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minal Appeals 233 to 235 of 1966, and 9 to 11 of 1967.
Appeals from the judgment and order dated April 13, 1966 of the Madras High Court in Writ Petitions Nos.
390 of 1965 etc.
933 M.C. Chagla, Amjad Nainar and R. Gopalakrishnan, for the appellant (in Cr.
Nos. 233 to 235 of 1966) and respondent No. 1 (in Cr.
Nos. 9 to 11 of 1967).
section Govind Swaminathan, Advocate General for the State of Tamil Nadu, A. V. Rangam, K. section Ramaswami Thevar, N. section Sivan, for the respondents (in Cr.
Nos. 233 to 235 of 1966) and the appellants (in Cr.
Nos. 9 to 11 of 1967).
The Judgment of the Court was delivered by Mitter, J.
These six appeals arise out of certificates granted by the High Court of Madras arising out of two Writ Petitions and a petition under sections 435 and 439 of the Code of Criminal Procedure filed in that court by P. Sirajuddin, the appellant in the first set of appeals.
It is not necessary to give an outline of these Petitions as the salient features thereof appear sufficiently from the judgment of the High Court and the substance thereof is dealt with hereafter.
The facts are as follows.
The appellant was the Chief Engineer, Highways and Rural Works, Madras having risen from the status of a District Board Engineer in which capacity he joined service in the year 1935.
He attained the age of 55 years on March 14, 1964 on which date he was asked to hand over charge of his office to one Shiv Shankar Mudaliar, Superintending Engineer, Madras.
He expected to be retained in service up to the age of 58, a privilege said to be normally accorded to persons physically and otherwise fit for public service.
It appears that on March 1, 1964 a copy of a petition concerning him and dated February 28, 1964 addressed to the Minister, Public Works by one Rangaswami Nadar was received by the Chief Minister of the State.
It is said that apart therefrom allegations about want of rectitude of the appellant had already reached the Government.
The Chief Minister asked the Director of Vigilance and Anti Corruption to make confidential enquiries.
On March 10, 1964 Government received a note from the said officer which cast serious aspersions on the appellant 's reputation and mentioned quite a few instances of his lack of probity.
The endorsement of the Chief Minister on the note read: Secretary, P.W.D.
I had this (petition already mentioned) from the Director of Vigilance.
This may be immediately looked into.
I have asked the Director to pursue the investigation further.
" Thereupon the Chief Secretary orally ordered a full fledged enquiry in the matter and the Deputy Superintendent of Police, Vigilance and Anti Corruption one G. _K. Ranganathan, was asked to make a personal enquiry and report under the supervision of 93 4 R. N. Krishnaswamy.
The Director of Vigilance registered an enquiry numbering 8/HD/64 on 15th April, 1964.
That the enquiry was taken up with great keenness appears from a note of Ranganathan to the effect he would require the assistance of two Inspectors to assist him.
There can be no doubt that the enquiry launched by the Vigilance and Anti Corruption Department was a very thorough and searching one.
A very large number of persons were examined by the Vigilance and Anti Corruption officers including 18 public servants who spoke to matters touching the allegations against the appellant.
Statements in writing signed by the makers were taken from no less than nine public servants regarding the above and two of them, namely, section Sivasubrahmanyam and section Chidambaram were given certificates assuring them immunity from prosecution for the part played by them.
in rendering aid to the appellant in the commission of his malpractices.
These two persons occupied the position of an Assistant Engineer and a Junior Engineer and were subordinates of the appellant.
On June 27, 1964 a first information report was lodged in the Directorate of Vigilance and Anti Corruption, Madras and the case recorded as 3/AC/64.
The offences to be investigated into were under sections 161 and 165 of the Indian Penal Code and section 5 (1) (a) and (d) of the Prevention of Corruption Act.
The complaint was made by Ranganathan, Deputy Superintendent of Police, Vigilance and Anti Corruption Department to the Additional Superintendent of Police in the same department.
It is pertinent to note that the Directorate of Vigilance and Anti Corruption which had been set up under a Government order dated 8th April 1964 was declared to be a 'police station ' under clause (s) of sub section (1) of section 4 of the Code of Criminal Procedure by a notification dated May 25.
1964 and by another notification of the same date the Governor of Madras conferred upon the Director and the Superintendents of Police of the said Directorate all the ordinary powers of a Magistrate of the First Class under section 5 A of the Prevention of Corruption Act within the limits of the whole of .he
State of Madras except the Presidency Town.
The complaint by Ranganathan to the Additional Superintendent of Police, Vigilance and Anti Corruption, gave details of various malpractices with which the appellant was charged.
He was inter alia said to have obtained various articles of furniture with the help of Sivasubrahmanyam and Chidambaram mentioned above by paying only a small fraction of the cost and asking them to adjust the balance by manipulations of the muster rolls claims.
He was also said to have got his residence whitewashed in a similar manner.
It was also alleged against him that he had constructed a bungalow by diverting building materials allotted for the construction of 'the Cauveri bridge at Tiruchinapalli.
The complaint wound up with a paragraph to the effect that a criminal case would be registered against him as a regular investigation alone would facilitate the collection 9 3 5 of additional evidence by way of recovery of valuable things which he had obtained from his subordinates by various illegal means and in addition more incriminating evidence was likely to be ,forthcoming during the investigation.
Sanction to prosecute the appellant was obtained on September 27, 1964 and a charge sheet was filed against the appellant in the court of the Special Judge, Madras on October 5, 1964 numbered as C.C. No. 10 of 1964.
No less than 47 witnesses had been examined during the investigation following the first information report and at least nine of them had been previously examined at what was termed as a "preliminary or detailed enquiry".
No less than 19 malpractices were alleged against him in different paragraphs of the charge sheet and the appellant was charged with having obtained for himself or for members of his family various valuable things from his subordinates by corrupt and illegal means and by abusing his position as a public servant.
charges were for offences already mentioned.
In the enquiry the appellant was supplied with copies of re cords on which the prosecution proposed to rely including the statements recorded by the investigating officer which according 'IO the appellant showed prima facie that a number of public servants who had given the statements were themselves responsible for commission of various offences including falsification of accounts and forgery of public records.
Before the Special Judge the appellant moved an application for discharge under section 251 A of the Code of Criminal Procedure on the ground that the charges against him were groundless.
In that application he also complained : (a) that the instances alleged against him related mostly to his personal matters unconnected with his official functions; (b) that none of the items referred to in the charge had been handed over to or delivered to him for the purpose of securing an advantage in order to attract section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, and (c) that on the admitted statements of the public servants they were liable to be charged with various offences and he had been greatly prejudiced by discriminatory treatment.
While holding that there was no basis of charging thee appellant under section 165 I.P.C. or under section 5(2) read with section 5(1)(b) of the Prevention of Corruption Act, the Judge held that a charge could be framed against him under section 5(2) read with section 5(1)(d) of the Act.
He observed that the "investigating officers evidently felt that ,if they arraigned the subordinate officers along with the appellant the case may fail for lack of evidence.
" 9 3 6 Against that order dated January 16, 1965 the Public Pro secutor Preferred Cr.
R.C. 294 of 1965 and the appellant preferred Cr.
M.P. 934 of 1965 under section 561 A of the Code, for quashing the proceedings and discharging him as the charge was groundless.
The appellant filed.
two writ petitions before the High Court, namely, one for a writ of mandamus directing the forbearing from prosecution of C.C. No. 10 of 1964 and a second for a writ of certicrari to quash the order of the Special Judge mentioned above.
There was a petition under sections 435/439 of the Criminal Procedure Code for revision of the order of the Special Judge and one under section 561 A of the Code for quashing his said order.
The High Court dealt with all the Writ Petitions and the different allied matters together.
Broadly speaking, it was urged before the High Court: 1.There had been such a violent departure from the provisions of the Code in the matter of investigation and cognizance of offences as to amount to denial of justice and to call for interference by the issue of prerogative writs.
The investigation and prosecution were wholly mala fide and had been set afoot by his immediate junior officer , one Sivasankar Mudaliar, Superintending Engineer, Madras who was related to the Chief Minister of the State.
