# H. N. Rishbud and lnder Singh v. 1'he State ·of Delhi

- **Citation:** [1955] 1 S.C.R. 1168
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** CIVIL Appeal Nos. 109 to 115 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-n-rishbud-and-lnder-singh-v-1-he-state-of-delhi-320
- **Pages:** 10

## Headnote

1954
H. N. Rishbud and
lnder Singh
v.
1'he State ·of Delhi
Jagannadhadas J.
1954
Decemher 20
1168
SUPREME COURT REPORTS
[1955]
against the order of the High Court refusing to grant
stay of the proceedings then pen din o-, it is sufficient to
dismiss this appeal with
the
obsen~'ation
that it will
be open
to the
appellants
to raise
the
objections
before the Special Judge.
SRI MONOHAR DAS MOHANTA
fl.
CHARU CHANDRA PAL AND OTHERS.
[MEHAR
CHAND
MAHAJAN C.J., BHAGWATI,
JAGANNADHADAS, VENKATARAMA AYYAR and
B. P. SINHA JJ.]
Lost Grant-Presumption of-lVhen such presumption does or
does not arise-Legality of lost grant of Niskar from Mohunt-Pleading and proof-Findings of fact.
A presumption of a lost grant arises in favour of a person who
does not claim adversely to the o\vner but who on the other hand
proves ancient and continued
possession in
assertion
of
a
title
derived from the owner without any challenge and such possession
and assertion cannot be accounted for except by referring to a legal
origin of the grant claimed.
But the presumption of a lost grant is not an irrebuttable presu1nption of la\V and the court cannot presume a
grant
where it
is convinced of its non-existence
by reason of a legal i1npediment,
as where the presu1nption of a lost grant is claimed by a fluctuating
body of persons.
Si1nilarly a presun1ption of a lost grant
cannot
arise when there is no person capable of making such a gran.t or if
the grant pleaded is illegal or beyond the powers of the granter.
A presumption of a lost grant by way of 1\iskar cannot be in1puted to the Mohunt of an . .\sthal inasni.uch as he is legally incompetent to make any Niskar grant.
When a defendant who denies the title of the plaintiff in respect of any land, fails in that plea, he cannot
fall back on the presumption of a lost grant from the very person
whose title he has
denied.
Findings of fact arrived at by courts should not be \'ague.
...
\-
'( ..
Attorney-General v. Simpson ([1901] 2 Ch. D. 671), Raja Braja
\.
Sunder Deb v. Mani Behara and others ([1951] S.C.R. 431), Barker
v. Richardson ([1821] 4 B. & Al<l. 579), The Rochdale Canal Com-
•
-
#
' . -,
'!
-
j
S.C.R.
SUPREME COURT REPORTS
1169
pany v. Radcliffe ([1852] 18 Q.B. 287), and Palaniappa .Chetty v.
Sreenath Devasikamony ([1917] L.R. 44 I.A. 147), referred to.
CIVIL
APPELLATE
JuRISDICTION:
CIVIL
Appeal
Nos. 109 to 115 of 1952.
Appeals from the
Judgment and
Decree
dated
the 9th day of
March 1950 of the High Court of Judicature at Calcutta in
Appeal from
Appellate
Decree
Nos. 1841-1847 of 1945 arising out of the Decrees
dated the 16th day of September 1944 of Munsiff 3rd
Court, Burdwan.
P. K. Chatterjee, for the appellant.
S. C. Das Gupta,
(Sukumar Chose, with him), for
the respondents in
Civil Appeals Nos. 109 to
112 of
1952 and respondents 1, 2(a), 3 and 4 in Civil Appeal
No. 113 of 1952 and respondents 1 and 3 in Civil
Appeals Nos. 114 and 115 of 1952.
1954.
December 20. The Judgment of the
Court
was delivered by
VENKATARAMA AYYAR J.-The
appellant
is
the
Mahant of a religious institution known as
Rajgunj
Asthal in Burdwan,
and the suits out of
which the
present appeals arise, were
instituted by him to
recover possession of various plots of land in the occupation of the
defendants, or in the alternative,
for
assessment of fair and equitable rent.
