Severability of a dying declaration- Indian Evidence Act, 1872 - Section 11 - Value of the testimony of alibi witnesses

     Head Note:

1.     It is true that when a person is on his or her death bed, there is no reason to state a falsehood but it is equally true that it is not possible to delve into the mind of a person who is facing death. In the present case the death of Asha Devi and the circumstances in which she died are extremely unfortunate but at the same time it does appear that for some inexplicable reason she put the blame for her death on all her in-laws without exception.

2.     The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct.

3.      

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1159 OF 2005

Jumni and Others                                                                           …..Appellants

Versus

State of Haryana                                                                             …Respondent

AND

CRIMINAL APPEAL NO. 603 OF 2005

Prem Nath and Another                                                               …..Appellants

Versus

State of Haryana                                                                            …Respondent

J U D G M E N T: Madan B. Lokur, J.

1.      The two questions for consideration and discussion relate to the value of the testimony of alibi witnesses and the severability of a dying declaration.

2.      In the present appeals, we are of the opinion that the  testimony of the alibi witnesses of two of the four appellants deserves acceptance and the dying declaration so closely concerns all four appellants that it is not possible to sever the role of the sets of appellants, resulting in our giving the benefit of doubt to the remaining two appellants.

The facts:

3.      Six relatives (by marriage) of deceased Asha Devi were accused of having murdered her and thereby having committed an offence punishable under Section 302 of the Indian Penal Code. The accused persons were Rati Ram (father-in-law, now died), Jumni (mother-in-law and appellant in Criminal Appeal No. 1159 of 2005), Sham Lal (brother-in-law and appellant in Criminal Appeal No. 1159 of 2005), Balbir Prasad (brother-inlaw and appellant in Criminal Appeal No.1159 of 2005, who, we were told has since died), Prem Nath (brother-in-law and appellant in Criminal Appeal No. 603 of 2005) and Raj Bala (wife of Prem Nath and appellant in Criminal Appeal No. 603 of 2005).

4.      Asha Devi was married at the age of 16 to Jagdish who was employed in the army. According to her father, Asha Devi lived with Jagdish for about one year and thereafter she lived in village Bhojpur in district Jagadhari, Haryana, in a one room tenement along with her two children aged 5 years and 1½ years. Her in- laws were staying in an adjacent tenement. There is no allegation or evidence of any matrimonial disharmony between Jagdish and Asha Devi who had been married for about nine years nor is there any allegation of any demand or harassment for dowry from Asha Devi.

5.      The case of the prosecution is entirely dependent on the dying declaration of Asha Devi. In her statement, Asha Devi stated that at about 12.00 noon on 4th April 1996 she was given a severe beating by all her in-laws. Thereafter, at about 3.00 p.m. she wanted to lodge a complaint with the police but all her in- laws prevented her from doing so. Rather, they suggested that she should be set ablaze.

6.      On the morning of 5th April 1996, Asha Devi seems to have had a quarrel and in a fit of anger she broke her bangles. Upon this, Jumni said that she should be finished. Consequently, all her in-laws tied her up and poured kerosene on her and set her on fire. This was at about 7.30 a.m.

7.      At about 10.30 a.m. Asha Devi was taken to the Civil Hospital at Jagadhari. Seeing her condition with 100% burns, the doctor on duty, Dr. M.R. Passi (PW-1) immediately informed the police who took urgent steps for having her statement recorded. Ms. Sarita Gupta, Judicial Magistrate, 1st Class (PW-9) was deputed for this purpose. According to Ms. Sarita Gupta, she recorded the statement of Asha Devi in the Civil Hospital between 11.22 a.m. and 12.05 p.m. on 5th April 1996. The statement/dying declaration reads as follows:-

“Stated that I was married at the age of 16 years. I am 25 years old. I have two sons, one is 5 years old while the second is 1½ old. My husband is serving in military. Sometimes he visits us after a week and sometimes after 15 days. In my house, my father-inlaw Rati Ram, mother-in-law Jumni, Jeth Prem Chand, Jethani Bala Rani, two Devars Sham Lal and Balbir Parshad are staying. My father-in-law, mother-in-law, Jeth Jethani and both the Devers had been harassing me from the very beginning. My mother-in-law, father-in-law, Jeth Jethani and both the Devers had been making plans to eliminate me. Last week my mother-in-law, father-in-law, Jeth, Jethani and Devers said, “let us get her bitten from a dog and in this way she would be eliminated”. Yesterday, during noon time, my mother-in-law, father-in-law, Devers, Jeth and Jethani had given me severe beatings. Thereafter yesterday at about 3.00 PM when I was about to go to police station to lodge a report, all of them prevented me and said, “if she is bent upon to do so, she should be eliminated by setting her ablaze”. After getting up today morning, I went to my mother-in-law and in a fit of anger, I broke my bangles (a sign of indignation against the married status). My mother-in-law, said that fault lies with her (Asha) and she should be finished. Mother-in-law, father-in-law, Jeth, Jethani and both the devers after conniving with one another tied me with my Chuni (head gear) and poured kerosene oil upon me. The kerosene oil also entered in my eyes. Mother-in-law, father-in-law, Jeth Jethani and both the devers set me on fire together. I made a lot of noise. The incident occurred at 7.30 AM. My mother-in-law Jumni, fatherin- law Rati Ram, Jeth Prem Chand, Jethani Bala Rani and both the Devars Sham Lal and Balbir Parshad are responsible for setting me on fire. After my death, both of my children be handed over to my parents. Otherwise my in-laws would kill them also.”

8.      Soon after the statement was recorded Asha Devi’s father Devi Dayal (PW-6) arrived in the Civil Hospital (although he says that he reached the hospital at about 11.45 a.m. but after the Magistrate left) and he made arrangements to take her to Chandigarh but she died on the way.

9.      On these broad facts, investigations were carried out and a charge sheet was filed against the six accused persons for having murdered Asha Devi.

Proceedings in the Trial Court:

10.             Before the Additional Sessions Judge, in Case No. 35 of 1996, the principal argument of the prosecution was that in view of the dying declaration there was no doubt at all that the accused persons were guilty of having murdered Asha Devi.