The appellant 's case was being discriminated from those of others who though equally guilty according to the prosecution case were not only not being proceeded against but were promised absolution from all evil consequences of their misdeeds because of their aid to the prosecution.
In his petition for the issue of a writ of mandamus 'by the High , Court the appellant stated that it was only by perusing copies of the statements furnished to him under section 173(4) Cr.
P.C. that he found that 18 public servants had stated having given him valuables without any or adequate consideration and that it was at his instance that they had committed offences of criminal conspiracy under section 120 B I.P.C. and criminal breach of trust of Government moneys under section 409 I.P.C. besides falsification of accounts etc.
His positive case was that the Director of Vigilance and Anti Corruption had obtained signed statements which were confessional and self incriminatory from persons who were going to be called .as witnesses by giving them assurances of immunity.
These assurances were not only directed towards immunising them from prosecutions but ;Also any departmental action likely to affect adversely the makers of the statements.
The case of discrimination was based mainly on the above averments that the Directorate had single him out leaving others who were equally guilty.
According 93 7 to the appellant this also showed mala fides and malice directed towards him.
Another main argument which ' was canvassed before the High Court related to the applicability of sections 162 and 163 of the Criminal Procedure Code and the effect of the violation thereof, if any.
For the appellant, it was argued that the taking of signed statements from persons who were eventually going to be examined in the criminal proceedings by giving them assurances of immunity and thereafter relying on their subsequent unsigned statements those under section 161(3) of the Code for the purpose of section 173 amounted to a fraud on the procedure established by law.
It was contended that as the statements recorded under section 161 were the material on which the Special Judge had to consider whether the charge was groundless under section 251 A of the Code, the illegality "corroding the foundation vitiated the enquiry and necessitated the discharge of the appellant.
" The High Court examined the case made out in the affidavits of the appellant and the counter affidavits on behalf of the State.
It expressed great dissatisfaction at the variance in the attitude of the State in the different affidavits in that whereas in the first counter affidavit there was no contradiction of the appellant 's averment that assurances of immunity had been given to all the 18 persons examined before the lodging of the first information report, the plea put forward in a subsequent affidavit was that such assurance had been given only to two persons, namely, the two subordinates of the appellant and only after signed statements had been given by them.
The Court was however not satisfied that a direction was called for for the prosecution of the subordinate officers also.
Further the High Court was not impressed with the plea of hostile discrimination against the appellant observing that although the "policy of not securing judicial pardon to accomplices by bringing them as approvers but retaining them at the sole discretion of the prosecution might be open to question" "that cannot by itself invalidate the arraignment of the persons actually put up for trial" specially where the person charged was in a position to wield influence and power over those asked by him to aid him in commission of misconduct.
Although not of the view that the record before it established a case of mala fide or hostile discrimination against the appellant which called for the quashing of the proceedings, the High Court took the view that the investigation of the case under Chapter XIV of the Code should be held to have commenced when Ranganathan, the Deputy Superintendent of Police, started the enquiry on 15th April 1964 on the reasoning that though "an enquiry may start with shadowy beginnings and vague rumours, once a police officer forms a definite opinion that there are grounds for investigating a L1OSup.
CI(NP)70 15 938 crime, an investigation under the Code has started".
According to the High Court (a) "substantial information and evidence had been gathered before the so called first information report was registered".
(b) the police officer who had conducted the enquiry prior to 27th June 1964 was a person competent to enter upon investigation; (c) admittedly there had been an earlier probe by the, Vigilance Department prior to 10th March 1964 on the basis whereof he was not re employed; (d) there was definite information to the Government contained in the report dated 13th March 1964 relating to corrupt activities of the appellant; and (e) the "delay on the part of the investigating officer in registering the first information report may be an irregularity, but certainly the statements recorded subsequent to the receipt of definite information of the commission of an offence in gathering evidence of the offence would nonetheless be statements recorded during investigation and hit by section 162 of the Criminal Procedure Code.
" With regard to the disregard of the provisions of sections 162 and 163 of the Code, the High Court observed that the result of taking his signature to a statement would be to tie a witness down to the statement or at least to give him the impression that he would not be free to make a different statement at the trial but the statement of a witness at the trial would not become inadmissible by reason of his having signed a statement before going into the witness box.
Reference was made to several decisions bearing on section 162 of the Code and in particular to Zahiruddin vs King Emperor(1) that the evidence of a witness who had previously signed a statement in writing did not become inadmissible or vitiate the whole proceeding although the value of the evidence would be seriously impaired thereby.
The court seems to have been of the view that it was the duty of the Magistrate or the presiding Judge on discovering that a witness had while giving evidence, made material use of a statement given by him to the police to disregard the evidence of that witness as inadmissible.
The High Court 's definite conclusion was that there had been a deliberate violation of the provisions of the Code (1) 74 I.A. 65, 74.
939 and a departure from a recognised and lawful procedure, for investigation.
With regard to the propriety of taking self incriminatory statements even when there had been no assurance of immunity from prosecution, the High Court observed that as the learned Advocate General for the State had stated that the record of manipulations in the muster rolls by the subordinate officers of the appellant had to be disregarded as not proper material for consideration as the "Special Judge had not considered these vitiating features in regard to the documents placed before him while ordering the framing of charges against the appellant" it was unnecessary to examine the question at length.
The High Court found partly in favour of the appellant and held that the order of the Special Judge directing the framing of a charge on consideration of the statements before him under section 173(4) of the Code without reference to the illegalities in the investigation should be quashed.
The High Court further directed the Special Judge to take up the matter once again and consider the case excluding from consideration all statements recorded under sections 161(3) and 164 which were found vitiated in the light of the observations made by it.
A direction was also given to exclude portions of the statements which were self incriminatory and confessional in character of the maker even if the same did not otherwise violate the provisions of sections 162 and 163 of the Code.
In our view the procedure adopted against the appellant be fore the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one 's sense of justice and fairplay.
No doubt when allegations about dishonesty of a person of the appellant 's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter.
The Chief Minister in our view pursued the right course.
The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister.
The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view.
Before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer.
The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable 940 harm not only to the officer in particular but to the department he belonged to, in general.
If the, Government had set up a Vigilance and Anti Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner.
the enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction.
The means adopted no less than the end to be achieved must be impeccable.
In ordinary depart mental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved.
It is only thereafter that a charged sheet is submitted and a full scale enquiry is launched.
When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evi dence of guilt of the officer.
Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.
The Code of Criminal Procedure is an enactment designed inter alia to ensure a fair investigation 'of the allegations against a person charged with criminal misconduct.
Chapter XIV of the Code gives special powers to the police to investigate into cases whether cognizable or non cognizable in the manner provided therein.
Section 160 empowers a police officer making an investigation to require the attendance before himself of any person who appears to be acquainted with the circumstances of the case.
Section 161 (1 ) gives him the right to examine orally any person supposed to be acquainted with the facts and circumstances of the case.
Although bound to answer question put to him sub section
(2) of the section exempts a person from answering any question which would have a tendency to expose him to a penal charge or to a penalty for forfeiture.
Under sub s.(3) the police officer is empowered to reduce into writing any statement made to him in the course of such examination.
Section 162(1) expressly lays down that such a statement made in the course of an investigation if reduced into writing is not to be signed by the maker thereof and no part of such statement except as expressly provided is to be used 941 for any purpose at any enquiry or trial in respect of any, such offence under investigation at the time when the statement was made.
The only exceptions to these are cases when the statement falls under section 32 cl.(1) of the Evidence Act and to statements which are covered by section 27 of that Act.
The obvious idea behind this provision is that an over zealous police officer may not misuse his position by getting a statement in writing signed by the maker which would tend to pin him down to the statement but leave him free to speak out freely when called to give evidence in court.
In order that statements made in the course of such investigations be recorded without any pressure or inducement by an investigating officer section, 163(1) lays down an embargo on the investigating authorities using any inducement, threat or promise to the maker which might influence his mind and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings.
It is to be noted that whereas the other sections hereinbefore referred to contain guidelines for the police officers in making investigation, this section expressly provides that any person in authority even if he is not a police officer must guide himself accordingly, in case where a crime is.
being investigated under this Chapter of the Code.
