COMMITTAL PROCEEDINGS

Dr. Bijaya Goswami And Ors. vs State Of Assam on 20 June, 2006

Equivalent citations: (2007) 2 GLR 509

Bench: B Sharma

Dr. Bijaya Goswami And Ors. vs State Of Assam on 20/6/2006

JUDGMENT

B.K. Sharma, J.
1. This criminal petition has arisen out of two orders passed by the learned CJM, Kamrup in respect of
committal of a case under Section 209 CrPC. While, by the first order, the learned CJM, Kamrup was of the
opinion that the case is not one to be tried under Section 304 (Part-II) IPC, by the second order the case has
been committed to the learned Sessions Court, Kamrup, Guwahati holding that the earlier order was an
inadvertent mistake. It is the second order, aggrieved by which, the petitioners who are the accused have
invoked the jurisdiction of this court under Section 482 CrPC seeking quashing of the said order.
2. Adverting to the facts of the case, the informant, represented by his learned Counsel in this proceeding had
lodged an FIR with the Panbazar Police Station on 25.10.2004 alleging that his wife Smt. Monorama Kakati
Bhuyan died in the operation theatre on 24.10.2004 due to the criminal negligence on the part of the Doctors
involved in the operation. The FIR was registered as Paltan Bazar R.S. case No. 347/2004 under Section
304(A)/34 IPC corresponding to G.R. Case No. 4308/2004.
3. The police took up the investigation of the case and in due course submitted the charge sheet No. 125/05
dated 24.10.2005 recording that a prima facie case under Section 304(II)/34 IPC has been established against
the accused/petitioners, and accordingly, they were sent for trial in the court of law under the aforesaid
provisions of IPC.
4. The learned CJM, Kamrup by his first order dated 16.2.2006 held that the relevant materials on record
established a case under Section 304(A)/34 IPC and that mentioning of Section 304(11) in the charge sheet
was an inadvertent mistake on the part of the IO. Accordingly, the charge under Section 304(A)/34 was read
over and explained to the accused petitioners to which they pleaded not guilty and claimed for trial. It appears
that the informant through his engaged counsel objected to this order and made there submissions opposing
the same on the ground that the learned CJM had no option than to commit the case to the Court of Sessions
in view of the provisions of Section 209 CrPC. The learned CJM fixed the matter on 9.5.2006 for further
consideration.
5. The matter was again taken up for hearing on 9.5.2006 and the learned CJM by his order passed has held
that the earlier order dated 16.2.2006 was passed inadvertently inasmuch as the charge sheet having been
submitted under Section 304(Part-II), the case should be committed to the Court of Session. Accordingly, he
has committed the case to the learned Sessions Judge, Kamrup, Guwahati fixing the matter on 16.6.2006. It is
this order, which is under challenge on the following grounds:
(i) The learned CJM could not have reviewed his order dated 16.2.2006 contrary to the provisions of CrPC.
(ii) The first order dated 16.2.2006 being the correct order, there was no occasion for the learned CJM to pass
the impugned order dated 9.5.2006.
(iii) The materials on record not having disclosed any offence under Section 304(Part-II), the learned CJM
rightly held so by his order dated 16.2.2006 and accordingly he was right in holding the case to be one under
Section 304(A)/34 IPC.

(iv) As per the provisions of Section 209 CrPC, the learned CJM is to exercise his judicial function towards
recording prima facie satisfaction as to the offence disclosed by the materials on record and not to act
mechanically.
6. Elaborating the above grounds of attack to the impugned order dated 9.5.2006, Mr. N. Choudhury, learned
Counsel representing the accused petitioners, in his persuasive pursuits submitted that while the learned CJM
rightly passed the earlier order dated 16.2.2006, committed a manifest error of law in passing the impugned
order dated 9.5.2006. He attacked the order both on technical ground as well as on the ground of merit.
Placing reliance on the following decisions, he submitted that the learned CJM could not have reviewed the
order, as such review is foreign to judicial proceeding and that the order dated 16.2.2006 having been passed
applying the principles underlying Section 209 CrPC, later on the impugned order dated 9.5.2006 could not
have been passed. The decisions on which Mr. Choudhury placed reliances are as follows:
Bindeshwari Prasad Singh v. Kali Singh Thakur Ram v. State of Bihar

Rajender Kumar Jain v. State through Special Police Establishment

Sri Jainal Mia v. State of Assam (1982) 1 GLR 614

7. Mr. B.S. Sinha, learned PP Assam, defending the impugned order submitted that the charge sheet having
prima facie disclosed an offence under Section 304(Part-II), the learned CJM committed no wrong in
committing the case to the learned Sessions Judge, Kamrup. He submitted that the technicalities must not
stand on the way to the correct procedure and principle as envisaged under Section 209 CrPC.
8. Mr. G.M. Paul, learned Counsel representing the informant also defended the impugned order. Referring to
the provisions of Section 323 CrPC, he submitted that the learned CJM was within his competence and
jurisdiction to commit the case to the Court of Sessions as it appeared to him on the basis of the materials on
record that the case should be tried by the Court of Sessions. He also placed reliance on Section 465 CrPC and
submitted that there is nothing wrong in reviewing the earlier order by the learned CJM. Referring to the
provisions of Sections 227 and 228 CrPC, he submitted that the case having been committed to the learned
Sessions Judge, Kamrup, Guwahati, the accused petitioners would get ample opportunity to have their say in
the matter of framing of charge and that the accused petitioners should now appear before the learned
Sessions Judge, instead of making challenge to the impugned order. He also submitted that this court lacks
jurisdiction in the matter. He placed reliance on the decision of the Apex Court as reported in 1996 Crl. L
(SC) 2523 Raj Kishore Prasad v. State of Bihar.
9. Whatever may be the arguments and counter arguments, in respect of the impugned order and the
maintainability or otherwise of the same, the basic question which falls for consideration is as to whether the
learned CJM on the face of the charge sheet framing the charge under Section 304(Part-II)/34 IPC, could
have, exercising the jurisdiction under Section 209 CrPC, diluted the same going deeper into the matter so as
to scrutinize the material on record towards holding that the case was under Section 304(A) and not under
Section 304(Part-II) as was done by order dated 16.2.2006. The other incidental grounds of attack in respect
of the subsequent order dated 9.5.2006 such as lack of power of review etc. would be of no consequence upon
answer to the basic question.
10. There is no manner of doubt that the charge sheet submitted by the IO vide charge sheet No. 125/05 dated
24.10.2005 mentioned the prima facie case under Section 304(II)/34 IPC. However, the learned CJM by his
order dated 16.2.2006 upon observation that Section 304(II) IPC is a section foreign to the IPC proceeded to
further examine the materials available on record and it was on that basis held that the case in fact was under
Section 304(A)/34 IPC. He even held that insertion of Section 304(II) IPC was an inadvertent mistake on the
part of the IO. The records do not reveal any such submission made on behalf of the prosecution and/or
ascertainment of such purported inadvertent mistake on the part of the IO. It was solely on the basis of the

crutiny of the materials by the learned CJM, Kamrup and his own conclusion that the case was not under
Section 304(Part-II) but was one of under Section 304(A).

11. Section 299 IPC deals with culpable homicide. As per the definition of which, whoever causes death by
doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely
to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide (emphasis added). The charge sheet having disclosed a prima facie case under Section
304(Part-II)/34 IPC with the statement of the same having been well established and with the prayer to send
the accused petitioners for trial under the said sections, the learned CJM exercising its jurisdiction under
Section 209 CrPC had no option than to commit the case to the Court of Sessions, the offence as disclosed in
the charge sheet being exclusively triable by the said court only. It is another thing that the Court of Session
exercising its jurisdiction under Section 227/ 228 CrPC is empowered either to discharge the accused or to
frame charge other than the charge on the basis of which the case is committed to him and if such charge is
triable by a court other than the Court of Session, he may transfer the case for trial to the Chief Judicial
Magistrate.
12. Before proceeding further, I first deal with the objection raised regarding maintainability of the instant
petition under Section 482 CrPC. It is in this context. Learned Counsel for the petitioners placed reliance on
the decision of the Apex Court in Thakur Ram (supra). In this case, the Apex Court observed that the law
gives a discretion to the revising authority and that discretion has to be exercised judicially. One of the factors
which has to be considered is whether the intervention of the revising authority was sought by the party at an
early stage. In the instant case immediately after the impugned order dated 9.5.2006, the accused petitioner
has invoked the jurisdiction of this court under Section 482 CrPC. Section 482 CrPC gives wide power and
jurisdiction to the High Court by way of inherent powers to make such orders as may be necessary to give
effect to any order under the Code, i.e., CrPC, or to prevent abuse of the process of any court or otherwise to
secure the ends of justice. Thus, irrespective of the legality or otherwise of the impugned order dated 9.5.2006
on technical ground, this court on the basis of the materials on record is empowered to give effect to any order
under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Thus,
I am of the considered opinion that the objection raised regarding maintainability of the criminal petition is
not sustainable.
13. As regards the plea of lack of review jurisdiction so as to pass the impugned order dated 9.5.2006 by way
of reviewing the earlier order dated 16.2.2006, suffice is to say that since this court has exercised its
jurisdiction under Section 482 CrPC, this aspect of the matter need not detain us, for, the ultimate test is what
should be the correct proposition of law and procedure in the given facts and circumstances of the case. In the
case of Bindeshwari Prasad Singh (supra) the Apex Court has held that the Magistrates do not possess
inherent power and, thus, cannot review or recall any order passed by them. This case need not detain us on
the issue as the matter is to be decided finally irrespective of the technical pleas and that such technical pleas
should not defeat the real judicial test involved in the present proceeding.
14. In the case of Rajender Kumar Jain (supra), the Apex Court dealing with the provisions of Section 209
CrPC observed as follows:
In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to
perform under the 1973 Code of Criminal Procedure. Section 209 of the Criminal Procedure Code, 1973
obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the
offence is triable exclusively by the Court of Sessions. Therefore, the Magistrate has to be satisfied that an
offence is prima facie disclosed and the offence so disclosed is triable exclusively by the court. If no offence
is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not
triable exclusively by the Court of Sessions he may proceed to deal with it under the other provisions of the
Code. To that extent the Court of the Sessions overrule the first submission of Shri Ram Panjwani. We do not
agree with the view taken by the High Court Andhra Pradesh in A. Venkatramana v. Mudam Sanjeeva


agudu, that the court of committing Magistrate is not competent to give consent to the Public Prosecutor to
withdraw from the prosecution.