11.             Prem Nath and Raj Bala produced alibi witnesses before the Trial Judge to show that Prem Nath was an employee in the HMT factory in Pinjore and that on 4th April 1996 as well as on 5th April 1996 he was in Pinjore and there was no question of his or his wife’s involvement in the incident. The accused also produced Chandan Singh, Sub-Inspector, Food Supply, Yamunanagar as DW-7 to prove, on the basis of the ration card issued to Jagdish and Rati Ram, that they lived in the same neighbourhood but not together as stated by Asha Devi. Similarly, Puran Chand a neighbour of Jagdish was produced as DW-8 and his testimony was to the effect that he saw smoke coming out of Jagdish’s house and he heard some children making a noise. Thereupon he went to Jagdish’s house and found that the door of the tenement was bolted from inside. He, along with one Gurbachan broke open the door and found Asha Devi lying burnt in the tenement. They put out the fire and called Rati Ram who was working in the nearby fields. Thereafter, Rati Ram took Asha Devi to the Civil Hospital. Puran Chand also stated that Prem Nath and Raj Bala were not present at the spot.

12.             One of the questions considered by the Trial Judge was whether Asha Devi was in a fit condition to make a statement, particularly since, according to Dr. M.R. Passi, she had 100% superficial as well as deep burns. The Trial Judge noted that Dr. Passi testified that Asha Devi was fit to make a dying declaration and that he was present when Ms. Sarita Gupta was recording her dying declaration. He stated that Asha Devi was responding to the questions put to her by the Magistrate.

13.             The Trial Judge also considered the statement of Ms. Sarita Gupta who had confirmed from Dr. Passi regarding the fitness of Asha Devi to make a statement. Ms. Sarita Gupta stated that only after Asha Devi was declared fit to make a statement that her statement was recorded and read over to her. According to Ms. Sarita Gupta, during the recording of her statement, Asha Devi was conscious and responding to verbal commands. She also stated that Dr. Passi was present throughout when Asha Devi’s dying declaration was being recorded.

14.             On these facts, the Trial Judge concluded that Asha Devi was fit to make a dying declaration.

15.             The next question addressed by the Trial Judge was whether the dying declaration contained any falsehood. In this regard, the Trial Judge came to the conclusion that there was nothing to suggest that the dying declaration was incorrect in any manner or that Asha Devi made allegations out of some vengeance.

16.             Finally, the Trial Judge examined the plea of alibi raised by Prem Nath and Raj Bala and in this regard he concluded that there was every possibility of both of them being present in village Bhojpur both on 4th April 1996 when Asha Devi was given a beating as well as in the early morning of 5th April 1996 when Asha Devi was set on fire.

17.             On the above conclusions, the Trial Judge held, in his judgment and order dated 28th October 1998, that all the accused were guilty of having murdered Asha Devi.

18.             Feeling aggrieved, the accused persons filed Criminal Appeal No. 524-DB of 1998 in the High Court of Punjab & Haryana. By its judgment and order dated 25th October 2004, the High Court dismissed their appeal.

Proceedings in the High Court:

19.             The High Court considered the evidence of Dr. Passi as well as the evidence of Ms. Sarita Gupta and upheld the conclusion of the Trial Judge that Asha Devi was in a fit state of mind to make a statement before the Magistrate.

20.             The High Court also upheld the conclusion that Asha Devi was in a condition to speak coherently and was capable of making a statement. Consequently, the High Court accepted the validity of the dying declaration.

21.             The High Court then considered the question whether it could be held, despite the dying declaration, that Prem Nath and Raj Bala were not involved in the incident concerning Asha Devi. Relying upon a few decisions of this Court, the High Court was of the view that there was no error in law in accepting a part of the dying declaration and rejecting another part of the dying declaration. The High Court then examined the evidence of the alibi witnesses in an attempt to ‘bifurcate’ the dying declaration. However, the High Court rejected their testimony and concluded that there was every possibility of Prem Nath and Raj Bala being present both on 4th April 1996 when Asha Devi was subjected to a beating as well as on 5th April 1996 when she was allegedly set on fire.

22.             The High Court affirmed the conviction of the accused as well as the sentence imposed upon them.

23.             Unfortunately, the High Court overlooked the evidence of Puran Chand (DW-8) who stated that Asha Devi’s tenement was locked from inside and that the door had to be broken open by him and Gurbachan who found her burning.

 Plea of alibi

24.             On a consideration of the material before us, what strikes us as a little odd is that insofar as Prem Chand and Raj Bala are concerned, both the Trial Judge and the High Court have given us the impression that they proceeded on the basis that these two accused persons are required to prove their innocence. In fact it is for the prosecution to prove their guilt and that seems to have been lost in the consideration of the case.

25.             It is no doubt true that when an alibi is set up, the burden is on the accused to lend credence to the defence put up by him or her. However the approach of the court should not be such as to pick holes in the case of the accused person. The defence evidence has to be tested like any other testimony, always keeping in mind that a person is presumed innocent until he or she is found guilty.

26.              Explaining the essence of a plea of alibi, it was observed in Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166  that:

“The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.”

     

             This was more elaborately explained in Binay Kumar Singh v. State of Bihar (1997) 1 SCC 283 in the following words:

“We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant.”

             Illustration (a) given under Section 11 of the Evidence Act  is then partially reproduced in the decision, but it is fully reproduced below:

“The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.”

              This Court then went on to say,

“The Latin word alibi means “elsewhere” and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

               This view was reiterated in Jayantibhai Bhenkarbhai v. State of Gujarat (2002) 8 SCC 165

27.            On the standard of proof, it was held in Mohinder Singh v. State 1950 SCR 821 that the standard of proof required in regard to a plea of alibi must be the same as the standard applied to the prosecution evidence and in both cases it should be a reasonable standard. Dudh Nath Pandey goes a step further and seeks to bury the ghost of disbelief that shadows alibi witnesses, in the following words:

“Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.”

28.             The defence put up by Prem Nath and Raj Bala needs to be examined in the light of the law laid down by this Court. What is the defence put up by them? Subhash Saini, Office Assistant with HMT in Pinjore appeared as DW-1 and stated that Prem Nath was on duty on 4th April, 1996 from 2.00 p.m. to 10.00 p.m. On the next day that is on 5th April, 1996 he was on half day leave and was on duty from 6.00 p.m. to 10.00 p.m.

