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ition Nos. 5670 and 6216 of 1980.
(Under Article 32 of the Constitution) Mrs. K. Hingorani, Mr. Hingorani, Mukul Mudgal and Damodar Prakash for the Petitioners.
K G. Bhagat and D. Goburdhan for the Respondent.
Miss A. Subhashini for the Union of India.
The Order of the Court was delivered by, BHAGWATI, J.
The question which arises before us for consideration is whether certain documents called for by the Court by its order dated 16th February, 1981 are liable to be produced by the State or their production is barred under some provision of law.
The documents called for are set out in the order dated 16th February, 1981 and they are as follows: 1.
the CID report submitted by L.V. Singh, DIG, CID Anti Dacoity) on December 9, 1980; 2.
the CID reports on all the 24 cases submitted by L.V. Singh and his associates between January 10 and January 20, 1981; 3.
the letters number 4/R dated 3rd January, 1981 and number 20/R dated 7th January 1981 from L.V. Singh to the IG, Police; 4.
the files containing all correspondence and notings exchanged between L.V. Singh, DIG and M.K. Jha, Additional IG, regarding the CID inquiry into the blindings, and 5.
the file (presently in the office of the IG, S.K. Chatterjee containing the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July or thereabouts and his letter to K.D. Singh, SP, CID, Patna which has the hand written observations of M.K. Jha.
The State has objected to the production of these documents on the ground that they are protected from disclosure under Sections 162 and 172 of the Code of Criminal Procedure 1973 and the petitioners are not entitled to see them or to make any use of them in the present 150 proceeding.
This contention raises a question of some importance and it has been debated with great fervour on both sides but we do not think it presents any serious difficulty in its resolution, if we have regard to the terms of Sections 162 and 172 of the Criminal Procedure Code on which reliance has been placed on behalf of the State.
We will first consider the question in regard to the reports submitted by Sh.
L.V. Singh, Deputy Inspector General CID (Anti Dacoity) on 9th December, 1980 and the reports submitted by him and his associates Sh.
R.R. Prasad, S.P. (Anti Dacoity) and Smt.
Manjuri Jaurahar, S.P. (Anti Dacoity) between 10th and 20th January, 1981.
These reports have been handed over to us for our perusal by Mr. K.G.Bhagat learned advocate appearing on behalf of the State and it is clear from these reports, and that has also been stated before us on behalf of the State, that by an order dated 28 29th November, 1980 made by the State Government under Section 3 of the Indian , Sh.
L.V. Singh was directed by the State Government to investigate into 24 cases of blinding of under trial prisoners and it was in discharge of this official duty entrusted to him that he with the assistance of his associates Sh.
R.R. Prasad and Smt.
Manjuri Jaurahar investigated these cases and made these reports.
These reports set out the conclusions reached by him as a result of his investigation into these cases.
The question is whether the production of these reports is hit by Sections 162 and 172 of the Criminal Procedure Code.
It may be pointed out that these are the only provisions of law under which the State resists production of these reports.
The State has not claimed privilege in regard to these reports under Section 123 or Section 124 of the Indian Evidence Act.
All that is necessary therefore is to examine the applicability of Sections 162 and 172 of the Criminal Procedure Code in the present case.
Before we refer to the provisions of Sections 162 and 172 of the Criminal Procedure Code, it would be convenient to set out briefly a few relevant provisions of that Code.
Section 2 is the definition Section and clause (g) of that Section defines 'Inquiry ' to mean "every inquiry other than a trial conducted under this Code by a Magistrate or Court".
Clause (h) of Section 2 gives the definition of 'investigation ' and it says that investigation includes "all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf".
Section (4) provides: 151 "4 (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences.
It is apparent from this Section that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with.
Then we come straight to Section 162 which occurs in chapter XII dealing with the powers of the Police to investigate into offences.
That Section, so far as material, reads as under: "162 (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the ; and when any part of such statement is so used, any part thereof may also be used in the re examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of claues(1) 152 of section 32 of the , or to affect the provisions of section 27 of that Act.
" It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police diary or otherwise, but by the express terms of the Section this bar is applicable only where such statement is sought, to be used 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made '.
If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted.
This section has been enacted for the benefit of the accused, as pointed out by this Court in Tehsildar Singh and Another vs The State of Uttar Pradesh(1) it is intended "to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence." This Court, in Tehsildar Singh 's case approved the following observations of Braund, J. in Emperor vs Aftab Mohd. Khan(2) "As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths." and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe vs Emperor(3) that "the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses.
" Protection against the use of statement made before police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under in 153 vestigation at the time when such statement was made.
But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.
It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the .
There are a number of decisions of various High Courts which have taken this view and amongst them may be mentioned the decision of Jaganmohan Reddy J. in Malakalaya Surya Rao vs Janakamma(1) The present proceeding before us is a writ petition under Article 32 of the Constitution filed by the petitioners for enforcing their Fundamental Rights under Article 21 and it is neither an "inquiry" nor a "trial" in respect of any offence and hence it is difficult to see how section 162 can be invoked by the State in the present case.
The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed in order XXXV of the Supreme Court Rules, 1966, and sub rule (9) of Rule 10 lays down that at the hearing of the rule nisi, if the court is of the opinion that an opportunity be given to the parties to establish their respective cause by leading further evidence the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the .
It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 provided it is relevant under the and section 162 cannot be urged as a bar against its production or use.
The reports submitted by Shri L.V. Singh setting forth the result of his investigation cannot, in the circumstances, be shut out from being produced and considered in evidence under section 162, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under some provision of the .
We now turn to section 172 which is the other section relied upon by the State.
That section reads as follows: "172.
Diary of proceedings in investigation (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investi 154 gation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the (1 of 1872) shall apply.
The first question which arises for consideration under this section is whether the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates could be said to form part of case diary within the meaning of this section.
The argument of Mrs. Hingorani and Dr. Chitale was that these reports did not form part of case diary as contemplated in this section, since the investigation which was carried out by Shri L.V. Singh was pursuant to a direction given to him by the State Government under section, 3 of the Indian , and it was not an investigation under Chapter XII of the Criminal Procedure Code which alone would attract the applicability of section 172.
Mrs. Hingorani sought to support this proposition by relying upon the decision of this Court in State of Bihar vs J.A.C. Saldhana(1) Mr. K.G. Bhagat, learned counsel appearing on behalf of the State however, submitted that even though Shri L.V. Singh carried out the investigation under the direction given by the State Government in exercise of the power conferred under section 3 of the Indian , the investigation carried out by him was one under Chapter XII and section 172 was therefore applicable in respect of the reports made by him setting out the result of the investigation.
