Input:
: Criminal Appeal No 133 of 1975.
Appeal from the Judgment and order dated 3 2 1978 of the Andhra Pradesh High Court in Crl.
A. No. 628/73.
R. Nagarathnam for the Appellant.
P. Parmeswara Rao and G. N. Rao for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
This appeal has been filed under Section 2(a) of the .
The appellant was acquitted by the learned Additional Sessions judge, Chittoor of an offence under Section 302, Indian Penal Code.
The acquittal was reversed by the High Court of Andhra Pradesh and the appellant was convicted under Section 302 Indian Penal Code and sentenced to suffer imprisonment for life.
365 The deceased Subhadramma was the wife of the appellant.
They were married about one and a half years before the occurrence.
About three months before the occurrence the deceased gave birth to a female child in the house of the accused at Cherlopalle.
After the ninth day the mother and child, according to customary practice, were taken by the mother of the deceased to her house at Krishna Kalva.
Cherlopalle is about 25 miles from Krishna Kalva.
The accused used to visit his wife and often used to stay in the house of the deceased 's mother.
After about one and a half months the, accused asked his mother in law and brother in law to send his wife to his place.
They replied that she had only delivered a child recently and that she would be sent to her husband 's house in the fifth month.
On 18th December, 1972, according to the case of the prosecution the accused once again requested his mother in law to send his wife to his house.
This time he also brought with him P.W. 8, an elderly gentleman from his village.
His mother in law P.W. 2 told him that she would send the girl in the fifth month as she had not yet regained her health after delivery.
The accused and P. W. 8 went away.
That evening the accused again came to the house of his mother in law.
After dinner all of them went to sleep.
The house consisted of only one room.
The accused, the deceased, her brother P.W. 1, her mother P.W. 2 and her grand mother P.W. 3 were all sleeping in the room.
In the middle of the night P.Ws. 1, 2 and 3 were awakened by the cry "Amma" raised by Subhadramma.
On waking up they saw the accused sitting by the side of the deceased with a knife in his hand.
They found the deceased bleeding profusely from the left side of her chest.
P.W. 1 put his foot on the hand in which the accused was holding the knife.
The accused dropped the knife which was then picked up by the grand mother P.W. 3.
Attracted by the cries raised by the P.Ws. 1 to 3, the neighbourers P. Ws. 4, 5, 6 and others came there.
They caught hold of the accused and tied him to a pole in front of the house by means of a rope.
Some of the villagers who had gathered there also gave a beating to the accused P.W. proceeded to the house of P.W. 9 the Village Munsif and reported the occurrence to him.
P. W. 1 affixed his thumb impression on the report exhibit P. 1 prepared by P. W. 9.
P. W. 9 then proceeded to the house of P.W. 1 where the blood stained knife M.O. 1 was handed over to him.
Thereafter, P. W. 9 prepared his own report exhibit P. 4 and sent it alongwith exhibit P. 1 and M.O. 1 to the Police Station at Renigunta.
P. W. 14, the Sub Inspector of Police registered the First Information Report at 5 A. M. on 19th December, 1972 and went ahead with the further investigation which was later taken over by the Inspector of Police P.W. 15.
When the Police officers went to the village, they 366 found the accused tied to a pole.
They arrested him and found that he had injuries on his person.
They got him examined by a Doctor.
After holding the inquest the dead body was sent for postmortem examination.
The Medical Officer, P. W. 12 who conducted the autopsy, found on the dead body a stab wound over the left axila 6 cms.
below the arm pit 1.75 cms x 0.5 cm.
nearly horizontal.
The stab injury had gone through the third intercostal space and through the upper lobe of the left lung in an upward and medial direction.
The upper lobe of the left lung had been cut through and through,, and had collapsed.
P. W. 13 the Medical officer who examined the accused found several abrasions and contusions on the person of the accused.
There was no fracture.
After completing the investigation the Police laid a chargesheet against the accused and he was duly tried.
The plea of the accused was one of denial.
In the Committing Court the accused was content with a bare denial but in the Court of Sessions he stated that he went to the house of his mother in law at about 10 p.m.
On 18th December, 1972.
P. Ws. 1 and 2 taunted him saying "we are maintaining you and your wife, yet you come at any time you like` '.
They insulted him.
There was an altercation.
P.W. 3 hit him with a stone near his left eye.
P. W. 1 beat him with a stick two or three times.
He felt giddy and was about to lose consciousness.
P. W. 1 came upon him with a knife to stab him.
The deceased intervened and interposed herself between P.W. 1 and the accused.
She received a stab injury.
Seeing his wife injured, he fell down unconscious.
He regained consciousness next morning.
The Learned Sessions Judge held that the prosecution had failed to establish any motive and that the evidence of the prosecution witnesses was 'discrepant, conflicting and improbable. ' He thought that the prosecution had made an attempt to improve its case which was originally based on circumstantial evidence to made it appear as if P.W. 3 had also seen the stabbing.
He commented on the failure of the Police to seize the mat or bedding on which the deceased was sleeping.
He referred to the evidence of me Doctor who stated that the injury found on the deceased could have been caused even if she was standing.
The learned Sessions Judge thought that when there were two divergent versions given by the prosecution and the defence and when two views were possible, the benefit of doubt should be given to the accused.
He, therefore, acquitted the accused.
The High Court reversed the finding of acquittal.
The learned Judges pointed out that there was no reason to doubt the testimony of P. Ws. 1 to 3 and that the discrepancies noticed by the learned Sessions 367 Judge were of a minor character.
The High Court observed that the learned Sessions Judge had magnified the importance to be attached to minor discrepancies.
The High Court also concluded from the medical evidence that it was more probable that the deceased was stabbed when she was lying down.
Accepting the evidence of P. Ws. 1 to 3 which was corroborated by the evidence of P. Ws. 4 and 5 who came to the scene soon afterwards, the High Court convicted the accused under Section 302 and sentenced him as aforesaid.
In this appeal the learned Counsel for the appellant argued that the accused had no motive to kill his wife and that his version was more probable than the version of the prosecution.
He submitted that the version of the accused that the occurrence took place at about 10 p.m. was substantiated by what was mentioned in exhibit P. 15 the wound certificate given by P.W. 13 the Medical officer in respect of the injuries which he found on the person of the accused.
He urged that the knife was not seized by the Police under any seizure Memo nor was the knife sent to any finger print expert.
He urged that at the reasons given by the learned Sessions Judge had not been met by the High Court.
He also contended that two views were possible on the evidence and the accused was entitled to the benefit of doubt.
We have perused the relevant evidence as well as the judgments of the Sessions Judge and the High Court.
We are unable to find any substance in the submissions made by the, learned Counsel for the appellant.
The High Court was well justified in commenting that the discrepancies on the basis of which the Trial Court rejected the evidence of P. Ws. 1, 2 and 3 were of a minor character and that they have been unduly magnified by the learned Sessions Judge.
The discrepancies were in regard to which of them woke up first, where was the lantern and which of the neighbours came first to the scene on hearing their cries.
The High Court was also right in holding that the medical evidence supported the prosecution version and not the defence version.
Merely because the Medical Officer stated that the victim could have received the injury if she was standing, it did not follow that the injury could have been received in the circumstances mentioned by the accused.