29.             This witness also stated that the entry and exit of an employee to and from the factory premises is recorded in a punching machine and two employees of the factory supervise the machine to avoid proxy punching. If there is any suspicion about any employee, the identity card is demanded from him or her. The Trial Court and the High Court had observed that it is possible to ‘manipulate’ the punching machine. While this may be so, there is nothing to suggest that despite the presence of employees and other safeguards having been set up by HMT, Prem Nath had manipulated the punching machine. The view of both the courts was speculative in nature and cannot form the basis for rejecting the alibi.

30.             Jagan Nath Mishra (DW-2) is the tenant of Prem Nath and he stated that he met Prem Nath at about 10.30 p.m. on the night of 4th April 1996.

31.             This witness further stated that he left his residence to attend duty the next morning at about 7.45 a.m. (This has wrongly been mentioned as 5.45 a.m. in the impugned judgment and we have verified from the original record that it is actually 7.45 a.m.) At that time he met Prem Nath and Raj Bala. He also stated that when he returned at about 5.45 p.m. he was given sweets by Raj Bala because they had purchased a new scooter.

32.             On 5th April 1996 Prem Nath had taken half day leave for the purpose of purchasing a scooter. This was testified by Bhim Sen Verma (DW-3). It was stated by K.N. Sharma (DW-5) that Prem Nath was on duty on 4th April 1996 up to 10.00 p.m. and on half day duty on 5th April 1996.

33.             K.K. Kanwal from Hind Motors Ltd. in Chandigarh entered the witness box as DW-6 and affirmed that at about 11.00 a.m. on 5th April 1996 Prem Nath had purchased and taken delivery of a scooter from his company. He further stated that prior to taking delivery of a vehicle, it takes about an hour to complete all procedural formalities in this regard.

34.             The evidence of the alibi witnesses clearly brings out that on 4th April 1996 Prem Nath was in his factory from 2.00 p.m. onwards till 10.00 p.m. and later in the night he was seen by his tenant at about 10.30 p.m. On the next day that is 5th April 1996 Prem Nath and Raj Bala were seen by their tenant at 7.45 a.m. and about 11.00 a.m. Prem Nath purchased and took delivery of a scooter from Hind Motors Ltd., Chandigarh before going to the factory at about 6.00 p.m. On 5th April 1996 his wife Raj Bala distributed sweets on the purchase of a new scooter.

35.             The Trial Court and the High Court have disbelieved the entire case put up by Prem Nath and Raj Bala by holding that they could very well have been in village Bhojpur at 12.00 noon on 4th April 1996 when Asha Devi was given a beating and they could have travelled back to Pinjore to enable Prem Nath to be in the factory at 2.00 p.m. Nothing is said about how they could have stopped Asha Devi at 3.00 p.m. from going to the police to lodge a complaint. The same night, they could have left Pinjore to be in village Bhojpur early morning on 5th April 1996 at about 7.30 a.m. when Asha Devi was set on fire. Thereafter, they could have come back to Pinjore to enable Prem Nath to be in Hind Motors at about 10.00 a.m. to purchase a scooter at 11.00 a.m. There is nothing on record to indicate the distance between Pinjore and village Bhojpur but we were orally told that it takes more than a couple of hours to cover that distance. Prem Nath did not have any means of personal conveyance which could have enabled him to undertake these journeys.

36.             Apart from the conclusions of the Trial Court and the High Court appearing far-fetched, the testimony of Jagan Nath Mishra (DW-2) the tenant of Prem Nath has not been correctly appreciated because of a typing error in transcribing it from the original record. As mentioned above, Jagan Nath Mishra had seen Prem Nath and Raj Bala at 7.45 a.m. on 5th April 1996 (and not at 5.45 a.m. as wrongly transcribed in the impugned judgment). Consequently, Prem Nath and Raj Bala could not have been in village Bhojpur at 7.30 a.m. on 5th April 1996. This evidence has gone unchallenged.

37.             It seems to us that although the High Court has given due weightage to the dying declaration of Asha Devi but having accepted it, it has tried to pick holes in the defence evidence to justify the contents of the dying declaration. Given the law laid down by this Court, this was not the correct manner of approaching the evidence brought forth by Prem Nath and Raj Bala. In our opinion, the alibi witnesses have made out a strong case of demonstrating the improbability of Prem Nath and Raj Bala being involved in the incident of beating up Asha Devi at about 12.00 noon on 4th April 1996, of stopping her at about 3.00 p.m. from going to the police to lodge a complaint and setting her on fire at about 7.30 a.m. on 5th April 1996.

Severability of a dying declaration:

38.             The next question is whether Asha Devi’s dying declaration can be split up to segregate the case of Prem Nath and Raj Bala from the case of the other accused persons.

39.             In Godhu v. State of Rajasthan (1975) 3 SCC 241 this Court found itself unable to subscribe to the view that if a part of the dying declaration is found not to be correct, it must result in its rejection in entirety. It was held,

(i)    “The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct.”

40.             Although at law there is no difficulty in segregating the role of two sets of accused persons if the dying declaration is severable, the present case indicates that the role of the accused persons cannot be segregated. This is because Asha Devi’s dying declaration mentions all the accused persons as being involved in all the events that had taken place on 4th April 1996 and 5th April 1996. There is no distinction made in the role of any of the accused persons and they have all been clubbed together with regard to the harassment of Asha Devi; making plans to eliminate her; Asha Devi being beaten up on 4th April 1996; all the accused persons preventing her from lodging a complaint with the police; all the accused persons tying up Asha Devi with her chunni and pouring kerosene oil on her and then setting her on fire. Asha Devi has referred to each one of them as being involved in every incident on 4^th April 1996 and 5th April 1996. If somewhat different roles were assigned to at least some of the accused persons, segregation or severance could have been possible. But with everybody being roped in for every event, it is not possible in this case to segregate or sever the actions of one from another.

