 2 and 3 to witnesses not to question them, the manner of running away after snatching the rifle and belt of cartridges from <NAME>-all these are sufficient to come to the conclusion that these five accused had constituted an unlawful assembly and as members thereof committed the various offences with which they were charged.

12. Turning to the medical evidence that was furnished by Dr. <NAME> (P.W. 10), he has described the 13 ante mortem Injuries which he noticed on the dead body of <NAME> during the post-mortem examination as follows:

1. Lacerated wound 3 cms. diameter X muscle on anterior aspect, right arm 15 cms., below shoulder, margins inverted and blackened.

2. Lacerated wound 1 cm., diameter X muscle just into lower part of No. 1 margins inverted and blackened.

3. Lacerated wound 1 1/4 cm., diameter X muscle 1 cm. below injury No. 2 margins inverted and blackened.

4. Lacerated wound 1 1/4 cm. diameter X muscle 1 cm. out and below injury No. 1 margins inverted and blackened.

5. Lacerated wound 2 1/2 cm. diameter X 1 cm. X muscle, 1 1/2 cm. below injury No. 4 margin inverted and blackened.

6. Lacerated wound 1 cm. diameter X muscle 1 1/2 cm. below and into No. 5 margins blackened and inverted.

7. Lacerated wound 5 cm. X 3 cm. muscle obliquely on postero lateral aspect of right arm, 19 cms. below shoulder-margins everted.

8. Lacerated wound 1/2 cm. X 1 cm. X muscle on posterior aspect of right arm 2 1/2 cm into middle of No. 7 margins everted.

9. Lacerated wound 1 cm. diameter X muscle just above No. 8 margins everted.

10. Lacerated wound 5 cms. X 4 cms. X muscle obliquely in right lumber region, 3cms. right to middle margins everted.

11. Lacerated wound 4 cms. X 2 cms. X muscle vertically, 2 cms. below No. 10 margins everted.

12. Lacerated wound 1 cm. diameter X muscle on right buttock upper part margins everted.

13. Lacerated wound 2 1/2 cms. X 1 1/2 cms. X peribonel cavity, horizontally 7 cms. left and below umbilicus margins inverted. Loops of intestines had come out through wounds. The scalp was intact.

Besides the above injuries, the Medical Officer also noticed that there was a communited fracture on the right humerus as also a communited fracture on the hip bone under injury Nos. 11 and 12. He also stated that three wad covers were recovered from the right arm and three metal pieces were also recovered from the hip bone. In his opinion, the cause of death was shock and haemorchage on account of the above injuries. According to him the first six injuries were gun 6hot wounds on the right arm, being inlet wounds; the margins were inverted and blackened. Injuries Nos. 7 to 9 were exit wounds corresponding to injuries Nos. 1 to 6, The other inlet in jury was number 13 while injuries Nos. 10 to 12 were exit wounds corresponding to this injury. In cross-examination it was elicited from him that no complete pellet was recovered from injuries Nos. 1 to 13. As regards metal pieces, that were recovered from injury No. 13, he could not definitely say to what they related and of what metal they were. Certain possibilities in the alternative were also elicited from him in his cross-examination, for, he first stated that injuries Nos. 1 to 6 could have been caused by one fire only and from a distance of 3 ft. but he again asserted that the injuries caused to right arm were possible to have been caused by more than one fire; similarly, the inlet injury No. 13 that had been caused near the umbilicus could have been caused from a distant of more than six its and could have beep caused by two shots, Now beyond giving approximate distance from which the shots were fired by accused Nos. 1 to 3 and further stating that during the firing the deceased had turned and <NAME> stating that the first shot fired by accused No. 1 had hit <NAME> in his stomach, no further or precise details as to the exact distance from where the shots had been fired or other parts of the body where the shots had landed etc. were given by either of the two material witnesses, namely, <NAME> (P.W. 1) and <NAME> (P.W. 14). Even so, the High Court has taken the view that the prosecution version as given by these two witnesses does not fit in with the injuries as noted in the post-mortem report. <ORG> reasoning in this behalf runs thus:

All the six injuries Nos. 1 to 6 are situate close to each other. Considering that the margins of all the injuries were blackened, the likelihood is that these are the result of one gunshot. No undue Importance can be attached to the size of injuries Nos. 1 and 5 because the entry of the wads could cause a bigger wound. To expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult. On a consideration of the nature of these injuries Nos. 1 to 6 we are of opinion that they are the result of one gun shot fired from the right hand side, i.e. from the west at the time the deceased was travelling from north to south. This shot was evidently fired from a distance of about one yard.