The injury was inflicted with great force and its direction was upward.
The location of the injury was 6 cms.
below the arm pit on the left side.
According to the accused the deceased received the injury when she placed herself between P. W. 1 and himself.
We do not think that an injury of the nature received by the deceased could have been caused in the manner suggested by the accused.
The injury must have been caused in the manner suggested by the prosecution that 368 is, when the deceased was lying on her right side.
It is true that the accused did not have any deep motive to kill the deceased.
It is obvious that he must have been upset by the persistent refusal of the brother and mother of the deceased to send her with him to his house.
He probably attributed the refusal to reluctance on the part of his wife to accompany him straightaway.
We may also refer here to the comment of the learned Counsel for the appellant that realizing that the motive would assume considerable importance if the case was one based on circumstantial evidence, the prosecution tried to make P. W. 3 depose as if she had witnessed occurrence.
We do not think that the comment is justified.
P.W. 3, an old woman of 69 years, stated in her evidence that she saw the accused who was sitting by the side of the deceased on the cot make a gesture as if he was stabbing the deceased and that the deceased cried out 'Amma. ' In cross examination she stated that she did not remember if she had told the Police that the accused made a gesture as if he was stabbing the deceased.
The Inspector of Police P. W. 15, however, stated that P. W. 3 did not state before him that she saw the accused making a gesture as if he was stabbing the deceased.
We do not think that we will be justified in rejecting the evidence of all the prosecution witnesses on the basis of this statement of P. W. 3.
At the worst the so called improvement made by her may be rejected but no more.
We are unable to discover any good reason to reject the evidence of P. Ws. 1 to 3 or the evidence of P. Ws. 4 and 5.
We are afraid the learned Sessions Judge allowed himself to be assailed by airy and fanciful doubts.
We are satisfied that the High Court was justified in interfering with the order of acquittal.
The learned Counsel for the appellant advanced the usual argument submitted in all cases where an order of acquittal is reversed, namely, that where two views of the evidence are possible, the accused is entitled to the benefit of the doubt arising from the two views and that where the Trial Court has taken a possible view and acquitted the accused, the High Court should not interfere with the order of acquittal merely because another view is also possible.
The principles are now well settled.
At one time it was thou ht that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons".
However, the 'formulae ' of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh & Ors.
vs State of Rajasthan(1).
In Sanwat Singh 's case, this Court harked (1) A.l.
R. 369 back to the principles enunciated by the Privy Council in Sheo Swarup vs Emperor(1) and re affirmed those principles.
After Sanwat Singh vs State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup 's case.
Occasionally phrases like 'manifestly illegal ', grossly unjust ', have been used to describe the orders of acquittal which warrant interference.
But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion.
In some cases Ramabhupala Reddy & Ors.
v The State of A.P.(2), Bhim Singh Rup Singh vs State of Maharashtra(3) it has been said that to the principles laid down in Sanwat Singh 's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court".
This, of course, is not a new principle.
It stems out of the fundamental principle, of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.
If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt.
But, fanciful and remote possibilities must be left out of account.
To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.
If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt.
It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason"(4).
As observed by Lord Denning in Miller vs Minister of pensions(5) "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt.
(1) 61 I.A. 389.
(2) A.I.R. 1971 S.C. 460.
(3) A.l.
R. (4) Salmon J. in his charge to the jury in R. V. Fantle reported in (5) 370 The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable ' the case is proved beyond reasonable doubt, but nothing short of that will suffice".
In Khem Karan & Ors.
vs State of U.P. & Anr.(1).
, this Court observed: "Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony".
Where the Trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.
That is what the High Court has done in this case.
The appeal is dismissed.
P. B. R. Appeal dismissed.

Output:
The appellant was charged with the offence of committing the murder of his wife.
The trial court acquitted him on the ground that the prosecution had failed to establish any motive for the offence, that the evidence of the prosecution witnesses was discrepant, conflicting and improbable and that when two views were possible on the basis of two divergent versions given by the prosecution and the defence, the benefit of doubt should be given to the accused.
The High Court reversed the order of acquittal and convicted and sentenced the appellant to imprisonment for life on the view that the trial court had magnified the importance to be attached to the discrepancies which were of a minor nature In appeal to this Court it was contended on behalf of the appellant that in all cases where two views of the evidence were possible the accused was entitled to the benefit of doubt arising from the two views and that on this principle the High Court should not have interfered with the order of acquittal merely because another view was also possible.
Dismissing the appeal: ^ HELD : (1) Where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.
[370D] (2) After the decision of this Court in Sanwat Singh vs State of Rajasthan ; this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup vs Emperor (61 T.A. 389).
Occasionally phrases like "manifestly illegal", "grossly unjust have been used to describe the orders of acquittal which warrant interference.
But such expressions have been used more as flourishes of language to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion.
In two other cases it has been held that to the principles laid down in Sanwat Singh 's case may added the further principle that if two 364 reasonable conclusions could be reached on the basis of the evidence on record the appellate court should not disturb the finding of the trial court.
This principle stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.
If two reasonably probable and evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
But fanciful and remote possibilities must be left out of account.
To entitle an accused person to the benefit of a doubt arising from the possibility of duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.
If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt.
It is, therefore essential that, any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.
A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the mind of a Judge about almost anything at any time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reason.
"Proof beyond a reasonable doubt" does not mean proof beyond a shadow of doubt The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man be to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible but not in the least probable," the case is proved beyond reasonable doubt but nothing short of that will suffice.
[369A G] Sanwat Singh vs State of Rajasthan, ; applied.
Ramabhupala Reddy & Ors.
vs The State of A.P., AIR 1971 SC 460, Bhim Singh Rup Singh vs State of Maharashtra, AIR 1974 SC 286, Miller vs Minister of Pensions, [1947] 2 All.
E.R. 372; Khem Karam & Ors.
vs State of U.P. & Anr., referred to.


Input:
minal Appeal No. 156 of 1961.
Appeal from the judgment and order dated June 15, 1961, of the Calcutta High Court in Criminal Appeal No. 745 of 1959.
D. N. Mukherjee, for the appellant.
P. K. Chakraborty and P. K. Bose, for the respondent.
March 6, 1964.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
Sunil Kumar Paul has preferred this appeal, after obtaining a certificate from the Calcutta High Court under article 134(1)(c) of the Constitution.
The facts leading to the appeal are these.
The appellant was a clerk in the office of the Sub Divi sional Health Officer at Barrackpore in 1955 56.
He used to prepare bills of the establishment, to present them at the ,Sub treasury and later present them at the State Bank at Barrackpore, to receive payment in cash and to make over that amount to the Sub Divisional Health Officer.
Certain bills were drawn under the heading '38 Medical '.
Certain bills were to be drawn under the heading '39 Public Health '.
Some other bills were drawn under other headings.
On October 5, 1956, the appellant presented a bill for Rs. 1,769 out of Which a sum of Rs. 5 10 0 was to be credited in the Postal Life Insurance Ledger and the balance of Rs. 1,763 6 0 was to be received in cash.
This bill was duly passed by the Sub Treasury and was subsequently presented to the Bank on October, 6, 1956 for payment of Rs. 1,763 6 0. 'The Bank paid this amount to the appellant.