41.             Notwithstanding this, as we have seen, it is not possible to accept the involvement of Prem Nath and Raj Bala in the events that took place on the two fateful days. Nevertheless, it is quite possible that the other four accused were involved in beating up Asha Devi on 4th April 1996 and setting her on fire on 5th April 1996. But, what is of equal importance is that neither the Trial Court nor the High Court adverted to the crucial evidence of Puran Chand (DW-8) who stated that he saw smoke coming out of Jagdish’s tenement and children were making a noise. When he reached there, he saw flames and smoke coming out from the ventilator of Jagdish’s tenement and along with Gurbachan, he had to break down the door of the tenement which was locked from inside and they found Asha Devi on fire. If this statement of Puran Chand is correct, and there does not seem any reason to doubt it since nothing was put to him in this regard in cross examination, a case of suicide by Asha Devi is a possibility. At this stage, it may be noted that the investigating officer Gurdial Singh (PW-10) could not say if the bolt of the tenement was broken or not.

42.             On a reading of the dying declaration it is quite clear that Asha Devi was very disturbed on the morning of 5th April 1996 and that is why she broke her bangles in the presence of Jumni. This may be because of the events of the previous day or her being a victim of continuous harassment. This, coupled with a lack of response from Jumni on the morning of 5th April 1996 may have completely frustrated Asha Devi leading her to commit suicide. Whatever be the cause of Asha Devi being upset, the evidence of Puran Chand has not been challenged and so it cannot be glossed over. In the face of this, it is not possible to discount the theory suggested by learned counsel that the case was possibly one of the suicide out of extreme frustration and not of murder.

43.             It is true that when a person is on his or her death bed, there is no reason to state a falsehood but it is equally true that it is not possible to delve into the mind of a person who is facing death. In the present case the death of Asha Devi and the circumstances in which she died are extremely unfortunate but at the same time it does appear that for some inexplicable reason she put the blame for her death on all her in-laws without exception. Perhaps a more effective investigation or a more effective cross-examination of the witnesses would have brought out the truth but unfortunately on the record as it stands, there is no option but to give the benefit of doubt to Jumni (and Sham Lal) and to hold that they were not proved guilty of the offence of having murdered Asha Devi.

44.             Insofar as Prem Nath and Raj Bala are concerned there is sufficient material to accept their alibi and they must be acquitted of the charges made against them.

45.             As mentioned above Rati Ram and Balbir Prasad are already dead and nothing need be said about their involvement in the incident. Were they alive, they too would have been entitled to the benefit of doubt since the facts pertaining to them were similar to those of Jumni and Sham Lal.

Conclusion:

46.             The plea of alibi set up by Prem Nath and Raj Bala deserve acceptance and are accepted. They are found not guilty of having murdered Asha Devi. Jumni and Sham Lal are given the benefit of doubt and the charge against them of having murdered Asha Devi is not proved beyond a reasonable doubt.

Both the appeals are accordingly allowed.

……………………………………J

(Ranjana Prakash Desai)

……………………………………J

(Madan B. Lokur)

New Delhi;

March 12, 2014

Whether the learned courts below were justified in holding that sale deed was not proved, merely because the executant of the deed was not examined?

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2924 - 2925 OF 2014

Phanidhar Kalita                                                         ..    Appellant(s)

-vs-

Saraswati Devi & Anr.                                            ..    Respondent(s)

J U D G M E N T: C. NAGAPPAN, J.

1.      These appeals are preferred against the judgment and decree dated 23.3.2007 in R.S.A. No.116 of 2000 and the order dated 1.4.2008 in Review Petition no.1 of 2008 passed by the learned single Judge of the Guwahati High Court, whereby the High Court has partly allowed the Regular Second Appeal and dismissed the Review Petition, both filed by the appellant herein.

2.      The appellant/plaintiff herein filed the Title Suit no.11 of 1987 against the respondent/defendant no.1 herein in the Court of Civil Judge (Junior Division) no.2, Mangaldoi for declaration of title in respect of 1 katha 16 lechas of land described in schedule-1 to the plaint covered by Dag no.52/575 of P.P. no.960 situated in village Mangaldoi gaon and also for recovery of khas possession of the suit land described in schedule-2, which is a part of the land in schedule-1 by demolishing the structure put by respondent no.1 herein/defendant no.1 and also for permanent injunction restraining the respondents herein/defendants from raising new constructions on the suit land. The case of the appellant/plaintiff is that he purchased 1 bigha of land, mentioned in schedule-1, from one Mukta Ram Saikia by Exh.4 registered sale deed dated 12.7.1977 and took possession of the same and got mutation of his name in the revenue record and obtained patta Exh.5 also. It is his further case that the respondent no.1/defendant no.1 also purchased 1 bigha of land from the original common owner Bati Ram, which is the adjacent northern portion of the appellant/plaintiff’s land in schedule-1 and in November, 1978 respondent no.1/defendant no.1 constructed a thatched house by encroaching some portion of the appellant/plaintiff’s land in schedule-1 and on measurement, it is found that respondent no.1/defendant no.1 had encroached an extent of 1 katha 16 lechas which is described as schedule-2 in the plaint.

3.      Respondent no.1/defendant no.1 filed written statement stating that she purchased 1 bigha of land from Bati Ram on 4.8.1955 and constructed a thatched house and she has not encroached on the suit land as alleged by the appellant/plaintiff.

4.      Respondent no.2 herein/defendant no.2 impleaded himself in the suit and in his written statement he took the identical plea raised by the respondent no.1/defendant no.1 in her written statement. He further asserted that he never sold the suit property to the appellant/plaintiff and the sale deed dated 12.7.1977 is a forged one and he also filed a counter claim seeking declaration of title to the suit property and recovery of possession of the same from the appellant/plaintiff.

5.      The said counter claim was resisted by the appellant/plaintiff by filing a written statement.

6.      The trial Court framed 17 issues and the appellant/plaintiff examined himself and examined 5 other witnesses and marked 22 documents on his side. The respondents/defendant no.1 and 2 examined themselves and examined 4 other witnesses on their side. The Trial Court on consideration of the oral and documentary evidence dismissed the suit as well as the counter claim. The appellant/plaintiff preferred an appeal against the dismissal of the suit in Title Appeal no.8 of 1998 before the Civil Judge (Senior Division), Darrang at Mangaldoi and the respondent no.2/defendant no.2 preferred a cross objection and the Lower Appellate Court dismissed both on contest. The appellant/plaintiff preferred Second Appeal in R.S.A. no.116 of 2000 and the Guwahati High Court held that the appellant/plaintiff had title to the suit property in schedule-1 and partly allowed the appeal. The appellant/plaintiff herein filed Review Petition no.1 of 2008 stating that since the main relief had been granted, the consequential relief for khas possession of schedule-2 property ought to have been granted to him. The High Court dismissed the Review Petition. Challenging the rejection of the relief of recovery of khas possession of schedule-2 property and the relief of permanent injunction in the Judgment as well as Review, the appellant/plaintiff has preferred the present appeals to this Court.

