Input:
Appeal No. 78 of 1962.
Appeal from the judgment and order dated April 13,1960, of the Bombay High Court in Income tax Reference No 40 of 1959.
R.J. Kolah, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.
N.D. Karkhanis and R.N. Sachthey, for the respondent.
November 25, 1963.
The Judgment of the Court was delivered by SARKAR J.
This is an appeal against a judgment of the High Court at Bombay given on a case stated to it under the Income tax Act and answering in the affirmative the following question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The question arose, in the assessment of the appellant, a firm, for the year 1951 52 in respect of which the accounting year was the calendar year 1950.
The assessee carried on business at Surat it had a branch at Bangkok to which it exported cloth from India.
The branch also made purchases locally and sold them.
During the last world war the business at Bangkok had been in abeyance but it was re started after the termination of the hostilities.
In its return for the assessment year 1949 50 the assessee did not include any profit of the Bangkok branch but stated that the books of account of the Bangkok branch were not available and that therefore its profit might now be assessed on an estimate basis subject to action under section 34 or 35 on production of statement of account.
: The assessment was there 563 upon made on the basis of profit at 5 % on the export to Bangkok branch appearing in the Surat books.
For the year 1950 51 again there was no reference to the Bangkok branch in the return and a similar estimate was made for this year also.
For the year, 1951 52 also the Bangkok business profits were not shown but on January 11, 1952, the Income tax Officer issued a notice to the assessee under section 22(4) of the Act to produce the profits and loss account and balance sheet with the relevant books.
The assessee excused itself by alleging on January 29, 1952 that the books were at Bangkok and the profit and loss account and the balance sheet could not be drawn up unless its partner, Hatimbhai A. Malbary, went there personally and there was no certainty as to when he would go there and promising that in the following year these accounts for the calendar year 1950 would be produced.
Thereupon the Income tax Officer made an estimate of the sales of the Bangkok branch at Rs. 7,50,000 and of the net profits at 5% thereon, amounting to Rs. 37, 5001 .
This assessment was made on January 31, 1952.
On the same day he issued a notice under section 28(3) of the Act requiring the assessee to show cause why a penalty under s.28(1)(c) for concealment of the particulars of the income of 1950 should not be levied.
The assessee was heard on this notice and on January 22, 1954, the Income tax Officer imposed a penalty of Rs.20,000 on it as its explanation was not acceptable.
In the meantime assessment proceedings for the year 1952 53 had commenced and this year also the assessee adopted a similar attitude as in the previous years.
The Income tax Officer was however insistent and, therefore, after various adjournments, the assessee had on August 17, 1953 to produce the accounts and books of the Bangkok branch.
It appeared from these books that in the calendar year 1950 the assessee had made a profit of Rs. 1,25,520/ .
The Income tax Officer thereupon commenced proceedings under section 34 of the Act against the assessee in respect of the assessment year 1951 52 and gave 564 notice to the assessee to submit a return.
The assessee then submitted a return stating therein correctly the profits for the calendar year 1950.
The Income tax Officer completed that assessment after directing the .issue of a further notice under section 28(3) on April 8, 1954 requiring the assessee to show cause why penalty should not be levied for deliberately concealing the particulars of his income of 1950.
Pursuant to this notice the Income tax Officer passed another order on February 28, 1957 imposing a penalty of Rs. 68,501.
So there were two orders of penalty.
The assessee appealed to the Appellate Assistant Commissioner against both the aforesaid orders of penalty but the appeals were rejected.
There is no dispute as to the assessment of the income.
The assessee then appealed to the Income tax Appellate Tribunal.
The Tribunal observed, "It is indeed difficult to understand the action ' of the Department in splitting up one offence into two proceedings.
So far as the levy on the basis of the 23(3) assessment is concerned, it appears to have no basis as till that stage the Department had not succeeded in establishing and bringing home any guilt.
It was still in the region of estimate. .
The levy of Rs. 20,000 has to be remitted in full.
The levy of Rs. 68,501 is entirely different.
With the definite knowledge that the Income tax Officer had obtained that the profit for the year was Rs. 1,25,520 he has clearly proved the guilt of concealment against the assessee. .
The penalty is not at all excessive and accordingly confirmed.
" The revenue authorities never questioned the cancellation of the first order of penalty.
Thereafter the asseseee obtained a reference to the High Court of the question which we have set out at the beginning of this judgement.
That question, it will be noticed, referred only to the penalty of Rs. 68,501 / imposed pursuant to the second notice under section 28(3) for concealing the particulars of the income of 1950.
It has to be observed that in the return that was filed in the proceedings started under 565 section 34, the assessee furnished correct particulars and it also produced the books.
So it had not committed any default in connection therewith.
The notice must therefore be taken to have been in respect of the original concealment of the income.
The assessee knew and this is what was found by the Tribunal% and that is a finding of fact which is binding on a Court in a reference that its profits were Rs. 1,25,520/and it had not disclosed that profit originally nor produced the relevant books but permitted the Incometax Officer to proceed on an estimate of that profit at Rs. 37,500/ .
It was contended in the High Court that in respect of the same concealment there were thus two penalties involved, namely, one of Rs. 20,000 and the other of Rs. 68,501/ .
The High Court agreed with the contention of the assessee that two penalties could not be levied in respect of identical facts but it held that the penalties in this case had not been levied on the same facts.
It observed that the original assessment was solely on the basis of an estimate and the second assessment was after knowledge of the full facts of the concealed income.
In this Court Mr. Kolah has urged that the second order for penalty was illegal because there was one concealment and in respect of that an order for penalty of Rs. 20,000/ had earlier been made.
He contended that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity.
He further stated that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood.
We are unable to accept this argument.
It may be that in respect of the same concealment two orders of penalty would not stand but it is not a question of jurisdiction.
The penalty under the section has to be correlated to the amount of the tax which would have been evaded if the assessee had got away with the concealment.
In this case having assessed 566 the income by an estimate, the Income tax Officer levied a penalty on the basis of that estimate.
Later when he ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty.
If he had omitted to recall the earlier order that would not make the second order invalid.
He had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders could not be enforced simultaneously or stand together.
However, in the present case the earlier order having been cancelled and no objection to the cancellation having been taken, we have only one order and that for the reasons earlier stated is, in our view, a legal order.
It was also said that when the first order of penalty was passed the Income tax Officer was in possession of the full facts which would have justified the imposition of the higher penalty.
It was pointed out that the first order of penalty was passed on January 22 1954 while the books disclosing the real state of affairs had been produced before the Income tax Officer on August 17, 1963.
It was contended that in inspite of this he passed the order imposing a lower penalty, he had no right later to change that order In support of this contention reference was made to C. V. Govinderajulu Iyer vs Commissioner of Income tax, Madras" '.
There it was argued that the original proceeding under section 23(3) and a proceeding under section 34 in respect of the same period were different and in the latter proceeding a penalty could not be imposed for a concealment in respect of the original proceeding.
Rajamannar C.J. rejected this contention and held, "that so long as the proceedings under Section 34 relate to the assessment for the same period as the original assessment, the Income tax Officer will be competent to levy a penalty on any ground open to him under Section 28(1), even though it relates (1) [16] I.T.R. 391 567 to the prior proceeding".
He however proceeded to observe, "There may be one possible qualification of his power, and that is when the default or the act which is the basis of the imposition of the penalty was within the knowledge of the officer who passed the final order in the prior proceeding and if that, officer had failed to exercise his power under Section 28 during the course of the proceeding before him.
Possibly in that case he would have no power.
" Learned counsel for the appellant relied on this latter ob servation in support of his contention.
We do not think that Rajamannar C.J. wished to state this qualification on the power of the Income tax Officer as a proposition of law.
It was not certainly necessary for the purposes of the case before him.
We do not wish to be understood as subscribing to it as at present advised.
But assume that this statement of the law is correct.
It has no application to the present case.
What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed.