The amount was 72 not paid to the Sub Divisional Health Officer.
In fact, the records of the Office of the Sub Divisional Health Officer did not refer to any such bill being prepared and submitted to the Sub Treasury and the Bank for payment.
A bill for practically the same items which were mentioned in the bill cashed on October 6, was however presented on October 1, 1956.
It was for an amount of ' Rs. 1,767 out of which Rs. 5 10 0 were to be credited to the PLI account ledger and the balance of Rs. 1,761 6 0 were to be paid in cash.
The amount of this bill was received on October 1, and was duly handed over to the Sub Divisional Health Officer.
It may be mentioned that this bill.
cashed on October 1, 1956 was at first prepared for Rs. 1,769 and the amount to be received in cash was to be Rs. 1,763 6 0 but prior to this encashment, a correction was made at some stage ', and the bill was reduced by Rs. 2 in the total amount and consequently in the amount to be paid in cash.
The fact of the presentation of a bill for its encashment of Rs. 1,763 6 0 on October 6, 1956 came to the notice of the.
Divisional Health Officer at the instance of the Accountant General and on enquiry it was found that no such bill had been actually presented by his office for encashment and that no such amount was received by him.
This led to a complaint and further enquiries and investigation which ended in the prosecution of the appellant.
The case was made over to the Special Judge by the Government in view of the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. Act XXI of 1949), hereinafter called the Act, as it involved an offence punishable under section 409 I.P.C.
The Special Judge tried the appellant for that offence and convicted him and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs. 2,000.
The appellant went in appeal to the High Court of Calcutta.
The High Court agreed with the appellant 's contenion that no offence under section 409 I.P.C. had been made out, but held.that he was proved to have committed an offence under section 420 I.P.C.
It accordingly altered his conviction from an offence under section 409 I.P.C. to one under section 420 I.P.C., for cheating the employees of the State Bank, Barrackpore, by representing that the bill for Rs. 1,769 gross and Rs. 1.763 6 0 cash drawn on October 6, 1956, was a genuine bill drawn by the Sub Divisional Health Officer, and thereby dishonestly inducing the Bank 's staff to make over the sum of Rs. 1,763 6 0 to him and sentenced him to rigorous imprisonment for one year and to fine of Rs. 2,000.
It is against this order that this appeal, has been preferred.
73 The facts found by the High Court are sufficient to justify the finding that the appellant committed the offence under section 420 I.P.C. Learned counsel for the appellant has, urged the following points: (1) A case involving an offence under section 420 I.P.C. cannot be allotted for trial to a Special Court by the State Government when such an offence is not committed by a public servant while purporting to act as such public servant.
(2) The Special Court could not take recourse to the provisions of section 237 Cr.
P.C., and if it could, the requiremen ts of section 237 Cr.
P.C. were not satisfied in the present case, and that consequently the High Court could not have altered the conviction of the appellant from an offence under section 409 I.P.C. to one under section 420.
(3) The ingredients of an offence under section 420 I.P.C. were neither alleged nor proved by the prosecution.
(4) The accused has been prejudiced on account of the absence of the necessary allegations and the omission to frame a charge for an offence under s.420 I.P.C. and therefore the provisions of section 537 Cr. P. C. would not cure this defect in trial.
To appreciate the first contention, reference may be made to the relevant provisions of the Act.
They are: "4(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable by Special Courts only: Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898., be charged at the same trial.
(2) The distribution amongst Special Courts of cases involving offences specified in the Schedule, to be tried by them, shall be made by the State Government.
(2) Save as provided in sub section (1). . the provi sions the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the pro ceedings of a Special Court; and for the purposes of the said provisions, a Special Court shall be deemed to be a Court of Session trying cases without a Jury, and a person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.
" THE SCHEDULE * * * 2.
An offence punishable under section 409 of the Indian Penal Code.
, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of property with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.
An offence punishable under section 417 or section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government, while purporting to act as such public servant or agent.
The Government notification allotting the present case to the Special Court is not on the record and therefore what its actual contents were cannot be stated with any precision.
It may however be assumed that it mentioned the offence involved in the case to be that under section 409 I.P.C., and, possibly, did not state the various facts which went to establish that offence against the appellant.
Section 409 I.P.C. is mentioned in the Schedule referred to in sub section
(2) of section 4 of the Act.
The State Government was therefore competent to allot the case involving that offence to the Special Court.
In fact it had to allot the case to the Special Court in view of the provision of sub section
(1) of section 4 to the effect that the offences specified in the Schedule shall be triable by Special Courts only.
The question therefore really is whether the Special Court could try the appellant 75 for the offence under section 420 I.P.C. An offence under section 420 I.P.C. when committed in certain circumstances is also men tioned in the Schedule.
It has to be tried by Special Courts only when it is committed by a public servant while purporting to act as such.
There is no doubt that the appellant is a public servant.
This has not been disputed.
Learned counsel for the appellant, Mr. Mukherjee, has urged that the expression 'while purporting to act as such public servant ' be construed to mean 'while purporting to act in the discharge of official duties ' and that presentation of a false bill could not be in the discharge of official duty.
Such presentation may not be in the discharge of official duty, but the question is different and is as to whether the presentation of a false bill was made by the public servant purporting to do so in the discharge of his duties.
The appellant did present the false bill purporting to present it in the discharge of his duties as a clerk of the Office of the Sub Divisional Health Officer who was duly authorised to present bills and cash them.
Reliance is placed on the case reported as Bhajahar Mondal vs The State or West Bengal(1) in support of the contention that the appellant should not have been tried by the Special Court of the offence under section 420 I.P.C. when the case was allotted as one involving an offence under section 409 I.P.C. The facts of that case were very different.
The order allotting the case mentioned the offence of which the accused was to be tried to be an offence under section 161 read with section 116 I.P.C. The order was made on November 27, 1952.
Prior to this date, on July 28, 1952, abetment of an offence under section 161 I.P.C. was made a distinct offence under section 165 A I.P.C. by the Criminal Law Amendment Act XLVI of 1952 An offence under section 165A was not mentioned in the Schedule to the Act as it stood on November 27, 1952.
This Court held that the notification of the Government making over the case to the Special Court was bad as the case made over related to no existing offence.
Such cannot be said of the Government notification allotting the case in the present appeal to the Special Court, as on the date of such notification there existed an offence under section 409 I.P.C. and it was included in the Schedule to the Act.
On the facts proved, it is not to be doubted that the appellant presented the bill for Rs. 1,763 6 0 at the State Bank oil October 6, purporting to act as the clerk of the Sub Divisional Health Officer.
The bill presented was on be half of that officer.
The Bank made the payment to him a (1) ; 76 the messenger of that officer duly authorised to receive payment in cash.
It follows that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and that a case involving this offence also could have been allotted to the Special Court by the State Government for trial.
The Special Court was therefore competent to try the accused for this offence if the facts proved established it.
Apart from the consideration that the offence of cheating of which the appellant accused has been convicted fell within the offences mentioned in the Schedule, the appellant could be tried by the Special Court for this offence in view of the proviso to section 4.
The proviso authorizes the Special Court, when trying a case involving an offence specified in 'he Schedule to try any offence other than that offence with which the accused may be charged at the same trial in accordance with the provisions of the Code of Criminal Procedure.