7.      The learned counsel appearing for the appellant submitted that the High Court held that the findings of the Courts below with regard to the validity of sale deed of the appellant/plaintiff was perverse and allowed the Second Appeal in part but erred in not granting the other reliefs prayed for by the appellant/plaintiff in the suit namely recovery of khas possession of schedule-2 property and permanent injunction, though it had framed substantial questions of law with regard to them. We also heard the learned counsel appearing for the respondents.

8.      The appellant/plaintiff herein has prayed for declaration of his title to the suit property in schedule-1 and also for recovery of khas possession of the land described in schedule-2 which is part of land in schedule-1 by demolishing the structure put by the respondent no.1/defendant no.1 herein and also for permanent injunction restraining the respondents/defendants herein from putting up new construction at the suit land. By concurrent findings, the Trial Court and the Lower Appellate Court dismissed the entire suit. The High Court admitted the Second Appeal preferred by the appellant/plaintiff by framing the following substantial questions of law :

“(i) Whether the learned courts below were justified in holding that Ext.4 sale deed was not proved, merely because the executant of the deed was not examined?

(ii) Whether the learned courts below failed to consider some relevant materials such as Ext.2, Ext.5 and whether non-consideration of such material has vitiated the judgments?

(iii)Whether the learned trial court was justified to brush aside the amin commissioner’s report by observing that it was incomplete and biased?”

By an elaborate judgment the High Court held that the findings of the courts below that the appellant/plaintiff had failed to prove his registered sale deed dated 12.7.1977 are perverse and upheld the title of the appellant/plaintiff to the suit property in schedule-1 and accordingly partly allowed the appeal by setting aside the portion of the judgment and decree of the courts below in that regard. In other words, the High Court answered the substantial question of law no.1 only and omitted to answer the other two substantial questions of law cited supra. The appellant/plaintiff pointed out the said omission by filing Review in Review Petition no.1 of 2008. However, the High Court dismissed it by holding that no ground is made out for Review.

9.      The learned counsel for the appellant/plaintiff contended that on appellant/plaintiff’s petition Amin Commissioner was appointed to measure the land in possession of the appellant/plaintiff as well as respondent no.1/defendant no.1 and the said Amin Commissioner was examined as Court witness no.1 and the Courts below were not justified to brush aside the Amin Commissioner’s report and decree ought to have been granted with regard to the other reliefs prayed for by the appellant/plaintiff. Per contra the learned counsel for the respondents/defendants contended that the Amin Commissioner has not measured the whole of surrounded dags of suit land and his report is incomplete, as rightly held by both the Courts below dealing on factual matrix.

10.             We carefully considered the rival contentions and the records. The title of the appellant/plaintiff to the suit schedule-1 property has already been declared by the High Court and that finding has become final. The Trial Court as well as the Lower Appellate Court held that the Amin Commissioner has not measured the dags falling north east-east west of the appellant/plaintiff’s land and the respondent no.1/defendant no.1’s land. Whether schedule-2 is encroached property of the respondent no.1/defendant no.1 as alleged by the appellant/plaintiff has to be determined for adjudicating the other reliefs claimed in the plaint.

11.             In the interest of justice, we deem it fit to remit the matter to the Trial Court for fresh adjudication with regard to the reliefs of recovery of possession and permanent injunction only.

12.             The appeals are allowed and the impugned judgment and decree of the High Court, declining the reliefs of recovery of khas possession of schedule-2 property and permanent injunction, are set aside and the matter is remitted to the Trial Court for fresh adjudication with regard to the said reliefs only and the parties are permitted to adduce evidence and the Trial Court after adjudication shall pass a comprehensive decree in respect of all the reliefs claimed in the suit. No costs. Since the title suit is of the year 1987 the Trial Court shall endeavour to dispose of the same as expeditiously as possible preferably within a period of six months from the date of receipt of records.

………………………….J.

(T.S. Thakur)

…………………………J.

(C. Nagappan)

New Delhi;

March 14, 2014.

Last seen Theory - Murder Case- Dead body found in the Well of Accused - Mere non explanation of Accused - does not lead to conviction in the absence of proof of Motive : Apex Court

The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the  accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.

(Para 17 & 18)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 595 OF 2014

[Arising out of Special Leave Petition (Crl.) No.3634 of 2013]

Kanhaiya Lal                                                              …  Appellant(s)

versus

State of Rajasthan                                                  … Respondent(s)

J U D G M E N T :C. NAGAPPAN, J.

Leave granted.

1.    This appeal is preferred against the judgment of the High Court of Judicature for Rajasthan at Jodhpur, in D.B. Crl. Appeal No.515 of 2004.

2.    The appellant herein Kanhaiya Lal, is accused No.2 in Sessions Trial No.01 of 2004 on the file of Additional District & Sessions Judge, Fast Track No.1, Dungarpur, -

3.    and he was tried for the alleged offences under Section 302 and 201 IPC and on being found guilty was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1000 in default to undergo simple imprisonment for 6 months for the offence under Section 302 IPC and further sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.500 in default to undergo simple imprisonment for 3 months for the offence under Section 201 IPC, and the sentences were ordered to run concurrently. Accused No.1 Raman Lal was also tried along with accused No.2 Kanhaiya Lal for the alleged offence under Section 201 IPC and was acquitted of the said charge. Challenging the conviction and sentence, accused No.2 Kanhaiya Lal preferred the appeal in D.B. Criminal Appeal No.515 of 2004 and the High Court by judgment dated 17.4.2012 dismissed the appeal. Challenging the same the appellant Kanhaiya Lal has preferred the present appeal.