Now Rajamannar C.J. was not dealing with a case in which two penalties had been imposed.
The case before him was one in which no return had been filed pursuant to a general notice but subsequently section 34 proceedings had been stated and resulted in an assessment and an order imposing a penalty was thereupon passed.
The final order in the prior proceedings referred to by the learned Chief Justice must, therefore, be final assessment order in the prior proceedings.
Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income tax Officer had no knowledge of the concealment of income of Rs. 1,25,520.
Therefore it seems to us that the observation of Rajamannar C.J. does not assist Mr. Kolah.
We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered 568 his explanation on March 11, 1952.
That notice 'was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard.
In assessing a penalty If on this notice subsequently acquired knowledge would be irrelevant.
The result is that the appeal fails and it is dismissed with costs.
Appeal dismissed.

Output:
The appellant, a firm of Surat, had a branch at Bangkok, to which it exported cloth, and the branch also made purchases locally and sold them.
During the war the business of the branch had been in abeyance, but was re started after the termination of the hostilities.
in its return for the assessment year 1949 50 the appellant did not include any profit of the branch, but stated that the books of account of branch were not available, and therefore its profits might now be assessed on an estimate basis subject to 561 action under s.34 or 35.The assessment was made on the basis of profit at 5 % on the export to the branch appearing in the Surat books.
A similar estimate was made for year 1950 51.
For the year 1951 52 also the business profits of the branch were not shown but the Income tax officerissued a notice to the assessee to produce the relevant accountsand books.
The appellant excused itself by promising that in thefollowing year these accounts for the year 1950 would be produced.
Thereupon the Income tax Officer made an estimate of the sales of the branch and of the net profits at 5 % thereon, amounting to Rs. 37,500/ , and the same day he issued a notice to show cause why a penalty for concealment of the particulars of the income of 1951 52 should not be levied.
Subsequently, the Income tax Officer imposed a penalty of Rs. 20,000/ on it as its explanation was not acceptable.
In the meantime assessment proceedings for the year 1952 53 had commenced and the appellant adopted a similar attitude.
The Income tax Officer was insistent and, therefore, appellants had to produce the accounts and books of the branch, from which it appeared that for the year 1951 52 the appellant had made a profit of Rs. 1,25,520/ .
The Income tax Officer issued a further notice to the appellant to show cause why penalty should not be levied for deliberately concealing income for the year 1951 52.
Pursuant to this notice the Income tax Officer passed another order imposing a penalty of Rs. 68,501/ .
The appellant 's appeal to the Appellate Assistant Commissioner against both the orders of penalty was rejected.
On appeal, the Tribunal cancelled the first order of penalty but confirmed the second one.
This hereafter, the appellant obtained a reference to the High Court on the question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The High Court answered the question in the affirmative.
On the appeal by special leave it was urged that the second order for penalty was illegal because there was one concealment and in respect of that a penalty of Rs. 20,000/ had earlier been imposed, that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity; and that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood.
Held: (i) The contentions must be rejected.
The Income tax Officer had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders in respect of the same concealment could not be enforced simultaneously or stand together.
When the Income tax Officer ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty.
If he had omitted to recall the earlier order that would not make the second order invalid, 1 SCI/64 36 562 (ii)In the present case the earlier order having been cancelled and no objection to the cancellation having been taken, there is only one order, which is a legal order.
C.V. Govindarajulu Iyer vs Commissioner of Income tax, Madras, , distinguished.


Input:
tition Nos.
16093/84 & 1 3243/83 G Under Article 32 of the Constitution of India.
Sobhag Mal Jain , S.K. Jain and D.K. Garg for the Petitioner.
A.K. Ganguli and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by 610 CHINNAPPA REDDY , J.
On November 20 , 1984 this writ petition was heard along with Writ Petition No. 13243 of 1983 (Shri J.P Chaturvedi vs Union of India).
Shri J.P. Chaturvedi 's petition was allowed , by consent of the learned Attorney General who appeared for the Union of India.
Shri M.L. Jain 's petition was allowed on the same lines under the impression that the facts involved were the same.
It has now been brought to our notice by the Registry that there is considerable difference in the prayers in the two cases.
We have , therefore , recalled our earlier order in Shri M.L. Jain 's case and examined his case afresh.
Shri M.L. Jain was a member of the Rajasthan Judiciary from September 31 , 1945 onwards till July 1 , 1975 during which period he was a District and Session Judge , from November 9 , 1970 to July 1 , 1975.
Thereafter he was elevated as a Judge of the High Court on July 1 , 1975.
He retired as a Judge of the High Court on July 21 , 1984.
Had he not been appointed a Judge of the High Court , he would have retired as District and Session Judge on July 31 , 1977.
His total period of service as a Judicial Officer , otherwise than as a Judge of the High Court was 29 years , 9 months and one day while his service as a Judge of the High Court was a period of 9 years and 21 days.
When he was appointed a Judge of the High Court he appears to have opted , for the purpose of his pension , for Part Ill of the 1st Schedule to the High Court Judges ' (Conditions of Service) Act , 1954.
Paragraph two of Part III of the Ist Schedule is as follows: "The pension payable to such Judge shall be (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge , his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension of Rs. 700 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension , if any , to which he is entitled under the ordinary rules of his service , shall exceed Rs. 3,500 per annum.
" According to the calculation made by the respondent , Shri M.L. Jain was entitled to a pension of Rs. 15,320 per annum only.
611 This figure was arrived at on the basis that had he continued as a District and Sessions Judge he would have retired on July 31 , 1977 and his average monthly emoluments during the period , October 1 , 1976 to July 31 , 1977 , would be Rs. 2,500 per month as that was the pay he would have drawn as a District Judge had he continued as a District Judge and retired on July 31 , 1977.
On that basis his pension was calculated at Rs. 11,820 per annum under clause (a) of Para (2) of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs. 3,500 per year under Clause (b) of Para 2 of Schedule I.
His total pension was thus determined at Rs. 15,320 per annum.
The calculation made under clause (a) of Paragraph 2 of the First Schedule was apparently done pursuant to the letter dated September 19 , 1984 from the Ministry of Law , Justice and company Affairs addressed to all Accountants General.
Paragraph 2 of the letter is as follows: "The question as to what should be taken into account for calculation of pension in terms of part 2(a) mentioned above , has been examined.
After careful consideration of the matter , it has been decided that. . (i) The service as Judge of the High Court will count towards qualifying service for pension in his parent service or post.
(ii) pay of the purpose for calculating pension under para 2(a) shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in his parent Department , preceding the date on which he was elevated as a Judge of the High Court , including annual increments , if any , which he would have drawn upto the date of his superannuation as a Government servant.
Further the pay which he would have drawn in the selection grade , if any , for which he would have been automatically , eligible and not on the basis of any selection , will also be taken into account.
In case he was holding a post on deputation (as distinct from "foreign service") , the pay in such an ex cadre post will also be 612 taken into account on the same lines as mentioned above.
(iii) Special additional pension under para 2(b) will be calculated as provided in the High Court Judges , (Conditions of Service) Act , 1954.
" We are of the opinion that para 2(ii) of the letter dated September 19 , 1984 is a clear departure from para 2 clause (a) of Schedule I to the High Courts Judges (Conditions of Service) Act.
Under clause (a) of para 2 of the Schedule I to the High Courts Judges ' (Conditions of Service) Act the retiring Judges entire service as a Judge has to be reckoned for the purpose of calculating his pension and for that purpose the last pay drawn by him has to be the pay drawn by him as a Judge of the High Court and not the pay that would have been drawn by him as a District Judge , had he not been appointed a High Court Judge.
Under the Rajasthan Rules , his monthly pension was to be calculated in the following manner: Upto the first Rs. 1000 of emoluments , the monthly pension would be 50% of the emoluments; For the next Rs. 500 of the emoluments , the pension would be 45% of the emoluments , For the balance of the emoluments , the pension would be 40% of the emoluments. 'The amount of pension was to be arrived at on the basis of these slabs , related to the maximum qualifying service of 33 years.