15. In the same vein, this court in the case of Sri Jainal Mia (supra), while holding that it is not open to a
committing Magistrate under Section 209 CrPC to try to satisfy itself that a prima facie case on merits has
been made out and that such jurisdiction vests in the Sessions Judge under Section 227 CrPC, further
observed that such exercise cannot be like a despatch clerk on the analogy that if that was the function which
was sought to be assigned to the Magistrate under the new Code, the Parliament could have well provided that
in a case exclusively triable by a Court of Sessions, the charge sheet shall be submitted in that court. It is on
the basis of this case, learned Counsel for the petitioners strenuously argued that it is this exercise as
envisaged under Section 209 CrPC, which was carried out by the learned CJM while passing the order dated
16.2.2006 and, thus, he ought not to have reviewed the same by the impugned order dated 9.5.2006 so as to
mechanically commit the case to the Court of Sessions.
16. This court in another case as reported in 1990 Crl. LJ 6 State of Assam v. Hit Ram Deka held that if an
offence is triable exclusively by the Court of Sessions, the Magistrate has no power to discharge the accused,
but he shall have to commit the case in accordance with the provisions of Section 209 CrPC. Referring to
Section 209 CrPC under the new Code, it was held that the old procedure of committal inquiry in Sections
206 to 220 under the old Code was abolished. As soon as the accused appears before the Magistrate or is
brought before him and it appears to the Magistrate that the offence for which the accused has appeared or is
brought before him is exclusively triable by the Court of Sessions, the case shall be committed to the court of
Session. This court in the said case noticed the apparent distinction with regard to the commitment under the
old Code and the new Code and observed as follows:
6. If an offence is triable exclusively by the Court of Sessions, the Magistrate under the 1973 Code has no
power to discharge the accused, but he shall have to commit the case in accordance with the provision of
Section 209. Once the accused is charge sheeted to face trial for an offence exclusively triable by the Court of
Sessions, the Magistrate shall have no other option but to commit the case to the Court of Sessions for trial.
Even if it appears that distinct offences have been committed in the course of the same transaction. Some
triable by the Magistrate and some exclusively triable by the Court of Sessions, the case involving all the
offences shall have to be committed to the Court of Sessions for trial. In a case on a police report or otherwise
where some offence triable by the Magistrate alleged to have been committed by one set of accused and some
other offences exclusively triable by the Court of Sessions alleged to have been committed by another set of
accused, in the same occurrence or in the course of some transaction, the Magistrate cannot split the case but
shall have to commit the case as a whole to the Court of Sessions for trial. Once a Magistrate commits a case,
on the basis of charge sheet submitted by police, to the Court of Sessions, it does not prevent the Magistrate to
commit the case on complainant with regard to the same occurrence or offence ands also no detail inquiry is
necessary in such complaint case before passing the committal order, but the Sessions Judge shall consolidate
the two committal orders and true them as one case.
7. Under Section 209 the magistrate is merely to ascertain whether the case, as disclosed by the charge sheet,
appears to him to be an offence triable exclusively by the Court of Sessions. It is not open to him to satisfy
himself that a prima facie case has been made out on merit. If on a plain reading of materials on record it
appears to the judicial mind of the Magistrate that there exists an offence triable exclusively by a Court of
Sessions, then he has no option but to commit the case to the Court of Sessions. The committing court cannot
apply its mind to find out whether there is a prima facie case for a charge to go into trial. The Code has vested
this power exclusively to the Court of Sessions under Sections 227 and 228 either to discharge or charge the
accused to transfer the case to the Magistrate if in his opinion the offence is not exclusively triable by Court of
Sessions.
17. In the aforesaid case, the expression "it appears to the Magistrate" finding place in Section 209 CrPC has
been held to be not dependent upon the fact of sufficiency or insufficiency of the material. The particular


observation in this regard is quoted below:

8. The expression 'it appears to the Magistrate' does not connote satisfaction of the Magistrate. The normal
connotation of the word appears 'is seem' or 'to be in one's opinion'. Mere opinion of the Magistrate must
prevail. It does not depend upon the fact of sufficiency or insufficiency of the material. There is no scope for a
formal inquiry except to comply the formalities of Section 207 or 208, as the case may be, and shall formally
commit the case to the Court of Sessions.
9. Furnishing copies of document under Section 207 or 208, as the case may be, and passing the order of
committal under Section 209 are all judicial functions and not administrative. So, the proceeding before the
Magistrate, from the time the accused is produced or appeared before him, furnishing copies to the accused
under Section 207 or 208, and till the commitment order is passed, is an enquiry as contemplated by Section
2(g) of the Code. But the scope of this enquiry is very limited confining only to the matters in the sections.
Enquiry under Section 209 shall confine only with regard to production or appearance of the accused,
furnishing documents to the accused and committing the case to the Court of Sessions. The Magistrate shall
have no option nor discretion to assess the merit as to the availability of materials for a prima facie case or
offence for commitment.
18. In the case of Joginder Singh v. State of Punjab reported in (1979) 1 SCC 345 the Apex Court observed
that the commitment is of "the case" and not "the accused" whereas under the old Code it was "the accused"
who was committed and not "the case". Thus, when a case is committed to the Court of Sessions in respect of
an offence the Court of Sessions takes cognizance of the offence and not the accused. In Sanjay Gandhi v.
Union of India the Apex Court observed that it is not open to the committal court to launch on a process of
satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested on him
under the earlier Code, but has been eliminated under the new Code. Therefore, he cannot go into the merits
even for a prima facie satisfaction to frustrate the Parliament's purpose in remolding Section 207A of the old
Code into its present non-discretionary shape. The Apex Court stated, thus:
Secondly, it is not open to the committal court to launch on a process of satisfying itself that a prima facie
case has been made out on the merits. The jurisdiction once vested in him under the earlier Code has been
eliminated now under the present Code. Therefore, to hold that he can got into the merits even for a prima
facie satisfaction is to frustrate the Parliament's purpose in re-moulding Section 207A (old Code) into its
present non-discretionary shape. Expedition was intended by this change and this will be defeated
successfully if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our
view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him
merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an
offence triable solely by the Court of Sessions. Assuming the facts to be correct as stated in the policed report,
if the offence is plainly one under Section 201 IPC the Magistrate has simply to commit for trial before the
court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri
Mulla submits if the Magistrate's jurisdiction were to be severely truncated like this the prosecution may stick
a label mentioning a Sessions offence (if we may use that expression for brevity's sake) ex facie innocence.
There is no merit in this contention. If made-up facts unsupported by any material are reported by the police
and a Sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 CrPC to
discharge the accused. This provision takes care of the alleged grievance of the accused.

19. In the case of State of UP v. Lakshmi Brahman
dealing with the question as to how the Magistrate is to deal with the accused forwarded to him with the
police report under Section 170 CrPC and the police report discloses an offence exclusively triable by the
Court of Sessions, the Apex Court observed that no order committing the accused to the Court of Sessions can
be made under Section 209 unless the Magistrate fully complies with the provisions of Section 207. The
statutory obligation of supplying the various documents set out in Section 207 read with Section 209 CrPC is


a judicial obligation and it is not an administrative function. It is a judicial function, which is to be discharged
in a judicial manner. The whole emphasis of the Apex Court was on the procedural part in respect of
supplying the documents, etc., and thereafter the role of the Magistrate to commit the case to the Court of
Sessions if the same is triable by the said court only.

20. The decision on which, the learned Counsel for the informant has placed reliance, i.e., Raj Kishore Prasad
(supra) really clinches the basic issue with which we are concerned. Although that was a case relating to
addition of another person as accused in addition to one facing commitment, the basic issue as to the power
and jurisdiction of the Magistrate under Section 209 CrPC has also been answered. Referring to the Law
Commission Report by which change in respect of procedure of commitment was recommended, the Apex
Court observed as follows:
11. The present Section 209 is, thus, the product of the aforesaid expert deliberation followed by legislative
exercise. It is, thus, to be seen prominently that preliminary inquiries then known as "committal proceedings"
have been abolished in cases triable by a Court of Sessions. The functions left to be performed by the
Magistrate, such as granting copies preparing the records, notifying the Public Prosecutor, etc., are, thus,
preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of
a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case
before the Court of Sessions, rather than being an adjudicator. It is, thus, manifest that in the sphere of the
limited functioning of the Magistrate, no application of mind is required in order to determine any issue
raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truth fulness of any version.
The role of the Magistrate, thus, is only to see that the package sent to the Court of Sessions is in order, so that
it can proceed straightaway with the trial and that nothing is lacking in content, as per requirement of Sections
207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely
within the ambit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that
"inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a court",
because of the preclude of its being "subject to the context otherwise requiring". As said before, the context
requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion
based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done
away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209,
Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need
be added or subtracted to face trial before the Court of Sessions.
16. Thus, we come to hold that the power under Section 209, CrPC to summon a new offender was not vested
with a Magistrate on the plain reading of its test as well as proceedings before him not being an 'inquiry' and
material before him not being 'evidence'. When such power was not vested, his refusal to exercise it cannot be
corrected by a Court of Revision, which may be the Court of Sessions itself awaiting the case on commitment,
merely on the specious ground that the Court of Sessions can, in any event, (sic) the accused to stand trial,
alongwith the accused meant to be committed for trial before it. Presently it is plain that the stage for
employment of Section 319 Cr.P.C. has not arrived. The order of the Court of Sessions requiring the
Magistrate to arrest and logically commit the appellant alongwith the accused proposed to be committed to
stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add
a person as accused under Section 319 Cr.P.C. when handling a matter under Section 209, Cr.P.C, the Court
of Sessions, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the
outset is answered accordingly in this light. When the case comes after commitment to the Court of Sessions
and evidence is recorded, it may then in exercise of its powers under Section 319, Cr.P.C. on the basis of the
evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the
purpose, to stand trial along with the accused committed, providing him the necessary safeguard envisaged
under Sub-section (4) of Section 319. Such course is all the more necessary in the instant case when
expressions on merit have extensively been made in the orders of the Magistrate, the Court of Sessions and
that of the High Court. Any other course would cause serious prejudice to the appellant. We order
accordingly.