All this is however subject to the provisions of sub s.(2) which allows a person to make any statement against his own interest by way of confession if he does so of his own free will.
Even then the law enjoins by section 164 that such a statement or con fession can only be recorded by a Magistrate of the Class mentioned therein and even such a Magistrate must explain to the person making the confession before recording the same, that he is not bound to make it and if he does so it may be used as evidence against him.
Further the Magistrate must make sure that the person was making the confession voluntarily and not acting under any pressure from an outside source.
All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case : however serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the 'crime before the lodging of a charge sheet.
Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it.
Section 169 of the Code empowers a notice officer making investigation to release an accused person from custody if there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of him to a Magistrate by taking a bond from him with or without sureties, Section 173 enjoins upon a police officer 942 to complete the investigation without unnecessary delay a IInd forward to a Magistrate empowered to take cognizance of the offence a report in the form prescribed by Government setting forth inter alia the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and to communicate to the State Government the action taken by him to the person, if any, by whom information relating to the commission of the offence was first given.
When a report has been made under this section it is the duty of the officer in charge of the police station to furnish to the accused before the commencement of the enquiry or trial a copy of the report above mentioned and of the first information report under section 154 and of all other documents or relevant extracts on which the prosecution proposes to rely including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub s.(3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses.
In our view the enquiring officer pursued the investigation with such zeal and vigour that he even enquired into and took down statements of persons who were supposed to have provided the appellant with articles of food worth trifling sums of money long before the launching of the enquiry.
The whole course of investigation as disclosed in the affidavits is suggestive of some predetermination of the guilt of the appellant.
The enquiring Officer was a high ranking police officer ' and it is surprising that simply because he was technically not exercising powers under Chapter XIV of the Criminal Procedure Code in that a formal first information report had not been lodged he overlooked or deliberately overstepped the limits of investigation contained in the said Chapter.
He recorded self incriminating ' statements of a number of persons and not only secured their signatures thereto obviously with the idea of pinning them down to those but went to the length of providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded.
It was said that the certificates were given after the statements had been signed.
It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates.
There can be very little doubt that the persons who were given such immunity had made the statements incriminating themselves and the appellant under inducement, threat or promise as mentioned in section 24 of the Indian Evidence Act.
It is no doubt the duty of the State to track down and punish all delinquent officers but it is certainly not in accordance with justice and fairplay that their conviction should be sought for by such questionable means.
943 The office of the Directorate of Vigilance and Anti Corrup tion Department, Madras became a police station for the purpose of the Criminal Procedure Code under sub cl.
(s) of sub section
(1) of section 4 of the Code by a notification dated 25th May, 1.964.
Prior to that it was only functioning under a Memorandum No. 1356/ 64 2 dated 8th April 1964 when it was set up to ensure the maintenance of the highest standard of integrity and probity in public servants.
If the investigation had been taken up after May 25, 1964 it would have been one under Chapter XIV of the Code without any doubt.
Although we are not disposed to concur with the view that the investigation under Chapter XIV of the Code started as early as 15th April 1964 we are of opinion that there was no warrant for the Vigilance and Anti Corruption Department which was in the charge of one of the highest police officers of the State to disregard the provisions of sections 162 and 163 of the Code of Criminal Procedure.
The investigation was of a type more I thorough and elaborate than is usually 'to be found : as noticed already it was in charge of a senior police officer who had the I assistance of two police inspectors in the matter.
No blame attaches to them for making enquiries of a large number of persons but the whole course of investigation is suggestive of guidance by someone who was intimately familiar with the affairs of the appellant and his department 'and throwing out scents which the investigating officers were only too keen to pick up and follow.
The appellant may have been guilty of all the charges levelled against him but we cannot approve of the manner in which the investigation against him was conducted and an attempt made to lay a guideline for the persons who were to be cited as prosecution witnesses in their evidence at the trial.
To say the least it would be surprising to find so many persons giving confessional and self incriminatory statements unless they had been assured of immunity from the evil effects thereof whether oral or in writing.
There can be no excuse for the Directorate of Vigilance and Anti Corruption for proceeding in the manner adopted in the Preliminary enquiry before the lodging of the first information report.
As soon as it became clear to them and according to the High Court it was before March 13, 1964 in which we concur that the appellant appeared to be guilty of serious misconduct.
it was their duty to lodge such a report and proceed further in the investigation according to Chapter XIV of the Code.
Their omission to do so cannot but Prejudice the appellant and the State ought not to be allowed to take shelter behind the, plea that although the steps taken in the preliminary enquiry were grossly irregular and unfair, the accused cannot complain because there was no infraction of the rules of the 'Evidence Act or the provisions of the Code, 944 In our view the granting of amnesty to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate.
It was rightly pointed out by the High Court "Neither the Criminal Procedure Code nor the Prevention of Corruption Act recognises the immunity from prosecution given under these assurances and that the grant of pardon was not in the discretion of police authorities.
" We are not impressed by the argument that the appellant was singled out from a number of persons who had aided the appellant in the commission of various acts of misconduct and that they were really in the position of accomplices.
It was pointed out by the High Court that the prosecution may have felt that "if the subordinate officers were joined along with the appellant as accused the whole case may fall for lack of evidence".
In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that unless the subordinates were also joined as co accused with him the case should not be allowed to proceed.
It was contended before us by the learned Advocate General for the State of Madras that both the High Court and the Special Judge had gone wrong in the interpretation of s.5(1)(b) of the Prevention of Corruption Act.
Having heard counsel on both sides, we find ourselves unable to sustain the view of the High Court on this point.
Omitting the portions of the section which are not relevant it reads : "5(1) A public servant is said to commit the offence of criminal misconduct (a) . . (b) if he habitually accepts or obtains. for himself . any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person (whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him,or) having any connection with the official functions of himself, or The portion of the sub section within brackets in our view qualifies,, 94 5 the expression "any person" in the same way as the portion reading "having any connection with the official function of himself".
So read ,,any person having any connection with the official functions of himself" would include any subordinate of the person who accepts the valuable thing.
The words "of himself" do not refer to the person in the expression "any person" but refers to the pronoun "he" at the beginning of the sub section.
A subordinate of the public servant would have connection with his official fun ctions.
In our view the sub section aims at folding within its ambit not only outsiders "who are likely to be concerned in any proceeding or business transacted or about to be transacted" by the public officer but also any subordinate or any other person who is connected with the official functions of the public servant.
In the result all the appeals are dismissed.
Although we do not endorse the view of the High Court with regard to the date of the commencement of the investigation so far as Chapter XIV of the Code of Criminal Procedure is concerned, we do hold that serious irregularities were committed in the so called "full fledged enquiry" to the prejudice of the appellant.
We do not however feel that there is any need to modify the directions given by the High Court to the Special Judge who will follow the directions of the High Court in addition to the modification indicated by us.
V.P.S. Appeal 's dismissed.

Output:
On March 1, 1964, the Chief Minister of the State received a petition containing allegations of corruption against the appellant (a Superintending Engineer) and the Chief Minister asked the Director of Vigilance and Anti Corruption to make enquiries.
On March 10, 1964, the Director submitted a note containing serious aspersions on the appellant and the Chief Minister ordered further investigation.
The Director of Vigilance registered an inquiry on 15th April, 1964, and a Deputy Superintendent of Police of the Vigilance Department was asked to make the inquiry.
The Deputy Superintendent of Police made a thorough and searching inquiry.
He examined a large number of persons including 18 public servants and even enquired into and took down statements of persons who were supposed to have provided the appellant with articles of food worth trifling sums of money, a long time before.
He recorded self incriminating statements of a number of persons and secured their signatures thereto.
With respect to two officers, who were the subordinates of the appellant, he even gave certificates of immunity from any action that might be taken against them for the part played by them in aiding the appellant.
On June 27, 1964, he lodged a first information report, with respect to offences under sections 161 and 165 I.P.C., and section 5(1)(a) and (d) of the Prevention of Corruption Act, 1947.
He investigated into the offences there after, and filed the charge sheet before the Special Judge.
The appellant made an application for discharge under section 251 A, Cr.
P.C., on the grounds of discrimination between him and other officers who were given pardon and, gross irregularities in the investigation.