There was however a ceiling on the pension and it was prescribed that the maximum amount of pension should not exceed Rs. 1500 per month.
As Shri M.L. Jain had put in a total service of more than 38 years and 9 months including his service as a High Court Judge and his last pay drawn was Rs. 3,500 per month , his pension would be Rs. 1,525 per month.
But since the Rajasthan Rules prescribed a ceiling of Rs. 1,500 per month , he was entitled to a pension of Rs. 1,500 per month only under clause (a) of Para 2 of Schedule III.
To this , the additional pension to be added under clause (b) was Rs. 700 x 9 = Rs. 6,300 , but here again the ceiling 613 has been prescribed as Rs. 3,500 per annum.
Thus the additional pension under clause (b) would be Rs. 3,500 per annum only bringing the total pension of Shri M.L. Jain to Rs. 21,500 per annum.
But for the ceiling prescribed under the Rajasthan Rules and clause (b) of para 2 of the Schedule I to the High Courts Judges ' (Conditions of Service) Act , Shri M.L. Jain would have been entitled to a pension of Rs. 24,600 per annum , which is meagre enough considering his long and distinguished service as a Judicial Officer and High Court Judge for a period of 38 years and 9 months.
But even this he is not entitled to be paid under the rules because of the respective ceilings and he is only entitled to a pension of Rs. 21,500 per annum.
We find that in the recent budget proposals , the ceiling on the pension of civil servants is to be lifted.
We hope the situation will be remedied in the case of judges also and the ceiling lifted as early as possible.
We may suggest that this may be done straight away by including suitable provisions in the Bill now announced to be pending before Parliament.
This will , of course , be quite apart from the other changes for the improvement of the Conditions of Service of Judges in the matter of salaries , allowances etc.
which changes also brook no further delay if justice is to be done to the judges.
The petition is allowed in terms of what we have stated.
Letter No. 6/4/84 Jus dated August 30 , 1984 from the Government of India , Ministry of Law , Justice and Company Affairs to the Chief Secretary , Delhi Administration , Delhi is qua shed and the pension of the petitioner is refixed at Rs. 21,500 per annum.

Output:
Paragraph 2 of of the 1st Schedule to the , 1954 , provides that the pension payable to a Judge shall be (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge , his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension of Rs. 700 per annum in respect of each completed year of service for pension but in no case such additional pension shall exceed Rs.3,500 per annum.
By a letter dated September 19 , 1984 , addressed to all Accountants General the Ministry of Law , Justice and Company Affairs indicated the method for calculation of a Judges pension.
It provided that: (i) the service as Judge of the High Court will count towards qualifying service for pension in his parent service or post , and (ii) pay for the purpose for calculating pension under para 2 (a) shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in his parent Department preceding the date on which he was elevated as a Judge of the High Court , including annual increments , if any , which he would have drawn upto the pate of his superannuation as a Government servant , and (iii) special additional pension under para 2 (b) as provided in the .
The petitioner was a member of the State Judicial Service.
His total period of service as a Judicial Officer , otherwise than as a Judge of the High Court was 29 years , 9 months and one day while his service as a Judge of the High Court was a period of 9 years and 21 days According to the calculation made by the respondent , the petitioner was entitled to a pension of Rs 15,320 per annum.
This figure was arrived at on the basis that had he continued as a District and Sessions Judge , he would have retired on July 31 , 1977 , and on 609 that basis his pension was calculated at Rs.11,820 per annum under clause (a) of para 2 of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs.3,500 per year under Clause (b) of Para 2 of Schedule I.
His total pension was determined at Rs.15,320 per annum.
A Allowing the Writ Petition.
^ HELD: 1.
Para 2(ii) of the letter dated September 19 , 1984 of the Ministry of Law , Justice & Company Affairs is a clear departure from para 2 clause (a) of Schedule I to the , 1954.
Under clause (a) of para 2 of the Schedule I to the Act , the retiring Judges ' entire service as a Judge has to be reckoned for the purpose Or calculating his pension and for that purpose the last pay drawn by him had to be the pay drawn by him as a Judge of the High Court and not the pay that would have been drawn by him as a District Judge , had he not been appointed a High Court Judge.
[612C D ] In the instant case the petitioner had put in a total service of more than 38 years and 9 months including his service as a High Court Judge and his last pay drawn was Rs.3,500 per month , his pension would be Rs.1,525 per month.
But since the Rajasthan Rules prescribed a ceiling of Rs. 1,500 per month , he was entitled to a pension of Rs.1,500 per month only under clause (a) of para 2 of Schedule I.
To this , the additional pension to b added under clause (b) was Rs.700 x 9 Rs.6,300 but here again the ceiling prescribed was Rs.3,500 per annum.
The total pension would therefore be Rs.21,500 per annum.
But 1) for the ceiling prescribed under the Rajasthan Rules and clause (b) of para 2 of Schedule I of the Act , he would have been entitled to Rs.24,600 per annum.
[612G 613B] 2.
The letter dated August 30 , 1984 from the Government of India to the Chief Secretary , Delhi Administration is quashed and the pension of the petitioner is refixed at Rs.21,500 per annum.
[613 E] 3.
In the recent budget proposals the ceiling on the pension of civil servants is to be lifted.
It is hoped the situation would be remedied in the case of judges also and the ceiling lifted as early as possible.
[613 C)


Input:
Petition No. 1 of 1987.
Election Petition under Section 16, 17, 18, 19 and 20 of Part III of the Petitioner in person (Mithilesh Kumar).
K. Parasaran, Attorney General T.S. Krishnamurthy Iyer, Krishnamurthy Swami and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The above petition is filed by the petitioner, Shri Mithilesh Kumar under the provisions of the (Act No. 31 of 1952) (hereinafter referred to as 'the Act ') calling in question the validity of the election of Shri R. Venkataraman, the 1st respondent herein as the 528 President of India at the election held in July, 1987 for electing the President of India and praying for a declaration that he is the successful candidate at that election.
There were three candidates at the election, namely, Shri R. Venkataraman respondent No. 1, Shri V.R. Krishna Iyer respondent No. 2 and Shri Mithilcsh Kumar the petitioner.
The result of the election was declared on 16.7.1987 by the Returning officer for Presidential Election 1987 respondent No. 4, declaring Shri R. Venkataraman respondent No. 1 as the President of India.
The Act was passed in the year 1952 for the purpose of regulating certain matters relating to or connected with the elections to the offices of the President and the Vice President of India.
Part II of the Act contains the provisions relating to the conduct of Presidential and Vice Presidential elections and Part III of the Act sets out the provisions relating to the settlement of disputes regarding elections to the offices of the President and the Vice President of India.
Section 14 of the Act provides that no election should be called in question except by presenting an election petition to the authority specified in subsection (2) and the authority having jurisdiction to try an election petition under the Act is specified as the Supreme Court of India by sub section (2).
Sub section (3) of section 14 of the Act requires that an election petition should be presented to the Supreme Court of India in accordance with the provisions of Part III of the Act and of the rules made by the Supreme Court of India under Article 145 of the Constitution of India.
Order XXXIX of the Supreme Court Rules, 1966 (hereinafter referred to as 'the Rules ') made under Article 145 of the Constitution of India and all other powers enabling it in this behalf by the Supreme Court of India contains the provisions relating to the election petitions filed under Part III of the Act.
Section 14 A of the Act provides that an election petition calling in question an election may be presented on one or more of the grounds specified in Sub/section (1) of section 18 and section 19 to the Supreme Court by any f candidate at such election or in the case of Presidential election, by twenty or more electors joined together as petitioners and in the case of Vice Presidential election, by ten or more electors joined as petitioners.
Such petition may be presented at any time after the date of the publication of the declaration containing the name of the elected candidate at the election under section 12 of the Act but not later than thirty days from the date of such publication.