21. The preliminary enquiry prescribed under the old Code found to have served no useful purpose and on the
contrary involved a great deal of infructuous work causing delay in the trial of serious cases. The procedure
instead of solving problems created fresh problems. In a case exclusively triable by a Court of Sessions, the
preliminary enquiry, was, therefore, dispensed with in the new Code. However, provisions have been made
for performing certain preliminary functions like granting copies, preparing the record, notifying the public
prosecutor, etc. If the committing Magistrate has no power to discharge the accused, he has also no power to
alter the charge unless it is shown that a wrong section has been quoted.
22. In the 'instant case, the learned CJM, Kamrup initially proceeded with the matter on the notion that
Section 304(II) is foreign to IPC. Thereafter, he went on to scrutinize the materials on records so as to come to
the conclusion that the case was under Section 304(A)/34 IPC. As has been held in the aforesaid cases, no
duty was enjoined on the learned CJM within the parameters of Section 209 CrPC to embark upon an enquiry
as to the real test of the charge to be framed against the accused petitioners. The provisions of Section 304 are
conveniently referred to as Part-I and Part-II. It is in this context, the charge sheet referred to Section 304 as
Section 304(11). The relevant provisions have been quoted above. If upon investigation and furnishing of
report, the IO was of the opinion that the prima facie offence disclosed is under Section 304(Part-II), it was
not within the jurisdiction of the learned CJM to scrutinize the materials like that of the task enjoined towards
framing of charge to conclude that the offence constituted is one under Section 304(A).
23. Possibly, realizing the inherent lack of jurisdiction, the learned CJM, Kamrup passed the impugned order
dated 9.5.2006 correcting himself to the correct procedure envisaged under Section 209 CrPC. As to whether
such a course of action could have been taken by him by way of review of his own order, need not detain us as
the matter has been discussed in detail relating to true import and purport of Section 209 CrPC. Eventually,
with the passing of the impugned order dated 9.5.2006, the learned CJM has upheld the principles underlying
Section 209 CrPC. Even after committal of the case to the learned Sessions Judge, Kamrup, Assam, the
accused petitioner will get ample opportunity to plead that they are entitled to get discharge and/or it is not a
case under Section 304 (Part-II) but is one under Section 304(A). This power and jurisdiction vested on the
learned Sessions Judge under Section 227/228 CrPC cannot be divested of in the manner and method as was
sought to be done by the learned CJM by passing the order dated 16.2.2006. However, he has corrected
himself by passing the impugned order dated 9.5.2006 and I am of the considered opinion that no interference
is called for to the same. This process I have adopted exercising the power under Section 482 CrPC to secure
the ends of justice.
24. The criminal petition is answered in the above manner. The learned Sessions Judge, Kamrup shall now
proceed with the matter in accordance with law. The accused petitioners shall appear before him. Needless to
say that they will be entitled to all the protections of law as envisaged under the relevant provisions of law.
25. The criminal petition stands disposed of in terms of the above order.
26. Before parting with the case records, I place on record my appreciation for the services rendered by Mr. K.
Agarwal, learned advocate towards assisting the court.

SECTION 209 CODE OF CRIMINAL PROCEDURE SCOPE

Dinesh Chander vs The State And Anr. on 6 November, 1978

Equivalent citations: 15 (1979) DLT 88

Bench: M Jain

Dinesh Chander vs The State And Anr. on 6/11/1978

JUDGMENT

M.L. Jain, J.
(1) On July 17, 1974, one Ramesh Chand lodged a report that while he was going with his brother Anurag
Kumar in Tilak Bazar, the accused persons four in number attacked them with knife with the result that
Ramesh Chand received a knife injury on the wrist and a scratch on his neck and Anurag Kumar suffered six
simple hurts. The police after investigation challaned the accused under sections 307/324/34 Indian Penal
Code The learned Magistrate purporting to act under section 209 Criminal Procedure Code held that the case
under section 307 Indian Penal Code , an offence exclusively friable by the court of session, was not made out
and he proceeded to try the case under section 324 read with section 34 I.P.C. Ramesh Chand thereupon filed
a criminal revision in the court of session, The learned Addl. Sessions Judge by his order dated January
12,1977, held that the Magistrate cannot appreciate the evidence. He is merely tosee if from the report of the
police under section 173 Criminal Procedure Code and the statements of the witnesses, a case friable by the
court of session is made out or not. But, the Magistrate proceeded to appreciate the evidence and legal
position involved in the case about the nature of injuries and other circumstances which he had no jurisdiction
to do. He held that from the statement of the complainant, a clear case under section 307 Indian Penal Code
was made out. At the stage of charge, even the Sessions Judge cannot appreciate the evidence to the extent the
learned Magistrate did. The complainant had specifically stated that the accused had called out that they
would not allow the victims to leave alive displaying thereby an intention to murder. The learned Addl.
Sessions Judge, therefore, set aside the order of the learned Magistrate and directed him to commit the case to
the court of session. The accused Dinesh Chand has filed this revision. I have heard the arguments.
(2) In Sanjay Gandhi v. Union of India and others , the Supreme Court explained the scope of section 209
Criminal Procedure Code as follows :"
IT is not open to the committal court to launch on a process of satisfying itself that a prima facie case has
been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been
eliminated now under the present Code. Therefore, to hold that he can go in to the merits even for a prima
facie satisfaction is to frustrate the. Parliaments purpose in remoulding S.207-A (old Code) into its present
non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if
interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the
narrow inspection hole through Which the coammitting Magistrate has to look to the case, limits him merely
to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence
friable solely by the Court of Sessions. Assuming the facts to be correct as stated in the police report, if the
offence is plainly one under S. 201 Indian Penal Code the Magistrate has simply to commit for trial before the
Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri
Mulla submits if the Magistrate's jurisdiction were to be severaly truncated like this the prosecution may stick
a label mentioning a sessions offence (if we may use that expression forbrevity's sake) and the accused will be
denied a valueable opportunity to prove his ex facie innocence. There is no merit in this contention. If
made-up facts unsupported by any material are reported by the police and a sessions offence is made to
appear, it is perfectly open to the Sessions Court under S. 227 Criminal Procedure Code to discharge the
accused. This provision takes care of the alleged grievance of the accused."

(3) From the aforesaid observations, the following propositions emerge

Dinesh Chander vs The State And Anr. on 6 November, 1978

1.IT is not open to the committal court to hold a dress rehearsal of a trial or to launch on a process of
satisfying itself that a prima facie case has been made out on the merits.

2.The Magistrate can ascertain whether the case as disclosed by the police report assuming the facts to be
correct, shows if the offence is plainly one exclusively friable by the court of session.

3.If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect, but if made-up facts
unsupported by any material are reported by the police and a sessions offence is made to appear, then it is for
the court of session under section 227 Criminal Procedure Code to discharge the accused.

4.It, therefore, follows that the Magistrate while ascertaining whether the facts as disclosed in the police report
prima facie constitute an offence exclusively friable by the court of session, cannot go into its merits. The
learned Addl. Sessions Judge has rightly observed that the Magistrate went into the merits of the case and thus
left the limits of his Jurisdiction. That being so, the learned Addl. Sessions Judge was Justified in setting aside
the order of the learned Magistrate and in directing him to commit the case to the court of session. The
revision petition is, therefore, dismissed.

SECTION 209 CODE OF CRIMINAL PROCEDURE SCOPE

Saleha Khatoon vs State Of Bihar And Ors. on 28 April, 1988

Equivalent citations: 1988 (36) BLJR 678

Bench: L Shahadeo

Saleha Khatoon vs State Of Bihar And Ors. on 28/4/1988

JUDGMENT

L.P.N. Shahdeo, J.
1. This application under Section 482 of the Code of Criminal Procedure is directed against the order dated
18-12-87 passed by the Sri B. B. Verma, Subdivisional Judicial Magistrate, Sitamarhi (West) in G. K. Case
No. 11/86 (T.R.No. 994/87). It appears that a complaint case was filed before the Sub-divisional Judicial
Magistrate on 5-12-87 stating therein that the complainant was alone in her house. The opposite party No. 2
came to her house and induced her to work as maid servant. The petitioner worked as maid-servant and,
thereafter, on the pretext of marriage, the opposite party No. 2 committed rape on her and, thereafter, he
refused to marry. Ultimately it was detected that the accused opposite party No. 2 was a married person
having children. It was detected that the complainant lady was also married lady. The petition of complaint
was referred to the police for investigation. The police registered a case under Section 376 and 498 of the
Indian Penal Case and ultimately submitted charge sheet against opposite party No. 2 i.e. the accused at the
close of the investigation. ,
2. It appears that the learned Magistrate had taken cognizance of the offence under Section 376 and 498 of the
Indian Penal Code and, thereafter, it appears, the learned Magistrate, by the impugned order, decided to
proceed for trial of the case against the opposite party No. 2 under Section 498 of the Penal Code and declined
to commit him u/s 376 Indian Penal Code to the court of Session under Section 209 of the Cr.P.C. This order
refusing to commit the opposite party No. 2 Jafar Alam, to the Court of Sessions to face charge under Section
376 of the Penal Code is the subject of quashing in this case.
3. It was contended on behalf of the petitioner-lady, Saleha Khatoon that opposite party No. 2, under false
pretext and allurement that he would marry her, committed perpetual rape on her in between 20-4.85 to
28-11-85 though he was a married person having family life and children.
4. Both the parties have argued at length with respect to the scope of Section 209 of the Code of Criminal
Procedure. Learned counsel appearing on behalf of opposite party No. 2 has drawn my attention towards the
necessary ingredients to constitute an offence of rape as enumerated under Section 375 of the Penal Code,
5. It is true that the learned Magistrate is not supposed to act blindly within the scope of Section 209 of the
Cr.P.C. but he is vested with limited discretion to consider limited matters which have been well described in
a judgment of the Supreme Court reported in 1978 Cr.L.J. 642 that the learned Magistrate has scope to creep
through narrow hole to find out whether a prima facie case is made out for commitment or not.
6. In this case during the course of police investigation the police had also that a case under Section 386 of the
Penal Code along with a case under Section 498 of the Penal Code was made out and in consequence of that
chargesheet was submitted at the close of the investigation. The chargesheet which is on the record, shows
that opposite party No. 2 on giving false assurance and allurement that he would marry with the petitioner ,
developed sexual connection with her. The ordersheet of the learned Magistrate, after receipt of the
chargesheet which he passed on 5-7-86, shows that he had perused the chargesheet, the case diary and all the
materials available and, therefore, being satisfied on the materials placed before him and after applying his
judicial mind, took cognizance of the offence under sections 376 and 498 of the Penal Code So, at this stage,
the learned Magistrate, on application of the judicial mind, was satisfied that a case under Section 376 of the
Penal Code was made out which was exclusively triable by the court of Sessions. Therefore, on the facts and
Indian Kanoon - http://indiankanoon.org/doc/1760624/

circumstances stated above, prima facie a case under Section 376 of the Penal Code, according to the own
appraisal of the evidence by the learned Magistrate, was established and it is so, the learned Magistrate was
bound to commit the case to the court of Sessions within the scope of Section 209 of the Cr.P.C.