The Special Judge held, that though there was no basis for charging the appellant under section 165, I.P.C., or under section 5(2), read with section 5(1)(b).
of the Prevention of Corruption Act, a charge could be framed against him under section 5(2) read with section 5(1)(d).
The appellant thereafter moved the High Court, The High Court held : (1) that the investigation started on 15th April 1964 when the Director of Vigilance registered an inquiry (2) that the taking of signed and self incriminating statements from various witnesses was in violation of sections 161 to 164 Cr.
P.C.; (3) that the Special Judge erred in directing the framing of the charge without excluding those statements from consideration; and (4) that the Special Judge should take up the matter once again after excluding from consideration those statements.
In appeal to this Court, HELD : (1) Though technically investigation did not commence on 15th April 1964 but started only after the formal first information report was lodged on,.
June 27, 1964, there were serious irregularities during the 93 2 inquiry and investigation which caused prejudice to the appellant.
The directions given by the High Court were, however, sufficient in the circumstances of the case.
[945 D] The Directorate of Vigilance and Anti Corruption became a police station for the purposes of the Criminal Procedure Code only by a notification dated 25th May 1964.
Therefore, the inquiry before that date was not an investigation under Ch.
XIV of the Code, but there was no warrant for the Vigilance Department, which was in the charge of a senior police officer, to disregard the provisions of sections 162 and 163 of the Code.
Under s.161(3) of the Code a police officer is empowered to reduce into writing any statement made to him in the course of investigation and section 162(1) lays down that such a statement is not to be signed by the maker thereof.
Section 163(1) lays an embargo on the investigating authority using any inducement, threat or promise to the maker.
The reason for these provisions is to secure a fair investigation into the facts and circumstances of the case and to see that an of calous police officer may not misuse his position by getting a statement signed by the maker in order to pin him down to it.
Also, immunity from prosecution and the grant of a pardon were not in the discretion of police authorities.
1940 A H; 941 A B, D, F] In the present case.
the officers who were given immunity must have made the self incriminating statements because an oral assurance of immunity was given before they made the statements, that is, the statements were given as a result of an inducement.
There can be no excuse for the Vigilance Department for proceeding in the manner adopted merely because the first information ',report had not been lodged.
As soon as it became clear to them on March 10, 1964, that the appellant appeared to be guilty of serious misconduct, it was their duty to lodge such a report and,proceed further in the investigation according to Ch.
XIV of the Code.
Their omission to do so cannot but prejudice the appellant and the State ought not to be allowed to take shelter behind the plea that although the, steps taken in the enquiry before the first information was lodged were.
grossly irregular and unfair, the appellant could not complain, because.
there was no infraction of the rules after lodging the first information report.
[942 D G; 943 C H] (2) If it be a fact that it was the appellant, who as the head of the department, was actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that the subordinates should also be joined as co accused with him.
[944D] (3) Under section 5 (1) (b), a public servant would be guilty of the offence of criminal misconduct if he habitually accepts any valuable thing for inadequate consideration not only from outsiders who are likely to be concerned in any proceeding or business, transacted or about to be transacted by the public officer but also from any subordinate or any other person who is connected with the official functions of the public servant.
Therefore, in this case, a charge could also be framed under section 5(1)(b), if there was material.
[945 A C]


Input:
Civil Appeal NOS.
64 65 of 1969.
(From the Judgment and Decree dated 1 12 61 of the Madhya Pradesh High Court in Misc.
First Appeal No. 43 of 1959).
section K. Gambhir for the appellant in CA 64 and Respondent in CA 65/69.
L. Sanghi, K. John and J. Sinha for the respondent in CA 64 and appellant in CA 65/69.
The Judgment of Jaswant Singh and R. section Pathak, JJ. was delivered by Jaswant Singh, J. A. P. Sen, J. gave a dissenting opinion.
JASWANT SINGH, J.
These two cross appeals by certificates of fitness granted by the High Court of Madhya Pradesh at Jabalpur are directed against the judgment and decree dated December l, 1961 of the said High Court dismissing the Misc.
(First) Appeal No. 42 of 1959 preferred by the appellant from the Award dated December 20, 1958 of the II Additional District Judge, Raigarh in Miscellaneous Judicial Case No. 59 of 1958 being a reference under section 18 of the Land Acquisition Act, made at the instance of the appellant in 13 817SCI/78 186 respect of the Award dated August 23, 1957 of the Land Acquisition officer, Raigarh.
The facts giving rise to these appeals are: on an undertaking given by him to pay full compensation with interest from the date of possession to the date of payment of compensation as provided in the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ') the District Engineer, South Eastern Railway, Raigarh, took advance possession on January 17, 1957 of five plots of agricultural land admeasuring 3.38 acres and another plot of agricultural land admeasuring 0.14 acres adjoining the railway track situate in village Darogamuda, Tehsil and District Raigarh, a suburb of Raigarh belonging to respondents I and 2 respectively for doubling the railway line between Rourkela and Durg in the South Eastern Railway.
Subsequently Notification dated February 8, 1957 under section 4(1) of the Act for acquisition of the aforesaid plots of land was issued and published in the Government Gazette dated February 15, 1957.
This was followed on March 21, 1957 by a notification under section 6 of the, Act.
Although in the r statements filed by them under section 9(2) of the Act the respondents claimed compensation at the rate of Rs. 32,670/ per acre i.e. at the rate of /12/ per square foot on the ground that the plots of land in question had a great potential value as a building site and Rs. 500/ for improvements and Rs. 100/ as the value of one tree, the Special Land Acuisition officer, Raigarh by his award dated August 23, 1957 awarded compensation at the rate of Rs. 3,327/14/ per acre which roughly worked out at /1/6 per square foot on the basis of the statement of sales furnished by A.S.L.R. (L.A.) prepared by Jujhar Singh N.A.W.I. Not satisfied with the quantum of compensation, the respondents made an application to the Special Land Acquisition officer requesting him to refer the matter to the court under section 18 of the ;1 Act.
According to the request of the respondents, the Special Land .
Acquisition officer made the aforesaid references to the II Additional District Judge, Raigarh, who by his award dated December 20, 1958 enhanced the rate of compensation to /4/ per square foot and awarded Rs. 36,808/4/ and Rs. 1,524/8/ to respondents l and 2 respectively as compensation.
The Additional District Judge also allowed the solatium at the rate of 15% amounting to Rs. 5.521/4/ and Rs. 228/12/ to respondents 1 and 2 respectively.
Aggrieved by the said , Award of the II Additional District Judge, the appellant preferred an appeal to the High Court of Madhya Pradesh at Jabalpur which was registered as Miscellaneous (First) Appeal No. 43 of 1959.
In the said appeal, the respondents filed cross objections claiming enhancement of compensation by Rs. 84,518.39 P.
The High Court by its 187 judgment dated December 1, 1961 dismissed the aforesaid appeal preferred by the appellant but allowed the cross objections filed by the respondents holding the reasonable rate of compensation to be /8/per square foot.
Consequently respondent No. 1 was held entitled to Rs. 73,616 8 O as compensation and Rs. 11,042 8 0 as solatium and respondent No. 2 was held entitled to Rs. 3,049 0 0 as compensation and Rs. 457 8 O as solatium.
It is against this judgment of the High Court that the present appeals are directed.
Appearing for the appellant, Mr. Gambhir while admitting that in an appeal under Article 136 of the Constitution, the Court is only concerned with finding out whether the principles on the basis of which compensation has been computed for acquisition of land under the Act have been rightly applied or not and cannot re appraise the evidence, has urged that the Additional District Judge and the High Court have erred in treating the land in question which was primarily an agricultural land as abadi land overlooking that it had not been declared as such.
Mr. Sanghi has on the other hand urged that even according to the findings of the Additional District Judge, who made the spot inspection, as also of the High Court, it is abundantly clear that the land in question was Abadi land and has been rightly treated as such.
Mr. Sanghi has further urged that the said site has great potentialities as building site.
The question as to whether a land has potential value of a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing, or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof.
the instant case, the fact that the land in question has a great potential value as a building site is evident not only from the observations made by the Special Land Acquisition officer himself in his aforesaid award to the effect that the land has assumed semi abadi site hut also from the following observations made in his judgment dated December 20, 1958 by the Additional District Judge who had the advantage of inspecting the site: "The land abuts Raigarh town.