He conceded that it was undoubtedly laid down by this Court in State of Bihar vs J.A.C. Saldhana (supra) that the State Government has power to direct investigation or further investigation under section 3 of the 155 Indian , but contended that it was equally clear from the decision in that case that "power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person who investigates." He urged that section 36 of the Criminal Procedure Code provides that police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station and Shri L.V. Singh being the Deputy Inspector General of Police, was superior in rank to an officer incharge of a police station and was, therefore, competent to investigate the offences arising from the blinding of the under trial prisoners and the State Government acted within its powers under section 3 of the Indian in directing Shri L.V. Singh to investigate into these offences.
But, "the method and procedure of investigation" was to be the same as that prescribed for investigation by an officer in charge of a police station under Chapter XII and therefore the investigation made by Shri L.V. Singh was an investigation under that Chapter so as to bring in the applicability of section 172.
These rival contentions raise two interesting questions, first, whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and secondly, whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172.
We do not, however think it necessary to enter upon a consideration of these two questions and we shall assume for the purpose of our discussion that Mr. K.G. Bhagat, learned counsel appearing on behalf of the State, is right in his submission in regard to both these questions and that the reports made by Shri L.V. Singh setting out the result of his investigation form part of case diary so as to invite the applicability of section 172.
But, even if that be so, the question is whether these reports are protected from disclosure under section 172 and that depends upon a consideration of the terms of this section.
The object of section 172 in providing for the maintenance of a diary of his proceedings by the police officer making an investigation under Chapter XII has been admirably stated by Edge, C.J. in Queen Empress vs Mannu(1) in the following words: 156 "The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary, for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false, or misleading which was obtained from day to day by the police officer who was investigating the case and what such police officer acted.
" The criminal court holding an inquiry or trial of a case is therefore empowered by sub section (2) of section 172 to send for the police diary of the case and the criminal court can use such dairy, not as evidence in the case, but to aid it in such inquiry or trial.
But, by reason of sub section (3) of section 172, merely because the case, diary is referred to by criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it.
If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be, of the would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to so far either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used.
It will thus be seen that the bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial, for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case dairy is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer.
This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates.
Now plainly and unquestionably the present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 32 is neither an 'inquiry ' nor a 'trial ' for an offence 157 nor is this Court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned.
Therefore, even if the reports submitted by Shri L. V. Singh as a result of his investigation could be said to form part of 'case diary ', it is difficult to see how their production and use in the present writ petition under Article 32 of the Constitution could be said to be barred under section 172.
Realising this difficulty created in his way by the specific language of section 172, Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, made a valiant attempt to invoke the principle behind section 172 for the purpose of excluding the reports of investigation submitted by Sh.
L.V. Singh.
He contended that if, under the terms of section 172, the accused in an inquiry or trial is not entitled to call for the case diary or to look at it, save for a limited purpose, it is difficult to believe that the Legislature could have ever intended that the complainant or a third party should be entitled to call for or look at the case diary in some other proceeding, for that would jeopardise the secrecy of investigation and defeat the object and purpose of section 172 and therefore, applying the principle of that section, we should hold that the case diary is totally protected from disclosure and even the complainant or a third party cannot call for it or look at in a civil proceeding.
This contention is in our opinion wholly unfounded.
It is based on what may be called an appeal to the spirit of section 172 which is totally impermissible under any recognised canon of construction.
Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not it is difficult to see how it can be said to be barred on an extended or analogical application of the principle supposed to be underlying that section, if it is not covered by its express terms.
It must be remembered that we have adopted the adversary system of justice and in order that truth may emerge from the clash between contesting parties under this system, it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out, for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in miscarriage of justice.
To quote the words of the Supreme Court of United States in United States vs Nixon(1) "The need to develop all relevant fact in the adversary system is both fundamental and comprehensive.
The ends of . justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.
The very integrity 158 of the judicial system and public confidence in the system depend on full disclosure of all the facts within the frame work of the rules of evidence.
", it is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court.
But the law may, in exceptional cases, in order to protect more weighty, compelling and competing interests, provide that a particular piece of evidence, though relevant, shall not be liable to be produced or called in evidence.
Such exceptions are to be found, inter alia in sections 122, 123, 124, 126 and 129 of the and sections 162 and 172 of the Criminal Procedure Code.
But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth".
It would not, therefore, be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section.
That is a feeble reed which cannot sustain the argument of the learned advocate appearing on behalf of the State.
It would in fact be inconsistent with the Constitutional commitment of this Court to the rule of law.
That takes us to the question whether the reports made by Sh.
L.V. Singh as a result of the investigation carried by him and his associates are relevant under any provision of the so as to be liable to be produced and received in evidence.
It is necessary, in order to answer this question, to consider what is the nature of the proceeding before us and what are the issues which arise in it.
The proceeding is a writ petition under Article 32 for enforcing the fundamental right of the petitioners enshrined in Article 21.
The petitioners complain that after arrest, whilst under police custody, they were blinded by the members of the police force, acting not in their private capacity, but as police officials and their fundamental right to life guaranteed under Article 21 was therefore violated and for this violation, the State is liable to pay compensation to them.
The learned Attorney General who at one stage appeared on behalf of the State at the hearing of the writ petition contended that the inquiry upon which the Court was embarking in order to find out whether or not the petitioners were blinded by the police officials whilst in police custody was irrelevant, since, in his submission, even if the petitioners were so blinded, the State was not liable to pay compensation to the petitioners first, because the state was not constitutionally or legally responsible for the acts of the police officers outside the scope of 159 their power or authority and the blindings of the under trial prisoners effected by the police could not therefore be said to constitute violation of their fundamental right under Article 21 by the State and secondly, even if there was violation of the fundamental right of the petitioners under Article 21 by reason of the blindings effected by the police officials, there was, on a true construction of that Article, no liability on the State to pay compensation to the petitioners.
The attempt of the learned Attorney General in advancing this contention was obviously to preempt the inquiry which was being made by this Court, so that the Court may not proceed to probe further in the matter.
But we do not think we can accede to this contention of the learned Attorney General.
The two questions raised by the learned Attorney General are undoubtedly important but the arguments urged by him in regard to these two questions are not prima facie so strong and appealing as to persuade us to decide them as preliminary objections without first inquiring into the facts.
Some serious doubts arise when we consider the argument of the learned Attorney General.
If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the Court for injuncting the State from such officer in violation of his fundamental right under Article 21 ? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concession is be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21.
So also if there is any threatened invasion by the State of the Fundamental Right guaranteed under Article 21, the petitioner who is aggrieved can move the Court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the Fundamental Right under Article 21, the petitioner can approach the court under Article 32 and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the Fundamental Right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the Fundamental Right guaranteed to him ? 160 Would the court permit itself to become helpless spectator of the violation of the Fundamental Right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the Fundamental Right to him and has also given him the Fundamental Right of moving the court for enforcement of his Fundamental Right, the court cannot give him any relief.