Injury No. 13 is the inlet wound 2 1/2 cms. in length. As this injury corresponds to injuries 10 to 12, injury No. 13 must be the composite injury as a result of the pellets entering the body together. It may be mentioned here that three pieces of metal were recovered from the right hip bone showing that more than three pellets had entered the body. As the edges of gun shot wounds were not blackened, it must have been fired from some distance though not from a long distance, otherwise on account of dispersal more than one gun shot wound would have been found in that region.

In case the firing took place first of all from near the Mathh Mate we would have expected injuries on the left side. This would also show that this part of the story is not correct. The nature of the injuries also strongly suggests that the assailants were on one side i.e. towards the west and the two shots had been fired one after another by the same person or by two different persons. The prosecution version is different.

If the aforesaid reasoning is carefully scrutinised it will appear clear that quite a few assumptions have been made by <ORG> and the reasoning also fails to lake into account the alternate possibilities that were elicited by the defence itself in the cross-examination of the Medical Officer and it is by adopting such process of reasoning that <ORG> has come to the conclusion that the prosecution version does not fit in with the medical evidence. <ORG> has observed "to expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult". In the first instance the observation is contrary to the medical evidence, for the doctor has categorically stated in his cross-examination that the right arm injuries (being injuries Nos. 1 to 6) could be caused by two shots-a possibility which was elicited during his cross-examination by defence itself. Secondly, the conclusion based on such observation to the effect that injuries Nos. 1 to 6 are the result of one gun shot is again contrary to the direct evidence of the two witnesses, for, both of them have stated that <NAME> (A-2) and <NAME> (A-3) emerged from the right hand side (i. e. from the west as the deceased was walking north-south) and fired two shots in quick succession one after another which must have hit the deceased <NAME> on his right arm. Further, we fail to appreciate how <ORG> could observe to the effect that "in case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side and this would show that this part of the story is not correct". In fact, the evidence of both the witnesses has been that it was <NAME> accused No. 1, who emerged from Matan-ki-Matian side, i.e. eastern side and fired the first shot and according to <NAME> (P.W. 14) that shot hit the deceased in his stomach. Injury No. 13 is, therefore, quite consistent with the aforesaid story of the prosecution witnesses. It is also not possible to accept <ORG>'s view to the effect that: "the nature of the injuries also strongly suggests that the assailants were on one side i.e. towards the west and the two shots had been fired one after another by the same person or by two different persons; but the prosecution story is different. In our view, according to the prosecution version, <NAME> accused No. 1 emerged from Matan-ki-Matian (eastern side) and fired a shot in the stomach of the deceased and immediately thereafter <NAME> accused No. 2 and <NAME> accused No. 3 who had emerged from the western side fired a shot each, which shots must have hit the right arm of the deceased. This version of the prosecution witnesses would noted in the post-mortem report and medical evidence of Dr. <NAME>. It is therefore, impossible to accept the view of <ORG> that the prosecution version does not fit in with the medical evidence on record. After all the incident of firing upon the deceased had taken place in broad-day-light at about 2.30 p.m. during the course of which the three assailants had used fire arms, namely, two guns and one pistol and such an incident had been witnessed by the two prosecution witnesses, namely, <NAME> (P.W. 1) and <NAME> (P.W. 14) from the close quarters and their evidence substantially tallies with the medical evidence on record especially in the light of the alternate possibilities elicited from the medical officer in his cross-examination by the defence it self. In view of such direct evidence of eye-witnesses of the firing being available on record some inconsistency relating to distance from which gun shots were fired between the evidence of medical expert and the eye-witnesses would be of no significance whatsoever vide <CITATION> . However, as stated above, we are clearly of the view that the prosecution evidence pertaining to the assault by guns and pistol substantially tallies with the medical evidence available on the record.