It is within Municipal limits and the nazul perimeter extends upto it.
To the east of 188 the plot there are some kutcha buildings inhabited by respectable persons.
To the North is a Municipal road leading to the railway quarters to the west.
To the west beyond the railway quarters, there is further habitation` and the locality is called "Banglapara" within Municipal limits.
The plot did have a potential value as a building site and it is further supported by the fact that the plot has been used by the Railway authorities for construction of staff quarters thereon though the land was acquired for doubling the rail way line.
" It is also not disputed that the Special Land Acquisition officer did not lead any evidence worth the name to show the price of the comparable sites in question and remained content with the production only of the sale statement made by Jujhar Singh, N.A.W.I.
Now the sale statement consisted mostly of sales relating to the year 1951 which is not relevant for the question in hand.
Moreover, the sale statement by it self without examining either the vendors or the vendees or the persons attesting the sale deeds is not admissible in evidence and can not be relied upon.
The sale deed dated December 14, 1956 in favour of Dr. Das for 4,800 square feet of land out of contigious Khasra No. 256 in lieu of Rs. 2,000/ i.e., at approximately 6 1/2 annas per square foot (which has been relied upon by the Additional District Judge and the High Court) could be taken as a safe guide for determine nation of the compensation.
From the material adduced in the case, it appears that Raigarh is a growing town, that instead of utilising the land for doubling the railway track, the railway has built staff quarters thereon, that on three sides of the acquired land, there already existed pucca buildings and on the fourth side, there is a metalled road.
It is also in evidence that some lawyers have put up some constructions near the sites in question.
Taking all the facts into consideration.
it cannot be said that the basis on which the Additional District Judge and the High Court proceeded is wrong or that the quantum of compensation awarded by the High Court is in any way excessive or exorbitant.
As neither the interest nor compensation on account of severance was claimed in the High Court either by Dr. Harisingh Thakur or by Tikam Singh Thakur, we do not think they can justifiably put up claims in that behalf.
Mr. Sanghi appearing on their behalf has fairly stated that he would not like to press his cross appeal.
In the result, we do not find any merit in either of the aforesaid appeals.
W. would accordingly dismiss them with costs.
SEN J. I have had the advantage of reading the judgment by my learned brother Jaswant Singh.
Since the appeal involves an important 189 question affecting valuation which has been overlooked by the High Court, I would like to say a few words of my own.
Normally, this Court does not interfere in appeal with the valuation by the High Court in land acquisition cases, unless the judgment cannot be supported, as it stands, either by reason of a wrong application of principles or because some important point in evidence has been overlooked or mis applied: The Special Land Acquisition officer, Bangalore vs Adinarayan Setty(1).
With respect, I venture to say that the judgment of the High Court cannot be supported by reason of a wrong application of principles.
It overlooked the fact that there was no discernible basis on which the Additional District Judge could have changed the mode of valuation adopted by the Special Land Acquisition officer treating the land acquired to be agricultural land and in awarding compensation upon the basis as if it were a building site.
Indeed, there was no atempt on their part to determine the ' 'intrinsic character of the land", namely, whether the land acquired should be classified as agricultural land or not.
In the present case, the High Court obviously fell into an error in overlooking the, fact that the acquired land situate in village Darogamuda, admeasuring 3.52 acres, was, on the 8th February, 1957 i.e. On the date of the issue of the notification under section 4(1) of the Act, agricultural land.
It was recorded as a raiyati land belonging to the two claimants, Dr. Harisingh Thakur and his brother Vikram Singh Thakur who were ex gaontiyas of village Darogamuda.
The land was not recorded as abadi as wrongly assumed by the High Court.
Perhaps it was misled by the mis description of the land as abadi in the reference made by the Collector under section 18(1).
This is an admitted position between the parties.
In response to the notice of admissions and denials of documents served by the claimants, the Collector admitted panchsala khasra for the years 1952 53 to 1953 54 and kistbandi khatouni for the years 1952 53 and 1953 54.
The claimant Dr. Harisingh Thakur, AW1 admits during his crossexamination that till the month of December 1956, the lands were actually under his cultivation and he had reaped the crops before delivering possession of the same on the 17th January, 1957 to the District Engineer, South Eastern Railway.
He further admits that throughout the land was under cultivation i.e. from the time, of his forefathers.
In fact, Jujhar Singh NAW1, Assistant Superintendent Land Records, who was at the relevant time a Revenue Inspector, states that the,. land (1) [1959] Supp.
(1) S.C.R. 404.
190 acquired was a paddy field and was surrounded by agricultural lands.
That being so, the District Judge, was clearly wrong in treating the land to be abadi and calculating compensation on the footing of its being a building site.
In awarding compensation at a flat rate of Rs. 3,327.87 P. per acre, the Special Land Acquisition officer took notice of the fact that the land is situate in village Darogamuda, a suburb of Raigarh, which is a town of great commercial importance, though beyond its nazul perimeter.
He also took notice of the fact that the land abuts the railway track and there were agricultural fields on two sides.
On the other two sides, there existed kutcha hutments of backward classes and a few railway buildings.
The award of compensation at the rate of Rs. 3,327.87 P. per acre was based on average of sales of lands in recent years as prepared by Jujhar Singh, Revenue Inspector NAW 1.
The Special Land Acquisition officer accordingly observed: "The average value based on the above noted sales comes to Rs. 3,327/14/ per acre and in my opinion it truly re presents the average market value of lands in this predominantly agricultural locality which has assumed semi abadi site value due to the constructions of houses mostly by low class people besides a few buildings of Railway Department.
It is for this reason that the average value per acre comes to as much as Rs. 3,327/14/ per acre else the lands in question would have fetched lower price, available in respect of agricultural lands to which class they really belong and stand assessed as such till today.
" While it is no doubt true, as my learned brother Jaswant Singh has rightly observed, that the statement of average of sales, prepared by Jujhar Singh NAW 1, was not admissible in evidence unless the Collector proved the transactions in question, upon which it was based, there is no denying the fact that the acquired land was nothing but agricultural land and the mode of valuation had necessarily to be upon that basis.
Now, if the purpose for which the land was acquired, i.e., for the construction of staff quarters in connection with the doubling of the railway line by the South Eastern Railway, has no bearing on the question of valuation, the future possibilities of the land, which admittedly was agricultural land, lying in the vicinity of Raigarh if applied to the most lucrative use, having regard to its the then condition, was very little as a building site.
The land was lying undeveloped and undiverted.
Unless there was a development scheme, the land could not 191 be valued as a building site.
The land could, however, be put to that use if there was such development scheme.
At the time of the notification under section 4(1), there was no recent building activity near about the land, which was either under cultivation or lying desolate.
But as l have already said, the land could be put to a better use provided it was fully developed as a building site.
The claimants were, therefore, entitled to the evaluation of the land as agricultural land with an additional allowance being made for its future potentiality as a building site.
I just cannot imagine what could be the utility of the acquired land on a building site, looking to its proximity to the railway track.
It would, indeed, be very little.
In a reference under 9. 18 of the Act, the burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis.
The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him.
When the proceedings before the Collector disclose that the award was not reasonably supported by the material before him, or when the basis was the application of a 'multiple ' which could not be justified on any rational ground, the burden can be discharged by a slight evidence.
But that is not the case here.
The claimants have led no trustworthy evidence.
It is equally well settled that where the claimant leads no evidence to show that the conclusions reached in the award were inadequate, or, that it offered unsatisfactory compensation, the award has to be confirmed.
Upon a compulsory acquisition of property, the owner is entitled to the value of the property in its actual condition, at the time of expropriation, with all its advantages and with all its possibilities, excluding any advantage due to the carrying out of the claim for the purpose for which the property is acquired.
In Vyricharla Narayana Gajapatjiraju vs Revenue Divisional Officer Vizagapatnam(1) the Privy Council state: "For the land is not to be valued merely by reference to the use to which it is being put at the time at which the value has to be determined. but also by reference to the uses to which it is reasonably capable of being put in the future.
It is possibilities of the land and not its realized possibilities that must be taken into consideration.