These are some of the doubts which arise in our mind even in a prima facie consideration of the contention of the learned Attorney General and we do not, therefore, think it would be right to entertain this contention as a preliminary objection without inquiring into the facts of the case.
If we look at the averments made in the writ petition, it is obvious that the petitioners cannot succeed in claiming relief under Article 32 unless they establish that their Fundamental Right under Article 21 was violated and in order to establish such violation, they must show that they were blinded by the police officials at the time of arrest or whilst in police custody.
This is the foundational fact which must be established before the petitioners can claim relief under Article 32 and logically therefore the first issue to which we must address ourselves is whether this foundational fact is shown to exist by the petitioners.
It is only if the petitioners can establish that they were blinded by the members of the police force at the time of arrest or whilst in police custody that the other questions raised by the learned Attorney General would arise for consideration and it would be wholly academic to consider them if the petitioners fail to establish this foundational fact.
We are, therefore, of the view, as at present advised, that we should first inquire whether the petitioners were blinded by the police officials at the time of arrest or after arrest, whilst in police custody, and it is in the context of this inquiry that we must consider whether the reports made by Sh.
L.V. Singh are relevant under the so as to be receivable in evidence.
We may at this stage refer to one other contention raised by Mr. K.G. Bhagat on behalf of the State that if the Court proceeds to hold an inquiry and comes to the conclusion that the petitioners were blinded by the members of the police force at the time of arrest or whilst in police custody, it would be tantamount to adjudicating upon the guilt of the police officers without their being parties to the present writ petition and that would be grossly unfair and hence this inquiry should not be held by the Court until the investigation is completed and the guilt or innocence of the police officers is established.
We cannot accept this contention of Mr. K.G. Bhagat.
When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, 161 not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation.
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the with petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer.
A situation of this kind sometimes arises when a claim for compensation for accident caused by negligent driving of a motor vehicle is made in a civil Court or Tribunal and in such a proceeding, it has to be determined by the Court, for the purpose of awarding compensation to the claimant, whether the driver of the motor vehicle was negligent in driving, even though a criminal case for rash and negligent driving may be pending against the driver.
The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved.
The two are entirely distinct and separate proceedings and neither is a bar against the other.
It may be that in a given case, if the investigation is still proceeding, the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice, it may postpone its inquiry even until after the prosecution following upon the investigation is terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending.
It is clear from the aforesaid discussion that the fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody.
Now in order to determine whether the reports made by Shah L.V. Singh as a result of the investigation carried out by him and his associates are relevant, it is necessary to consider whether they have any bearing on the fact in issue required to be decided by the Court.
It is common ground that Sh.
L.V. Singh was directed by the State Government under Section 3 of the Indian to investigate into twenty four cases of blinding of under trial prisoners where allegations were made by the undertrial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody.
L.V. Singh through his associates carried out this inves 162 tigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government.
These reports clearly relate to the issue as to how, in what manner and by whom the twenty four undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed, by the State Government to investigate.
If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence in the present proceeding.
These reports are clearly relevant under section 35 of the which reads as follows: "35.
An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
" These reports are part of official record and they relate to the fact in issue as to how, and by whom the twenty four under trial prisoners were blinded and they are admittedly made by Sh.
L.V. Singh, a public servant, in the discharge of his official duty and hence they are plainly and indubitably covered by Section 35.
The language of section 35 is so clear that it is not necessary to refer to any decided cases on the interpretation of that section, but we may cite two decisions to illustrate the applicability of this section in the present case.
The first is the decision of this Court in Kanwar Lal Gupta vs Amar Nath Chawla(1).
There the question was whether reports made by officers of the CID (Special Branch) relating to public meetings covered by them at the time of the election were relevant under section 35 and this Court held that they were, on the ground that they were" made by public servants in discharge of their official duty and they were relevant under the first part of section 35 of the Evidence Act, since they contained statement showing what were the public meetings held by the first respondent. "This Court in fact followed an earlier decision of the Court in P.C.P. Reddiar vs
section Perumal(2)also in Jagdat vs Sheopal(3) Wazirhasan J. Held that the result of an inquiry by a Kanungo under section 202 of the Code of Criminal Procedure 1898 embodied in the report is an entry in a public record stating a fact in issue and made by a public servant in the discharge of his official duties and the report is therefore admis 163 sible in evidence under section 35.
We find that a similar view was taken by a Division Bench of the Nagpur High Court in Chandulal vs Pushkar Rai(1) where the learned Judges held that repots made by Revenue Officers, though not regarded as having judicial authority where they express opinions on the private rights of the parties are relevant under section 35 as reports made by public officers in the discharge of their official duties, in so far as they supply information of official proceedings and historical facts.
The Calcutta High Court also held in Lionell Edwerds Limited vs State of West Bengal(1) that official correspondence from the Forest officer to his superior, the conservator of Forests, carried on by the Forest Officer in the discharge of his official duty would be admissible in evidence under section 35.
There is therefore no doubt in our mind that the reports made by Sh.
L.V. Singh setting forth the result of the investigation carried on by him and his associates are clearly relevant under section 35 since they relate to a fact in issue and are made by a public servant in the discharge of his official duty.
It is indeed difficult to see how in a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in police custody, the State Government can resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer persuant to the direction issued by the State Government.
We are clearly of the view that the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates are relevant under section 35 and they are liable to be produced by the State Government and used in evidence in the present writ petition.
Of course, what evidentially value must attach to the statements contained in these reports is a matter which would have to be decided by the Court after considering these reports.
It may ultimately be found that these reports have not much evidentially value and even if they contain any statements adverse to the State Government it may possible for the State Government to dispute their correctness or to explain them away, but it cannot be said that these reports are not relevant.
These reports must therefore be produced by the State and taken on record of the present writ petition.
We may point out that though in our order dated 16th February 1981, we have referred to these reports as having been made by Shri L.V. Singh and his associates between January 10 and January 20, 1981, it seems that there has been some error on our part in mentioning the outer date as January 20, 1981, 164 for we find that some of these reports were submitted by Shri L.V. Singh even after January 20, 1981 and the last of them was submitted on 27th January 1981.
All these reports including the report submitted on 9th December, 1980 must therefore be filed by the State and taken as forming part of the record to be considered by the Court in deciding the question at issue between the parties.
What we have said above must apply equally in regard to the correspondence and notings referred to as items three and four in the Order dated 16th February 1981 made by us.
These notings and correspondence would throw light on the extent of involvement, whether by acts of commission or acts of omission, of the State in the blinding episode and having been made by Shri L.V. Singh and Shri M.K. Jha in discharge of their officials duties, they are clearly relevant under section 35 and they must therefore be produced and taken on record in the writ petition, so also the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July and his letter to Shri K.D. Singh, Superintendent of Police, CID, Patna containing hand written endorsement of Shri M.K. Jha must for the same reasons be held to be relevant under section 35 and must be produced by the State and be taken as forming part of the record of the writ petition.