13. Having regard to the above discussion, it will appear clear that none of the reasons given by <ORG> for rejecting the prosecution case and acquitting the accused is substantiated by material on record. In the first place, there is no delay in lodging the F.I.R. as has been suggested by <ORG>. Secondly, the evidence of the two eye witnesses, <NAME> (P.W. 1) and <NAME> (P.W. 14), cannot be rejected only on the ground that they are partisan witnesses-in fact, <NAME> (P.W. 14) cannot be regarded as partisan witness. But, even otherwise, both the witnesses appear to be natural witnesses to the incident in question and the testimony of both of them does not suffer from any serious infirmity and far from being inconsistent with the medical evidence, receives corroboration from it.

14. Mr. <NAME> appearing for the respondents-accused faintly argued that the prosecution ought to have examined <NAME>, to prove that both the father and the son had gone to his place for reciting the Katha, especially when the defence had suggested in the cross-examination of <NAME> (P.W. 1) that neither the father nor the son had gone for reciting the 'Katha' at <NAME> place but it did not and, therefore, an adverse inference should be drawn against the prosecution on that account. It is not possible to accept this contention for it is clear to us that the earlier part of the prosecution story that both the father and the son had gone to the place of <NAME> for reciting Satya Narain Katha was not essential for unfolding the prosecution case. Whatever may be the reason which had taken both the father and the son out of their house that day, the real part of the story which the prosecution had to establish was that the incident of firing on deceased <NAME> had taken place on the day of the occurrence while they were returning together after completing their outside work whatever it was. We have already stated that on account of the fear or apprehension of ganger to his life <NAME> was always carrying a rifle and a belt of cartridges with him whenever he went out and it was natural for his father to be with him and, in our view, such a contention which was raised before the learned Sessions Judge had been rightly rejected by him.

15. Turning to the specific plea of alibi which was put forward by the respondent-accused No. 1, it is well-settled that the burden of substantiating such a plea and making it reasonably probable is upon him. In our view, the learned Sessions Judge has given substantial reasons for rejecting this plea. The case of respondent-accused No. 1 was that on the day of occurrence he was not in village Karmer but had gone to Allahabad in connection with the filing of a writ petition of his uncle <NAME>, pertaining to the latter's gun licence which had been suspended by the District Magistrate on June 9, 1971, and in support of such a writ petition he had sworn an affidavit before Mr. <NAME>, Advocate, the Oath Commissioner, at about 7.30 p.m. on July 5, 1971 In the office of <NAME>, Advocate, at Allahabad. In support of this plea, accused No. 1 examined two witnesses, namely, <NAME>, Advocate (D.W. 1) and Shri <NAME> (Advocate, Oath Commissioner) (D.W. 2). The affidavit said to have been so sworn by accused No. 1 on that day has been produced at Exh. Kha-3. The learned Sessions Judge has pointed out several suspicious circumstances which throw considerable doubt on the point whether the said affidavit had really been sworn or not by accused No. 1 on the day of occurrence at 7.30 p.m. at Allahabad. In the first place, he has pointed out that the writ petition, to support which the affidavit was said to have been sworn was presented before <ORG> on July 9, 1971, which was again withdrawn or taken back from <ORG> on July 9, 1971 itself and there was no such urgency as to have the affidavit sworn by the accused No. 1 before the Oath Commissioner, Shri <NAME> in the office of <NAME>, Advocate, long after the office hours at 7.30 p.m. on July 5, 1971. Secondly, the affidavit itself produced at Exh. Kha-3, which was to be sworn was first prepared in the name of <NAME>, the uncle of accused No. 1 and not in the name of accused No. 1 but later on, it appears, that the name of <NAME> was struck out and the name of accused No. 1 <NAME> was inserted, Thirdly, the actual time when the affidavit was sworn in as mentioned in the affidavit itself shows some alteration made therein; it appears that at first 1.30 p.m. was written in the affidavit but later on the figure '1' was changed to figure '7' in a clever manner which alteration becomes clear if the figure 7.30 p.m. is viewed with the help of a magnifying glass. Fourthly, apart from the document Exh. Kha-3, which contains alterations, the most important piece of evidence which could have clinched the matter was the record which is required to be maintained by the Oath Commissioner pertaining to the several affidavits which were sworn before him but the Oath Commr. Shri <NAME>, Advocate, was not able to produce the register which was required to be maintained by him containing the entry relating to the swearing in of this particular affidavit. The learned Sessions Judge has pointed out that the Oath Commissioner under the Bules was required to maintain a register in which he had to make entries relating to various affidavits which were sworn before; him along with the names of the persons who identified the deponents be fore him. But in this case astonishingly enough Shri <NAME> had not made any entry pertaining to the affidavit in question in his register and in fact, he could not produce his register. His explanation was that the register was not with him and he had submitted the same for checking in the Administrative Section in <ORG>; but when the above register was summoned from <ORG> it was reported that such register had never been submitted by Shri <NAME> in the Administrative Section for checking purposes. Shri <NAME> then stated that in the absence of the above register he made an entry pertaining to the affidavit in question on loose papers and that even those loose papers had been misplaced. Lastly, the Sessions Judge has pointed out that even after the incident was over at 2.45 p.m. it was possible for accused No. 1 to reach Allahabad in four hours by about 7.15 p.m. on that day by a fast taxi. Having regard to these circumstances, which emerged on record, the learned Sessions Judge, in our view, was right in rejecting the defence case and in corning to the conclusion that the plea of alibi put forward by accused No. 1 had not been established or rendered reasonably probable by him. <ORG> has not dealt with this plea at all.