The accused could be charged with an offence under section 420 I.P.C. if he could be tried for this offence at the trial for an offence under section 409 I.P.C. He could be so tried in view of is.
236 and 237 Cr. P. C.
It is urged for the appellant that the provisions of section 236 Cr. P. C. would.apply only to those cases where there be no doubt about the facts which can be proved and a doubt rises as to which of the several offences had been committed on the proved facts.
Sections 236 and 237 read: "236.
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
Illustrations (a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating.
He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
77 237.
If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different, offence for which he might have been charged ' under the provisions of that section, he may be, convicted of the offence which he is shown to have committed, although he was not charged with it.
Illustration A is charged with theft.
It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods.
He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.
" The framing of a charge under section 236 is, in the nature of things, earlier than the stage when it can be said what facts have been proved, a stage which is reached when the court delivers its judgment.
The power of the Court to frame various charges contemplated by section 236 Cr. P. C. therefore arises when it cannot be said with any definiteness, either by the prosecutor or by the Court, that such and such facts would be proved.
The Court has at the time of framing the charges, therefore to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the investigating agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge.
All such possible offences could be charged in view of the provisions of section 236 Cr. P. C. as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute.
The facts which must have been alleged prior to the stage of the framing of the charge in the present case must have been what had been stated in the charge sheet submitted by the Investigating Officer, 24 Parganas, which is printed at p. 3 of the appear record.
This charge sheet narrates in the column meant for the name of offences and circumstances connected with it: "that on the 6th October 1956 Sunil Kumar Paul, a Public servant in the employment of the office of the Sub Divisional Health Officer, Barrackpore i.e., (clerk) dishonestly drew Rs. 1,763 6 0 excluding Postal Life Insurance deduction of Rs. 5 10 0 from the State Bank of India, Barrackpore Branch by submitting a false duplicate Estt.
Pay Bill 78 for the office of the said S.D.H.O., Barrackpore.
The money drawn was not credited to the office of the Sub Divisional Health Officer, Barrackpore.
" It is practically on these facts that the conviction of the appellant for an offence under section 420 I.P.C. has been found ed.
It follows that the Special Court could therefore have framed a charge under section 420 I.P.C. at the relevant time if it had been of the opinion that it was doubtful whether these facts constitute an offence under section 409 I.P.C. as stated in the charge sheet or an offence under section 420 I.P.C. When a charge under section 420 I.P.C. could have been framed by the trial Court by virtue of section 236 Cr.
P.C. that ,Court or the appellate Court can, in law, convict the appellant of this offence instead of an offence under section 409 I.P.C. if it be of the view that the offence of cheating bad been established.
This would be in accordance with the provisions of section 237 Cr.
P. C In Begu vs The King Emperor(1) sections 236 and 237 were construed by Viscount Haldane thus: "The illustration makes the meaning of these words quite plain.
A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.
That is what happened here.
The three men who were sentenced to rigorous imprisonment were convicted of making away with the evidence of the crime by assisting in taking away the body.
They were not charged with that formally, but they were tried on evidence which brings the case under section 237.
" This was approved by this Court in Ramaswamy Nadar vs The State of Madras(2).
In this case, the accused, acquitted of an offence under section 420 I.P.C. was convicted by the High Court of an offence under section 403 I.P.C.
This Court held that the High Court could do so.
On facts, however, this Court did not find the offence under section 403, proved.
In the State of Andhra Pradesh vs Kandimalla Subbaiah(3) it was held that while a Special Judge appointed under section 6 of the Criminal Law Amendment Act (XLVI of 1952) had juris diction to try cases under section 5 of the Prevention of Corruption Act, he could, under section 7(3) of the Criminal Law Amendment (1) 52 I.A. 191.
(2) (3) , 203.
79 Act try other offences under the Code of Criminal Procedure if the accused could be charged with them at the same trial and that therefore the accused could be tried at the trial for an offence under section 5 of the Prevention of Corruption Act for an offence under section 120B read with sections 466, 467, 420 I.P.C. and that the other accused who had abetted the commission of these offences could also be tried.
Sub section
(3) of section 7 of the Criminal Law Amendment Act provided that when trying any case a Special Judge might also try any offence other than an offence specified in section 6 with which the accused might, under the Code of Criminal Procedure, 1898, be charged at the same trial.
In support of his contentions, learned counsel for the appellant referred to the case reported as Nanak Chand vs The State of Punjab.(1) wherein it was stated at p. 1212: "The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can ' be framed and tried or alternative charges can be framed. . .
In the present case there is no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed.
" This does not help the appellant 's contention as the alle gations in that case if proved could establish, according to the Court, the offence of murder only and therefore there was no room for any doubt about the nature of offence com mitted and for the application of section 236 Cr. P. C.
In that case, the appellant was tried along with others for an offence under section 302 read with section 149 I.P.C.
The Sessions Judge convicted the appellant and a few others under section 302 read with section 34 I.P.C.
The High Court acquitted the others and altered the conviction of the appellant to the offence under section 302 I.P.C.
It was, in this setting, that this Court held that on the basis of the specific allegation that the appellant had struck the deceased with a takwa, there could be no doubt of that fact constituting an offence under section 302 and not an offence under section 302 read with section 149 I.P.C. We therefore hold that at the trial of the appellant for an offence under section 409 I.P.C., in this case, the appellant could have also been charged for an offence under section 420 I. P. C. in view of section 236 of the Code of Criminal Procedure.
(1) ; 80 It is then urged for the appellant that under the proviso to section 4 of the Act, the Special Court can try any other offence only when the accused is specifically charged with that offence.
The language of the proviso does not lead to such a conclusion.
It provides for the trial of the accused for any other offence provided the accused could be charged with that offence at the same trial under the provisions of the Code of Criminal Procedure.
The proviso does not say that the charge must be framed, though of course, if the trial Court itself tries the accused for a certain offence, it will ordinarily frame a charge.
The proviso empowers a Court to try the accused for that offence and has nothing to do with the power of the trial, court or of the appellate Court to record a conviction for any other offence when an accused is being tried with respect to an offence mentioned in the Schedule.
The Court 's power to take recourse to the provisions which empower it to record a conviction for an offence not actually charged, depends on other provisions of the Code and the Act.
Section 5(2) of the Act provides that the provisions of the Code of Criminal Procedure so far as they are not incon sistent with the Act, would apply to the proceedings of the Special Court and for the purposes of these provisions, the Special Court could be deemed to be a Court of Sessions.
There is nothing in the provisions of section 237 of the Code of Criminal Procedure which is inconsistent with the provisions of the Act.
Section 237 simply empowers the Court to convict an accused of the offence with which he could have been charged under section 236, even when he had not been charged with it.
Section 237 really deals with the final orders which the Court can pass on a trial of an accused for a certain offence.
In view of the proviso to sub section
(1) of section 4, the Special Court could have tried the appellant for the offence under section 420 I.P.C.
It did not actually try him for that offence.
It was however open to it and to the appellate Court to convict him of the offence under section 420 I.P.C. when trying for an offence under section 409 I.P.C. in view of section 237 of the Code.