Since all these documents are required by the Central Bureau of Investigation for the purpose of carrying out the investigation which has been commenced by them pursuant to the approval given by the State Government under section 6 of the Delhi Special Police Establishment Act, we would direct that five sets of photostat copies of these documents may be prepared by the office, one for Mrs. Hingorani, learned advocate appearing on behalf of the petitioners, one for Mr. K.G. Bhagat, learned advocate appearing on behalf of the State one for Dr. Chitale who is appearing amcius curiae at our request and two for the Court, and after taking such photostat copies, these documents along with the other documents which have been handed over to the Court by the State shall be returned immediately to Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, for being immediately made available to the Central Bureau of Investigation for carrying out its investigation so that the investigation by Central Bureau of Investigation may not be impeded or delayed.
We hope and trust that the Central Bureau of Investigation will complete its investigation expeditiously without any avoidable delay.
S.R. Application allowed.

Output:
The petitioners are certain under trials in the State of Bihar.
In the Writ Petitions filed by them under Article 32 of the Constitution they complained that after their arrest, whilst under police custody they were blinded by the members of the police force, acting not in their private capacity but as police officials and their fundamental right to life guaranteed under Article 21 was therefore, violated and for this violation the State is liable to pay compensation to them.
On an application made by the petitioners, several documents including C.I.D. Reports submitted by Shri L.V. Singh, D.I.G., C.I.D, (Anti Dacoity) on December 9,1980 and other dates were called for by the Court.
The State raised an objection to the production of these documents on the ground that they are protected from disclosure under sections 162 to 172 of the Code of Criminal Procedure, 1973 and that the petitioners are not entitled to see them or to make any use of them in the present proceedings.
Overruling the State objection and directing the Registry to supply copies of these documents produced before the Court, to the petitioner 's advocate and the advocate appearing as amicus curiae, the Court ^ HELD: 1:1.
The reports submitted by Shri L.V. Singh setting forth the results of his investigation cannot be shut out from being produced and considered in evidence either under section 162 or 172 of the Criminal Procedure Code, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under the provisions of the Indian Evidence Act.
In a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in custody, the State Government cannot resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer pursuant to the direction issued by the State Government.
[163 B D] 1:2.
All the other reports covered by Items 2 to 5 of the Court 's order dated 16th February, 1981 are equally relevant and must, therefore, be produced and taken on record in the writ petition.
[164 B C] 146 2:1.
The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed under order XXXV of the Supreme Court Rules, 1966, and sub rule (9) of Rule 10 lays down that at the hearing of the rule nisi if the court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence, the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the Indian Evidence Act.
It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 of the Constitution provided it is relevant under the Indian Evidence Act and neither section 162 nor section 172 can be urged as a bar against its production or use.
[153 C E] 3:1.
When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation.
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in criminal proceeding which may be taken against a particular police officer.
[160 G H, 161 A B] 4.
The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved.
The two are entirely distinct and separate proceedings and neither is a bar against the other.
It may be that in a given case, if the investigation is still proceeding, the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice, it may postpone its inquiry even after the prosecution following upon the investigation is terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending.
[161 D E] 5.
The fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody.
The several reports called for by the Court clearly relate to the issue as to how, in what manner and by whom the twenty four undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed by the State Government to investigate.
If that be so, the State cannot resist the production of these reports and their use as evidence in the present proceeding.
These reports are clearly relevant under section 35 of the Indian Evidence Act since they relate to a fact in issue and are made by a public servant in the discharge of his official duty.
A D] P.C.P. Reddiar vs section Perumal, ; ; Kanwar Lal Gupta vs Amar Nath Chawla, ; ; followed.
Jagdat vs Sheopal, A.I.R. 1927 Oudh 323; Chandulal vs Pushkar Rai, A.I.R. 1952 Nagpur 271; Lionell Edwards Limited vs State of West Bengal, A.I.R, , quoted with approval.
147 6.
Section 4 of the Criminal Procedure Code, 1973 makes it clear that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with.
[151 B C] 7.
Section 162 bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the Section, this bar is applicable only where such statement is sought to be used "at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
" If the statement made before the police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of section 162 would not be attracted.
[152 A C] 7:2.
Section 162 has been enacted for benefit of the accused and to protect him against overzealous police officers and untruthful witnesses.
But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.
It has no application in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act.
[152 D, H, 153 A B] Tehsildar Singh and Another vs The State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 at 890, applied.
Emperor vs Aftab Mohd. Khan, A.I.R. 1940 All. 291; Baliram Tikaram Maratha vs Emperor, A.I.R. 1945 Nagpur 1; Malakalaya Surya Rao vs Janakamma, A.I.R. 1964 A.P. 198; approved.
Sub section (2) of section 172 of the Criminal Procedure Code empowers the criminal court holding an inquiry or trial of a case to send for the police diary of the case and the criminal court can use such diary, not as evidence in the case, but to aid it in such inquiry or trial.
But, by reason of sub section (3) of section 172, merely because the case diary is referred to by the criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it.
If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used.
[156 C D] Queen Empress vs Mannu, [1897] 19 All. 390, quoted with approval.
State of Bihar vs J.A.C. Saldhana, ; , referred to.
The bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial for an offence and even this 148 bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer.
This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates.
The present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 21 is neither an "inquiry" nor a "trial" for an offence nor is this court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned.
Therefore, even if the reports submitted by Shri L.V. Singh as a result of his investigation could be said to form part of "case diary" their production and use in the present writ petition under Article 32 of the Constitution cannot be said to be barred under section 172 of the Criminal Procedure Code.
[156 D G, 157 A B] 9:1.
It would not be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section.
In fact to do so would be inconsistent with the constitutional commitment of the Supreme Court to the rule of law.
Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not, it cannot be said to be barred on an extended or analogical application of the principle supposed to be underlying that section, if it is not covered by its express terms.
In order that truth may emerge from the clash between contesting parties under the adversary system, it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out, for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in mis carriage of justice.
It is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court.
But the law may, in exceptional cases, in order to protect more weighty and compelling competing interests, provide that a particular piece of evidence, though relevant, shall not be liable to be produced or called in evidence.
Such exceptions are to be found, inter alia, in sections 122, 123 124, 126 and 129 of the Indian Evidence Act and sections 162 and 172 of the Criminal Procedure Code But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth".
[157 E H, 158 A C] United States vs Nixon, ; 41 Lawyers Edition (2nd series) 1039, quoted with approval.