4.    The case of the prosecution in a nut shell is as follows: PW10 Smt. Shantibai is the wife of deceased Kala. PW3 Kama is the younger brother of Kala. Accused Kanhaiya Lal is the brother of PW4 Hurma. They are all residents of Gesu ka bagh village. PW4 Hurma returned home at 8.00 p.m. on 31.8.2003. At about 9.00 p.m. accused Kanhaiya Lal and Kala came to his house and demanded Daru and PW4 Hurma gave one bottle and received a sum of Rs.15/- from the accused Kanhaiya Lal. Thereafter, both of them went away together. Kala did not return home in the night and in the morning PW10 his wife Shantibai along with PW11 Dhula went to the house of PW 4 Hurma and inquired about her husband. PW4 Hurma told them about Kala visiting his house with Kanhaiya Lal the previous night and their returning together from his house. PW 10 Shanti Bai and PW 11 Dhula went to the house of the accused Kanhaiya Lal and he was not found there. PW10 –

5.    Shantibai lodged a report at the Police Station about the missing of her husband. The villagers found Muffler, shoes and tobacco pouch floating in the well of accused Kanhaiya Lal. PW3 Kama lodged Ex.P10 written report before the Police Station Bichhiwara. Police took out the body of Kala from the well and a case came to be registered in Ex.P10 FIR No.230 of 2003 for the alleged offences under Section 302 and 201 IPC. PW12 Fateh Singh Chauhan took up the investigation. Ex.P11 is the spot map. Ex.P13 is the Panchayatnama. Ex.P14 is the seizure Memo of shoes, Muffler and tobacco pouch.

6.    PW1 Dr. Rajesh Sharma along with Dr. Kanti Lal conducted the post-mortem and found the following injuries:

“External injuries:

1. Abrasion 5 x 2 cm on the left side of the neck.

2. Bruise 3 x 2 cm on the parietal aspect of the neck in the right side and all these injuries were anti mortem.

On the internal examination he found the fracture of Hyoid bone anteriorly.”

They expressed opinion that the cause of death of Mr. Kala is due to neurogenic shock as well as haemorrhagic shock and the time of death was from 36 to 48 hoursprior to the post-mortem.

Ex.P10 is the post-mortem report issued by them.

7.    The accused were arrested and on completion of the investigation final report came to be filed. In order to prove the case, the prosecution examined 15 witnesses and marked 26 documents. No witness was examined on the side of the defence. The accused were questioned under Section 313 Cr.P.C. and their answers were recorded. The trial court found accused No. 2 Kanhaiya Lal guilty of the charges under Sections 302 and 201 IPC and sentenced him as narrated above. The trial court found accused No.1 Ramam Lal not guilty of the charge –

8.    and acquitted him. Accused No.2 Kanhaiya Lal preferred the appeal and the High Court dismissed the appeal by confirming the conviction and sentence imposed on him. Aggrieved by the same he has preferred the present appeal.

9.    We heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing for the respondent State.

10.      The prosecution case is that the appellant/accused Kanhaiya Lal committed the murder of Kala by strangulation and threw the body in the well. Nobody witnessed the occurrence and the case rests on circumstantial evidence. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the –

11.      innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

12.      The prosecution in order to prove its case mainly relied on the following circumstances :

i)              The death of Kala was homicidal in nature;

ii)             Kala was last seen with accused Kanhaiya Lal when both of them visited the house of PW4 Hurma on the occurrence night.

iii)           Kala objected to the illicit intimacy of accused Kanhaiya Lal with the wife of his younger brother PW3 Kama and that led to the occurrence.

13.      The autopsy on the body of Kala was conducted by two doctors and one of them namely Dr. Rajesh Sharma has been examined as PW1. According to him two –

14.      external injuries were found on the neck namely an abrasion 5x2 cm on the left side of the neck and bruise 3x2 cm on the parietal aspect of the neck in the right side and on its internal examination he noticed the fracture of vertebrae c3 & c4 and the fracture of Hyoid bone anteriorly and all the injuries were anti mortem. It is opined that the cause of death of Kala is due to neurogenic shock as well as hemorrhagic shock. Ex.10 is the post mortem report. Accepting the medical evidence it is clear that Kala suffered a homicidal death.

15.      The primary, if not the solitary basis of the conviction of the appellant is on the theory of last seen, as the deceased Kala along with accused Kanhaiya Lal visited the house of PW4 Hurma at 9.00 pm on 31.8.2003. PW4 Hurma did not fully support the prosecution case and was declared hostile. In his examination-inchief he has stated that on the occurrence night he returned home at 8.00 pm and about 9.00 pm accused Kanhaiya Lal and –

16.      Kala came to his house and demanded Daru and he gave one bottle and received a sum of Rs.15/- from the accused Kanhaiya Lal and they returned together and the next day morning wife of Kala PW10 Shantibai came and inquired him about her husband Kala and he told her about the visit of Kala with accused Kanhaiya Lal to his house the previous night. It is the testimony of PW10 Shantibai that her husband Kala did not return home on the occurrence night and in the morning she went to the house of PW4 Hurma and inquired and came to know from him about the visit of her husband along with accused Kanhaiya Lal to his house in thenight. Though PW4 Hurma was treated as hostile witness, the above testimony of him is corroborated by the testimony of PW10 Shantibai.

17.      The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the –

18.      accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.

19.      The alleged illicit intimacy of the accused Kanhaiya Lal with Kamli, wife of PW3 Kama, is said to be the cause for the occurrence. According to PW3, his wife Kamli left him four years back and is residing with her parents in Sanchiya village. PW 10 Shantibai also in her testimony has confirmed that Kamli has been living in village Sanchiya for 4-5 years. It reveals that they were not living together for a number of years. It is the further testimonty of PW 3 Kama that he has never seen Kamli and accused Kanhaiya Lal together and no person in the village told him so and it is only his brother Kala who informed him about the illicit intimacy between them. In this context it is relevant to point out that wife of Kala namely PW10 Shantibai in her testimony has not alleged any illicit relationship between Kamli and accused Kanhaiya Lal. In –

20.      such circumstances it is doubtful as to whether there was any illicit intimacy between them as alleged. Further PW3 Kama and PW10 Shantibai have categorically stated in their testimonies that there was no dispute between the deceased Kala and accused Kanhaiya Lal and they had cordial relationship. Thus the motive alleged by the prosecution that Kala, as elder of the family dissuaded accused Kanhaiya Lal to sever his illicit relationship with his sister-in-law Kamli had triggered the murder, is not established.