It has also been urged for the appellant that the proviso to section 4 does not give any power to the Special Court to try an offence which be independent of the offence mentioned in the allotment order.
That is to say, the Special Court, in this case, could have tried the appellant only for such offences which will be in some way related to the offence under section 409 I.P.C.
It is further urged that the ingredients of the offence under section 420 I.P.C. are absolutely different from the ingredients of the offence under section 409 I.P.C. 81 The ingredients of two must be different from one another and it is therefore not necessary to consider whether the ingredients of the two offences are in any way related.
The Court has to see, for the purpose of the proviso, ' whether the accused could be charged with any offence, other than the one referred to in the allotment order, in view of the provisions of the Code.
There is nothing in the proviso which could lead to the construction that any limitations other than those laid down by the provisions of the Code of Criminal Procedure were to affect the nature of the offence which could be tried by the Special Court.
We are therefore of opinion that the Special Court could try the appellant for the offence under section 420 I.P.C. and that therefore the High Court was right in altering his conviction from that under section 409 to section 420 I.P.C.
We have already referred to the statement in the chargesheet that the appellant presented a false bill to the State Bank and cashed it.
This allegation is sufficient for the pur pose of the offence under section 420 I.P.C.
It was not necessary to allege or to prove that the appellant himself had prepared the false bill.
Such an allegation could not be made in the present case in particular, as the bill which was cashed on October 6, could not be traced.
The presentation of the bill for encashment carries with it the representation that it is a genuine bill and therefore the allegations in the case attributed misrepresentation to the appellant at the time he presented the bill.
It may be mentioned here that if the bill had been a genuine bill, the offence made out in the present case would have been an offence under section 409 I.P.C.
In the circumstances, therefore, the appellant cannot be said to be prejudiced in his conviction under section 420 I.P.C. on account of the non framing of the charge, and consequent non trial, under section 420 I.P.C.
In fact, in the circumstances of the case, no question of irregularity in the trial arises.
The framing of the charge under section 420 I.P.C. was not essential and section 237 Cr.
P. C. itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record.
The last contention for the appellant was that the sentence is severe.
We do not consider a sentence of 1 year 's rigorous imprisonment and a fine of Rs. 2,000 severe.
The appeal therefore fails and is dismissed.
Appeal dismissed.

Output:
The appellant was tried and convicted by the Special Judge for an offence under section 409 I.P.C. and sentenced to rigorous imprisonment for two years and to pay a fine of ' Rs. 2,000.
On appeal, the High Court altered his conviction from an offence under section 409 to one under section 420 I.P.C. for cheating the employees of the State Bank, by representing a, bill as a genuine bill drawn by the Sub Divisional Health Officer, and thereby dishonestly inducing the Bank 's Staff to make over the sum of Rs. 1,763 6 0 to him and sentenced him to rigorous imprisonment for one year and to a fine of Rs. 2,000.
On appeal by certificate the appellant mainly contended (i) that a case under section 420 I.P.C. could not be allotted for trial to a Special Court by the Government when such an offence was not committed by a public servant while purport ing to act as such public servant: (ii) that the Special Court could not take recourse to the provision of section 237 Code of Criminal Procedure and if it could, the requirements of section 237 Code of Criminal Procedure were not satisfied and consequently the High Court could not have altered the conviction from section 409 I.P.C. to one under section 420 and (iii) that the accused had been prejudiced ' on account of the absence of a charge under section 420 I.P.C. Held (i) that on the facts proved it must be held that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and that a case involving this offence also could have been allotted to the Special Court by the Government for trial.
The Special Court was, therefore, competent to try the accused for this offence if the facts proved established it, Besides, the appellant could be tried by the Special Court for this offence in view of the proviso to section 4 of the West Bengal Criminal Law Amendment Act.
Bhajahari Mondal vs State of West Bengal, [1959] S.C.R. 1276, distinguished.
(ii) that at the trial of the appellant for an offence under section 409 I.P.C., in this case, the appellant could have also been charged for an offence under section 420 I.P.C., in view of section 236 of ' the Code of Criminal Procedure.
71 In view of the proviso to sub section (1) of section 4 of the Act, the Special Court could have tried the appellant for the offence under section 420 I.P.C.
It did not actually try him for that offence.
It was however, open to it and to the appellate court to convict him of the offence under section 420 I.P.C., when trying for an offence under section 409 I.P.C., in view of section 237 of the Code of Criminal Procedure.
(iii) that in the present case the appellant could not be said to be prejudiced in his conviction under section 420 I.P.C. on account of the non framing of the charge, and consequent non trial, under section 420 I.P.C.
In fact, no question of irregularity in the trial arises.
The framing of the charge under section 420 I.P.C. was not essential and section 237 Code of Criminal Procedure itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record.
Case Law discussed.


Input:
ivil Appeal No. 2377 of 1987.
From the Judgment and Order dated 29.10.1986 of the Allahabad High Court in F.A. No. 493 of 1984.
J.P. Goyal, Rajesh and V.K. Verma for the Appellant.
Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, in a matrimonial cause, is by the husband, and is directed against the Judgment and Decree, dated 29.10.1986, of High Court of Allahabad in First Appeal No. 493 of 1984, allowing the Respondent wife 's appeal and reversing the decree of dissolution of marriage dated 31.7.1984 granted by the Second Additional District Judge, Jhansi, in Original Suit No. 34 of 1983 of his file.
Appellant 's suit for a decree of dissolution of his marriage with the respondent on the ground envisaged in Section 13(1)(iii) of the (Act) that respondent suffered from a mental disorder of such a kind that rendered Respondent unfit for married life and that petitioner could not reasonably be expected to live with her had been decreed by the Court of first instance but dismissed by the High Court in appeal.
Appellant husband has come up by Special Leave.
The marriage between appellant, Ram Narain Gupta, and respondent, Rameshwari Gupta, was solemnised on 17.6.1979 at Jhansi.
The suit for the dissolution of the marriage was filed on 14.7.1983 on the allegation that the wife was a schizophrenic.
The High Court, while holding it probable that the wife did suffer from some such mental disorder, however, was persuaded to the view that appellant had not established the requisite extent and degree of the mental disorder recognised by law as constituting a legal justification for the dissolution of the marriage.
In the suit appellant had also alleged that the respondent was of PG NO 916 unsound mind even before the marriage and that this fact had been concealed from him at the time of the marriage.
This alternative case that the marriage was itself induced by the suppression of the material facts pertaining to the mental state of the bride and that, accordingly, the marriage required to be annuled was, however, not pressed before the High Court.
In his suit appellant pleaded that the respondent suffered from a mental disorder, psychiatrically recognised as `schizophrenia ', which was of such severeity as to render Respondent unsociable and given to violent propensities, that the wife had been treated by the doctors at the Department of Psychiatry at the Medical College, Jhansi, and that despite competent professional treatment the mental condition of respondent continued to deteriorate to the point of making manifest in her suicidal tendencies and aggressive violent behaviour towards others.
Appellant, therefore, averred that the mental disorder of the respondent was of such a kind and to such extent that appellant could not reasonably be expected to live with respondent as man and wife.
Respondent in her written statement denied the imputation of insanity and commission of several overt acts indicative of mental disorder alleged against her and contended that appellant 's determination to get rid of her was attributable to the domestic discord between her on the one side and the mother and sisters of the appellant on the other.