16. In view of the above discussion we are clearly of the view that the Sessions Judge was right in coming to the conclusion that the prosecution had established its case against all the accused beyond reasonable doubt and <ORG> was dearly in error in interfering with the convictions recorded by the learned Sessions Judge against each of the accused-respondents. We accordingly allow the appeal, set aside the acquittal recorded by <ORG> and restore the convictions recorded by the Sessions Judge against each of the respondent-accused.

17. As regard the sentence, however, we feel that having regard to the considerable time that has elapsed since the date of the occurrence and having regard to the fact that <ORG> decision of acquittal in their favour is being set aside by us, the extreme penalty of 'death ought not to be imposed upon respondents Nos. 1, 2 and 3 (original accused Nos. 1 to 3) and instead, for the offence of murder of <NAME> committed by them each one of them should be sentenced to life imprisonment. Subject to this modification in the sentence qua respondents 1 to 3 under Section 302 , I.P.C . all other convictions recorded against all the respondents-accused under various counts as well as the sentences imposed upon them by the learned Sessions Judge on those counts are restored.


PETITIONER: <NAME> Vs. RESPONDENT: S. CHELLAPPAN AND ORS. DATE OF JUDGMENT: 19/09/2000 BENCH: K.T. Thomas & <NAME> JUDGMENT:

THOMAS, J.

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J When a plaintiff rushed to the civil court for an ex- parte interim order of injunction against some of the defendants and obtained it, those defendants rushed to <ORG> to get that order quashed. Both parties succeeded in their respective endeavour and now both of them accuse each other for the course adopted by the other. This appeal is by special leave at the instance of the plaintiff.

The subject matter of the litigation is a property bearing Door No.177 to 182 on the Big Street at Triplicane in Madras (now Chennai). At this stage and in this appeal it is unnecessary to narrate the facts pleaded by the plaintiff in the plaint nor by the contesting first defendant in answer thereto regarding the right to the suit property. Suffice it to say that plaintiff claims to be a lessee under one <NAME> (who is arrayed as 6th defendant in the suit) in respect of the property and on that strength he claimed to be in possession of the property. He alleged that the defendants 1 to 5 have been threatening to dispossess him.

Appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant Nos.1 to 5 from dispossessing him. Along with the institution of the suit he moved an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure (for short the Code) to pass an ad interim injunction restraining respondents 1 to 5 or their men or agents, or their representatives or any person claiming through them or under them from evicting the petitioner from the suit property other than by due process of law and to pass such further or other order or orders.

On 29.6.1999 the Assistant Judge of <ORG>, Chennai passed the following ex-parte order on the said application: Heard. Documents perused. Rental receipt Document 11 to Document 47 proves that the petitioner is the statutory tenant and prima facie possession of the suit property. Though the property was leased out by R.6 on the basis of mortgage document 3, the petition is now in continuous possession of the property as tenant. Hence the balance of convenience is in favour of the petitioner. In the interest of justice, it appears that R.1 to R.5 are restrained from evicting the petitioner from the suit property, except under due process of law. Notice by 25.8.99. Ad interim injunction till then. Order 39 Rule 3 to be complied with."