Section is of the Act provides that subject to the provisions of Part III of the Act rules made by the Supreme Court of India under Article 145 of the Constitution of India may regulate the form of election petitions, the manner in which 529 they are to be presented, the persons who are to be made parties thereto, the procedure to be adopted in connection therewith and the circumstances in which petitions are to abate and to be withdrawn and in which new petitioners may be substituted and may require security to be given for costs.
Rule 3 of order XXXIX of the Rules prescribes that a court fee stamp of the value of rupees two hundred and fifty shall be paid on the election petition and the election petition will be signed by the petitioner or petitioners, if they are more than one, or a duly authorised advocate on record on his or their behalf.
Rule 4 of order XXXIX of the Rules provides that the petition shall be divided into paragraphs, numbered consecutively, each paragraph being confined to a distinct portion of the subject, and shall be printed or typed legibly on one side of standard petition paper, demy foolscap size or of the size of 29.7 cm.
x 21 cm.
Or on paper of equally superior quality.
Rule 5 of order XXXIX of the Rules requires that the petition shall state the right of the petitioner under the Act to petition the Court and briefly set forth the facts and grounds relied on by him to sustain the reliefs claimed by him.
The allegations of fact contained in the petition shall be verified by an affidavit to be made personally by the petitioner or by one of the petitioners, if there are more than one as provided under rule 6 of order XXXIX of the Rules.
The grounds on which the election of the returned candidate at the Presidential or the Vice Presidential election can be declared void are set out in section 18 of the Act Section 18 of the Act reads thus: " 18(1).
If the Supreme Court is of opinion, (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the consent of the returned candidate; or (b) that the result of the election has been materially affected (ii) by the improper reception or refusal of a vote; or (ii) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act; or (iii) by reason of the fact that the nomination of any 530 candidate (other than the successful candidate), who has not withdrawn his candidature, has been wrongly accepted; or (c) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void.
(2) For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IXA of the Indian Penal Code.
" Section 19 of the Act sets out the grounds for which a candidate other than the returned candidate may be declared to have been elected.
Section 19 of the Act reads thus.
Grounds for which a candidate other than the re turned candidate may be declared to have been elected.
If any person who has lodged an election petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Supreme Court is of opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Supreme Court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected: Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
" Section 18 of the Act is exhaustive of the grounds on which the election of the President or the Vice President can be declared void.
Under section 18(1)(a) an election of the President or of the Vice President may be set aside if it is established that the offence of bribery or undue influence, as explained in Chapter IXA of the Indian Penal 531 Code had been committed by the returned candidate or by any person with the consent of the returned candidate.
In order to succeed on the grounds mentioned in section 18(1)(a) of the Act it has to be established that the offence of bribery or undue influence had been committed at the election by the returned candidate himself; or by any person with his consent.
Originally when the Act was enacted section 18(1)(a) of the Act read thus: " 18(1).
If the Supreme Court is of opinion (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate: or . . . . . . . . ." The word 'connivance ' in section 18(1)(a) of the Act was substituted later on by Parliament when the former Part III of the Act was substituted by the present Part III of the Act by the Presidential and the Vice Presidential Elections (Amendment) Act, 1977 to bring it in line with the provisions of section 123(1) and (2) of the Representation of the People Act, 1951, which contain the grounds of bribery and undue influence which would vitiate the election to either House of Parliament or to the Houses or House of the State Legislatures as the case may be.
Clause (b) of section 18(1) of the Act contains three grounds the proof of any of which would result in the election being declared void provided it is established that the result of the election has been materially affected thereby, namely, (i) the improper reception or refusal of a vote; or (ii) any non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act; or (iii) wrongful acceptance of the nomination of any candidate (other than the successful candidate), who has not withdrawn his candidature.
Clause (c) of section 18(1) of the Act provides that if the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted, the election of the returned candidate is to be declared void.
These are the only grounds on which the election of the returned candidate can be declared void under the Act.
Section 19 of the Act as stated already contains grounds for declaring a candidate other than the returned candidate as duly elected.
It should he stated at the outset that the manner in which the 532 present petition has been drafted is not in accordance with the Rules.
Ordinarily the petition should state in a narrative form succinctly and clearly all the facts as may be necessary to enable the respondents and the Court to understand the case of the petitioner.
This is not the case here.
The first part of the petition contains 13 questions and the answers given by the petitioner to those questions.
A reading of all these 13 questions and answers given thereto by the petitioner shows that the only ground on which the petitioner wished to call in question the election of the 1st respondent is that the issue of a whip by the Congress (I) Party to its legislators on the eve of the election asking them to cast their votes in favour of the 1st respondent was in the nature of a threat amounting to undue influence which is one of the two grounds set out in section 18( I)(a) of the Act.
The allegations made in this part of the petition suggest that the specific case of the petitioner is that the said act of undue influence had been committed by the members of the Congress (I) Party.
There is no allegation that any act amounting to undue influence was committed either by respondent No. ] himself, or by any other person with his consent.
Even in the second part of the petition which is entitled 'Notable points ' and the third part of the petition containing grounds to declare the election of the returned candidate as void, there is no averment that either the returned candidate himself had committed any act of undue influence or any other person had committed any act of undue influence with his consent.
The fourth part of the petition contains grounds to declare the petitioner as duly elected.
It is alleged in this part that by reason of the issue of the whip by the Congress (I) Party and/or by other parties the votes which would have been cast in his favour had been grabbed by the other candidates.
The fifth part of the petition contains the reliefs sought by the petitioner and the last part contains the prayer for an interim order directing the staying of the oath ceremony of the returned candidate which had been fixed to take place on the 25th of July, 1987.
There is no reference to any other ground mentioned in section 18 of the Act on the basis of which the election can be set aside.
After the petition was presented to this Court notice was issued to the respondents and also to the Attorney General of India as pro 533 tion is liable to be rejected at this stage itself since it does not disclose any cause of action.
Rule 34 of order XXXIX of the Rules provides that subject to the provisions of order XXXIX of the Rules or any special order or directions of the Court, the procedure on an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction.
Order XXIIl of the rules contains the rules of pleadings in cases filed under the original jurisdiction of this Court.
Rule 6 of order XXIII of the Rules states that the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law.
It is stated in the preliminary objections of the 1st respondent and the preliminary submissions of the Attorney General of lndia that since no where in the election petition the petitioner has stated that the offence of undue influence had been committed by the 1st respondent or by any other person with his consent and since no other ground specified in section 18 of the Act has been pleaded, the petition is liable to be rejected under rule 6 of order XXIII of the rules even assuming that all that the petitioner has stated in his petition is true.
After the preliminary objections of the 1st respondent and the preliminary submissions of the Attorney General of India were filed, the case was taken up for hearing on the said preliminary objections and preliminary submissions.
The petitioner Shri Mithilesh Kumar (in person), Shri T.S. Krishnamurthy Iyer, learned counsel for respondent No. 1 and Shri K. Parasaran, learned Attorney General of India were heard.
The issue which arises for consideration in this case is whether the election petition is liable to be rejected under rule 6 of order XXIII of the Rules on the ground that it does not disclose any cause of action.
The question of law involved in this case is no longer res integra.
In Charan Lal Sahu vs Neelam Sanjeeva Reddy, ; the petitioner in that petition had questioned the election of Shri Neelam Sanjeeva Reddy as the President of India.
In that decision this Court held that it was obligatory upon the Court to reject a petition outright and not to waste any more time upon a plaint or petition if the provisions of law bar or are shown to bar the proceedings.
The Court proceeded to hold that it was not even necessary to issue notice to any opposite party or parties in such a case.
The next decision in Charan Lal Sahu & others vs Giani Zail Singh & Another, [198412 S.C.R. 6 534 deals with facts which are very close to the facts of the present case.
In A the said case two issues arose for consideration: (i) can the election of a candidate to the of fice of the President of India be challenged on the ground that he is not a suitable person for holding that office; and (ii) whether the averments in that election petition, assuming them to be true and correct, disclose any cause of action for setting aside the election of the returned candidate on the ground stated in section 18(1)(a) of the Act.