7. The next important point which requires consideration and determination is with regard to the ingredients
necessary to constitute an offence of rape. The ingredients necessary to constitute an offence of rape. The
illustrated in Section 375 of the Penal Code which indicates that if sexual inter course is done without her
consent and if consent is obtained when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or believes herself to be lawfully married is
rape.
8. Much was argued on behalf of opposite party No. 2 that in this case none of the ingredients aforesaid, prima
facie, establish to show that an offence of rape was committed. The first point which attracts my attention is
the second ingredient without her consent'. Consent always means free will or voluntary act. In this case
consent was obtained on the basis of some fraud and allurement or practising deception upon the lady on the
pretext that ultimately she will be married and under that pretext she allowed opposite party No. 2 to have
sexual intercourse with her. Therefore, this tainted consent or a consent of this nature which is based on
deception and fraud, cannot be termed, prima facie, to conclude that it was 'with consent'. Had the lady known
that ultimately she would be deserted, the facts and circumstances stated above and the materials placed
would go to show that she would have refrained giving such consent. Then a question would arise what was
the purpose for which she gave consent. It was a fraud that was practised on her or she was deceived by giving
false assurance. Such type of consent must be termed to be consent obtained without her consent. Consent
obtained by deceitful means is no consent and comes within the ambit of ingredients of the definition of rape.
9. The next ingredients which arises in this case is that the opposite party No. 2 never pretended himself that
he was the husband of the lady or a married man but always pretended to the extent that he would become her
husband and proposed her to marry. This shows that he had given a false impression that if she allows to
cohabit or permits him to have sexual intercourse, she would be married and he would treat her as her married
wife. Without discussing much into the matter and probing further deeply into the case- prima facie, suffice it
to say that this part of ingredient is also attracted to make out a case of rape. The detailed discussion is
required during the course of trial. No body should be allowed to reap the benefits of his fraud in sexual
matter.
10. Whether a case of Section 376 of the Penal Code is made out or not is yet available for determination and
argument on behalf of the opposite party No. 2 at the stage of framing of the charge before the court of
Session under the provisions of Section 227 of the Code of Criminal Procedure. So, the opposite party No. 2
is, in no way, being put to any hardship if he is committed to the court of Sessions to face his trial because at
this stage the matter cannot be investigated and tried and it is yet to be seen at the appropriate stage. In the
circumstance, the refusal by the learned Magistrate to commit him to the court of Sessions has resulted in
miscarriage of justice.
11. The scope of Section 269 Cr.P.C. is narrow and limited one. The Magistrate is not required to balance and
weigh the evidence as the trial court. He is required to apply his judicial mind for consideration as to whether
case for commitment to the court of Sessions for trial is made out or not if materials and facts are available on
record or diary remain unrebutted. If Such a case is made out, he is to commit the case for trial to the out of
Sessions. In the instant case, the Magistrate in 7 pages' order discussed all the materials in detail as if holding
a full dress trial which is beyond the scope of an . enquiry under Section 209 of the Code of Criminal
Procedure. In this view of the matter also, his order cannot sustain.
12. For the reasons aforesaid, this application is allowed and the impugned order passed by the learned
Magistrate is set aside and he is directed to commit opposite party No. 2 to the court of Sessions to face his
trial.

BAIL OR JAIL- JUDICIAL DISCRETION

Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of ... on 6 December, 1977

Equivalent citations: 1978 AIR 429, 1978 SCR (2) 371
Bench: Krishnaiyer, V.R.
PETITIONER:
GUDIKANTI NARASIMHULU AND ORS.
Vs.
RESPONDENT:
PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH
DATE OF JUDGMENT06/12/1977
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
CITATION:
1978 AIR 429 1978 SCR (2) 371
1978 SCC (1) 240
CITATOR INFO :
RF 1980 SC1632 (28,32)
R 1984 SC1503 (9)
ACT:
Bail-Grant of bail-Practice and Procedure in the matter of granting of bail to an accused person pending the


hearing of an appeal--Guidelines for granting bail-Order XLVII Rule 6 r/w Order XXI Rules 6 and 27 of the


Supreme Court Rules, 1966.

HEADNOTE:
The petitioners who were convicted by the Andhra Pradesh High Court for the offences u/ss. 148, 302, 302J
149 I.P.C., in an appeal by the state against their acquittal, surrendered themselves to curial custody as
required under Order XXI of the Supreme Court Rules 1966, before preferring the statutory appeal u/s 2(c) of
the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 28 of 1970 r/w S. 379 Crl. P. C.
1973. They were on bail at the trial and appellate stages and were also on parole after their surrender pursuant
to the High Court Judgment. Allowing their bail petition the Court,

HELD : 1. The issue of "Bail or Jail"-at the pretrial or post-conviction stage-although largely hinging on
judicial discretion, is one of liberty, justice, public safety and burden of the public treasury, all of which insist
that a developed jurisprudence of bail is integral to a socially sensitized judicial process. [372 G]

2.Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of
"procedure established by law". The last four words' of Art. 21 are the life of that human right. [373 A] 3.The
significance and sweep of Art. 21 make the deprivation of liberty, ,ephemeral or enduring, a matter of grave
concern and permissible only when the law authorising it is reasonable, even handed and geared to the goals
of community good and State necessity spelt out in Art. 19. Reasonableness postulates intelligent care and
predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests
of justice to the individual involved and society affected. [376 D-E] 4.All deprivation of liberty is validated by
social defense and individual correction along an anti criminal direction. Public justice is central to the whole
of bail law fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices
to redeem the man, even through community service, meditating drill, study classes or other resources should
be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or
committing offences while on judicially sanctioned "free enterprise" should be provided against. No seeker of
justice shall play confidence tricks on the court or community. Conditions may be hung around bail orders not
to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial
discretion correlated to the values of our constitution.[376 H, 377 A]

5.The principal rule to guide release on bail should be to secure the presenceof the applicant who seeks to be
liberated, to take judgment and serve sentence in the event of the court punishing him with imprisonment. In
this perspective, relevance of considerations is regulated by their nexus with the likely absence of the
applicant for fear of a severe sentence. [375 C-D]

6.The vital considerations are :-(a) The nature of charge, the nature of the evidence and, the punishment to
which the party may be liable, if convicted, or conviction is confirmed. When the crime charged is of the
highest 11-1114SCI/77

magnitude and the punishment of it assigned by law is of extreme severity, the court may reasonably presume,
some evidence warranting that no amount of bail would secure the presence of the convict at the stage of
judgment, should he be enlarged; (b) whether the cause of justice would be thwarted by him who seeks the
benignant jurisdiction of the court to be freed for the time being (c) Antecedents of the man and
socio-geographical circumstances; and whether the petitoner's record shows him to be a habitual offender; (d)
when a person, charged with a grave offence has been acquitted at a stage, the intermediate acquittal has
pertinence to a bail plea when the appeal before this court pends. The ground for denial of provisional release,
becomes weaker when a fair finding of innocence has been recorded by one court; (e) Whether the accused's
safety may be more in prison than in the vengeful village where feuds have provoked the violent offence and

(f) the period in prison already spent and the prospect of delay in the appeal being heard and disposed of. [374
G-H. 375 D, E, H, 376 A, B, C,E, V, 377 B-H]
7.Courts should soberly size up Police exaggerations of prospective misconduct of the accused, if enlarged,
lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and
police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not
stampede the court into a complacement refusal. [377 D-E]

8.To answer the test of reasonableness, subject to the need for securing the presence of the bail applicant the
court must also weigh the contrary factors viz. (i) the better chances which a man on bail has to prepare or
present his case that are remanded in custody, (ii) promotion of public justice, (iii) the considerable public
expense in keeping in custody where no danger of disappearance or disturbance can arise and (iv) the

deplorable condition, verging on the inhuman of our sub-jails. [376 E-G] 9.In the instant case, in view of the
circumstances that (a) the petitioners were free when on bail during the trial and free when on parole by the
state, (b) they did not abuse the trust reposed by the court or the State during the said periods, (c) they were
acquitted by the trial court (d) four other fellow accused were enlarged on bail (e) they have suffered
imprisonment around a year and (f) a reasonable prediction of the time of the hearing of the appeal may take
the court to a few years ahead, the court directed the petitioners to be enlarged on bail on terms. [378 C-H]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Misc. Petition No.1443 of 1977.

(APPLICATION FOR BAIL)

P.Ram Reddy and M. S. Rana Rao for the Appellants. G. N. Rao for the Respondent.

ORDER

KRISHNA IYER, J. "Bail or jail?”- at the pre-trial or post- conviction stage-belongs to the blurred area of the
criminal justice system and largely binges on the hunch of the bench, otherwise called judicial discretion. The
Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is
one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed
Jurisprudence of bail is integral to a socially sensitized judicial process. A Chamber judge in this summit court
I have to deal with this unanalyzed case flow, ad hoc response to the docket being the flickering candle light.
So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped or discretion.
Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized
under Art. 21

that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for
the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on
occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused
or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last
four words of Art. 21 are the life of that human right. The doctrine of Police Power, constitutionally validates
punitive processes for the maintenance of public order, security of the State, national integrity and the interest
of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom,
ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives
of society, specified in the Constitution.