Indeed, she also entered the witness box to testify to and substantiate her defence.
She was subjected to searching cross examination .
The Trial Court framed the necessary and material issues stemming from the pleadings.
On his side, appellant called a certain Dr. Ganesh Datt Shukla, (PW.
l) Head of the Diptt.
of Psychiatry.
Maharani Laxmi Bai Medical College to support his version.
Appellant himself tendered evidence as PW 2.
He also examined a certain Gyasi Ram (PW 3) said to be an artisan who claimed that during one of his visits to appellant 's house for some odd job.
he had seen respondent beating up small children and conducting herself in a disorderly manner.
Appellant also called a certain Janki Prasad (PW 4) said to be the private home teacher of appellant 's nephews.
PW 4 spoke to what, according to him, were oddities in the behaviour of the respondent and of her violent propensities.
Appellant in order to show that Respondent was a violent lunatic relied upon the medical certificates at Exhibits P3, P4 and A2, the first two issued by PW 1 and the third by a certain Dr.
S.A. Khan.
PG NO 917 Appellant also relied upon certain incidents which occurred on 1.7.1983 in which the respondent is alleged to have exhibited unprovoked violence towards appellant 's sisters and inflicted injuries on their person.
The respondent wife, as stated earlier, tendered evidence as D W 1.
She also produced a copy of the order passed by the Magistrate in proceedings under the Lunacy Act initiated by the appellant for her committal to a mental asylum.
In those proceedings, it would appear, the Magistrate, after examining the respondent, is stated have found no abnormality in her, requiring institutionalised treatment.
The trial court on an appreciation of the evidence accepted appellant 's case and recorded a finding that respondent was afflicted with schizophrenia which was dangerous for her as well as for those who lived with her and granted a decree for the dissolution of the marriage.
This decree, as stated earlier, has been reversed by the High Court.
The point that commended itself to the High Court was that though the evidence indicated the possibility of some mental disorder, however, the requirement of the law as to the existence of the requisite degree and the nature of the disorder that could alone justify a reasonable apprehension in the mind of the appellant that he could not live with the respondent wife had not been established.
This implied that the High Court partly accepted the appellant s case that respondent did suffer from a mental disorder which in this case was described as schizophrenia.
The High Court stated: "The case of the plaintiff is that the defendant remained under the treatment of the psychiatrist Dr. G.D Shukla, in Maharani Laxmi Bai Medical College, Jhansi.
1 and 2 are the prescription and discharge certificates issued by Dr. G.D. Shukla, Ext.
4. is the medical certificate dated 18.5.1983, which was issued by Dr. Shukla, in which he certified that the defendant suffered from schizophrenia since 26th March, 1983.
There is no counter certificate of any expert from the side of the defendant.
I, therefore, do not see any cogent reason to brush aside this certificate of Dr. G.D. Shukla, who examined himself as P.W.1.
" The High Court proceeded to refer to certain medical literature on 'schizophrenia ' and felt pursuaded to the view PG NO 918 that having regard to the various kinds of schizophrenia or rather the various ways in which that mental illness is known to manifest itself, it would be necessary for the appellant to go further and establish the degree and severity of the mental illness which would alone satisfy the requirement of the ground for dissolution of marriage envisaged in Section 13(1)(iii) of the Act.
In substance, the High Court held that appellant had not shown that the mental illness of the wife was of such a kind and intensity as to justify a reasonable apprehension that it would not be possible or safe for appellant to live with the respondent.
The High Court posited the proposition which required its consideration thus: "So it is only when the schizophrenia is of the third variety i.e. catatonia, that the patient is in a state of wild excitement destructive violent and abusive.
Let us see whether the defendant suffers from schizophrenia and whether there is any unassailable and cogent evidence to establish that the schizophrenia is of third variety, namely, catatonia, when the patient becomes destructive, wild and abusive.
" Dealing with this, High Court noticed what according to it were certain shifts in emphasis in the two certificates Exhibit 4 dated noticed 18.5.1983 and Exhibit 3 dated 2.7.1983 issued by P.W. 1.
High Court that while the earlier certificate dated 18.5.1983 did not contain any specific reference to the severity of the disease or to the violent propensities attributed to respondent which tended to endanger safety of others, the later certificate dated 2.7.1983, how ever, sought to supply this element.
The High Court allow noticed certain events of 1.7.1983, in the wake of which the certificate Exhibit 3 dated 2.7.1983 came into existence.
High Court referred to the evidence on record which disclosed that at 11.45 AM on 1.7.
1983, respondent wife had lodged the first information, as per Exhibit 11, with the jurisdictional police complaining that she had been assaulted, first, by her husband 's nephew and then by the members of the family of the appellant.
She also had occasion to complain that appellant 's mother, sisters etc.
had threatened to extinguish respondent 's life by setting her ablaze.
The attempt on the part of the appellant, the High Court noticed, to commit her to an asylum was made on the PG NO 919 very next day viz., 2.7.83.
The medical certificate ex.
3 is also of that date.
The Magistrate who was moved by the appellant under the provisions of the Lunacy Act rejected the application observing that respondent whom he had occasion to examine talked "in a sensible manner and is not at all hostile.
" Referring to the setting in which Dr. Shukla 's (PW. 1) certificate dated 2.7.1983 was required to be appreciated the High Court observed: ". .The second certificate (Ext. 3) by Dr. G.D. Shukla dated 2nd July, 1983, has to be seen in the sequence of the above events.
There is nothing on record to show that the defendant lodged false report with the police in the morning of 1st July, 1983, against the plaintiff inter alia.
It is after the said report was lodged the plaintiff made efforts to collect all the evidence with the aim of sending the defendant to the mental asylum and filed the suit for dissolution of marriage by the decree of divorce.
The above evidence were collected in quick succession.
Keeping in view the above events, the reliability of the second medical certificate (ext. 3) dated 2.7.1983 has to be tested . " ". .
Neither in the first certificate (Ext. 4) nor in the second certificate (Ext. 3) Dr. G.D. Shukla stated that the schizophrenia, the defendant is suffering from, was of the third variety, namely, Catatona, when the patient becomes wild, destructive and violent.
In this statement also, Dr. G .
Shukla (PW. 1) does not state that the schizophrenia was of Catatonia variety.
He does not say even a word about the danger, arising from the mental disorder of the defendant.
The certificate Ext.
3 does not bear the thumb impression or signature of the defendant and, therefore, it cannot be said with certainty that the said certificate was issued by Dr. G.D. Shukla after having examined the defendant.
The High Court also evaluated the evidence of PW 3 & 4 and pointed out the intrinsic improbabilities of the evidence and the consequent unacceptability of their versions.
The High Court, in particular, noticed that PW 4 in his cross examination "expressed total inability to give description of the defendant 's Physique i.e. her complexion, height etc.
" The High Court observed: PG NO 920 " .
The inability of this witness in giving the physical description of the defendant shows that his entire statement is tutored one.
This is the state of affairs of the evidence of the plaintiff.
The High Court also referred to the respondent 's grievance that the environment of hostility and harassment to which she was subjected by appellant 's parent and sisters etc.
had taken its toll and rendered her apprehensive and irritable.