This Court observed in that case that the rights arising out of elections, including the right to contest or challenge an election, were not common law rights, but they were creatures of the statutes which created, conferred or limited those rights.
Therefore, for deciding the question whether an election can be set aside on any alleged ground, the court has to consult the provisions of law governing the particular election.
The Court has to function within the framework of that law and cannot travel beyond it.
The Court proceeded to observe in the above decision thus at Pages 22 to 24: "Nor is it alleged that the offence of undue influence was committed by the returned candidate himself.
The allegation of the petitioners is that the offence of undue influence was committed by certain supporters and close associates of Respondent 1 with his connivance.
It is patent that this allegation, even if it is true, is not enough to fulfil the requirements of section 18(1)(a).
What that section, to the extent relevant, requires is that the offence of undue influence must be committed by some other person with the 'consent ' of the returned candidate.
There is no plea whatsoever in the petition that undue influence was exercised by those other persons with the consent of Respondent 1.
It is contended by Shri Shujatullah Khan who appears on behalf of the petitioners, that connivance and consent are one and the same thing and that, there is no legal distinction between the two concepts.
In support of this contention, learned counsel relies upon the meaning of the word 'connivance ' as given in Webster 's Dictionary (Third Edition, Volume 1, p 481); Random House (p. 311); Black 's Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8A, p. 173); and Corpus Juris Secundum (Volume 15A, p. 567).
The reliance on these dictionaries and texts cannot carry the point at issue any further.
The relevant question for consideration for the 535 decision of the issue is whether there is any pleading in the petition to the effect that the offence of undue influence was committed with the consent of the returned candidate.
Admittedly, there is no pleading of consent.
It is then no answer to say that the petitioners have pleaded connivance and according to dictionaries, connivance means consent.
The plea of consent is one thing: the fact that connivance means consent (assuming that it does) is quite another.
It is not open to a petitioner in an Election Petition to plead in terms of synonyms.
In these petitions, pleadings have to be precise, specific and unambiguous so as to put the respondent on notice.
The rule of pleadings that facts constituting the cause of action must be specifically pleaded is as fundamental as it is elementary. 'Connivance ' may in certain situations amount to consent which explains why the dictionaries give 'consent ' as one of the meanings of the word 'connivance '.
But it is not true to say that 'connivance ' invariably and necessarily means or amounts to consent, that is to say, irrespective of the context of the given situation.
The two cannot, therefore, be equated.
Consent imply that parties ad idem.
Connivance does not necessarily imply that parties are of one mind.
They may or may not be, depending upon the facts of the situation.
That is why, in the absence of a pleading that the offence of undue influence as committed with the consent of the returned candidate, one of the main ingredients of section 18(1)(a) remains unsatisfied.
The importance of a specific pleading in these matters can be appreciated only if it is realised that the absence of a specific plea puts the respondent at a great disadvantage.
He must know what case he has to meet.
He cannot be kept guessing whether the petitioner means what he says, 'connivance ' here, or whether the petitioner has used expression as meaning 'consent '.
It is remarkable that, in their petition, the petitioners have furnished no particulars of the alleged consent, if what is meant by the use of the word connivance is consent.
They cannot be allowed to keep their options open until the trial and adduce such evidence of consent as seems convenient and comes handy.
That is the importance of precision in pleadings, particularly in election petitions.
Accordingly, it is impermissible to substitute the word 'consent ' for the word 'connivance which 536 occurs in the pleadings of the petitioners.
The legislative history of the statute lends support to our view that for the purposes of section 18(1)(a), connivance is not the same thing as consent.
Originally, when the Act was passed in 1952, section 18(1)(a) provided that the Supreme Court shall declare the election of the re turned candidate void if it is of opinion that the offence of bribery or undue influence has been committed by the re turned candidate or by any person 'with the connivance ' of the returned candidate.
This sub section was amended by section 7 of the Presidential and Vice Presidential Elec tions (Amendment) Act S of 1974, which came into force on March 23, 1974.
The word 'connivance ' was substituted by the word 'consent ' by the Amendment Act.
If connivance carried the same meaning as consent and if one was the same as the other Parliament would not have taken the deliberate step of deleting the word 'connivance ' and sub stituting it by the word 'consent '.
The amendment made by the Amendment Act of 1974 shows that connivance and consent connote distinct concepts for the purpose of section 18(1)(a) of the Act.
Since, admittedly, there is no pleading in the Election Petition that the offence of undue influence was committed with the consent of the returned candidate, the petition must be held to disclose no cause of action for setting aside the election of the returned candidate under section 18(1) (a) of the Act.
" We have given above a fairly long quotation from the above decision because it contains all the reasons necessary to decide this case too.
We do not propose to repeat them.
They are applicable to this case also.
In the petition before us there is not even an allegation that the act of undue influence had been committed by some persons with the connivance of the 1st respondent.
The petition is as bald as it could be.
At the hearing after getting the entire petition read out the Court asked the petitioner to point out whether there was any allegation that the 1st respondent had himself committed any undue influence or any other person with the consent of the 1st respondent had committed such an act or any allegation which required to be tried and the petitioner was not able to point out any part of the petition in which such an allegation had been made.
In view of this infirmity we 537 have not found it necessary to examine whether the issuing of the whip by any political party amounts to undue influence vitiating an election even when such an act is committed by the returned candidate or with his consent by some other persons.
In the circumstances, the Court has no choice except to reject the petition as required under rule 6 of order XXIII of the Rules as it does not disclose any cause of action.
Before concluding we should observe that the petitioner did not appear to be quite serious about his case.
At one stage he contended having himself filed the petition before the Court that this Court had no competence to hear the case and at another stage he wanted 51 Judges to hear his petition when the maximum permissible strength of this Court is about one half of that number and the existing strength of this Court is less than one third of that number.
Rule 20 of order XXXIX of the Rules requires that every petition calling in question an election to the offices of the President and the Vice President shall be posted before and be heard and disposed of by a Bench of this Court consisting of not less than five Judges.
While we expect every conscientious citizen eligible to file an election petition to question an election on the grounds prescribed by the Act, we do not wish that any petitioner should make use of this Court as a forum to file a petition without giving adequate thought to its contents and also to the provisions of law governing the case merely to seek some cheap publicity.
We regret to say that seeing one 's name in newspapers everyday has lately become the worst intoxicant and the number of people who have become victims of it is increasing day by day.
We, however, refrain from referring to some other irrelevant and unwarranted statements made by him before this Court orally and in writing.
Perhaps the petitioner who desired to become the President of India did not understand the effect of what he was saying.
We shall leave it at that.
The petition is, therefore, rejected.
H.L.C. Petition dismissed.

Output:
% Part III of the sets out the provisions relating to the settlement of disputes regarding elections to the offices of the President and the Vice President of India.
Section 14(3) thereof requires that an ekction petition should be presented in accordance with the provisions of that Part and of the rules made by this Court under article 145 of the Constitution.
The rules so made are contained in O.XXXIX of the Supreme Court Rules, 1966.
Rule 34 thereof provides that subject to the provisions of that order or any Special order or directions of the Court, the procedure on an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction, which procedure is set out in O.XXIII.
Rule 6 of o.
XXIII states inter alia that the plaint shall be rejected where it does not disclose a cause of action.
Respondent No. 1 was declared elected as the President of India at an election held in July, 1987.
The petitioner who had contested in the said election as a candidate filed this petition questioning the validity of the election of respondent No. 1 and praying for a declaration that he was the successful candidate at that election.
Rejecting the petition, ^ HELD: In the circumstances of this case the Court has no choice except to reject the petition as required under r. 6 of O.XXIII of 526 the Supreme Court Rules, 1966 as it does not disclose any cause of A action.
[537B] (i) Section 18 of the Presidential and Vice Presidential Elections Act, 1952 is exhaustive of the grounds on which the election of the President or the Vice President can be declared void.