It was alleged
in the plaints that the suit lands
were comprised in
Mouza Nala forming part of the permanently
settled
estate of
Burdwan, and were
Mal lands assessed to
revenue, and
that
more
than
200 years
previously
there had been a permanent
Mokarrari grant of those
lands by the
Maharaja of
Burdwan to the
Rajguni
Asthal; that in the record of rights published
during
the settlement in
1931 they
were erroneously
described as rent-free, and that on the strength of that
entry the defendants
were refusing to surrender
possession of the lands to
the plaintiff.
It was accordingly prayed that a decree might be passed
for ejectment of the
defendants, or in
the
alternative,
for
asse

## Text

1954
H. N. Rishbud and
lnder Singh
v.
1'he State ·of Delhi
Jagannadhadas J.
1954
Decemher 20
1168
SUPREME COURT REPORTS
[1955]
against the order of the High Court refusing to grant
stay of the proceedings then pen din o-, it is sufficient to
dismiss this appeal with
the
obsen~'ation
that it will
be open
to the
appellants
to raise
the
objections
before the Special Judge.
SRI MONOHAR DAS MOHANTA
fl.
CHARU CHANDRA PAL AND OTHERS.
[MEHAR
CHAND
MAHAJAN C.J., BHAGWATI,
JAGANNADHADAS, VENKATARAMA AYYAR and
B. P. SINHA JJ.]
Lost Grant-Presumption of-lVhen such presumption does or
does not arise-Legality of lost grant of Niskar from Mohunt-Pleading and proof-Findings of fact.
A presumption of a lost grant arises in favour of a person who
does not claim adversely to the o\vner but who on the other hand
proves ancient and continued
possession in
assertion
of
a
title
derived from the owner without any challenge and such possession
and assertion cannot be accounted for except by referring to a legal
origin of the grant claimed.
But the presumption of a lost grant is not an irrebuttable presu1nption of la\V and the court cannot presume a
grant
where it
is convinced of its non-existence
by reason of a legal i1npediment,
as where the presu1nption of a lost grant is claimed by a fluctuating
body of persons.
Si1nilarly a presun1ption of a lost grant
cannot
arise when there is no person capable of making such a gran.t or if
the grant pleaded is illegal or beyond the powers of the granter.
A presumption of a lost grant by way of 1\iskar cannot be in1puted to the Mohunt of an . .\sthal inasni.uch as he is legally incompetent to make any Niskar grant.
When a defendant who denies the title of the plaintiff in respect of any land, fails in that plea, he cannot
fall back on the presumption of a lost grant from the very person
whose title he has
denied.
Findings of fact arrived at by courts should not be \'ague.
...
\-
'( ..
Attorney-General v. Simpson ([1901] 2 Ch. D. 671), Raja Braja
\.
Sunder Deb v. Mani Behara and others ([1951] S.C.R. 431), Barker
v. Richardson ([1821] 4 B. & Al<l. 579), The Rochdale Canal Com-
•
-
#
' . -,
'!
-
j
S.C.R.
SUPREME COURT REPORTS
1169
pany v. Radcliffe ([1852] 18 Q.B. 287), and Palaniappa .Chetty v.
Sreenath Devasikamony ([1917] L.R. 44 I.A. 147), referred to.
CIVIL
APPELLATE
JuRISDICTION:
CIVIL
Appeal
Nos. 109 to 115 of 1952.
Appeals from the
Judgment and
Decree
dated
the 9th day of
March 1950 of the High Court of Judicature at Calcutta in
Appeal from
Appellate
Decree
Nos. 1841-1847 of 1945 arising out of the Decrees
dated the 16th day of September 1944 of Munsiff 3rd
Court, Burdwan.
P. K. Chatterjee, for the appellant.
S. C. Das Gupta,
(Sukumar Chose, with him), for
the respondents in
Civil Appeals Nos. 109 to
112 of
1952 and respondents 1, 2(a), 3 and 4 in Civil Appeal
No. 113 of 1952 and respondents 1 and 3 in Civil
Appeals Nos. 114 and 115 of 1952.
1954.
December 20. The Judgment of the
Court
was delivered by
VENKATARAMA AYYAR J.-The
appellant
is
the
Mahant of a religious institution known as
Rajgunj
Asthal in Burdwan,
and the suits out of
which the
present appeals arise, were
instituted by him to
recover possession of various plots of land in the occupation of the
defendants, or in the alternative,
for
assessment of fair and equitable rent.