What, then, is 'judicial discretion' in this bail context? In the elegant words of Benjamin Cardozo. "The judge,
even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant
roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He
is to exercise a discretion informed by tradition, methodized by analogy, disciplined. by system, and
subordinated to 'the primordial necessity of order in the social life. Wide enough in all conscience is the, field
of discretion that remains."

The Nature of the Judicial Process-Yale University Press, (1921)].

Even so it is useful to notice the tart terms of Lord Camden that


the discretion of a judge is the law of tyrants : it is always unknown, it is different in different men; it is
casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it
is every vice, folly and passion to which human nature is liable . . ." (I Bovu. Law Dict., Rawles' III Revision

p. 885-quoted in Judicial Discretion-National College of the State Judiciary, Reno, Nevada p. 14).
Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vesting of
discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it
will remember that "discretion, when applied to a court of justice, means sound discretion guided by law. It
must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular."

(Attributed to Lord Mansfield, Tingley v. Bolby, 14 N.W. 145)

"An appeal to a judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not
in opposition to, but in accordance with, established principles of law."

[Judicial Discretion, (ibid) p. 33]

Having grasped the core concept of judicial discretion and the constitutional perspective in which the court
must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for
grant or refusal of bail in the case of a person who has either been convicted and has appealed or one whose
conviction has been set aside but leave has been granted by this Court to appeal against the acquittal. What is
often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending
trial or disposal of an appeal. Lord Russell, C.J., said :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the,
magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail
are merely to secure the attendance of the prisoner at trial."

(R.v Rose-1898 18 Cox CC. 717; 67 LJQD 289 quoted in The Granting of Bail', Mod. Law Rev. Vol. 81, Jan.
1968 p. 40, 48).
This theme was developed by Lord Russell of Killowen C.J., when he charged the grand jury at Salisbury
Assizes, 1899 : it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless
there were strong grounds for supposing that such persons would not appear to take their trial. It was not the
poorer classes who did not appear, for their circumstances were such as to tie them to the place where they
carried on their work. They had not the golden wings with which to fly from justice." [(1899) 63 J.P. 193,
Mod. Law, Rev. p. 49 ibid].

In Arch bold it is stated that

"The proper test of whether bail should be granted or refused is whether it is probable that the defendant will
appear to take his trial....

The test should be applied by reference to the following considerations :

(1) The nature of the accusation.
(2) The nature of the evidence in support of the accusation.
(3) The severity of the punishment which conviction will entail...

(4) Whether the sureties are independent, or indemnified by the accused person. . . . . " (Mod. Law Rev. ibid.
p. 53-Archbold, Pleading Evidence and Practice in Criminal Cases, 36th edn., London, 1966 para 203)
Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Art. 21 and
19 before following diffuse observations and practices in the English system. Even in England there is a
growing awareness that the working of the bail system requires a second look from the point of view of
correct legal criteria and sound principles, as has been pointed out by Dr. Bottomley. (The Granting of Bails :
Principles and Practices : Mod. Law Rev. ibid, p. 40 to 54).

Let us have a glance at the pros and cons and the true principle around which other relevant factors must
revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a
different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail
should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve
sentence in the event of the court punishing him with imprisonment. In this perspective, relevance of
considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence,
if such be plausible in the case. As Erle J. indicated, when the crime charged (of which a conviction has been
sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the
court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence
of the convict at the stage of judgment, should he be enlarged. (Mod. Law Rev. p. 50 ibid, 1852 I. E. & B. 1).
Lord Campbell CJ concurred in this approach in that case and Coleridge J. set down the order of priorities, as
follows : "I do not think that an accused party is detained in custody because of his guilt, but because there are
sufficient probable grounds for the charge against him as to make it proper that he should be tried, and
because the detention is necessary to ensure his appearance at trial. It is a very important element in
considering whether the' party, if admitted to bail, would appear to take his trial; and I think that in coming to
a determination on that point three elements will generally be found the most important : the charge, the
nature of the evidence by which it is supported, and the punishment to which the party would be liable if
convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the
prisoners of the truth of the charge, and the punishment of the offence is, by law, death."

(Mod. Law Rev. ibid, p. 50-51)

It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is
pertinent. The punishment to

376

which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

Another relevant factor is as to whether the, course of justice would be thwarted by him who seeks the
benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, The Criminal Prosecution in
England London 1960 p. 75-Mod. Law Rev. ibid p. 50.]

Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering
with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but
rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he
has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail.
In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the, bailee to
exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of
evidence. about the criminal record of a defendant, is therefore not an exercise in irrelevance.

The significance and sweep of Art. 21 make the deprivation of liberty 'a matter of grave concern and
permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community
good and State necessity spelt out in Art. 19. Indeed, the considerations I have set out as criteria are germane
to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that
deprivation of freedom- by refusal of bail is not for punitive purpose but for the bi-focal interests of justice-to
the individual involved and society affected.

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the
presence, of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or
present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention
should be close to ours, the function of bail is limited, 'community roots' of the, applicant are stressed and, after
the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public
expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible
consideration. Equally important is the deplorable condition, verging on. the inhuman, of our sub jails, that the
unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and
a Policy favoring release justly sensible.

A few other weighty factors deserve reference. All deprivation of liberty is validated by social defense and
individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law.
Fleeting justice must be forbidden but punitive harshness should be minimized. Restorative devices to redeem
the man, even, through community service, meditative drill, study classes or other resources should be
innovated, and playing foul with public peace by

tampering with evidence, intimidating witnesses or committing offence while on judicially sanctioned 'free
enterprise,' should be provided against. No seeker of justice shall play confidence tricks on the court or
community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic
jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our
constitution.

Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with
a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the
appeal before this Court pends ? Yes, it has. The panic which might prompt the accused to jump the gauntlet
of justice is less, having enjoyed the confidence of the court's verdict once. Concurrent holdings of guilt have
the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares
us in the face that a fair finding-if that be so of- innocence has been recorded by one court. It may not be
conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if
enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where
feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical
circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the
accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the
discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail
plea are admissible in principle but shall not stampede the court into a cornplacent refusal. Realism is a
component of humanism which is the heart of the legal system. We come across cases where parties have
already suffered 3, 4 and in one case (the other day it was unearthed) over 10 years in prison. These persons
may perhaps be acquitted-difficult to guess. If they are, the injustice of innocence long in rigorous
incarceration inflicted by the protraction of curial processes, is an irrevocable injury. And, taking a pragmatic
view, while life imprisonment may, in law, last a whole life, in practice it hardly survives ten years, thanks to
rules of remission. Thus, at the worst, the prisoner may have to sere some more years, and, at the best, law is
vicariously guilty of dilatory deprivation of citizen's liberty, a consummation vigilantly to be vetoed. So, a
circumstance of some consequence, when considering a motion for bail, is the period in prison already spent



Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of ... on 6 December, 1977

and the prospect of the appeal being delayed for hearing, having regard to the suffocating crowd of dockets
pressing before the few Benches.

It is not out of place to mention that if the State takes up a flexible attitude it may be possible to permit long
spells of parole, under controlled conditions, so that fear that the full freedom if bailed out, might be abused,
may be eliminated by this experimental measure, punctuated by reversion to prison. Unremitting insulation in
the harsh and hardened company of prisoners leads to many unmentionable vices that humanizing interludes
of parole are part of the compassionate constitutionalism of our system. 378

The basics being thus illuminated, we have to apply them to the tangled knot of specifics projected by each
case. The delicate light of the law favors release unless countered by the negative criteria necessitating that
course. The coffective instinct of the law plays upon release orders by strapping on to them protective and
curative conditions. Heavy bail from poor man is obviously wrong. Poverty is society's malady and sympathy,
not sternness, is the judicial response.

In this jurisprudential setting, I take up each case. Detailed ratiocination is not called for, since I have
indicated the broad approach. And, for a bail order-Once awareness of matters of relevance is assured-the
briefer the better, and prolixity may be fraught with unwitting injury. The focus is on personal freedom,
barricaded or banned when it turns a menace to the fair administration of justice which is the foundation of a
free society. The reasons which I have set out at great length which in my view bear upon the grant or refusal
of bail warrant enlargement of the petitioners in the facts of the present case. If is a fact that he has been
acquitted along with others in the trial court although that acquittal has been set aside in the High Court.
Further, there is no suggestion possible that during the time they were on bail-and they were free during the
pendency of the trial and when the appeal was pending in the High Court-that they abused the trust reposed by
the Court allowing them to be at large. Moreover, four of the fellow accused have been already enlarged on
bail by this Court and an attempt at cancellation thereof rebuffed.

The petitioners have suffered imprisonment around a year and a reasonable prediction of the time of the
hearing of the appeal many take us to a few years ahead. Which means that incarceration during that period
may possibly prove an irrevocable injury if the appeal ends in their favour. The Magistrate's report about the
conduct of the petitioners while in sub-jail is not uncomplimentary. Counsel for the respondent-State rightly
stresses that the village is factious and that the petitioners are activists in one faction. The potentiality of
community peace being disturbed should therefore be obviated by proper safeguards. It is significant that the
State itself has released the petitioners on parole and there is nothing to suggest that while on such spell of
freedom anything injurious to public interest or public peace or public justice has been committed.

The cumulative result of these considerations persuades me to direct the petitioners to be enlarged on bail,
namely, their own bond to appear to receive sentence in the event of an adverse verdict from this Court.
However they will be put on conditions which counsel for the petitioners accepts. The petitioners will keep
out of the village Gonegondla except for one day in a week. They will be allowed to enter the village on that
day only after reporting to the police at the Gonegondla police station. They shall leave the village the next
day and they wilt report to the police when they are departing from the village. This will help the police to
have a vigilant eye on the petitioners and prevent them,

from doing mischief inside the village and incidentally wilt help the petitioners carry on their agricultural
operations by once-a-week supervision.

It is commendable, if the petitioners choose to report daily before any therapeutic centre for psychic
reformation, such as a transcendental meditation centre. This is left to their option but may eventually prove to
their good. The petition is disposed of accordingly.



Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of ... on 6 December, 1977

S.R.
Petition allowed.