" The value of the acquired property, with all its possibilities has to be ll adjudged on the material on record.
(1) 66.
I.A. 104.
192 The market price must be fixed with reference to the date of the.
notification under section 4 irrespective of any trend, if any, for an increase in the value thereof.
The basis for determination of the market value of tel land within section 23 (1) (i) of the Act is the value of the land to the owner.
Only such transactions would be relevant which can fairly be said to afford a fair criterion of the value of the property as at the date of the notification.
That test is clearly not fulfilled in the present case.
Clause fifthly in section 24 interdicts the court from considering any prospective increase in value due to acquisition.
Market value of the land acquired has to be fixed with reference to the date of notification under section 4 (1) .
In Vyricharla Narayana Gajapatiraju vs Revenue Divisional Officer, Vizagapatam (supra) the Privy Council observed that where the owner is a person who could turn the potentiality of the land into account, it is immaterial that the utilization of the same potentiality is also the purpose for which the land is acquired.
The Underlying principle is that a speculative rise in price of land due to acquisition should not be an element which should enter into computation.
Sometimes the prices shown in sale deeds executed subsequent in point of time are not the actual prices paid.
The sales may be.
unreal and may not reflect the true value of the land.
There always elapses a certain interval between the time when the intention to acquire Ea certain land first becomes known and the actual notification under section 4(1) is issued.
Here though the notification under section 4(1) was issued on 8th February, 1957, but the claimants had, in fact, delivered the possession to the District Engineer, South Eastern Railway on the 17th January, 1957, and were indeed, as it appears from the evidence, aware of the fact that the land was being acquired by the South Eastern Railway much earlier, i.e., in December, 1956.
In view of this, the prospective rise in value, if any, has to be kept out of consideration.
the principles to determine the quantum of compensation are contained in section 23(1) of the Act.
The court in fixing the amount has to take into consideration the prevailing market value of the land at The date of the notification under section 4(1) and the said market value has to be determined by reference to the price which a willing seller might have reasonably expected for similar property from a willing purchaser.
The underlying principle of fixing the market value with reference to comparable sales is to reduce the element of speculation.
In a comparable sale, the features are: (i) it must be within a reasonable time of the date of notification under section 4.(1); (ii) it should be a bona fide transaction; (iii) it should be a sale of the land acquired or of the land adjacent to the acquired; and (iv) it should possess 193 similar advantages.
Before such instances of sales can be considered there must be material evidence either by the production of the sale deeds or by examining the parties to the deeds or persons having knowledge of the sales, to prove that the transactions are genuine.
In the light of these principles, the three sale deeds relied upon by the High Court, Ext.
P 14, Ext.
P 15 and Ext.
P 17, pertaining to the small portions of the acquired land executed by the claimants, could not obviously be the basis for the determination of the market value of the land.
These sale deeds had clearly been brought into existence by the claimants in quick succession, in an attempt to inflate the price of the land, after they became aware of the proposed acquisition.
Of these, the land covered by the sale deed Ext.
P 14, dated 14th December, 1956 executed by Tikam Singh Thakur, i.e., just a month before the delivery of the possession, shows a sale of a plot measuring 4,800 sq.ft.
to Dr. Dhirendra Chandra Das, AW 2, for a price of Rs. 2,000/ .
The rate works out to about 42P per sq.
It evidently could not afford a fair criterion of the value of the property on the date of the notification under section 4(1).
Dr. Das admits that he is in Railway service and when he purchased the land he knew that it was being acquired by the South Eastern Railway.
No doubt Dr. Das is a willing friend of Dr. Harisingh Thakur prepared to lend a helping hand but, by no stretch of imagination, could he be treated to be a willing purchaser.
in the true sense of the term.
Though Dr. Das asserts that he had purchased the land for building a house, he admits that he did not construct upon it because he would have been required to invest considerable money for levelling the land making it fit to be utilised as a building site.
This transaction indubitably does not appear to be a real sale and could not furnish any guide for determination of the true market value.
I am afraid, the other two sale deeds, Ext.
P 15 dated 19th December, 1956 and Ext.
P 17 dated 21st February, 1957 executed by Dr. Harisingh Thakur, by which he sold 300 sq.
Of the acquired land to Jhallu Dani, AW 13 for Rs. 150/ and 280 sq.
ft to Baido, AW 15, for Rs. 200/ were, in fact, fictitious sales effected by him after delivery of possession to the South Eastern Railway.
The transactions speak for themselves.
Indeed, Ext.
P 17 was executed by him after issue of the notification under s.4(1).
The first sale was effected by the claimants to show the price of the land to be 50P per sq.
They were evidently not satisfied by this and, therefore, brought the other sale deed into existence, a few days after the notification, showing the rate to be about 72P per sq.
It is needless to stress that such fictitious and unreal transactions which are but 194 speculative in nature could not be taken into account by the High Court at all.
In Raghubans Narain Singh vs The Uttar Pradesh Government (1) this Court quoted with approval the following passage from one of its earlier decision in N. B. Jeajabhoy vs The District Collector, Thana,(2) where it was said: "the question therefore turns upon the facts of each case.
In the context of building potentiality many questions will have to be asked and answered: whether there is pres sure on the land for building activity, whether the acquired land is suitable for building purpose, whether the extension of the said activity is towards the land acquired, what is the pace of the progress and how far the said activity has ex tended and within what time, whether buildings have been put up on the lands purchased for building purposes, what is the distance between the built in land and the land acquired and similar other questions will have to be answered.
It is the overall picture drawn on the said relevant circumstances that affords the solution.
" In Raghubans Narain Singh 's case (supra) there was evidence to the effect that there was a school building near the acquired land, that the land abutted on the road and that some houses had been built on the opposite side of the road.
It was nevertheless held by this Court that all this did not constitute evidence of building potentiality.
It was pointed out that there should be evidence, on the record, 'of building activity of a substantial nature, being carried on in the neighbourhood of the acquired land, at about the time when the notification was issued '.
There is complete absence of such evidence in this case.
It is beyond doubt that the acquired land was agricultural land, and had not been diverted for non agricultural purposes.
Indeed, the claimant, Dr. Harisingh Thakur had himself admitted the land to be agricultural land.
The land is on the outskirts of Raigarh town but that itself does not show that the land had a potential value for building purposes.
It was for the claimants to show that at the relevant time there was a tendency of the town to develop in that direction and that prior to the acquisition new buildings had been constructed in the neighbourhood.
Topography of the acquired land which abuts the railway track is given by Jujhar Singh, NAW 1, the then Revenue Inspector, who states that actually paddy used to be grown on the land.
To the north of this land, there was cultivation.
Beyond it, there was a 10 ft.
(1) [1967] I S.C.R. 489.
(2) C.A. Nos. 313 to 315 of 1965 decided on August 30, 1965.
195 broad pucca road.
About three furlongs way from the land was the house of Ambalal.
About one and a quarter miles away there was a skin godown.
In the east, there were small huts.
Beyond them, in the east, at a distance of about half a furlong, there was the house of Jairamvalji.
In the west, about a furlong away, there was an old bungalow.
At about the same distance, there is the burial ground.
In between and all around, there were agricultural fields.
That is the total evidence of the case.
On this evidence it cannot be said that valuation should be made on the basis of the potentiality of the land as building site.
In the absence of comparable sales, the only other alternative to adopt is the capitalised value.
Compensation in respect of the agricultural land should be allowed on the basis of 20 years ' purchase.
The capitalisation basis cannot, however, be accepted in a case where, as in the instant case there is no evidence of the profits yielded from the land.
I would, therefore, for these reasons allow the appeal of the State of Madhya Pradesh.
It is with reluctance that I have written this separate opinion.
There has never been a public undertaking in this country Governmental, Municipal, city or industrial, but that the land holder has generally secured anything from four to forty times as much for the land as its agricultural price, i.e., many times its real value.
This result unfortunately springs from a general tendency of District Judges in hearing a reference under s.18 of the Land Acquisition Act, 1894, to assume that purely agricultural lands, merely by their proximity to a city or town, become endowed with 'special adaptability ' as a building site.
While it is not suggested that unfairly low value should be offered, on the other hand the temptation to over generosity must be equally resisted.