The first respondent, on behalf of himself and respondent Nos.2 to 5, filed a revision petition invoking Article 227 of the Constitution before <ORG> alleging that they purchased the property from the owners thereof as per different sale documents executed on 15.3.1996, and they were in possession and enjoyment of the property. They further alleged that one <NAME>, MLA and one <NAME> together expressed a wish to purchase the property from the respondents, but it was not agreed to and then those two persons exerted threat and pressure on them to capitulate to their demand. As they did not yield to such threats a suit was filed in 1998 by some parties who are now supporting the present plaintiff. The respondents further alleged that the said suit was filed at the instance and instigation of those two named persons. When they failed to get any relief therefrom another suit was caused to be filed through one <NAME> on the strength of some concocted documents. As no relief was obtained in that suit also the present suit, which is the third one in the series, has been filed at the behest of the above named persons, according to the respondents.

Learned Single Judge of <ORG> who disposed of the revision made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39 Rule 3A of the Code, according to the learned single judge. He, therefore, set aside the injunction order for the clear transgression of the provisions of law and noted that this is the third suit filed in reference to the suit property and hence deprecated the grant of ex-parte injunction without notice. Though learned single judge further declined to go into the other allegations, he has chosen to make the following observations also: However, prima facie, I am satisfied that these materials are relevant for consideration before granting ad interim injunction. As per the plaint and affidavit averments admit that the first respondent is occupying a vacant portion of 1670 sq. ft. and running paper business and charcoal. But there is no document to show that the first respondent is actually in possession and running such a business except the lease deed. Hence the ex-parte order is unsustainable. For all these reasons, I am of the view that the order passed by the learned Judge is liable to be set aside and it is accordingly set aside.

After holding thus learned Single Judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously.

<NAME>, learned Senior Counsel contended that <ORG> should not have entertained a petition under Article 227 of the Constitution when the respondent had two remedies statutorily available to him. First is that the respondent could have approached the trial court for vacating, if not for any modification, of the interim ex-parte order passed. Second is that an appeal could have been preferred by him against the said order. It is open to respondent to opt either of the two remedies, contended the Senior Counsel. Section 104 of the Code says that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(i) any order made under rules from which an appeal is expressly allowed by rules.

Order 43 Rule 1 says that: An appeal shall lie from the following orders under the provisions of Section 104 namely;

(r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39.

Order 39 Rule 1 says thus: 1. Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the <ORG> may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the <ORG> thinks fit, until the disposal of the suit or until further orders.

It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be applicable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.

Learned Senior Counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in Rule 3 of Order 39 be void. Rule 3 reads thus: The <ORG> shall in cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction direct notice of the application for the same to be given to the opposite party:

[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite-party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.

What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.

Learned Single Judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order 39 Rule 3-A of the Code which reads thus: Where an injunction has been granted without giving notice to the opposite-party, the <ORG> shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.

The Rule does not say that the period of the injunction order should be restricted by the <ORG> to thirty days at the first instance, but the <ORG> should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less.

Nonetheless, we have to consider the consequence, if any, on account of the <ORG> failing to pass the final orders within thirty days as enjoined by Rule3-A.

The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the <ORG> shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the <ORG> could not finally dispose of the application within the aforesaid time the <ORG> has to record the reasons thereof in writing.

What would happen if a <ORG> does not do either of the courses? We have to bear in mind that in such a case the <ORG> would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the <ORG> is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the <ORG> is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the <ORG> to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the <ORG> can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the <ORG> it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction.

In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.

Now what remains is the question whether <ORG> should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of <ORG> it is a well recognized principle which gained judicial recognition that <ORG> should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as <ORG> had chosen to entertain the revision petition.

In the light of the direction issued by <ORG> that the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, we may further add that till such orders are passed by the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties.

This appeal is disposed of with the above observations and directions.