1
BRIEF SUMMARY
Subject matter of the decided cases
OOS No. 1 of 1989 Shri Gopal Singh Visharad Vs. Zahur
Ahmad and 8 others, OOS No. 3 of 1989 Nirmohi Aakhada etc. Vs.
Baboo Priya Dutt Ram and others, OOS No. 4 of 1989 Sunni
central Board of Waqfs U.P. Lucknow and others Vs. Gopal Singh
Visharad and others and O.O.S.No. 5 of 1989 Bhagwan Sri Ram
Virajman at Ayodhya and others Vs. Rajendra Singh and others
were filed before the Court of Civil Judge, Faizabad. Thereafter on
the request of State of U.P. the cases were transferred to this Court
and Hon'ble the Chief Justice constituted special Bench.
Government of India decided to acquire all area of the
disputed property and the suits were abated. Thereafter the apex
court directed this Court to decide the case as per judgement in
Dr.M. Ismail Faruqui and others Vs. Union of India and others
reported in (1994) 6 SCC 360.
OOS No. 4 of 1989 (Reg. Suit No.12-61)
The Sunni Central Board of Waqfs U.P., Lucknow & others
Versus
Gopal Singh Visharad and others
The instant suit has been filed for declaration in the year 1961
and thereafter in the year 1995 through amendment relief for
possession was added.
Plaint case in brief is that about 443 years ago Babur built a
mosque at Ayodhya and also granted cash grant from royal treasury
for maintenance of Babri Mosque. It was damaged in the year 1934
during communal riots and thereafter on 23.12.1949 large crowd of
Hindus desecrated the mosque by placing idols inside the mosque.
The disputed property was attached under Section 145 Cr.P.C.and
thereafter the suit was filed for declaration and for delivery of
possession beyond the period of limitation.
2
On behalf of the defendants separate written statements were
filed alleging that structure is not a mosque and it was constructed
after demolishing the temple against the tenets of Islam. The A.S.I.
report was obtained which proved the earlier construction of
religious nature.
On the basis of the report of the Archeological Survey of
India massive structure of religious nature is required to be
maintained as national monument under the Ancient Monument
Archeological Site and Remains Act, 1958. The Apex Court in
Rajiv Mankotia Vs. Secretary to the President of India and
others, AIR 1997 Supreme Court page 2766 at para 21 directed
the Government of India to maintain such national monuments.
Thus, it is mandatory on the part of the Central Government to
comply with the provisions of Act No. 24 of 1958 and ensure to
maintain the dignity and cultural heritage of this country .
On behalf of some of the defendants, it was alleged that not
only in the outer courtyard but also in the inner courtyard people
used to worship the birth place of deity and it is being worshipped
from times immemorial. The Court dismissed the suit. Issue wise
finding is as under;
O.O.S. No.
4 of 1989
Issues No. 1 and 1(a)
1. Whether the building in question described as mosque in the
sketch map attached to the plaint (hereinafter referred to as
the building) was a mosque as claimed by the plaintiffs? If
the answer is in the affirmative?
1(a) When was it built and by whom-whether by Babar as alleged
by the plaintiffs or by Meer Baqi as alleged by defendant
No. 13?
Decided in favour of defendants and against the plaintiffs.
3
Issues No. 1(b)
1(b) Whether the building had been constructed on the site of an
alleged Hindu temple after demolishing the same as alleged
by defendant No. 13? If so, its effect?
Decided in favour of defendants and against the plaintiffs
on the basis of A.S.I. Report.
1(A). Whether the land adjoining the building on the east, north and
south sides, denoted by letters EFGH on the sketch map, was
an ancient graveyard and mosque as alleged in para 2 of the
plaint? If so, its effect?
Deleted vide courts order dated 23.2.96.
Issues No. 1(B)a
1-B(a). Whether the building existed at Nazul plot no. 583 of the
Khasra of the year 1931 of Mohalla Kot Ram Chandra known
as Ram Kot, city Ahodhya (Nazul estate of Ayodhya ? If so
its effect thereon)”
Property existed on Nazul Plot No. 583 belonging to
Government.
Issues No. 1(B)(b)
1B(b).Whether the building stood dedicated to almighty God as
alleged by the plaintiffs?
Decided against the plaintiffs.
Issues No. 1(B)(c)
1-B (c ).Whether the building had been used by the members of the
Muslim community for offering prayers from times
immemorial ? If so, its effect?
Decided against the plaintiffs.
Issues No. 1(B)(d)
1-B(d).Whether the alleged graveyard has been used by the
members of Muslim community for burying the dead
bodies of the members of the Muslim community? If so,
its effect?
4
Issue 1 B (d) deleted vide court order dated 23.2.96.
Issues No. 2, 4, 10, 15 & 28
2. Whether the plaintiffs were in possession of the property in
suit upto 1949 and were dispossessed from the same in 1949
as alleged in the plaint?
4. Whether the Hindus in general and the devotees of Bhagwan
Sri Ram in particular have perfected right of prayers at the
site by adverse and continuous possession as of right for more
than the statutory period of time by way of prescription as
alleged by the defendants?
10. Whether the plaintiffs have perfected their rights by adverse
possession as alleged in the plaint?
15. Have the Muslims been in possession of the property in suit
from 1528 A.D. Continuously, openly and to the knowledge
of the defendants and Hindus in general? If so, its effect?
28. “Whether the defendant No. 3 has ever been in possession of
the disputed site and the plaintiffs were never in its
possession?”
These issues are decided against the plaintiffs.
Issues No. 3
3. Is the suit within time?
Decided against the plaintiffs and in favour of defendants.
Issues No. 5(a)
5(a) Are the defendants estopped from challenging the character
of property in suit as a waqf under the administration of
plaintiff No. 1 in view of the provision of 5(3) of U.P. Act
13 of 1936?
(This issue has already been decided in the negative vide
order dated 21.4.1966 by the learned Civil Judge).
Issues No. 5(b)
5(b). Has the said Act no application to the right of Hindus in
general and defendants in particular, to the right of their
worship?
Decided against the plaintiffs and in favour of defendants.
5
Issues No. 5(c)
5(c). Were the proceedings under the said Act conclusive?
(This issue has already been decided in the negative vide
order dated 21.4.1966 by the learned Civil Judge.)
Issues No. 5(d)
5(d). Are the said provision of Act XIII of 1936 ultra-vires as
alleged in written statement?
(This issue was not pressed by counsel for the defendants,
hence not answered by the learned Civil Judge, vide his
order dated 21.4.1966).
Issues No. 5(e) and 5(f)
5(e). Whether in view of the findings recorded by the learned Civil
Judge on 21.4.1966 on issue no. 17 to the effect that, “No
valid notification under section 5(1) of the Muslim Waqf Act
(No. XIII of 1936) was ever made in respect of the property
in dispute”, the plaintiff Sunni Central Board of Waqf has no
right to maintain the present suit?
5(f). Whether in view of the aforesaid finding, the suit is barred on
accunt of lack of jurisdiction and limitation as it was filed
after the commencement of the U.P. Muslim Waqf Act,
1960?
Both these issues are decided against the Plaintiffs.
Issue No. 6
6. Whether the present suit is a representative suit, plaintiffs
representing the interest of the Muslims and defendants
representing the interest of the Hindus?
Decided in favour of plaintiffs and against the defendants.
Issue No. 7(a)
7(a). Whether Mahant Raghubar Dass, plaintiff of Suit No. 61/280
of 1885 had sued on behalf of Janma-Sthan and whole body
of persons interested in Janma-Sthan?
Decided against the plaintiffs and in favour of the
defendants.
6
Issue No. 7(b)
7(b). Whether Mohammad Asghar was the Mutwalli of alleged
Babri Masjid and did he contest the suit for and on behalf of
any such mosque?
Decided against the plaintiffs and in favour of the
defendants.
Issue No. 7(c)
7(c). Whether in view of the judgment in the said suit, the
members of the Hindu community, including the contesting
defendants, are estopped from denying the title of the
Muslim community, including the plaintiffs of the present
suit, to the property in dispute? If so, its effect?
Decided against the plaintiffs.
Issue No. 7(d)
7(d). Whether in the aforesaid suit, title of the Muslims to the
property in dispute or any portion thereof was admitted by
plaintiff of that suit? If so, its effect?
Decided against the plaintiffs.
Issue No. 8
8. Does the judgment of Case No. 6/281 of 1881, Mahant
Raghubar Dass Vs. Secretary of State and others, operate as
res judicate against the defendants in suit?
Decided against the plaintiffs and this judgment will not
operate as resjudicata against the defendants in suit.
Issue No.9
9. Whether the plaintiffs served valid notices under Sec. 80
C.P.C. (Deleted vide order dated May 22/25, 1990).
7
Issues No.11, 13, 14, 19(a) & 19(c)
11. Is the property in suit the site of Janam Bhumi of Sri Ram
Chandraji?
13. Whether the Hindus in general and defendants in particular
had the right to worship the Charans and 'Sita Rasoi' and
other idols and other objects of worship, if any, existing in
or upon the property in suit?
14. Have the Hindus been worshipping the place in dispute as Sri
Ram Janam Bhumi or Janam Asthan and have been visiting it
as a sacred place of pilgrimage as of right since times
immemorial? If so, its effect?
19(a).Whether even after construction of the building in suit deities
of Bhagwan Sri Ram Virajman and the Asthan Sri Ram Janam
Bhumi continued to exist on the property in suit as alleged on
behalf of defendant No. 13 and the said places continued to
be visisted by devotees for purposes of worship? If so,
whether the property in dispute continued to vest in the said
deities?
19(c). Whether any portion of the property in suit was used as a
place of worship by the Hindus immediately prior to the
construction of the building in question? If the finding is in
the affirmative, whether no mosque could come into existence
in view of the Islamic tenets, at the place in dispute?
Decided against the plaintiffs.
Issue No.12
12. Whether idols and objects of worship were placed inside the