Such generosity at the public expense reacts against the development and against the prosperity of the country and imposes an unnecessary burden on the taxpayer.
Per Curiam In accordance with the opinion of the majority, the appeals are dismissed with casts.
N.V.K. Appeals dismissed.

Output:
Agricultural land belonging to the respondents was acquired by the railways for doubling the railway line, compensation payable for the acquired land was fixed at Re. 1/6 per sq.
But the respondent claimed Re. /12/ per sq.
On the ground that the land had a great potential value as a building site.
On reference the Additional District Judge enhanced the rate of compensation to Re. /41 per sq.
and allowed solatium at 15%.
On appeal the High Court enhanced the compensation to Re.
/8/ per sq.
on further appeal to this Court it was contended on behalf of the appellants that the courts below had erred in treating the land, which was primarily agricultural land, as abadi land overlooking that it had not been declared as such.
[Per Jaswant Singh & Pathak, J. Sen, J. dissenting] Dismissing the appeals.
^ HELD: (1) Taking all the facts into consideration it cannot be said that the basis on which the Additional District Judge and the High Court proceeded was wrong or that the quantum of compensation awarded by the High Court was in any way excessive or exorbitant.
[188 F] (2) The question as to whether a land has potential value as a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof.
[ 87F F] (3) In the instant case it was clear from the observations of the Special Land Acquisition officer and the Addl.
District Judge that the land had great potential value as a building site.
Moreover the Spl.
Land Acquisition officer did not lead any evidence worth the name to show the price of comparable sites but remained content with the production only of the sale statement prepared by the Revenue Inspector.
The sale statement consisted mostly of sales relating to the year 1951 which is not relevant to the question on hand.
Without examining the vendors or vendees, the sale statement was not admissible in evidence and could not be relied upon.
From the material on record it was clear that Raigarh was a growing town.
Instead of utilising the land for doubling the railway track 184 the railway had built staff quarters.
On three sides of the land there were pucca buildings and on the fourth side there was a metalled road.
[187G H 188C D. [Per Sen, J.(dissenting)] 1.
Upon compulsory acquisition of property, the owner is entitled to the value of the property in its actual condition at the time of expropriation with all its advantages and with all its possibilities, excluding any advantage due to the carrying out of the claim for the purpose for which the property is acquired.
The value of the acquired property with all its possibilities had to be adjudged on the material on record.
[191 F, H] Vyricharla Narayana Gajapatiraju vs Revenue Divisional officer, Vizagapatnam, 66 IA 104, followed.
The market price must be fixed with reference to the date of the notification under section 4 irrespective of any trend, for an increase to the value thereof.
The basis for determination of the market value of the land within section 23(1)(i) of the Act is the value of the land to the owner.
Only such transactions would be relevant which can fairly be said to afford a fair criterion of the value of the ,, property as at the date of the notification.
That test is clearly not fulfilled in l? the present case[192A B] 3.
In a reference under section 18 of the Act the burden of providing that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis.
The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him.
When the proceedings before the Collector disclose that the award was not reasonably supported by the material before him or when the basis was the application of a "multiple" which could not be justified on any rational ground, the burden can be discharged by a slight evidence.
But that is not the case here.
[191C D] 4.
In the present case the High Court fell into an error in overlooking the fact that the acquired land was agricultural land.
It was recorded as a raiyati land.
The land was not recorded as abadi as wrongly assumed by the High Court.
The claimants admitted that the land was actually under cultivation.
The Revenue Inspector stated that the land was a paddy field and was surrounded by agricultural lands.
That being so the District Judge was clearly wrong in treating the land to be abadi and calculating compensation on the footing of its being a building site.
[189E 190A] 5.
Secondly, the land was lying undeveloped and undiverted.
Unless there was a development scheme the land could not be valued as a building site.
At the time of the notification under section 4(1) there was no recent building activity near about the land.
The land could be put to better use provided it was fully developed as a building site.
The claimants were therefore entitled to the valuation of the land as agricultural land with an additional allowance for its future potentiality as a building site.
[190H 191B] 6.
In fixing the amount of compensation the court has to take into consideration the prevailing market value of the land at the date of the notification unders.
4(1) and such market value has to be determined by reference to the price which a willing seller might have reasonably expected for similar property from 1 a willing purchaser.
In a comparable sale the features are: (1) it must be 185 within a reasonable time of the date of notification under section 4(1), (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or of the land adjacent to the land acquired and (4) it should possess similar advantages.
[92G 193A] 7.
In the instant case the sale deeds relied upon by the High Court could not obviously be the basis for the determination of the market value of the land.
These sale deeds had clearly been brought into existence by the claimants in quick succession in an attempt to inflate.
the price of the land after they became aware of the proposed acquisition.
The transactions which were examined by the High Court were apparently fictitious and unreal and are speculative in nature and could not be taken into account at all.
[193B C, 193H 194A] 8.
On the evidence produced it could not be said that valuation should be made on the basis of potentiality of the land as building site.
There is complete absence of evidence of building activity of a substantial nature being carried on in the neighbourhood of the acquired land at about the time when the notification was issued.
The claimants themselves did admit that the land was agricultural land.
[195B, 194F C] Raghubans Narain Singh vs The U.P. Govt.
, ; N. B. Jeejabhoy vs The District Collector, Thana, C.A. Nos. 313 to 315 of 1965 decided on Aug 1965: referred to.
In the absence of comparable sales, the only other alternative to adopt is the capitalised value.
Compensation in respect of the agricultural land should be allowed on the basis of 20 years ' purchases.
The capitalisation basis cannot, however, be accepted in a case where there is no evidence of the profits yielded from the land.
[195C]


Input:
minal Appeal No. 176 of 1969.
Appeal from the Judgment and order dated November 12, 1968 of the Assam and Nagaland High Court in Criminal Revission No. 73 of 1968.
K. P. Gupta, for the appellant V. A. Setyid Mahmud and section K. Nandy, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
Prior to August 15, 1947, the respondent was in the service of the Government of Assam as, an unarmed Police Constable bearing No. 407, serial No. 29.
On partition, he opted for service in Pakistan.
Consequent on his exercising such option, the Assam Government passed an order No. 2155, dated December. 31, 1947, releasing him ' from service 'and directing him to report to the Inspector General of Police, Dacca for service there.
The respondent thereafter went to the then East Pakistan and joined Pakistan Government service as a peon in the sub registrar 's office at Fenchugani, District Sylhet.
He entered India on December 23, 1953 on the strength of a Pakistani passport, dated September 10, 1953 and an Indian visa dated November 11, 1953.
He appears to have returned,to Pakistan on April 25, 1954.
, On January 27, 1955, he again applied for and obtained an Indian visa which was valid upto January 26, 1955.
On the strength of that visa, he entered India on April 4, 1955.
Instead of returning to Pakistan, he overstayed 'beyond January 26, 1955 until he was detected on October 9, 1964 in the village Niargram, Salchar Sub Division in the house of one Tozamul Ali Majumdar.
He had at that time no permit as required by cl. 7 of the Foreigners Order, 1948, as amended in 1959.
He was consequently arrested and prosecuted under sec.
14 of the read with cl. 7 of the Foreigners Order, 1948.
The Additional District Magistrate, Silchar convicted him under cl. 7 of the Foreigners Order read with section 14 of the and sentenced him to rigorous imprisonment for a period of six months and directed that he should to deported from India after he had served out the sentence.
On appeal by the respondent against the said order of conviction and sentence, the Sessions Judge, Silchar upheld the said order of conviction and sentence.
In the revision application filed by him in the High Court of Assam and Nagaland, the High Court, relying pip Fidea Hussain vs U.P.(1), reversed the said order of conviction and sentence and (1) ; 687 accepting the revision acquitted him.
The reasoning adopted by the High Court was that as in the case of Fida Hussain(1) the respondent was a natural born British subject, that being so he was at 'the date of his entry in India in April 1955 a citizen of India under article 5 of the Constitution and that he was governed by the definition of a foreigner in the before that Act was amended in 1957.
Before the said amendment, a foreigner as defined by section 2(a) meant a person who: (i) is not a natural born British subject as defined in sub sections (1) and (2) of sec.