It was alleged
in the plaints that the suit lands
were comprised in
Mouza Nala forming part of the permanently
settled
estate of
Burdwan, and were
Mal lands assessed to
revenue, and
that
more
than
200 years
previously
there had been a permanent
Mokarrari grant of those
lands by the
Maharaja of
Burdwan to the
Rajguni
Asthal; that in the record of rights published
during
the settlement in
1931 they
were erroneously
described as rent-free, and that on the strength of that
entry the defendants
were refusing to surrender
possession of the lands to
the plaintiff.
It was accordingly prayed that a decree might be passed
for ejectment of the
defendants, or in
the
alternative,
for
assessment of a fair and equitable rent.
1954
Sri Monohar Du
Mohanta
v.
Charu Chandra
Pal and Others
1954
:Sri Monohar Das
Mohar1ta
v.
-Charu Chandra
Pal and Others
V enkatarama
4.l!J!ar J.
1170
SUPREME COURT REPORTS
[1955]
The defendants
contested
the suits; and pleaded
that the lai1ds were not Mal lands comprised within
Mouza Nala, that they did not form
part
of
the
zamindari
of
Burdwan
but
had been granted
as
Lakheraj to their predecessors-in-title
long
prior
to
the permanent settlement,. that neither the
Maharaia
of Burdwan nor the plaintiff claiming under him had
any title
to them, and
that the entry 1Il the record
of rights in 1931 was correct.
The defendants
also
pleaded that as they and their predecessors had been
in possession of
the lands
for over 200 vears under
assertion of an adverse title, the claim of ihe plaintiff
was barred bv limitation.
The District Munsif of Burdwan who tried the suits
held tlnt the lands were included 1Il Mouza Nala
111
Thouzi No. 1, which was comprised in the permanently
settled estate of
Burdwan,
that
tileir
111come
was
taken into account 111
fixing the revenue payable
by
the estate,
that they had
been
granted in permanent
Mokarrari by the then
Maharaja of
Burdwan to the
Rajgunj Asthal,
and that the
plea of the defendants
that they held them under a Lakheraj
grant
made
prior to the permanent settlement was not true.
He
also held that the documents on which the defendants
claimed
to have dealt
with the properties
as owners
under assertion of an adverse
title were not proved to
relate to the suit
lands, that the relationship
subsisting between the
parties
was
one of
landlord
and
tenant, that as there had
been no determination
of
tenancy, no decree 111 ejectment
could be passed
but
tilat the plaintiff was entitled to fair
rent,
and
that
tile claim was not barred by reason
of article
131 of
tile
Limitation Act.
ln the result, he granted decrees
for rent.
The defendants appealed
against
this
decision to
the Court of the
District
Judge of
Burd wan,
who
agreed witil the
District Munsif that the suit
lands
were Mal lands within the zamindari of Burdwan,
and
tilat they had been
settled on
tile plaintiff by
the
Maharaja of Burdwan.
But he held that
as
the defendants and
their predecessors
had been in possess10n of
tile lands
for a
very
long
time
witilout
• \-'
• -
-
)
'
•
S.C.R.
SUPREME COURT REPORTS
1171
payment of rent, a presQmption of a lost grant
could
be made in their favour.
He accordingly dismissed
the
suits.
Against this
decision,
the
plaintiff
appealed
to the High Court, which agreeing with the District
Judge on both the points
dismissed the appeals,
but
granted a certificate under
article 133(1) (c),
as
it
was of the
opinion that the
question of lost
grant
raised an issue of great importance.
The substantial question that arises for
our decision is whether on the materials on record the
Courts
below were right _ in presuming a lost grant in favour
of . the defendants.
The grounds on which the
District
Judge
made that
presumption
are that the defendants, and their predecessors
had been in possession
of the lands for a long time without payment of rent,
.that they had been asserting
continuously that
they
were holding under a Lakheraj grant, and that they
did so to the knowledge of the plaintiff. It must be
mentioned
that in
dealing
with this
question
the
District Munsif held
that the documents
put forward
by the defendants as containing assertions
by
them
that they held
under a
Lakheraj grant
were
not
shown to relate to the suit lands.
The District
Judge
differed from this finding, and observed :
" . . .... . . there are some unmistakable
names
of
tanks, etc., by which some of the lands of these documents at least can be connected with the
suit lands
........ These documents
relating to these
holdings
cannot,
therefore, be discarded as
unconnected
with
the suit lands".