building in the night intervening 22nd and 23rd December,
1949 as alleged in paragraph 11 of the plaint or they have
been in existence there since before? In either case, effect?
Idols were installed in the building in the intervening
night of 22/23rd December, 1949.
8
Issue No.17
17. Whether a valid notification under Section 5(1) of the U.P.
Muslim Waqf Act No. XIII of 1936 relating to the property in
suit was ever done? If so, its effect?
(This issue has already been decided by the learned Civil
Judge by order dated 21.4.1966).
Issue No.18
18. What is the effect of the judgdment of their lordships of the
Supreme Court in Gulam Abbas and others Vs. State of U.P.
and others, A.I.R. 1981 Supreme Court 2198 on the finding of
the learned Civil Judge recorded on 21st April, 1966 on issue
no. 17?
Decided against the plaintiffs and in favour of defendants.
Issue No.19(b)
19(b). Whether the building was land-locked and cannot be reached
except by passing through places of Hindu worship? If so, its
effect?
Decided against the plaintiffs and in favour of the
defendants.
Issue No.19(d)
19(d). Whether the building in question could not be a mosque
under the Islamic Law in view of the admitted position that it
did not have minarets?
Decided against the plaintiffs and in favour of the
defendants.
Issue No. 19(e)
19(e).Whether the building in question could not legally be a
mosque as on plaintiffs own showing it was surrounded by a
9
graveyard on three sides.
Decided against the plaintiffs.
Issues No.19(F)
19(F).Whether the pillars inside and outside the building in question
contain images of Hindu Gods and Goddesses? If the finding
is in the affirmative, whether on that account the building in
question cannot have the character of Mosque under the
tenets of Islam?
Decided against the plaintiffs and in favour of the
defendants.
Issue No.20(a)
20(a). Whether the Waqf in question cannot be a Sunni Waqf as the
building was not allegedly constructed by a Sunni
Mohammedan but was allegedly constructed by Meer Baqi
who was allegedly a Shia Muslim and the alleged Mutwalis
were allegedly Shia Mohammedans? If so, its effect?
Decided against the plaintiffs.
Issue No.20(b)
20(b). Whether there was a Mutwalli of the alleged Waqf and
whether the alleged Mutwalli not having joined in the suit, the
suit is not maintainable so far as it relates to relief for
possession?
Suit is not maintainable and the issue is decided in favour
of the defendants.
Issue No.21
21. Whether the suit is bad for non-joinder of alleged deities?
Decided against the plaintiffs and in favour of the
defendants.
10
Issues No. 23 & 24
23. If the wakf Board is an instrumentality of state? If so,
whether the said Board can file a suit against the state itself?
24. If the wakf Board is state under Article 12 of the
constitution? If so, the said Board being the state can file any
suit in representative capacity sponsering the case of
particular community and against the interest of another
community)”.
Issues are decided against the plaintiffs and the suit is not
maintainable.
Issues No. 25 & 26
25. “Whether demolition of the disputed structure as claimed by
the plaintiff, it can still be called a mosque and if not whether
the claim of the plaintiffs is liable to be dismissed as no
longer maintainable?”
26. “Whether Muslims can use the open site as mosque to offer
prayer when structure which stood thereon has been
demolished?”
Decided against the plaintiffs and in favour of the
defendants.
Issue No. 27
27. “Whether the outer court yard contained Ram Chabutra,
Bhandar and Sita Rasoi? If so whether they were also
demolished on 6.12.1992 along with the main temple?”
Yes, issue is decided in positive.
Issue No.16 & 22
16. To what relief, if any, are the plaintiffs or any of them,
entitled?
22. Whether the suit is liable to be dismissed with special costs?
Plaintiffs are not entitled for any relief.
The suit is dismissed with easy costs.
11
O.O.S No. 1 of 1989 (R.S.No.2-50)
Sri Gopal Singh Visharad Vs. Zahoor Ahmad and others
The instant suit has been filed on the assertion that the father
of the plaintiff on 14.1.1950 was not allowed to touch the deity.
Accordingly the injunction has been sought on behalf of the
defendants including the State Government to not disallow the
plaintiff to touch the deity.
State Government opposed the claim and stated that in order
to control the crowd reasonable restrictions were imposed.
The suit was dismissed for the reasons (i) no valid notice was
given, ( ii) the plaintiff has no legal character and (iii) the State
Government can impose reasonable restrictions in public interest
to control the crowd and to enable every body to have the Darshan
of the deity.
Finding of the court issue wise is as follows;
O.O.S. No.
1 of 1989
Issues No. 1, 2 and 6
1. Is the property in suit the site of Janam Bhumi of Shri Ram
Chandra Ji?
2. Are there any idols of Bhagwan Ram Chandra Ji and are His
Charan Paduka’ situated in the site in suit.?
6. Is the property in suit a mosque constructed by Shansha
Babar commonly known as Babri mosque, in 1528A.D.?
Connected with issues No. 1(a), 1(b), 1-B (b), 19-d, 19-e
and 19-f of the Original Suit No. 4 of 1989, wherein these
issues have been decided in favour of defendants and
against the Sunni Central Waqf Board, U.P.
Issues No. 3, 4 & 7
3. Has the plaintiff any right to worship the ‘Charan Paduka’ and
the idols situated in the place in suit.?
12
4. Has the plaintiff the right to have Darshan of the place in
suit.?
7. Have the Muslims been in possession of the property in suit
from 1528A.D.?
Connected with Issues No. 1-B(c), 2, 4, 10, 11, 12, 13, 14,
15,19-a, 19-b, 19-c, 27 and 28 of Original Suit No. 4 of 1989,
wherein these issues have been decided in favour of
defendants and against the plaintiffs.
Issues No. 9, 9(a), 9(b) & 9(c)
9. Is the suit barred by provision of section (5) (3) of the Muslim
Waqfs Act (U.P. Act 13 of 1936);?
(a) Has the said act no application to the right of Hindus in
general and plaintiff of the present suit, in particular to his
right of worship.?
(b) Were the proceedings under the said act referred to in written
statement para 15 collusive? If so, its effect?
(c) Are the said provisions of the U.P. Act 13 of 1936 ulta-vires
for reasons given in the statement of plaintiff’s counsel dated
9.3.62 recorded on paper No.454-A-?
Connected with Issues No. 5-a, 5-b, 5-c, 5-d, 5-e, 5-f, 7-b,
17(issue no.17 of O.O.S. No.4 of 1989 has already been
decided by the Civil Judge, Faizabad) 18, 20-a, 20-b, 23,
24, 25 and 26 of Original Suit No. 4 of 1989, wherein these
issues have been decided in favour of defendants and
against the plaintiffs.
Issues No. 5(a) & 5(b)
5(a) Was the property in suit involved in original suit no.61/280 of
1885 in the court of sub-judge, Faizabad Raghubar Das
Mahant Vs. Secretary of State for India & others.?
5(b) Was it decided against the plaintiff.?
Connected with issue No. 1-B (a) of Original Suit No. 4 of
1989.
Property existed on Nazul plot No. 583 belonging to
Government.
13
Issues No. 5(c) & 5(d)
5(c) Was that suit within the knowledge of Hindus in general and
were all Hindus interest in the same.?
5(d) Does the decision in same bar the present suit by principles of
Resjudicata and in any other way?
Connected with issue No. 7-a, 7-c, 7-d and issue no. 8 in
Original Suit No. 4 of 1989, wherein these issues have been
decided in favour of defendants and against the plaintiffs.
Issue No. 13
13. Is the suit No.2 of 50 Shri Gopal Singh Visharad Vs. Zahoor
Ahmad bad for want of notice under section 80 C.P.C. ?
Decided in favour of defendants and against the plaintiffs.
Issue No. 8
8. Is the suit barred by proviso to section 42 Specific Relief
Act.?
Decided against the plaintiffs and in favour of defendants.
Issues No. 11(a) & 11(b)
11(a) Are the provisions of section 91 C.P.C. applicable to present
suit ? If so is the suit bad for want of consent in writing by the
advocate general ?
11(b) Are the rights set up by the plaintiff in this suit independent of
the provisions of section 91 C.P.C. ? if not its effect. ?
Decided in favour of plaintiffs and against the defendants.
Issue No. 12
12. Is the suit bad for want of steps and notices under order 1
Rule 8 C.P.C. ? If so its effect. ?
Decided in favour of plaintiffs and against the defendants.
Issue No. 14
14. Is the suit no.25 of 50 Param Hans Ram Chandra Vs. Zahoor
Ahmad bad for want of valid notice under section 80 C.P.C. ?
Withdrawn, no finding is required.
14
Issue No. 15
15. Is the suit bad for non-joinder of defendants.?
NO
Issue No. 10
10. Is the present suit barred by time ?
NO
Issue No. 16 & 17
16. Are the defendants or any of them entitled to special costs
under section 35-A C.P.C.?
17. To what reliefs, if any, is the plaintiff entitled. ?
Plaintiff is not entitled for the relief claimed and the suit is
dismissed with easy costs.
15
OOS No. 3 of 1989
Nirmohi Akhara & Anr. Vs. Shri Jamuna Prasad Singh & Ors.
The suit was filed by Nirmohi Akhara, alleging that right
from times immemorial, they are worshipping the deities.
Accordingly the management of the temple may be handed over to
the plaintiff by defendant- State Government.
The defendants have contested the claim and this Court
found the suit barred by time and also on merits that the plaintiff
failed to prove the case.
Finding of the court issue wise is as follows;
O.O.S. No.
3 of 1989
Issues No. 1, 5 and 6
1. Is there a temple of Janam Bhumi with idols installed therein
as alleged in para 3 of the plaint ?
5. Is the property in suit a mosque made by Emperor Babar
Known as Babari masjid ?
6. Was the alleged mosque dedicated by Emperor Babar for
worship by Muslims in general and made a public waqf
property?
Connected with Issues No. 1, 1(a), 1(b), 1B(b), 12, 19(d),
19(e) and 19(f) of O.O.S. No. 4 of 1989, wherein these issues
have been decided in favour of defendants and against the
plaintiffs.
Issues No. 2, 3, 4 & 8
2. Does the property in suit belong to the plaintiff No.1 ?
3. Have plaintiffs acquired title by adverse possession for over 12
years ?
4. Are plaintiffs entitled to get management and charge of the
said temple ?
16
8. Have the rights of the plaintiffs extinguished for want of