21.      The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial –

22.      relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh vs. State of Rajasthan (2010) 15 SCC 588.

23.      In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant/accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.

…………………………….J.

(T.S. Thakur)

…………………………J.

(C. Nagappan)

New Delhi;

March 13, 2014

Constitution of India, Article 226 - Existence of alternative and equally efficacious remedy

HELD:

The rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted

There are at least two well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place it is well-settled that where proceedings are taken before a Tribunal under a provision of  law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent. without his being obliged to wait until those proceedings run their full course.

In the second place the doctrine has no application in a case where the impugned order has been made in violation of the principle of natural justice.

In the present case in view of the allegations of the appellant that the .taxing provisions were ultra vires and that there was a violation of the principles of natural justice the High Court was in error in summarily dismissing the writ petition on the ground that the appellant had an alternative remedy of statutory appeal. The High Court was no doubt vested with a discretion but in the present case the discretion had not been exercised in accordance with law.

SUPREME COURT OF INDIA

PETITIONER: BABU RAM PRAKASH CHANDRA MAHESHWARI

Vs.

RESPONDENT:  ANTARIM ZILA PARISHAD MUZAFFAR NAGAR

DATE OF JUDGMENT: 02/08/1968

BENCH:

RAMASWAMI, V.

SHAH, J.C.

GROVER, A.N.

CITATION: 1969 AIR 556 1969 SCR (1) 518

ACT: Constitution of India, Art. 226--Alternative remedies not availed of--High Court can still entertain writ petition and issue writ of certiorari where Tribunal has acted on a provision of law which is ultra vires and where natural justice is denied.

HEADNOTE:

The appellant was a partnership firm carrying on the business of manufacturing Khandsari Sugar in the District of Muzaffarnagar, U.P. Under s. 114- of the U.P. District Boards Act X of 1922 a District Board had power to levy a tax on circumstances and property subject to certain conditions and restrictions. The powers of District Boards, under the aforesaid Act were by virtue of the U.P. Antarim Zila Parishad Act, 1958 conferred on the Parishads formed under the latter Act. The U.P. Antarim Zila Parishad Act 1958 expired on 31st December, 1959 but its life was extended to 31st December, 1960 by .Amending Act No. 1 1960 which received the assent of the Governor on January 5, 1960. When the taxing officer of the Antarim Zila Parishad Muzaffarnagar subjected the appellant to circumstances and property tax for 1959-60 the appellant filed a writ petition in the High Court contending inter alia that Amending Act No. 1 of 1960 could not continue the Act of 1958 because the latter had already expired on 31^st December, 1959 while the former received the consent of the Governor on January 5, 1960. The constitutionality of the taxing provisions was also challenged. The writ petition was dismissed by the High Court on the sole ground that the remedy by way of appeal under s. 128 of the District Boards Act 1922, had not been exhausted. The U.P. Kshetra Samitis and Zila Parishads Adhiniyam of 1961 (U.P. Act 32 of 1961) was passed in November, 1961. Acting under it the .taxing officer of the Zila Parishad subjected the appellant to circumstances and property tax for the year 1961-62 without giving any notice or inviting objections. In respect of this assessment also the appellant filed a writ petition in the High Court pleading denial of natural justice as well as challenging the constitutionality of the taxing provisions. This petition was also dismissed on the same ground as the earlier one. The appellant came to this Court.

JUDGMENT:  RAMASWAMI, V.  Judge

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 605 of 1966.

Appeal by special leave from the judgment and decree dated March 27, 1964 of the Allahabad High Court in Special Appeal No. 322 of 1964.

E.C. Agarwala and E. Udayarathnam, for the appellant.

M.C. Chagla and P.C. Agrawala, for the respondent.

The appellant is a partnership firm consisting of two brothers Lala Baburam and Shri Prakash Chandra, carrying on the business of manufacturing Khandsari sugar in the district of Muzaffarnagar. The partnership firm carries on its business through its two units (1) one located in the village Basera and run under the name and style of M/s. Baburam Ashok Kumar and (2) the other located in village Morna and run under the name and style of M/s. Baburam Prakash Chandra, both in the district of Muzaffarnagar. The case of the appellant was that the business of manufacturing Khandsari was seasonal and was carried on at both the places for less than 5 months in a year, i.e., from the month of November to the beginning of  April. Under the U.P. District Boards Act No. X of 1922, the District Board of Muzaffarnagar was empowered to levy tax under ss. 108 and. 114 in the rural area. Section 114 was to the following effect:

"The power of a board to impose a tax  on circumstances and property shall be subject to the following conditions and restrictions namely :--

The tax may be imposed on any person residing or carrying on business in the rural area provided that such person has so resided or carried on business for a total period of at least six months in the year under assessment.

The total amount of tax imposed on any person shall not exceed such maximum (if any) as may be prescribed by rule. Under s. 123 of that Act the matters relating to the assessment and collection of taxes were to be governed by rules framed under s. 172 of that Act. On March 1,. 1928, the Government of U.P. issued notification no. 315/LX-413 notifying the rules for the rules for the assessment and collection of a tax on circumstances and property in the rural area of the Muzaffarnagar district. The rules provided, among other matters, that all the activities of an assessee within the district, whether carried on under the same or different name, shall be considered in calculating the total amount to be assessed; and the tax shall be assessed by an Assessing Officer appointed by the District Board, and the list of assessment of the preceding year ending December 31, shall be completed on or before January 20, and shall be submitted to the Board which will return it by February 15 to the Assessing Officer for being revised and thereafter the Assessing Officer shah give notice of a date not less than one month when he will proceed to consider the objection. The assessee may file objections before the date fixed and thereafter the Assessing Officer shall allow the assessee an opportunity to be heard. Rule 16 read with Rule 2 fixed the maximum limit of the total amount of tax assessed on any person not to exceed Rs. 2,000/- in any year, having regard to all the activities of an assessee within the district whether carried on under the same or a different name. In the year 1950 the Constitution of India was promulgated and under el. 2 of Art. 276 the total amount payable in respect of any one person to the district board, local Board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum. On August 22, 1958, the U.P. Antarim Zila Parishad Act of 1958 (U.P. Act no. XXII of 1958) passed by the U.P. Legislature received the assent of the Governor and was published in the U.P. Gazette dated August 23, 1958. Clause (3) of s. 1 of the U.P. Antarim Zila Parishad Act, 1958 runs as follows :--

"It shall be deemed to have come into force on the 29th day of April, 1958, and shall expire on the 31st day of December, 1959."