High Court observed: ". .
Cruelty inflicted by the in laws culminated in the first information report which the defendant lodged in the morning of 1st July, 1983, for which no convincing evidence has been given by the plaintiff that the said report was false and that was filed by the defendant without any grave provocation.
The case of the defendant is that the ill treatment extended to her by her in laws throughout right from the time of marriage told upon her mental state and she became very irritable and apprehensive.
The case of the defendant has to be seen in this background.
" Concluding the High Court said: . . . .
I accept the contention of learned counsel for the defendant appellant that the decree of the divorce cannot be sustained, as the plaintiff failed to adduce any evidence that could prove beyond reasonable doubt that the mental disorder of the defendant was of such a kind and to such an extent that the plaintiff cannot live safely with the defendant." 8.
Shri Goel, learned senior counsel appearing in support of the appeal, assailed the correctness of the approach of and the conclusions reached by the High Court.
Learned counsel submitted that the High Court having, on the basis of overwhelming medical evidence, rightly accepted that part of the appellant 's case that the respondent did suffer from 'schizophrenia ', however, fell into an error in weighing the possible manifestation of that insidious disease in golden scales and in its conclusion that appellant could yet live with her.
Learned counsel submitted that if the evidence of the conduct of the respondent is assessed in the background of the fact that she was a confirmed 'schizophrenic ', there would be no room for any PG NO 921 speculative allowance to be made for any possibility of any alternative hypothesis for that behaviour.
Learned counsel submitted that in assessing the reasonableness of the apprehension of the husband that he could not be expected to spend the rest of his life with a 'schizophrenic ', due acknowledgment had to be made to the subjective susceptibilities of the husband also.
Rani Chhabra for the respondent, however, soughtto support the judgment under appeal.
The point, however, to note is that Section 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage.
Section 13(1)(iii) provides: "Sec. 13.
Divorce: (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) ] (ii) ] Omitted as unnecessary (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation: In this clause, (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;" (b) Omitted as unnecessary.
(Emphasis Supplied) 10.
The context in which the ideas of unsoundness of 'mind ' and 'mental disorder ' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the 'mental dis order.
Its degree must be such as PG NO 922 that the spouse seeking relief cannot reasonably be expected to live with the other.
All mental abnormalities are not recognised as grounds for grant of Decree.
If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.
The answer to the apparently simple and perhaps misleading question as to "who is normal?" runs inevitably into philosophical thickets of the concept of mental normalcy and as involved therein, of the 'mind ' itself.
These concepts of 'mind ', 'mental phenomena ' etc., are more known than understood and the theories of "mind" and "ment~on" do not indicate any internal consistency, let alone validity, of their basic ideas.
Theories of 'mind ' with cognate ideas of 'perception ' and 'consciousness ' encompass a wide range of thoughts, more ontological than epistemological.
Theories of mental phenomena are diverse and include the dualist concept shared by Descartes and Sigmund Freud of the separateness of the existence of the physical or the material world as distinguished from the non material mental world with its existence only spatially and not temporally.
There is, again, the theory which stresses the neurological basis of the 'mental phenomenon ' by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena.
The 'behaviourist ' tradition, on the other hand, interprets all reference to mind as 'constructs ' out of behaviour.
"Functionalism", however, seems to assert that mind is the logical or functional state of physical systems.
But all theories seem to recognise, in varying degrees, that the psychometric control over the mind operates at a level not yet fully taught to science.
When a person is oppressed by intense and seemingly insoluble moral dilemmas, or when grief of loss of dear ones etch away all the bright colours of life, or where a broken marriage brings with it the loss of emotional security what standards of normalcy of behaviour could be formulated and applied? The arcane infallibility of science has not fully pervaded the study of the non material dimensions of 'being '.
Speaking of the indisposition of science towards this study, a learned author says: ".
We have inherited cultural resistence to treating the conscious mind as a biological phenomenon like any other.
This goes back to Descartes in the seventeenth century.
Descartes divided th,e world into two kinds of sub stances; mental substances and physical substances.
Physical PG NO 923 substances were the proper domain of science and mental substances were the property of religion.
Something of an acceptance of this division exists even to the present day.
So, for example, consciousness and subjectivity are often regarded as unsuitable topics for science.
And this reluctance to deal with consciousness and subjectivity is part of a persistent objectifying tendency.
People think science must be about objectively observable phenomena.
On occasions when I have lectured to audiences of biologists and neurophysiologists, I have found many of them very reluctant to treat the mind in general and consciousness in particular as a proper domain of scientific investigation. " . the use of the noun mind ' is dangerously inhabited by the ghosts of old philosophical theories.
It is very difficult to resist the idea that the mind is a kind of a thing, or at least an arena, or at least some kind of black box in which all of these mental processes occur." (See: John Searle Minds, Brains And Science 1984 Reith Lectures, p. 10 & l l) Lord Wilberforce, referring to the psychological basis of physical illness said that the area of ignorance of the body mind relation seems to expand with that of knowledge.
In McLoughlin vs O 'Brian, [ 1983] 1 Law Reports 410 at 418 the learned Lord said, though in a different context: ". .
Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind.
There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact.
It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts But the illnesses that are called mental ' are kept distinguished from those that ail the 'body ' in a fundamental way.
In Philosophy and Medicine", Vol. 5 at PG NO 924 page X the learned Editor refers to what distinguishes the two qualitatively: ".
Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our personhood.
It visits us with uncontrollable fears, obsessions, compulsions, and anxieties . " " .
This is captured in part by the language we use in describing the mentally ill.
One is an hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic depressive.
On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox . " (emphasis supplied) 12. 'Schizophrenia ', it is true, is said to be difficult mental affliction.
It is said to be insidious in its onset and has hereditary pre disposing factor.
It is characterized by the shallowness of emotions and is marked by a detachment from reality.
In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution.
Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps.
In its worst manifes tation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
"Schizophrenia" is described thus: "A severe mental disorder (or group of disorders) charac terized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness.
Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others.
He becomes socially withdrawn and loses energy and initiative.
The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid; characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia).
PG NO 925 Schizophrenia commonly but not inevitably runs a progressive course.
The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation.
There are strong genetic factors in the causation, and environmental stress can precipitate illness." (See Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980) But the point to note and emphasise is that the personality disintegration that characterises this illness may be of varying degrees.
Not all schzophrenics are characterised by the same intensity of the disease.
F.C. Redlich & Daniel X. Freedman in "The Theory and Practice of Psychiatry" ( 1966 Edn.) say: ". . .
Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living . ." (p. 252) "Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission.
The term need not imply an indpendent endogenous process; it is just as likely that the spontaneous remission is a response to nondeliberate but none the less favourable psychosocial stimuli other than specific therapeutic activity . ." (p. 465) (Emphasis Supplied) 13.
The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established.
This, it seems to us, to be not an unreasonable assessment of the situation strong arguments of the Sri Goel to the contrary notwithstanding.
The High Court referred to and relied upon the decision of the Calcutta High Court in Smt.
Rita Roy vs Sitesh Chandra, AIR 1982 (Cal.) 138.
In; that case the Division Bench of the Calcutta High Court observed: PG NO 926 " . each case of schizophrenia has to be considered on its own merits . " ". .