The Court did not express any opinion regarding the two interesting questions, (i) whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and (ii) whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172 of the Criminal Procedure Code.
[155 D G] 149


Input:
Civil Appeal No. 347 of 1955.
Appeal by special leave from the judgment and order dated April 20, 1955, of the Railway Rates Tribunal, Madras, in Complaint No. 2 of 1954.
H. N. Sanyal Additional Solicitor General of India, Niren De. P. C. Chatterjee and P. K. Ghosh, for the appellant.
N. C. Chatterjee, J. P. Aggarwalla, B. K. B. Naidu and I. N. Shroff, for respondent No. 1.
B. K. Khanna and R .
H. Dhebar, for respondent No. 2. 1960.
February 9.
Judgment of the Court was delivered by DAS GUPTA, J. When total charges payable in respect of goods traffic carried by a Railway are increased by the Railway Administration on the basis of terminals fixed by the Central Government in pursuance of section 32 of the Indian Railways Act, has the Railway Rates Tribunal jurisdiction to investigate the reasonableness of the charge as thus increased ? That is the question raised in this appeal.
The first respondent, the Upper Doab Sugar Mills Ltd., manu factures sugar in its Mills situated at Shamli.
The sugarcane needed as its raw material has to be brought by the Company from different places in the neighbourhood.
It is in this connection that the appellant Railway Company 's services are required.
The Railway Company carries the sugarcane in trucks from several stations on its line, to Shamli.
As the Mills premises are situated a short distance away from the station platform the Mills had at the very time when it started functioning, a siding agreement with the Roy Company so that the trucks carrying the 118 928 sugarcane are ultimately brought into the Mills siding from where the unloading takes place.
The nearest point of the Mills siding from the station platform at Shamli is about 100 to 150 ft. away.
Tile Rly.
loco motives bring the sugarcane trucks to this point pt.
A in the Plan after which the Mills makes its own arrangement for taking them inside the sidings.
After several increases from time to time which it is not necessary to mention, the charges payable in respect of sugarcane carried in the Railway Company 's trucks and brought by the Railway Company 's locomotives up to the point A stood on September 30, 1953, at the following figures: Rs. Ans.
From Ailum 3 8 Kandhla 3 8 Khandraoli 3 8 Hind 3 8 Thanabhawan 3 8 Nanautta 4 4 Sona Arjunpur 4 4 In each case a surcharge of annas 2 per rupee was added.
Before this, however, on February 20, 1950, the Central Govt., had made an order under section 32 of the Indian Railways Act, the relevant portion of which is in these words: " In pursuance of section 32 of the Indian Rlys.
Act, 1890 (IX of 1890) the Central Government is pleased to fix the following rates of terminals, transshipment, short distance, percentage on value and percentage on excess value charges, namely 1.
TERMINAL CHARGES.
(a) Goods Traffic (i) General Merchandise Eight pies per mound at each end where the railway is required to do loading and unloading.
Six pies per maund at each end, where the owners of the goods are required to do loading and unloading. ." 929 In spite of this however the Railway Company did not levy any terminal charges in accordance with this rate up to September, 1953 and continued to charge at the rate mentioned above.
On August 1, 1953 the Railway Company issued a Local Rate Advice the relevant portion of which was in these terms : "With effect from I 10 53 the following station to station rates will be introduced and will remain in force till further advice : Commodity From To Rate Sugarcane Ailum Shamli Rs. 2.6 plus terminal Rs. 9.6 Khandla do 2.6 do Khandraoli do 1.12 do Hind do 1.12 do Thanabhawan do 3.2 do Harar Siding do 3.2 do Nanautta do 3.5 do Sona Arjunpur do 4.11 do The consequence of this was that with effect from October 1953 the total charges payable by the Mills rose considerably.
From Rs. 3 8 formerly payable in respect of sugarcane carried from Ailum, Khandla, Khandraoli, Hind, Thanabhawan, the rate now payable became Rs. 11 12, Rs. 11 12, Rs. 11 2, Rs. 11 2 and Rs. 12 8 respectively while for sugarcane carried from Nanautta and Sona Arjunpur, the amount now payable was Rs. 13.5 and Rs. 14.1 in place of Rs. 4.4 and Rs. 4.4 payable prior to October 1, 1953.
It was for relief against this increase that the Mills made a complaint under section 41(1) (i) of the Indian Railways Act to the Railway Rates Tribunal.
Relief in respect of certain other matters like rates on molasses, increase in siding charges, rates on coal, gunnies, limestone, firewood etc., and rates on sugar was also asked for; but later all these prayers having been withdrawn at the hearing before the Tribunal.
The Tribunal bad to deal only with the Mills ' complaint as regards this increase in charges in respect of sugarcane.
The main contention raised on behalf of the Railway Company was that as in increasing the charges the Administration had merely applied standardized terminal charges ' no complaint lay in respect of the, 930 same under section 41(1)(i).
The Railway Company also further contended in this connection that considerable services, apart from the carriage of the goods, were rendered by the Company at each end and so, in any case, the terminal charges as standardized by notification by the Central Government were legally levied.
The Tribunal by a majority held that this was not a case of application of a standardized terminal charge and so it had jurisdiction to consider the question.
Shri L.M. Roy and Shri V. Subrahmanyan who formed the majority were of opinion that services were rendered only at the loading station, and not at Shamli; so only Rs. 4.11 annas out of the terminal charge of Rs. 9.6 was reasonable and only this amount could be levied on sugarcane in addition to the conveyance charges from the forwarding station.
They ordered a reduction of terminal charge from Rs. 9.6 to Rs. 4.11.
The President of the Tribunal Mr. Lokur, forming the minority, was of opinion that the Tribunal had no jurisdiction to consider the question of reasonableness.
He was also of opinion that terminal services were rendered by the respondent Railways both at the loading station and also after the carriage was complete at Shamli.
In our opinion, the Tribunal (by which we mean the majority of the Tribunal) was wrong in thinking that this was not a case of standardized terminal charges.
The first argument which seems to have found favour with the majority and which was repeated here on behalf of the respondent was that while the Government Notification fixed a terminal charge of 6 pies per maund at each end, where loading and unloading is done by the owner, as in the present case, the Railway Company fixed Rs. 9.6 per 4 wheeler as the terminal charge for the two ends together irrespective of the maundage carried.
It is obvious that the charge of Rs. 9.6 is equivalent to charge of one anna, the total of 6 pies at each end, per maund on 150 mds.
It is urged that it may very well happen that some trucks will carry more than 150 mds.
and some less.
The fixation of such a lump sum of Rs. 9.6 is, it is contended, not an application of the charges fixed by the Government, but quite a distinct arrangement.
In 931 our opinion there is no substance in this contention.
It does not appear to be disputed that on an average 200 mds.
are carried in each 4 wheeler truck.