But the Amending Act (U.P. Act no. 1 of 1960) received the assent of the Governor on January 5, 1960 whereby the figure 1960 was substituted in place of 1959 in el. (3) of s. 1 of U.P. Act XXII of 1958. The case of the appellant is that the original Act no. XXII of 1958 had expired on December 31, 1959 and as such could not be revived on January 5; 1960 when the Amending Act no. 1 of 1960 received the assent of the Governor and that fresh legislation was necessary. On March 20, 1960, a copy of the Assessment Order assessing the appellant to the maximum amount of Rs. 2,000/- as circumstances and property tax for the assessment year 1959- 60 was issued by the Antarim Zila Parishad Muzaffarnagar. The assessment order was issued by Shri O.P. Varma purporting to act as a Taxing Officer of the Antarim Zila Parishad. Aggrieved by the assessment order, the appellant filed a Civil Miscellaneous Writ Petition no. 1780 of 1960 in the Allahabad High Court challenging the authority of the respondent Antarim Zila Parishad to impose the tax and praying for the grant of a writ to quash the said assessment order. The writ petition was summarily dismissed on July 21, 1960 by Jagdish Sahai, J. on a preliminary point that the appellant had a right to appeal to the prescribed authority under s. 128 of U.P. Act no. X of 1922.

The appellant thereafter preferred a Special Appeal no. 452 of 1960 in the Allahabad High Court against the order of Jagdish Sahai, J. which was also dismissed on the ground that the appellant had an alternative remedy of appeal. During the pendency of the Special Appeal no. 452 of 1960, another new Act, namely the U.P. Kshetra Samitis and Zila Parishads Adhiniyam of 1961 (i.e., the U.P. Act no. XXXII of 1961).was passed by the U.P. Legislature and on November 29, 1961 received the assent of the President of India. The case of the appellant is that on January 15, 1962, without giving any notice or inviting any objections, the Taxing Officer Shri O.P. Verma passed the assessment order for 1961-62 in respect of the circumstances and property tax regarding the Basera Unit.

Being aggrieved by the two separate assessment orders of Rs. 2000/- each in respect of the two units of Morana and Basera for the years 1961-62, the. appellant filed again in the Allahabad High Court a writ petition no. 2371 of 1962 under Art. 226 of the Constitution. The writ petition was summarily dismissed by S. N. Dwivedi, 1. on, February 13, 1964. The appellanttook the matter in appeal in. Special Appel no. 322 of 1964 but the Special Appeal was dismissed by the Division Bench on March 27, 1964 on the ground’ that the appellant had not availed himself of the alternative remedy by way of appeal.

The present appeal is brought to this Court by special leave from the judgment of the Division Bench of the Allahabad High Court dated March 27, 1964 in Special’ Appeal no. 322 of 1964.

The sole argument presented on behalf of the appellant is that the High Court was in error in holding that an appeal under the U.P. District Boards Act no. X of 1922 was an adequate and efficacious remedy and that the appellant should have exhausted’ the statutory remedy before applying for a writ under Art. 226 of the Constitution.

It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. The Municipal Board, Kairana [1950] S.C.R. 566, "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere. in a writ petition unless there are good grounds therefore. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted”. In The State of Uttar Pradesh v. Mohammad Nooh  [1958] S.C.R. 595, 605, S.R. Das, C.J., speaking for the Court, observed:

"In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury’s Laws of England, 3rd Ed., Vol. II, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in ’ arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party. had other adequate legal remedies. In the King v. Postmaster-. General Ex parte Carmichael [1928 (1) K.B. 291] a certiorari was issued although the aggrieved party had and alternative remedy by way of appeal. It has been held’ that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read [1942 (1) K.B. 281] is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It Was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction."

There are at least two well-recognised exceptions to .the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.--(See the decisions of this Court in Carl Still G.m.b.H.v. The State Bihar  A.I.R. 1961 S.C. 1615 and The Bengal Immunity Co. Ltd. v. The State Bihar [1955] 2 S.C.R. 603. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice (See The State of Uttar Pradesh v. Mohammad Nooh [1958] S.C.R,. 595.

It is manifest in the present case that the appellant had alleged in the writ petition that the Taxing Officer had no authority to impose the tax and there was no validly constituted Antarim Zila Parishad after December 31, 1959. It was further alleged that ss. 114 and 124 of the U.P. District Boards Act no. X of 1922 violated Art. 14 of the Constitution as arbitrary power was granted to District Boards as well as the State Government to exempt any person or class of persons or any property or class of properties from the scope of the Act. There is also an allegation that the imposition of the tax violated the provisions of Art. 276 of the Constitution and that the Antarim Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/per annum prescribed in that Article. It was further contended on behalf of the appellant that the procedure for assessment of the tax was not followed and there was violation of the principles of natural justice. In view of the allegations of the appellant that the taxing provisions are ultra vires and that there was violation of the principles of natural justice, we think that the High Court was in error in summarily dismissing the writ petition on the ground that the appellant had an alternative remedy of statutory. appeal. It was contended by Mr. Chagla on behalf of the respondent that in dismissing the writ petition the High Court was acting in its discretion. But it is manifest in the present case that the discretion of the High Court has not been exercised in accordance with law and the judgments of the Division Bench dated March 27, 1964 and of the learned Single Judge dated February 13, 1964 summarily dismissing the writ petition are defective in law.

         For the reasons expressed we hold that this appeal must be allowed, the judgments of the Division Bench in Special Appeal no. 322 of 1964 dated March 27, 1964 and of the learned Single Judge dated February 13, 1964 should be set aside and Civil Miscellaneous Writ no. 2371 of 1962 should be restored to file and dealt with in accordance with law.

         There will be no order with regard to the costs of this appeal in this Court.

Appeal allowed.