An election may be set aside under cl.(a) of section 18(1) if it is established that the offence of bribery or undue influence, as explained in Chapter IXA of the Indian Penal Code had been committed by the returned candidate or by any person with the consent of the returned candidate.
In order to succeed on the grounds mentioned in section 18(1)(a) it has to be established that the offence of bribery or undue influence had been committed at the election by the returned candidate himself; or by any person with his consent.
[530G H: 531A R] (ii) The manner in which the present petition has been drafted is not in accordance with the Rules.
Ordinarily the petition should state in a narrative form succinctly and clearly all the facts as may be necessary to enable the respondents and the Court to understand the case of the petitioner.
This is not the case here.
The first part of the petition contains 13 questions and the answers given by the petitioner to those questions.
A reading of all these 13 questions and answers given there to be the petitioner shows that the only ground on which the petitioner wished to call in question the election of the 1st respondent is that the issue of a whip by the Congress (I) Party to its legislators on the eve of the ekction asking them to cast their votes in favour of the 1st respondent was in the nature of a threat amounting to undue influence which is one of the two grounds set out in section 18(1)(a).
The allegations made in this part of the petition suggest that the specific case of the petitioner is that the said act of the influence had been committed by the members of the Congress(I) Party.
There is no allegation that any act amounting to undue influence was committed either by respondent No. 1 himself or by any other person with his consent.
Even in the second part of the petition which is entitled 'Notable points ' and the third part of the petition containing grounds to declare the election of the returned candidate as void there is no averment that either the returned candidate himself had committed any act of undue influence or any other person had committed any act of undue influence with his consent.
[532A E] (iii) At the hearing after getting the entire petition read out the Court asked the petitioner to point out whether there was any allegation that the lst respondent had himself committed any undue influence or 527 any other person with the consent of the 1st respondent had committed such an act or any allegation which required to be tried and the petitioner was not able to point out any part of the petition in which such an allegation had been made.
In view of this infirmity we have not found it necessary to examine whether the issuing of the whip by any political party amounts to undue influence vitiating an election even when such an act is committed by the returned candidate or with his consent by some other person.
[536G H; 537A] (iv) The petitioner did not appear to be quite serious about his case.
At one stage he contended having himself filed the petition before the Court that this Court had no competence to hear the case and at another stage he wanted 51 Judges to hear his petition when the maximum permissible strength of this Court is about one half of tha number and the existing strength of this Court is less than one third of that number.
While we expect every conscientious citizen eligible to file an election petition to question an election on the grounds prescribed by the Act, we do not wish that any petitioner should make use of this Court as a forum to file a petition without giving adequate thought to its contents and also to the provisions of law governing the case merely to seek some cheap publicity.
[537C E] Charan Lal Sahu vs Neelam Sanjeeva Reddy, l1978] 3 S.C.R. 1 and Charan Lal SaJlu & O.R.S. vs Giani Zail Singh & Anr., ; relied on.


Input:
minal Appeal No. 139 of 1954.
1333 Appeal by Special Leave from the Judgment and Order dated the 29th April 1954 of the Allahabad High Court in Criminal Appeal No. 1101 of 1953 and Referred No. III of 1953 arising out of the Judgment and Order dated the 3rd September 1953 of the Court of the Sessions Judge at Fatehpur in Sessions Trial No. 50 of 1953.
Sadhan Chandra Gupta and Janardhan Sharma, for the appellant.
K. B. Asthana and C. P. Lal, for the respondent.
March 1.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave from the judginent of the High Court at Allababad.
The sole appellant before us has been convicted by the Sessions Court under sections 148, 307 and 302 of the Indian Penal Code, and sentenced to rigorous imprisonment for two and a half years under section 148, to transportation for life under section 307, and to death under section 302.
These convictions and sentences have been confirmed by the High Court.
At the trial there were 19 other accused along with this appellant.
All of them were convicted and sentenced by the trial court under various sections of the Indian Penal Code.
On appeal ten out of them were acquitted by the High Court.
In respect of the remaining nine besides this appellant, the convictions and sentences were partially modified.
But this appeal is not concerned with them.
The incident in the course of which these offences are said to have been committed took place in the evening of the 4th January, 1953, shortly before sun set in a village called Sonari in the district Fatehpur, Uttar Pradesh.
During that incident two persons, Bisheshwar and Surajdin, are alleged to have received gun shot wounds.
Bisheshwar survived but Surajdin died on the spot.
The back ground for this incident was as follows: In the village of Sonari there were two factions between whom there was prior history of enmity resulting in criminal prosecutions by each against the other.
It 1334 may be broadly stated that the accused persons in the present case belong to one party and the prosecution witnesses as well as the deceased person belong to the other party.
In the year 1946 there was rioting between them in which two of the present prosecution witnesses were assaulted.
This led to a criminal case against some of the present accused and others, in which they were convicted and sentenced, the members of the other party figuring there in as prosecution witnesses.
Again, just five months prior to the present incident, there was another rioting in the village between these two groups.
In that, one Rain Bharosey a member of the party of the present accused was killed.
As a result 15 persons of the opposite party (i. e. the party of the present prosecution witnesses) were prosecuted.
By the date of this incident that case had been committed to the sessions but the sessions trial had not started.
According to the prosecution case, the occasion for the incident, which concerns us, was that some of the present accused wanted to persuade or prevent a member of the opposite party by name, Bisheshwar P.W. 2 in this case from doing what is called pairavi on behalf of the accused in that case.
(Pairavi is said to be the active assistance in relation to Court proceedings which a friend or agent renders to a litigant).
While, Bisheshwar, P.W. 2, and two others Bhurey Lal, P.W. 1, and Ram Saran, P.W. 3, were sitting in front of the house of Ram Saran on the evening of the 4th January, 1953, the present appellant and the other accused are said to have turned up before them, ' lathies in hand.
The appellant is said to have asked Bisheshwar to give up doing pairavis in the then pending case on behalf of the accused therein.
Bisheshwar having declined to do so, the appellant is said to have pulled out a pistol from his inner pocket and fired at him, as a result of which he fell down on the ground.
P.Ws. 2 and 3 are said to have dragged him inside the house and chained the door from inside, run up the roof and raised an alarm, whereupon a number of persons of the other party are said to have come running up.
One of the persons who so came running up was 1335 Surajdin who was cutting fodder at the house of Bhurey Lal, P.W. 1.
The appellant is said to have fired at him with the pistol.
He fell down and died on the spot.
Another person named Gaya Prasad is said to have received some minor lathi injuries.
Accused party thereafter is said to have run away.
First information of the report was lodged by Bhurey Lal, P.W. 1, near about 12 that very night at the police station which was about nine miles from the scene of the occurrence.
The police came on the scene the next morning and the usual investigation followed.
The police filed on the 22nd February, 1953, a charge sheet for offences under sections 147, 148, 323/149 and 307/149.
The charge sheet in so far as it was under section 323/149 related presumably to some minor injuries said to have been received by Gaya Prasad, and in so far as it was under section 307/149 related presumably to the gun shot wounds received by Bisheshwar, P.W. 2.
It may be noticed that the charge sheet did not concern itself with any offence or offences alleged to have been committed, in bringing about the death of Surajdin by the firing of a pistol at him.
It is on this charge sheet that cognizance of the case was taken by the Magistrate and committal proceedings were started.
It appears, however, that the complainant party finding that the police challan did not relate to the offence under sec tion 302, Indian Penal Code filed, on the 2nd May, 1953, a private complaint, before the very Magistrate in whose court the committal proceedings were by then pending.
That complaint was filed by the same Bisheshwar, P.W. 1, who lodged the first information in this case on the 5th January, 1953.
It sets out substantially the same facts.
This complaint also was taken on the file of the Magistrate.
The enquiry thereon was merged into the enquiry relating to the police challan case.