I of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in India, or (iii) is not a citizen of India.
The High Court felt that the respondent fell under cl.
(i) of the said definition and therefore was not a foreigner when he entered India in April 1955 (i.e., before the definition was amended in 1957) and was not, therefore ' required to obtain a permit under cl. 7 of the Foreigners Order, 1948.
According to the High Court, if the amended definition applied to the respondent it would be the Central Government and not a court of law which could under the be the appropriate authority to deal with such questions.
In our view the reasoning adopted by the High Court, of which the basis was the decision in Fida Hussain 's case(1) was not valid as the High Court omitted to take into account the fact of the respondent having left India for Pakistan in August 1947 after he has opted for service in Pakistan.
The defence of the respondent was that he was born in India, that he owned a house and lands in India and was therefore a citizen of India within the meaning of article 5 of the Constitution.
There is, however, the fact established by the record in this case that in 1947 he opted for Pakistani service, and that he left India for Pakistan where he obtained service as a peon and that he lived there from 1947 to 1953 when he came to India on a short visit on the strength of a Pakistani passport and a visa and then returned to Pakistan.
Under article 7, notwithstanding anything in article 5, a person, who has after the first day of March 1947, migrated from the territory of India to the territory included in Pakistan shall not be deemed to 'be a citizen of India.
If article 7 applied to this case (1) ; 688 the respondent would not be deemed to be a citizen of India notwithstanding his complying with the conditions of article 5.
It is quite clear from H.P. vs Pear Mohammad(1) that it would be article 7 and not the which would apply to a case where a person has migrated to Pakistan between March 1, 1947 and January 26, 1950 when the Constitution came into force.
If article 7 were to apply it is clear that the court and not the Central Government or its delegate which would have jurisdiction to deal with the question whether the person concerned is a foreigner to be dealt with under the .
The crucial point in the case, therefore, was whether the respondent had migrated to Pakistan between March 1, 1947 and January 26, 1950.
If he did, then notwithstanding his complying with the requirements of article 5, his case would fall under article 7 and he would be deemed not to be a citizen even on the date of his entry in India on April 4, 1955.
What then is the connotation of the word 'migrated ' within the meaning of article 7 in Kulathil Mammu vs Kerala(1), this Court interpreted article 7 and held that the word 'migrated ' was capable of two meanings.
In its narrower connotation it meant going from one place to another with the intention of residing permanently in the latter place; in its wider connotation it simply meant going from one place to another whether or not with the intention of permanent residence in the latter place.
in article 7 the word was used in its wider sense though it did not take in movement which was in voluntary or for a specific purpose and for a short and limited period.
Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service, his having secured release from Indian service as a constable, his going to Pakistan and obtaining service there as a peon in the sub registrar 's office, his staying there thereafter for a long period, his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile, there can be no doubt that he had gone to Pakistan permanently.
His movement to Pakistan thus was neither involuntary nor for a short or limited period, but was clearly with the definite intention of having a permanent place of abode there.
His case thus fell within article 7 and therefore on his entry in India on April 4, 1955 he was a person who wag deemed not to be a citizen of India.
In Fida Hussain vs U.P. (3), the question of the applicability of article 7 did not arise and was not considered presumably because it was not contended that Fida Hussain had migrated to the territory which fell within Pakistan between March 1, 1947 and January 26, 1950.
The Court, therefore, considered only cl.
(1) of section 2(1) of the Foreigners Act, 1945 and not its cl.
(3) as it (1) [1963] Supp. 1 S.C.R. 429 (3) ; (2) ; 689 stood before its amendment in 1957.
It appears that the only date available there was the date of his entry in 1953, when the unmended definition prevailed.
It could not, therefore, be said there that he had migrated from India between March 1, 1947 and January 26, 1950, and that therefore, he would be deemed not to be a citizen of India under article 7.
In our view, the High Court could not have relied on Fida Hussain 's case (supra) for its conclusion that the respondent was not a foreigner in April 1955, and that therefore, Cl. 7 of the Foreigners ' Order could not apply to him.
Cl. 7 of the Foreigners ' Order 1948 by its sub cl.
(1) requires every foreigner who enters India on the authority of a visa to obtain a permit from the relevant authority indicating the period during which he is authorised 'to remain in India.
The visa obtained by the respondent permitted him to stay in India till January 26, 1956.
If he wanted to stay beyond that period, it was incumbent on him as provided by sub cl.
(3) of cl. 7 to obtain from the relevant authority thereunder an extension of the period mentioned in the visa.
In the absence of such an extension he was bound to depart from India on January 26, 1956.
Admittedly he did not, but on the contrary continued to remain in India, until he was detected in 1964.
Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957.
But whether the respon dent was exempted under that order or not is entirely irrelevant for the purposes of cl. 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a foreigner entering India under a visa does not overstay 'beyond the period for which the visa permits him to stay in this country.
By overstaying here without the required extension the respondent clearly violated the provisions of cl.
7(1) and (3) of the Foreigners ' Order, 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this country, and therefore, a foreigner even under the definition of a foreigner in sec.
2 of, the Foreigners Act before it was amended in 1957.
The decision in State vs Ibrahim Nabiji(1) referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal, that is with regard to a person who, notwithstanding article 5, is to be deemed not to be a citizen under article 7, and therefore, a foreigner within the meaning of sec.
2(a) of the Foreigners Act as it stood in 1955.
The State vs Akub (2 ) another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of cl. 7 of the Foreigners ' Order, 1948 are (1) A.I.R. 1959.
(2) A.I.R. 1961 All.
690 persons who are.
not citizens of India, and that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after, their entry by reason of the amendment of the definition in.
This decision again cannot assist the respondent in, view of our concluSion with regard to article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India.
In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of cl. 7 of the Foreigners ' Order, 1948 and was liable to be punished under section 14 of the .
He was, therefore, rightly convicted and sentenced by the Trial Magistrate.
The High Court, in our view, erred in setting aside that order of conviction and sentence.
The appeal by the State is, therefore, allowed and the order of the Trial Court is restored.
S.C. Appeal allowed.

Output:
Prior to 1947, the respondent was in the service of the Government of Assam as an unarmed Police constable and on partition, he opted for service Pakistan.
The respondent went to the then East Pakistan and joined Pakistan Government service as a peon.
He entered India in 1953 on the strength of a Pakistani passport but returned to Pakistan in 1954.
Again in 1955, he obtained an Indian visa which was valid upto January 26, 1955.
On the strength of that visa, he entered India but instead of returning to Pakistan, he over stayed until he was detected and arrested.
He was then prosecuted under section 14 of the read with Clause 7 of the Foreigners Order, 1948.
The Additional District Magistrate Convicted and sentenced him and the Sessions Judge also upheld the said order of conviction and sentence.
In a revision application, the High Court, relying on Fida Hussain vs U.P., ; , reversed the said order of conviction and sentence and acquitted him on the ground that he was not a 'foreigner ' under section 2(a) of the , but was a citizen of India under article 5 of the Constitution; when he entered India in 1955 (before the said definition was amended in 1957.
Allowing the appeal, Held :(1) The respondent was a foreigner when he entered India in 1955 as the definition of 'foreigner ' then stood and by overstaying beyond the period permissible under the visa, he clearly committed breach of Clause 7 of the Foreigners Order, 1948 and was liable to be convicted under section 14 of the .
(690B C] The crucial point in the present case, was whether the Respondent had migrated to Pakistan between 1947 and 1950.
If he did, then notwithstanding his complying with the requirement of article 5, his case would fall under article 7 and he would be deemed not to be a citizen even, on the date of his entry in India in 1955.
Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service, his having secured release from Indian service, as a constable, his going to Pakistan and obtaining service there as a peon, his staying there for a long period; his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile etc; there could be no doubt that he had gone to Pakistan permanently.
His case thus fell within article 7 and therefore, at his entry in India in 1955 he was a person who was deemed not to be a citizen of India.
[688C G] H. P. vs Peer Mohammad, , Kulathil Mammu vs Kerala, ; , State vs Ibrahim Nabiji, A.I.R. 1959 Bom.
526 and State vs Akub, A.I.R. 1961 All. 428, referred to. 686