Exhibit A 6 shows a number of bills for charges for the period February, 1953 to February 10, 1953, for sugarcane carried from these stations to Shamli.
The number of trucks for each consignment is mentioned as also the weight, carried.
In each case we find 200 mds.
mentioned as the weight.
It is obvious and indeed undisputed that this statement of 200 mds.
as the weight is not made on actual weighs but is mentioned on the weight carried on the, basis of capacity.
As regards the rate for carriage, it is common ground that charge is made per truck and not according to maundage.
It also appears to be common ground that this charge is actually calculated on the basis of 15O mds.
per truck.
We are unable to agree that when the Central Government fixed the charge at so much per mound it was intended that before any such charge could be levied the actual weight should be ascertained by actual weighment.
There is nothing to prevent the Railway Company and the consignor from entering into an agreement as to 'what should be accepted as weight without actual weighment.
Once such a fixation is agreed upon, the amount calculated on that figure at the rate fixed by Government must be deemed to be the amount properly payable in accordance with the rate fixed by Government.
The fact that in some cases less than 150 mds.
may be carried in a truck and in other cases more than 150 mds.
may be carried does not affect the position that the party who is to pay and the party who is entitled to payment have accepted a particular figure as the weight carried, without actual weighment.
When therefore Rs. 9.6 is sought to be levied as the terminal charge being equivalent to 6 pice per maund on 150 mds.
at each end, it is really an application of the charge fixed by the Central Government.
Nor are we impressed with the argument that the words used in the Local Rate Advice of August 1, 1953, which has been set out above show that a standardized terminal charge was not being levied but some other rate is sought to be levied.
It is no 932 doubt true that this Advice quotes " station to station rate " the amount being then mentioned in two parts, one obviously the rate for carriage, and the second the terminal charge.
In fact the words " plus terminal charge " are actually mentioned.
The Railway Act has made a clear distinction between the rate and terminal charge.
The word " rate " is defined in section 3(13) as including " any fare, charge or other payment for the carriage of any passenger, animals or goods; the word "terminals" is defined in clause 14 of the same section as including " charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services, rendered thereat.
" The word "station to station rate" is defined in section 46C (g) as meaning " a special reduced rate applied.
ale to a specific commodity booked between two specified stations.
" The same section also defines " class rate and " schedule rate.
" The first being defined as rate fixed according to the class given to a commodity in the classification of goods and the second as " the rate lower than the maximum or class rate applied on a commodity basis.
" We can see no reason for not interpreting the word " rate " used in this section, (46C), as being " any fare charges or other payment for the carriage of any passenger, animals or goods " as defined in section 3(13).
Thus interpreted " station to station rate " in respect of goods will mean only a, charge payable for carriage of goods as may be made specially applicable to a specific commodity booked between two specified stations for the carriage of the same.
This would not include any charge made in addition to the charge for carriage.
It must therefore be held that the words of the Local Advice Order stating the new station to station rate as so much plus " so much for terminal charge " are not strictly accurate.
The proper way of giving information to parties concerned would be to state the station to station rate as consisting of the amount mentioned in the first party only the charge for carriage and to make a separate announcement as regards terminal charge.
This inaccuracy in expression cannot however affect the substance of the matter.
The fact that the terminal charge was mentioned as a part of the station 933 to station rate is no reason to think that standardized terminal charges were not being applied.
More important is the argument that the Central Government Notification fixing 6 pies per maund as the , terminal charge at each end, where loading and Upper unloading is done by the owner, should be interpreted as permitting the levy of such charges only if some service in addition to the carriage is being performed.
This argument is based on a view of the definition of the word " terminals " in section 3(14) that " terminals " means charges for certain services rendered.
Acceptance of that view will undoubtedly justify a conclusion that in fixing " terminals " the Central Government only authorized the charges to be levied, on certain services in addition to carriage having been rendered.
If thereafter it is found that no such services were rendered the conclusion that will follow is that levy ing of a charge at the end where no such services were rendered was not levying of a "standardized terminal charge." Assuming for the present, that on a proper interpretation of the definition of the word " terminals ", no terminal charge can be made unless some service in addition to the carriage of the goods is rendered, it is necessary to see whether the conclusion of two members of the Tribunal who formed the majority was correct in so far as they held that no such service was performed at the Shamli end.
It is important to bear in mind that in so far as such a conclusion is a pure finding of fact this Court will not ordinarily interfere therewith.
If however the conclusion is apparently vitiated by an error of law it becomes proper and desirable for this Court to consider what the correct finding would be on a correct appreciation of law.
Both Shri L.M. Roy and Shri Subrahmanian proceeded on the basis that " the loaded cane specials are taken to point A in the map and then pushed inside, leaving them at the assisted siding.
It is here that the conveyance ends and the terminal begins.
Whatever services are rendered thereafter would be as carriers and are subject to separate charges in the form of terminals.
" The distinction between " conveyance " and duty as a " carrier " was made in many of the 934 English Railway Acts so that in many cases before the courts in England, the judges had to consider Where the conveyance ends and the carrier 's duty begins.
These decisions are necessarily coloured by the historical considerations in England where at first railway companies supplied only railway lines, where private carriers could take their locomotives on payment of a charge for the line and at a later stage the Railway Company supplied locomotives and power and the railway line but the private carrier remained there undertaking carriage, till ultimately the third stage was reached when the railway company func tioned also as carriers on the line.
While some assistance can no doubt be derived from the learned discussions by English judges as to where conveyance ends and the carrier 's duty begins, it would be more helpful to concentrate at first on the scheme of our own legislation.
Turning to the Indian Railways Act, it is clear that carriage on the Railway line is primarily a function of the Railway Company and for such carriage charges are made.
The Act further contemplates that in addition to some charge having been made for carriage certain other charges can be made under the head " terminals ".
In such a scheme the proper approach to a decision of the question where carriage ends is to find out what carriage has been charged for.
If what is charged is the charge for carriage up to the station platform of the destination station, anything done to assist the party after carriage is complete is a service in addition to carriage, that is, a terminal service.
If the point A in the map is the distance up to which carriage is charged the view of the majority of the Tribunal that no additional service is being rendered by the Railway Company in bringing the trucks from the station platform up to point A is correct.
If on the other hand, the carriage which is charged for is carriage up to the station platform of Shamli only, bringing the trucks from the station platform to point A where the sidings begin is clearly a terminal service.
The majority of the Tribunal failed to appreciate this distinction and erred in law in assuming that because the siding commenced at A shunting of trucks from 935 the station platform to A could not be a terminal service.
The important question therefore is as regards the point up to which the carriage was being charged for.
It is necessary to consider in this connection cls.
13 & 15 of the siding agreement.
They are in these words:" Clause 13: Freight for all clauses of goods will be charged up to and from Shamli station.