PETITIONER: COMMISSIONER, FOOD AND CIVIL SUPPLIES Vs. RESPONDENT: PRAKASH C. SAXENA DATE OF JUDGMENT05/05/1994 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J) CITATION: 1994 SCC (5) 177 1994 SCALE (3)12 ACT: HEADNOTE: JUDGMENT:

ORDER

1. Delay condoned. Leave granted.

2. Heard counsel for the parties. Respondent 1, while was working as Senior Inspector, <ORG>, Lucknow, his services were terminated by proceedings dated 14-7-1965 : "The services of Shri <NAME>, Senior Inspector, <ORG>, Lucknow are terminated with effect from the date of service upon him of this order. He shall be paid one month's pay in lieu of notice." The said proceedings were challenged by Respondent 1 in the year 1978 by filing a claim petition before <ORG> which was initially rejected by the <ORG> on the ground of delay. But <ORG> remitted the matter for decision on merits and the <ORG> held that the order of termination had been made by way of punishment without enquiry and hence violated Article 311(2) of the Constitution. When it was challenged in Writ Petition No. 2016 of 1991 filed by the appellant, <ORG> dismissed it by its order dated 5-3-1993, following the decision of this Court in <NAME> v. State of Punjab' wherein it had been held that the Court had to lift the veil and find whether the ground of termination was the foundation or the motive and if it was found to be the foundation, the termination simpliciter would be illegal. It was pointed out that the enquiry initiated, when was stopped midway it would show that the enquiry into misconduct of Respondent 1 was abandoned while enquiry into the alleged misconduct had to be completed without which the termination would become illegal. <ORG> was of the opinion that the ratio in <NAME>1 was, obviously, not brought to the notice of this Court, while deciding <CITATION> and <CITATION> .3 and hence they had been decided per incuriam. <ORG>, therefore, applied the ratio of the decision in <NAME>, which according to it squarely applied to Respondent 1 and held that the termination of the services of the respondent was violative of Article 311(2) of the Constitution.

3. In our view, <ORG> was not right in its approach in upholding the order of the <ORG>. What is overlooked by <ORG> is that <NAME> case1 related to a judicial officer who had the protection of Article 355 of the Constitution and that, any enquiry conducted by the Executive, into an alleged misconduct of such judicial officer would be per 1 : 1974 SCC (L&S) 550 2 (1991) 1 SCC691:1991 SCC(L&S)587:(1991)16ATC498 3 1992 Supp (1) SCC 524: 1992 SCC (L&S) 440: (1992) 19 ATC 93 1: AIR 1992 SC 496 COMMISSIONER, FOOD AND CIVIL SUPPLIES v. <NAME> se illegal and without jurisdiction. In that factual matrix, this Court had to hold that an enquiry having been initiated against the delinquent, had got to be pursued to its logical conclusion, that is, till it ended either in imposition of penalty on proof of misconduct or having been found not guilty of the charge. That was the background in which this Court laid the law. <ORG> has totally misunderstood the applicability of the judgment in <NAME>1. This Court has, indeed considered in catena of decisions, the nature of power of the <ORG> exercisable in dismissal of a temporary government servant, in terms of the order of appointment or the rules entitled U.P. Temporary <ORG> Servants (Termination of Services) Rules, 1975. <NAME> and <NAME> are two decisions of this Court where on consideration of the scope of the said rules, it is held that the termination simpliciter is not a penalty and the <ORG> has power and jurisdiction under the contract of employment or the Rules to terminate simpliciter the services of a temporary government servant without conducting an enquiry and such termination simpliciter does not amount to termination for misconduct. The decisions in the said cases are being followed by this Court consistently.

4. In this case, we have seen that the respondent was appointed in 1945 as a temporary government servant and remained in service up to 1965 as a temporary government servant. Although we have found that <ORG> was not right in applying the ratio of <NAME> to case of Respondent 1 we do not consider it necessary to interfere with its conclusion in exercise of our discretionary power under Article 136 of the Constitution. Therefore, while we uphold the appellant's power to terminate the services of a temporary government servant under the said rules, without holding an enquiry, we do not propose to disturb the reinstatement of Respondent 1, since he was in service as a temporary government servant for nearly 20 years before his services were terminated and he has since been retired as well from service. Taking these facts into consideration, we hold that the respondent must be deemed to have been in service from the date of the termination till the date of his superannuation, but he is not entitled to the back wages from the date of termination till the date of his filing the petition in <ORG>, that is up to 31-12-1978. He will, however, be entitled to the arrears of salary from 1-1-1979 and other consequential benefits including pensionary benefits as if he had continued as a regular government servant till his superannuation. The appeal is accordingly allowed. No costs.