According to the aforesaid clause (iii), two elements are necessary to get a decree.
The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder.
At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her.
So only one element of that clause is insufficient to grant a decree .
" Considering the evidence in that case, the High Court reached the conclusion: " .
We are clearly of the opinion that she only has slight mental disorder and she has been suffering intermittently from the same.
But after considering the totality of the evidence and the impact on the husband, we must hold that such mental disorder is not of such a kind and to such an extent that the husband cannot reasonably be expected to live with her, within the meaning of the second portion of clause (iii) of Sec.
13(1) of the Act . " We approve this approach of the High Court of Calcutta.
Indeed, the following observations of Ormrod J. in Bennett vs Bennett, with reference to 'mental disorder ' in Section 4 of the Mental Health Act, 1959, are opposite in the context of Sec.
13(1)(iii) of the` Act ': " . .
Now, the definition of `mental disorder ' in sec.
4 of the Mental Health Act, 1959, is in very wide language indeed.
It includes mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind and so, for the moment to turn to medical language it clearly includes, or one would suppose it clearly includes, not only psychotic illness but neurotic illnesses as well and thus begins by enormously enlarging the field.
The way in which this very large field is cut down in the Act of 1965, section 9(1)(b), is by the use of this phrase "of such a kind or to such an extent as to be unfitted for marriage and the procreation of children.
" PG NO 927 The burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
Indeed the caution of a learned author against too readily giving a name to a thing is worth recalling: "Giving something a name seems to have a deadening influence upon all our relations to it.
It brings matter to a finality.
Nothing further seems to need to be done.
The disease has been identified.
The necessity for further understanding of it has ceased to exist.
" (See "The Auto biography of a purpose": William Alanson White New York: Double day & Co., 1938, p. 53) It is precisely for this reason that a learned authority on mental health saw wisdom in eschewing the mere choice of words and the hollowness they would bring with them.
He said: "I do not use the word 'schizophrenia ' because I do not think any such disease exists .
I know it means widely different things to different people.
With a number of other psychiatrists, I hold that the words 'neurosis ', 'psychoneurosis ', 'psychopathic personality ', and the like, are similarly valueless.
I do not use them, and I try to prevent my students from using them, although the latter effort is almost futile once the psychiatrist discovers how conveniently ambiguous these terms really are . " "In general, we hold that mental illness should be thought and spoken of less in terms of disease entities than in terms of personality disorganization.
We can precisely define organization and disorganization; we cannot precisely define disease . ." "Of course, one can describe a 'manic ' or a 'depressed ' or a 'schizophrenic ' constellation of symptoms, but what is most important about this constellation in each case? Not, we think, its curious external form, but rather what it indicates in regard to the process of disorganization and reorganization of a personality which is in a fluctuant state of attempted adjustment to environmental reality.
Is the imbalance increasing or decreasing? To what is the stress related? What psychological factors are accessible to external modification? What latent capacities for PG NO 928 satisfaction in work, play, love, creativity, are discoverable for therapeutic planning? And this is language that can be understood.
It is practical language and not language of incantation and exorcism. " (Emphasis Supplied) (See Karl Menninger, "Communication and Mental Health", "The Menninger Quarterly (1962) p. 1 Readings in Law and Psychiatry: Richard C. Allen, Elyce Zenott Ferster, Jessee C. Rubin: Revised & Expanded Edn. 1975: page 38).
This medical concern against too readily reducing a human being into a functional non entity and as a negative unit in family or society is law 's concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii).
In the last analysis, the mere branding of a person as schizophrenic will not suffice.
For purposes of Section 13(1)(iii) 'schizophrenia ' is what Schizophrenia does.
The appeal is dismissed.
There will be no order as to costs.
G.N. Appeal dismissed.

Output:
The appellant and respondent married in 1977.
In 1983, the appellant filed a suit for dissolution of the marriage, alleging that his wife was suffering from severe mental disorder, psychiatrically recognised as `Schizophrenia ' which rendered her unsociable and despite competent professional treatment, her condition deteriorated to the point of making manifest in her suicidal tendencies and aggressive violent behaviour towards others.
The appellant could not therefore reasonably be expected to live with the respondent as man and wife.
The Respondent denied the imputation of insanity and contended that the appellant was determined to get rid of her, as a result of the domestic discord between her and the appellant 's mother and sister.
Both the husband and the wife gave evidence, to prove their respective cases.
Other witnesses were also examined.
The respondent wife produced a copy of the order passed by the Magistrate in proceedings initiated by the appellant under the Lunacy Act.
for the committal of his wife to a mental asylum.
The order stated that there was no abnormality in her, requiring institutional treatment.
On appreciation of the evidence, the trial court accepted the case of the appellant and granted a decree for dissolution of the marriage.
The Respondent wife appealed to the High Court.
Allowing the appeal, the High Court reversed the decree of dissolution of marriage, granted by the trial court.
It held that the appellant had not shown that his wife 's mental illness was so intense as to justify a reasonable apprehension that it would be impossible or unsafe for the appellant to live with her.
PG NO 913 PG NO 914 In the present appeal before this Court, it was contended on behalf of the appellant that in assessing the reasonableness of the husband 's apprehension that he could not be expected to spend the rest of his life with a `Schizophrenic ', due acknowledgement required to be made to his subjective susceptibilities also.
Dismissing the appeal, HELD: 1.1 Section 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient to justify the dissolution of a marriage.
The burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
The context in which the ideas of unsoundness of `mind ' and `mental disorder ' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the `mental disorder '.
Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other.
All mental abnormalities are not recognised as grounds for grant of decree.
[921 C H; 922A] 1.2 scnizophrenia is said to be a difficult mental affliction.
It is insidious in its onset and has hereditary pre disposing factor.
Each case of Schizophrenia has to be considered on its own merits.
Mere branding of a person as Schizophrenic will not suffice.
For purpose of Sec.
13(1)(iii) Schizophrenia is what Schizophrenia does.
Not all Schzophrenics are characterised by the same intensity of the disease.[924D;928D] 2.
In the instant case, taking into account the facts and circumstances the High Court, on a reasonable assessment of the situation, rightly came to the conclusion that the requisite degree of the mental disorder which alone would justify dissolution of marriage has not been established and that the decree for the dissolution of the marriage.
granted by the trial court was not justified.
[917C D] Rita Roy vs Sitesh Chandra, AIR 1982 Cal 138, approved.
McLoughin vs O 'Brian, ; ; Bennett vs Bennett. , relied on.
John Searle `Minds, Brains and Science ' [l984] Reith Lectures, PP.
10 & 11, Concise Medical Dictionary, p. 566, Oxford Medical Publications, 1980, Philosophy and Medicine, Vol.
5, p.x.
F.C. Redlich and Daniel X. Freedman.
`The Theory and Practice of Psychiatry ' [1966] Edn.
William Alanson White, New York, The Autobiography of a Purpose ' PG NO 915 Doubleday & Co. 1938 p. 53, Karl Menninger `Communication and Mental Health ', The Menninger Quarterly, [1962], p. 1., Richard C. Allen, Elyce Zennott Ferster, Jassee C. Rubin `Readings in Law and Psychiatry ', Revised & Expanded edn.
(1975), p. 38 relied on.