Railway receipts and invoices shall be issued to and from the station only and in accordance with the rates from time to time published in Goods Traffic Books of the Railway Administration.
In addition to such freight, the Railway Administration will make the following charges in such directions for every wagon loaded or empty, placed in or removed from the lines A and B mentioned, in clause 15 below (1) per 4 wheeler wagon 0 3 4 (2) per 8 wheeler wagon 0 6 8 In addition when use of an engine is made to place or remove wagon from the siding, a charge of Rs. 5 for each transaction shall be levied by Administration.
Clause 5: (a) Wagons will be made over to the Firm and returned by the Firm in the form of certificate shown in Annexure A. (b) Wagons will be handled by the Railway to and from the lines marked A and B in Plan No. 12 A hereinbefore referred to or such other point or length as may hereafter be fixed upon by mutual consent of the Firm and the Railway Administration in writing.
(c) As soon as wagons are placed at the line " A referred to, the Station Master will fill in columns 1, 2 and 3 of both foils of Annexure A, and obtain the Firm 's signature in column 4 of the inner foil and make over the outer foil to the firm.
When this has been done, the wagons will be considered as made over to the Firm and the free time permissible under the rules will then commence.
Similarly, wagons will be considered as returned to the Railway by the Firm as soon as they are placed at the line " B " referred to and the Station Master has been advised by the Firm 119 936 This will de done by presentation of the outer foil with column filled in.
The Station Master will then initial in column 5 of the outer foil, and fill in columns 5, 6, 7 and 8 of the inner foil and columns 6, 7 and 8 of the outer foil and recover the demurrage due.
Note 1.
The free time referred to above will be calculated in accordance with the rules in force from time to time as published in the Goods Traffic Books of the Railway Administration and wagons detained by the Firm over and above such free time shall be subject to payment of the demurrage charges laid down in such tariffs.
Note 2.
The Firm will arrange to band shunt wagons to and from the said length "A" with their own labour and the Railway Administration will not be responsible for any delay, loss or damage caused in consequence of the failure of the Firm to arrange for such band shunting.
It is important to notice that cl. 13 mentions in definite and categorical Ianguage that freight is charged up to and from Shamli station.
It is reasonable to read the " station " here as the " station platform ".
When in clause 15 it is agreed that the " wagons will be hauled by the Railway to and from the lines marked A and B " nothing is said about any charge being made therefor.
It is impossible to read into the words used in el.
15(b) an implication that carriage up to point A was being charged for.
On a proper reading of these clauses we think it reasonable to hold that carriage up to the station platform only was being charged for.
The haulage of, the trucks from the station platform to point A was thus necessarily a service rendered by the Railway Company in addition to the carriage and so was a terminal service.
It is clear therefore that even on the assumption made that on the definition of the terminals in section 3(14) no charges are payable unless certain services in addition to carriage are performed by the Railway Company, terminals were leviable in the present case at the Shamli end also and so the foundation for the argument that Rs. 4.11 being charged at the Shamli 937 end was not really a terminal charge but some other charge in the garb of terminal disappears.
It is interesting in this connection to turn to som of the English decisions which seem to have impresses the members of the Tribunal.
In Foster v G. E. Railway Co. (1), the Court had to consider certain sections of the Great Eastern Railway Company (Rates and Charges) Order Confirmation Act, 1891.
Section 2 thereof provided that the maximum rate for conveyance is the maximum rate which the company may charge for the conveyance of merchandise by merchandise train; and, subject to the exceptions and provisions specified in the schedule includes the provisions of locomotive power and trucks by the company, and every other expense incidental to such conveyance not hereinafter provided for.
Section 3 provides that the maximum station terminal is the maximum charge which the company may make to a trader for the use of the accommodation (exclusive of coal) provided and for the duties undertaken by the company for which no other provision is made in the schedule, at the terminal station for or in dealing with merchandise, as carriers thereof, before or after conveyance.
Section 5 provides that the company may charge for the services for the following, or any of them, when rendered to a trader at his request or for his convenience, a reasonable sum, by way of addition to the tonnage rate, and services rendered by the Company, at or in connection with sidings not belonging to the Company.
It was in connection with this scheme of the law that the Court had to consider where conveyance should be held to end.
It was held that conveyance for the purpose of rates might or might not coincide with the contractual conveyance but that it could not be said as matter of law that it did.
The point at which it ended would prima facie be the point at which the goods train detached and deposited the Trucks, but if they were so detached and deposited for the convenience of the railway company at a point short of that to which as conveyers they would be bound to take them for the purposes of delivery to a (1) 938 distributing carrier in times when such carriers existed, a charge could not be made for haulage between these points.
As has already been noticed our legislature has thought fit to avoid the use of the word "conveyance" and has provided for maximum and minimum being prescribed for rates as defined in section 3(13), viz., as charges for " carriage ".
It is obvious that carriage which is charged for under the " rates " may include something in addition to the actual conveyance, viz., collection of goods just before haulage starts and delivery of goods just after haulage ends.
It is helpful to see that even in the English courts were the distinction between conveyance and carriage ran through the whole scheme of legislation in view of the historical growth of the Railways and the extension of their functions, services rendered after the point where the goods train detaches and deposits the trucks would prima facie be considered a terminal service; while if the train which detaches and deposits at a point short of where they would have been bound to take for the purposes of delivery to a distributing carrier in olden days, tile haulage between the two points cannot be charged for in addition to the conveyance charge.
Applying the reasoning underlying this decision to lndian conditions we think it proper to hold that haulage beyond a point where the trucks would be taken for persons other than the owners of a siding would be a terminal service except where this additional haulage is for the convenience of the Railway itself or where the rate charged for carriage covers the entire route up to the last point of haulage.
Even if therefore a correct interpretation of the definition of " terminals " did not permit charges to be levied where no services were rendered in addition to the carriage charged for, the levying of Rs. 9.6 as terminal charges in the present case is clearly the application of standardized terminal charges.
As section 41 in terms excludes standardized terminal charges from the scope of any complaint thereunder the Railway Tribunal would have no jurisdiction to investigate the reasonableness or otherwise of these charges and 939 the majority decision of the Tribunal must be set aside.
We do not propose, however, to rest our decision on this narrow question of haulage from the station platform to point A, as in our view the assumption made above as regards the definition of terminals in section 3(14) is not justified.
The definition as has already been stated is in these words.
" Terminals " includes " charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any service rendered thereat." Thus two classes of charges are included in the definition.
The first is " charges in respect of stations, sidings wharves, depots, warehouses, cranes and other similar matters.
" The second is " charges in respect of any services rendered thereat." Whether or not therefore any services have been rendered " thereat " .
that is, at the stations, sidings, wharves, depots, warehouses, cranes and other similar matters the other class of terminals in respect of these stations, sidings, wharves, depots, warehouses, cranes and similar other matters remain.