The Magistrate eventually committed all the 20 accused to take their trial before the Sessions Judge by framing charges, under sections 147, 323/149, 307/149 and 302/149.
There was a specific charge under section 148, Indian Penal Code against Suraj Pal and 1336 Dharm Raj, the former for being armed with a pistol and the latter for being armed with a pharsa, at the time of the commission of the rioting.
It is in respect of charges so framed by the committing Magistrate without any amendment or alteration that the accused were tried in the Sessions Court.
It may be mentioned at this stage that the defence of the accused, apart from the general denial of their hav ing anything to do with the incident and denials as to their having been present at the occurrence, was to the effect that it was the complainant 's party including the deceased Surajdin who formed the unlawful assembly, with the common object of beating one Ram Pal of the village.
This Ram Pal had appeared as a prosecution witness at the committal stage in the criminal proceedings by then pending against the present prosecution witnesses as accused.
It was also their defence that it was one Ram Bhawan of that party who, in the course of the incident, fired pistol shots in the air and also shot, later, Surajdin and brought about his death.
The learned Sessions Judge found all the accused guilty of the various offences as charged and sentenced them.
On appeal the High Court considered the prosecution evidence with reference to three aspects.
(1) How far the manner in which the prosecution alleged the incident to have taken place can be accepted; (2) How far the prosecution case regarding the presence and participation of the various per sons can be accepted; and (3) What offence can be said to have been made out as against each of them.
On the first question the High Court accepted the view that the incident took place as alleged by the prosecution.
With reference to the second, the High Court set out elaborately various reasons why the prosecution evidence in so far as it implicates particular individuals, could not be accepted at its face value and required to be carefully scrutinized.
With reference to certain criteria which it was considered necessary and right to adopt for purposes of scrutiny, the High Court held that the convictions of ten out of the 20 persons before it should be set aside and that 1337 the other ten persons including the present appellant were participants in the rioting.
Accordingly, the Court confirmed the conviction as against these ten under section 147, Indian Penal Code.
As regards the charge under section 148, Indian Penal Code, Dharm Raj was acquitted but the conviction of Suraj Pal was maintained on the ground of his having a pistol in his hand at the time of the rioting.
There remained the three charges against the ten persons under sections 323/149 for injuries on Gaya Prasad, 307/149 in respect of the gun shot wounds received by Bisheshwar, and 302/149 in respect of the murder of Surajdin.
It was held that the assault on Gaya Prasad wasn 't proved beyond doubt and hence, all the accused were acquitted in respect of this charge.
As regards the other two charges, i.e., under sections 307/149 and 302/149, the High Court came to the conclusion that neither the attempt on the life of Bisheshwar by pistol fire nor the actual death of Surajdin by pistol fire can be said to have been in prosecution of the common object of the unlawful assembly nor to have been within the knowledge of the accused as being so likely.
It was, therefore, held that none of the accused could be found guilty under section 149, with reference to, the attempt on the life of Bisheshwar, or the death of Surajdin.
All the same, in view of the fact that the evidence showed that the person who inflicted the pistol fire as against both was the appellant Suraj Pal, it was held that he was guilty of the offences under sections 307 and 302, Indian Penal Code.
On this ground, therefore, the High Court, while it set aside the convictions and sentences of all the accused under sections 307/149 and 302/149, maintained the 'convictions of the appellant under these two sections and maintained the sentences of transportation for life under section 307 and of death under section 302, Indian Penal Code.
The High Court convicted the other nine persons under section 323/149 in respect of the injuries received by P.W. 2 and sentenced them therefor.
On the above statement of the course of these proceedings, one important fact which emerges is that 1338 there have been no direct and individual charges against the appellant for the specific offences under sections 307 and 302, Indian Penal Code.
The question that arises is whether ', without such direct charges the convictions and sentences for those offences can be maintained.
It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecu tion of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly.
The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed.
A charge under section 149, Indian Penal Code puts the person on notice only of two alleged facts, viz. (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed.
Whether or not section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as "constructive liability" a convenient phrase not used in the Indian Penal Code.
There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence.
Such a case is not covered by sections 236 and 237 of the Code of Criminal Procedure.
The framing of a specific and distinct charge in respect of every distinct bead of criminal liability constituting an offence, is the foundation for a conviction and sentence therefore The absence, therefore, of specific 1339 charges against the appellant under sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life And to death respectively, is a very serious lacuna in the proceedings in so far as it concerns him.
The question then which arises for consideration is whether or not this lacuna has prejudiced him in his trial.
It is perfectly true that the initial accusation as disclosed by the first information lodged by the com plainant, P.W. 1, on the 5th January, 1953, specifically, was to the effect that it was this appellant who with a pistol fired both as against Bisheshwar, P.W. 2, as also against the deceased, Surajdin.
It is also true that this allegation was repeated in the private complaint filed by this same P.W. I in May, 1953, directly before the Magistrate.
It is also undeniable that the evidence in court, both in the committal proceedings as well as at the sessions trial, given by the prosecution witnesses was in support of that allegation.
But curiously enough, apart from the absence of any individual charges against the appellant for these specific offences, even the charges against him and others relating to the injuries inflicted on P.W. 2 and the deceased Surajdin are somewhat vague as to the authorship thereof The relevant charges run as follows (after specifying the members alleged to constitute the unlawful assembly): "Firstly: That you, on the 4th day of January 1953 at about half an hour before sunset in village Sonari, formed an unlawful assembly with the common object of committing the murders of Bisheshwar and Suraj Din and committed rioting.
And thereby committed an offence punishable under section 147 of the Indian Penal Code.
Secondly: That you on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which you were members at that time committed the murder of Suraj Din who was shot dead by a pistol fire.
And thereby committed an offence punishable under section 302/149 of the Indian Penal Code, 1340 Thirdly: That you on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which you were members at that time attempted to commit the murder of Bisheshwar Singh by means of a pistol fire.
And thereby committed an offence punishable under section 307/149 of the Indian Penal Code".
The portions underlined (for the purposes of this judgment) in the charge under heads 2 and 3 above are curiously vague.
They appear to indicate a definite non committal attitude on the part of the Public Prosecutor and the Court, which has the ultimate responsibility for the framing of the charge, (vide section 226, Code of Criminal Procedure) as to who is the active author of the pistol fire referred to under these two heads of charge.
When the charge was so pointedly vague, no accused was bound to direct his attention in his defence to the question as to whether he or somebody else was the person who fired the pistol which brought about the gun shot wounds.
It has been brought to our notice that the appellant has been specifically questioned in the Court of Sessions under section 342, Code of Criminal Procedure on the footing that he was the person who fired at P.W. 2 and the deceased, Surajdin, and that the accused denied it.
But this cannot be said to remove any prejudice that would arise by virtue of the vagueness in the charge at the sessions trial, as to who was the author of the pistol fire.
Normally in a sessions trial the accused has no right of cross examination after the questioning under section 342, Code of Criminal Procedure.
It has been suggested that since such a question was put also in the questioning by the committing Magistrate under section 342, Code of Criminal Procedure, the accused had ample notice of this specific case before the commencement of the sessions trial.
But it does not follow that there could be no prejudice.
On the other hand, the very fact that in spite of such questioning the charges framed in the Magistrate 's Court, with their vagueness, in so far as this feature therein is concerned, has been 1341 maintained, before the Sessions Court without any amendment, is likely to have been misleading.
The appellant might well have relied on the absence of any such amendment as being an indication that he was not called upon to defend himself on the footing of his being the author of the pistol fire.
In a case so serious as that which involves the sentences of transportation for life, and of death, and particularly in a case like the present one, where the death sentence has been awarded in the trial court by distinguishing this appellant from all the other accused in respect of his individual act by way of pistol fire, it is difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and 302, Indian Penal Code.
Further, the medical evidence indicates that P.W. 2 as well as the deceased Surajdin had gun shot wounds on their person.
The evidence of the Doctor is to the effect that these wounds may have been caused by a country pistol which, it is alleged, the appellant had in his hand.