possession for over 12 years prior to the suit ?
Connected with Issues No. 1B(c), 2, 4, 10, 11, 12, 13, 14, 15,
19(a), 19(b), 19(c), 27 & 28 of O.O.S. No. 4 of 1989.
Decided against the Plaintiffs.
Issues No. 7(a), 7(b) & 16
7(a) Has there been a notification under Muslim Waqf Act (Act
no.13 of 1936) declaring this property in suit as a Sunni Waqf ?
7(b) Is the said notification final and binding ? Its effect.
16. Is the suit bad for want of notice u/s 83 of U.P. Act 13 of
1936 ?
Connected with issues no. 5(a), 5(b), 5(c), 5(d), 5(e), 5(f),
7(b), 17, 18, 20(a), 20(b), 23, 24, 25 and 26 in O.O.S No. 4 of
1989, wherein these issues have been decided against the
plaintiffs.
Issue No. 9
9. Is the suit within time ?
Connected with issues no. 3 decided in O.O.S. No. 4 of 1989.
Decided in favour of defendants and against the plaintiffs.
Issues No. 10(a) & 10(b)
10(a) Is the suit bad for want of notice u/s 80 C. P.C.
10(b) Is the above plea available to contesting defendants ?
Decided in favour of the plaintiffs and against the
defendants.
Issue No. 11
11. Is the suit bad for non-joinder of necessary defendants ?
Connected with Issue No. 21 of O.O.S. No. 4 of 1989.
Decided in favour of defendants and against the plaintiffs.
17
Issue No. 14
14. Is the suit not maintainable as framed ?
Decided in favour of the plaintiffs and against the
defendants.
Issue No. 17
17. (Added by this Hon'ble Court order dated 23.2.96) “Whether
Nirmohi Akhara, Plaintiff, is Panchayati Math of Rama Nandi
sect of Bairagies and as such is a religious denomination
following its religious faith and per suit according to its own
custom.”
Decided in favour of the plaintiffs and against the
defendants.
Issue No. 15
15. Is the suit properly valued and Court-Fee paid sufficient ?
(Already decided)
Issues No. 12 & 13
12. Are defendants entitled to special costs u/s 35 C.P.C. ?
No.
13. To what relief, if any, is the plaintiff entitled ?
Suit is Dismissed.
18
O.O.S. No. 5 of 1989 (R.S.NO. 236/1989
Bhagwan Sri Rama Virajman & Ors. Vs. Sri Rajendra Singh & Ors.
The instant suit was filed on behalf of the deities and Sri
Ram Janm Bhumi through the next friend, praying that the
defendants be restrained not to interfere in the construction of the
temple of plaintiff nos. 1 and 2 on the ground that the deities are
perpetual minors and against them Limitation Laws do not run.
This Court is of the view that place of birth that is Ram Janm
Bhumi is a juristic person. The deity also attained the divinity like
Agni, Vayu, Kedarnath. Asthan is personified as the spirit of
divine worshipped as the birth place of Ram Lala or Lord Ram as
a child . Spirit of divine ever remains present every where at all
times for any one to invoke at any shape or form in accordance
with his own aspirations and it can be shapeless and formless also.
Case has been decided on the basis of decision of Hon'ble the Apex
Court specially the law as laid down in 1999(5) SCC page 50,
Ram Janki Deity Vs. State of Bihar, Gokul Nath Ji Mahraj Vs.
Nathji Bhogilal AIR 1953 Allahabad 552, AIR 1967 Supreme
Court 1044 Bishwanath and another Vs. Shri Thakur
Radhabhallabhji and others & other decisions of Privy Council
and of different High Courts.
Finding of the court issue wise is as follows:
O.O.S. No.
5 of 1989
19
ISSUES NO. 1, 2 & 6
1. Whether the plaintiffs 1 and 2 are juridical persons?
2. Whether the suit in the name of deities described in the
plaint as plaintiffs 1 and 2 is not maintainable through
plaintiff no. 3 as next friend?
6. Is the plaintiff No. 3 not entitled to represent the plaintiffs 1
and 2 as their next friend and is the suit not competent on this
account ?
Decided in favour of the plaintiffs and against the
defendants.
ISSUES NO. 9, 10, 14 & 22
9. Was the disputed structure a mosque known as Babri
Masjid ?
10. Whether the disputed structure could be treated to be a
mosque on the allegations, contained in paragraph-24 of the
plaint ?
14. Whether the disputed structure claimed to be Babri Masjid
was erected after demolishing Janma-Sthan temple at its site?
22. Whether the premises in question or any part thereof is by
tradition, belief and faith the birth place of Lord Rama as
alleged in paragraphs 19 and 20 of the plaint ? If so, its
effect ?
Connected with issues No.1, 1(a), 1(b), 1B(b), 11, 19(d),
19(e) & 19(f) in O.O.S. No. 4 of 1989.
Decided against Sunni Waqf Board and in favour of the
plaintiffs.
ISSUES NO.15, 16 & 24
15. Whether the disputed structure claimed to be Babri Masjid
was always used by the Muslims only, regularly for offering
20
Namaz ever since its alleged construction in 1528 A.D. To
22nd December 1949 as alleged by the defendants 4 and 5 ?
16. Whether the title of plaintiffs 1 & 2, if any, was
extinguished as alleged in paragraph 25 of the written
statement of defendant no. 4 ? If yes, have plaintiffs 1 &
2 reacquired title by adverse possession as alleged in
paragraph 29 of the plaint ?
24. Whether worship has been done of the alleged plaintiff deity
on the premises in suit since time immemorial as alleged in
paragraph 25 of the plaint?
Connected with issues no. 1-B(c), 2, 4, 12, 13, 14, 15, 19(a),
19(b), 19(c), 27 & 28 of O.O.S. No.4 of 1989.
Above issues are decided against Sunni Central Waqf
Board and Others.
Issue No.17
17. Whether on any part of the land surrounding the structure
in dispute there are graves and is any part of that land a
Muslim Waqf for a graveyard ?
Deleted vide this Hon'ble Court order dated 23.2.96.
Issue No.23
23. Whether the judgment in suit No. 61/280 of 1885 filed by
Mahant Raghuber Das in the Court of Special Judge,
Faizabad is binding upon the plaintiffs by application of the
principles of estoppel and res judicata, as alleged by the
defendants 4 and 5 ?
Decided against the defendants and in favour of the
plaintiffs.
Issue No.5
(5) Is the property in question properly identified and described
21
in the plaint ?
Decided in favour of the plaintiffs and in favour of the
defendants.
Issues No. 7 & 8
(7) Whether the defendant no. 3, alone is entitled to represent
plaintiffs 1 and 2, and is the suit not competent on that
account as alleged in paragraph 49 of the additional
written statement of defendant no. 3 ?
(8) Is the defendant Nirmohi Akhara the “Shebait” of Bhagwan
Sri Rama installed in the disputed structure ?
Decided against the defendant no.3 and in favour of
plaintiffs no. 1, 2 and 3.
Issues No.19
19. Whether the suit is bad for non-joinder of necessary parties,
as pleaded in paragraph 43 of the additional written
statement of defendant no. 3 ?
Suit is maintainable.
Issue No.20
20. Whether the alleged Trust, creating the Nyas defendant no.
21, is void on the facts and grounds, stated in paragraph 47
of the written statement of defendant no. 3 ?
Decided in favour of the plaintiffs and against the
defendant no.3.
Issue No.21
21. Whether the idols in question cannot be treated as deities
as alleged in paragraphs 1, 11, 12, 21, 22, 27 and 41 of the
written statement of defendant no. 4 and in paragraph 1 of
the written statement of defendant no. 5 ?
22
Decided in favour of the plaintiffs and against the
defendants no. 4 and 5.
Issues No. 26 & 27
26. Whether the suit is bad for want of notice under Section 80
C.P.C. as alleged by the defendants 4 and 5?
27. Whether the plea of suit being bad for want of notice under
Section 80 C.P.C. can be raised by defendants 4 and 5 ?
Decided against defendant nos. 4 & 5.
Issue No.25
25. Whether the judgment and decree dated 30th March 1946
passed in suit no. 29 of 1945 is not binding upon the
plaintiffs as alleged by the plaintiffs ?
Decided in favour of the plaintiffs and against the
defendants.
Issue No.29
29. Whether the plaintiffs are precluded from bringing the
present suit on account of dismissal of suit no. 57 of 1978
(Bhagwan Sri Ram Lala Vs. state) of the Court of Munsif
Sadar, Faizabad?
Decided in favour of the plaintiffs and against the
defendants.
Issue No.28
28. Whether the suit is bad for want of notice under Section 65
of the U.P. Muslim Waqfs Act, 1960 as alleged by defendants
4 and 5 ? If so, its effect?
Decided in favour of the plaintiffs and against defendants
no. 4 and 5.
23
Issue No.18
18. Whether the suit is barred by Section 34 of the the Specific
Relief Act as alleged in paragraph 42 of the additional
written statement of defendant no. 3 and also as alleged in
paragraph 47 of the written statement of defendant no. 4 and
paragraph 62 of the written statement of defendant no. 5 ?
Decided in favour of the plaintiffs and against the
defendants.
Issues No. 3(a), 3(b), 3(c), 3(d) & 4
3(a) Whether the idol in question was installed under the central
dome of the disputed building (since demolished) in the early
hours of December 23, 1949 as alleged by the plaintiff in
paragraph 27 of the plaint as clarified on 30.4.92 in their
statement under order 10 Rule 2 C.P.C. ?
3(b) Whether the same idol was reinstalled at the same place on a
chabutra under the canopy?
3(c) “Whether the idols were placed at the disputed site on or after
6.12.92 in violation of the courts order dated 14.8.1989,
7.11.1989 and 15.11. 91 ?
3(d) If the aforesaid issue is answered in the affirmative, whether
the idols so placed still acquire the status of a deity?”
(4) Whether the idols in question had been in existence under the
“Shikhar” prior to 6.12.92 from time immemorial as alleged
in paragraph-44 of the additional written statement of
defendant no. 3 ?
Decided in favour of the plaintiffs and against the
defendants.
Issue No.11
(11) Whether on the averments made in paragraph-25 of the
plaint, no valid waqf was created in respect of the structure in
24
dispute to constitute it as a mosque ?
Decided in favour of the plaintiffs and against the
defendants.
Issue No.12
(12) If the structure in question is held to be mosque, can the same
be shifted as pleaded in paragraphs 34 and 35 of the plaint?
Deleted vide court order dated 23.2.96.
Issue No.13
(13) Whether the suit is barred by limitation ?
Decided in favour of the plaintiffs and against the
defendants.
Issue No.30
30. To what relief, if any, are plaintiffs or any of them entitled?
Plaintiffs are entitled for the relief claimed and the suit is
decreed with easy costs.