A further question thus arises as regards the interpretation of the phrase "in respect of ".
Does it mean charges for the mere provision and maintenance of stations, sidings, depots, wharves, warehouses, cranes and other similar matters are the terminals or does it, contemplate charges only for use of sidings, stations, wharves, depots, warehouses, cranes and other similar matters? The words " in respect of " are wide enough to permit charges being made as terminals so long as any of these things, viz., stations, sidings, wharves, depots, warehouses, cranes and other similar matters have been provided and are being maintained.
The question is whether the import of this generality of language should be cut down for any reason.
It is well settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the legislature should be presumed not to have intended the same.
Is there any such reason for cutting down,the result of the 940 generality of the language used present here ? The answer, in our opinion, must be in the negative.
It is true that in many cases stations, sidings, wharves, depots, warehouses, cranes and other similar things will be used and it is arguable that in using the words " in respect of " the legislature had such user in mind.
It is well to notice however that the legislature must have been equally aware that whereas in some cases accommodation provided by stations will be used, in some cases sidings will be used, in others wharves, in other warehouses and in other cases cranes, and in certain cases several of these may be used, in most cases there will be no use of all of these.
From the practical point of view it is impossible to regulate terminal charges separately in respect of user of each of these several things mentioned.
When therefore the legislature authorised the Central Govt., to fix terminals as defined in section 3(14), the intention must have been that the terminals leviable would not depend on how many of these things would be used.
It is also worth noticing that the user of a depot, warehouse and cranes would necessarily mean some service rendered " thereat ".
If terminals did not include charges in respect of the provisions of depots, warehouses and cranes unless these were used, there would be no need of including these in the first portion as they would be covered by the second part of the definition, viz., "of any services rendered thereat ".
Far from being there any reason to cut down, the consequence of the generality of language used viz., " in respect of ", there is thus good ground for thinking that the legislature used this language deliberately to cut across the difficulty of distinguishing in a particular case as to which of these things had been used or whether any of them had been used at all.
innumerable people carry goods over the Railways and many of them, for the purpose of the carriage make use of the stations, sidings, wharves, depots, warehouses, cranes and other similar matters, while many do not.
Though at first sight it might seem unreasonable that those who had not used would have to pay the same charge as those who had made use of these, it is obvious that the 941 interminable disputes that would arise between the Railway Administration and the Railway users, if the fact of user of stations, sidings and other things mentioned had to determine the amount payable, would be unhelpful not only to the Railway Administration but also to the using public.
The sensible way was therefore to make a charge leviable for the mere, provision of these things irrespective of whether any use was made thereof.
That was the reason why such wide words " in respect of " was used.
We are therefore of opinion that the words " in respect of "used in section 3(14) means " for the provision of " and not " for the user of ".
It is worth considering in this connection that the definition of " terminal charges " in the Indian Act is a verbatim reproduction of the definition appearing in the English Railway and Canals Traffic Act, 1888 and that only three years before the English Parliament passed that Act an English Court had held in Hall & Co. vs London, Brighton and South Coast Rly., Co. (2), that for the purposes of interpretation of section 51 of the London, Brighton, and South Coast Rly.
Act, 1863 which did not include such a definition of terminal charges, the words " any service incidental to the duty or business of a carrier", does comprise providing such station accommodation and such sidings, and such weighing, checking and labelling as is incidental to the duty which they undertake, of collecting and dealing with the goods as carriers.
" It is reasonable to think that the English Parliament in defining " terminal charges " in the Railway and Canals Act, 1889 intended to give effect to this view that provision of station accommodation and sidings entitled the Railway Administration to levy " terminal charges.
" When the.
Indian Legislature adopted the same definition in its own Act it is proper to think that it also was aware of the view taken in Hall 's Case (2).
This consideration fortifies the conclusion which we have already reached on an examination of the scheme of our own Act, apart from authorities, that the words " in respect of " used in section 3(14) in the definition of (2) 942 terminal charges " means " for the provision of and not " for the user of The necessary conclusion that follows is that irrespective of the fact of the actual user by any particular consignor of the stations, sidings and other things mentioned in section 3(14) " terminal charges " are leviable by reason of the mere fact that these things have been provided by the Railway Administration.
The conclusion that necessarily follows therefrom is that the charges of Rs. 4 11 at either end sought to be levied by the Railway Administration in addition to the charges for carriage was " terminal charges " within the meaning of the Railways Act and the proposed levy being in accordance with Government Notification` under section 32 of the Act was nothing more than the application of standardized terminal charges.
The Tribunal had therefore no jurisdiction to investigate the reasonableness or otherwise of the same and had no jurisdiction to reduce the same.
The order made by the majority of the Tribunal cannot therefore be allowed to stand.
The order made by the Tribunal is therefore set aside.
The application made under section 41 in respect of this levy of Rs. 9.6 per 4 wheeler truck in addition to the carriage is rejected.
The appeal is allowed with costs.
Appeal allowed.

Output:
In pursuance Of section 32 of the Indian Railways Act, 1890 (IX of 1890), the Central Government had by means of a notification, fixed certain rates of terminal charges for loading and unloading goods carried from one station to another by Railway.
Inspite of this notification the appellant Railway Company did not levy any terminal charges in accordance with those rates up to a certain point of time and continued to charge at a rate which Was then prevalent and in which no terminal charges were included.
Subsequently, however, the Railway Company issued a Local Rates Advice by which terminal charges were added to the prevalent rates with the result that the total charges payable to the Railway by the respondent mills rose considerably.
It was for relief against this increase that the mills made a complaint under section 41 (1) (i) of the Indian Railways Act to Railway Rates Tribunal.
The contention of the Railway Company, inter alia, was that as in increasing the charges the Administration had merely applied standardized terminal charges as notified by the Central Government no complaint could be made in respect thereof under section 41 (1) (i).
The Tribunal by a majority held that this was not a case of application of a standardised terminal charge and so it had jurisdiction to consider the question, and they ordered a reduction of terminal charges from the total charges.
On appeal by the Railway, Held, that the Railway Rates Tribunal had no jurisdiction either to investigate the reasonableness or otherwise of terminal charges levied by the Railway or to reduce the same.
The charges sought to be levied by the Railway Administration were "terminal charges" within the meaning of the 927 Railways Act, and the proposed levy being in accordance with the Government notification under section 32 of the Act was nothing more than the application of standardised terminal charges.
Irrespective of the fact of the actual user by any particular consignor of the stations, sidings and other things mentioned in section 3 (14) of the Railways Act, " terminal charges " were leviable by reason of the mere fact that these things had been provided for by the Railway Administration, Hall & Co. vs London Brighton and South Coast Railway, Co., , considered.