It has been suggested on behalf of the defence that the Medical Officer was not competent to speak about it and that if the prosecution wanted to rely thereupon, they should have called an arms expert to speak to the same.
Whether or not this comment is legitimate, it is clear that if the appellant is to be found directly responsible for inflicting the wounds, noted as gun shot wounds by the Medical Officer, he might well have availed himself of the opportunity to elucidate, by cross examination or positive defence, the nature of the fire arm which would have caused the actual injuries found on the bodies of P. W. 2 and of deceased Surajdin.
In all the circumstances above noticed, we are satisfied that the absence of specific charges against the appellant under sections 307 and 302, Indian Penal Code has materially prejudiced him.
We must accordingly set aside the convictions and sentences of the appellant under sections 307 and 302 of the Indian Penal Code.
The further question that arises is whether or not we are to direct a retrial of the appellant in respect of these offences.
We have given our best considera 1342 tion to all the circumstances of this case and have for this purpose looked into the evidence and the material on the record.
The case discloses certain outstanding features.
At the very outset and simultaneously with the first information filed by P.W. 1 in this case, there was another report filed by one Ram Pal at the same police station, almost exactly at the same time, relating to the same incident.
This is exhibit P 16 on the record.
This report is said to have been lodged at the police station at 12 15 in the night, while the other report is said to have been lodged at 12 10 that night.
The report, exhibit P 16, alleged the present prosecution party to be the aggressors and put forward, as the occasion for the incident, an attempt on the part of the prosecution party to beat Ram Pal, the com plainant of that complaint, for having given evidence in support of the prosecution in the committal proceedings of the rioting case then pending against the present prosecution witnesses (as accused therein)obviously with a view to prevent him from giving evidence in the Sessions Court against them.
That complaint specifically refers to one Ram Bhawan who is P.W. 4 in the present case as the person who had a pistol in hand and fired with it.
That report makes no mention of any injuries having been by then received from pistol fire, in the course of that incident.
Of course, there is no proof, in this case, of any of the allegations in that report.
But it appears from the order of commitment in this case (which forms part of the present printed record) that with reference to that report there was pending, at the date of the committal, a cross case against some of the prosecution witnesses in the present case for the same incident.
The police constable mohair of the police station where the counter complaint, exhibit P 16 was lodged and who accepted both the complaints (1) from Bhurey Lal, and (2) from Ram Pal, has stated in his evidence that when the complaint, exhibit P 16, was filed by Ram Pal the present appellant Suraj Pal had also accompanied Ram Pal, the complainant therein.
This may well be claimed to be the conduct of an innocent person.
It is also not without some significance 1343 that admittedly and as a matter of fact, the police did not file any charge sheet in the present case against any one for the actual offence of murder under section 302, Indian Penal Code and that even in the charge sheet which they did file they confined the case to section 307, Indian Penal Code but did not commit themselves as to who out of the members of the unlawful assembly was the author of the pistol fire.
So far as it appears from the police charge sheet dated the 22nd February, 1953, as printed in the record before us, there is a statement therein to the effect "Suraj Pal Singh and Ram Manohar were armed with pistols".
Ram Manohar is also one of the accused who was put up for trial.
The statements of some of the prosecution witnesses furnish indication of more than one fire arm having been used at the incident.
Thus, for instance.
, Bisheshwar, P.W. 2, said "I heard 3 or 4 guns being fired outside and also heard a noise".
P.W. 4., Ram Bhawan, said "We four persons threw lumps of earth from the well at the accused persons, the accused retired and fired their gun twice. . . .
The accused had fired a gun from the door of Mabadeo when going away, then, bad fired two or three guns from his door".
P.W. 5, Gaya Prasad, said "Two or three guns afterwards had been fired from the door of Mahadeo Pandit.
Those guns had been fired from the lane.
The guns had been fired at the door of Ram Saran and had bit it".
All these witnesses no doubt assert that so far as the particular injuries with which this case is concerned the firing was by the appellant Suraj Pal.
But the above state ments by these witnesses in the cross examination may well indicate that there may have been other persons in the unlawful assembly at that time with arms in their hands, who made use of them by firing.
Apart from the use of pistols in the course of that incident, by one party or the other, there are clear indications that there was a mutual fight between both the parties.
Two of the persons on the side of the accused, viz. Lal Pratap and Chedi Lal have received some injuries and their injury certificates have 172 1344 been marked as Exs.
D 1 and D 2.
The prosecution witnesses themselves admit that there was mutual fighting to this extent, viz. that there was also throwing of brickbats by the complainant 's party against the rioters.
As already stated there is in fact a counter case against some of the present prosecution witnesses in respect of the same incident.
In such a situation any further trial is likely to result only in very doubtful and unreliable evidence being adduced after a considerable lapse of time.
Even as it is, the evidence recorded in the present case has been found by the High Court in its judgment as not acceptable at its face value.
The learned Judges have dealt with this aspect at length and they wound up their consideration of this part of the case as follows: "For the above reasons, I am of opinion that there is a good deal of substance in this part of the arguments of the appellants ' counsel.
The question that would arise is as to which of the particular accused is guilty and what should be the criterion for deciding this matter.
In view of the biassed and interested nature of the prosecution evidence, I am of opinion that the presence of only those accused should be held to have been proved who have been assigned any definite part by the prosecution witnesses or ,whose presence is corroborated by some other circumstantial evidence.
In view of the highly interested nature of the prosecution evidence, dealing with the first aspect of the case also, viz. the question as to how far the prosecution have succeeded in proving the manner in which the incident occurred, 1 have not accepted the prosecution case unless it found corroboration from some other factor of a circumstantial nature or from probabilities of the case".
It is by reference to these standards that they have rejected the evidence of the prosecution witnesses in so far as they implicated ten other accused whom the High Court acquitted.
But it appears to us, that judged by the very same standards there is no adequate reason for accepting the evidence as being reliable in respect of this appellant also.
In fact there is good reason to feel that on the same standards this appel 1345 lant also should have got the benefit of the doubt.
At this stage, it is not out of place to mention one fact.
It appears from the evidence of the Investigating Officer, P.W. 14, that in the course of the investigation the prosecuting authorities were of the opinion that the murder in this case was to be attributed to the prosecution witness, Ram Bhawan, P.W. 4, and not to the appellant, and that in their view even the evidence as against Ram Bhawan was not sufficient to put him on trial for the murder.
Doubtless such an opinion of the prosecuting authorities has no relevancy in the case and should not have been placed on the record in this case.
But when we have to consider the desirability or otherwise of retrial, we need not shut our eyes to these features of the case which have been brought on the record.
In the circumstances mentioned above we do not consider that the interests of justice require that any retrial should be ordered.
We accordingly direct that there shall be no retrial.
In the result, the convictions of the appellant under sections 307 and 302 of the Indian Penal Code and the sentences therefor are hereby set aside.
But his conviction under section 148 of the Indian Penal Code is maintained as also the sentence of two years and a half in respect thereof.
This appeal is accordingly allowed partially to the extent indicated above.
Appeal partially allowed.

Output:
Where a person has been charged along with others under sections 302 and 307 of the Indian Penal Code each, only as read with section 149 of the Code, his convictions and sentences for the substantial offences under sections 302 and 307 of the Code are erroneous.
The absence of specific charges in this behalf is a serious lacunas in the proceedings, inasmuch as the framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the foundation for a conviction and sentence therefore The conviction in these circumstances under Bs.
302 and 307 of the Code and sentences of death and transportation for life cannot be maintained unless the Court is satisfied, on the facts of the case, that the accused has not been prejudiced in his trial.
Whether or not in such a situation the questioning of the accused during the course of his examination under section 342 of the Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be relied upon as obviating the likelihood of prejudice has to be determined with reference to the facts and circumstances of each case.
All the circumstances of the case and the evidence and materials on the record should be looked into on the question arising in such a situation as to whether a retrial should be ordered or not.