These observations are vague, and dq not l~ad anywhere, and ca.nnot be taken as a finding on the question. No atte.mpt was made before us
on
behalf of
the respondents · to connect any of the qocuments
with
the lands
held by them. In
the
circumstances,
the
finding .of the District Munsif on the point must be
accepted.
On the further question whether the
knowledge of the assertion of any hostile
defendants,
the learne<;l
District Judge
in the afli.rm.ative relying on Exhibits
.plaintiff had
title
by the
answered
it
A to A-24,
1954
Sri Monohar Das
Mo!zanta
v.
Charu Chan1ra
Pal am! Otlurs
V enkatarama
Ayyar J
1954
·sri Monohar Das
Mohanta
v.
Charu Chandra
Pal and Others
V mkalarama
Ayyar ].
1172
SUPREME COURT REPORTS
[19551
which are receipts for realisations of cesses
from
the
defendants.
But the
High Court held-and its finding
has not been attacked
before us-that there was
no
proof of the contents
of these documents,
and
that
they must therefore be excluded.
The position
thus is
that there is no proof that
the respondents set up any
adverse title prior to 1931, much less that the plaintiff
had knowledge of
the same.
We are therefore
left
with a bare finding that the defendants and their predecessors in title had
been in possession
for a
long
period without payment of rent; but here again,
there
is no .finding as to the precise length of time during
which they
held
possession.
The question is whether
in this situation a presumption of lost grant could
be
made.
The circumstances and conditions
under
which a
presumption of lost grant
could
be made are
well
settled.
When a person was found in possession
and
enjoyment of land for a considerable period of time
under an assertion of title without challenge,
Courts
in England were inclined to ascribe a legal origin to
such possession, and when on the
facts
a
title
by
prescription could not be sustained, it was held that
a presumption could be made that the possession
was
referable to a grant by the owner entitled to the land,
but that such grant had been lost.
It was a presumption made for securing ancient and continued
possession,
which
could not otherwise be reasonably
accounted for.
But it was not a presumptio juris et de
jure, and the Courts were not bound to raise it, if the
facts in evidence went against it. "It cannot
be the
duty of a Judge to presume a grant of the
non-existence of which he is convinced"
observed
Farwell, J.
in Attorney-General v. Simpson( 1 ).
So also the presumption was not made if there was any legal impediment
to the making of it.
Thus, it has been
held that
it
could not be made, if there was no person
competent
to be the recipient of such a grant, as where the right
is claimed by a fluctuating
body
of
persons.
That
was held in Raja
Braja Sundar Deb v. Moni
Behara
and others( 2 ). There will likewise be no scope for this
(1) [1901) 2 Ch. D. 571. 698.
(2) [1951] s.c.R. 431, 446.
v-·
.
t·
..
•
' i
j
·(
S.C.R.
SUPREIIIE COURT REPORTS
1173
1954
presumption, if there is no person capable of making
a grant: (Vide Halsbury's Laws of England, Vol. IV, Sri 1.Ionohar Dai
page 574, para 1074); or if the grant would have been
Mohanta
illegal and beyond the powers of the grantor. [Vide
v.
Barker v. Richardson(') and The Rochdale Canal ComChar" Chandra
pany v. Radcliffe(')].,
~-- --
_
Pal and Others
In the light of these-prinCiples, it has now to be
\~enkatara1ita
seen whether on the.facts found a lost grant could be
AyyarJ.
presumed in favour of the defendants. - The finding
is, as already stated, that they were in possession
without payment of rent for a considerable length of
time, but it has not been established precisely for how
Jong. In their written statements they pleaded that
they had been holding under a Lakheraj grant made.
prior to the permanent settlement, and had been in
possession by virtue of that title for over 200 years.
On this plea, the grant to be presumed should have
been made 200 years prior to the suit._ _There -is an
obvious difficulty in the way of presuming such a
grant on the facts of this case. There was a permanent settlement of the zamindari ofBurdwan in 1793,
and it has been found by all the Courts that in that
settlement the suit lands were included as part of the
l\Ial or assessed lands of the estate. Now, the scheme
of the settlement of the estates was to fix the revenue payable thereon on the basis of the income which
the properties were estimated to yield, and Regulation No. 8of1793 contains elaborate provisions as to
how the several kinds of property are to be dealt
with. Section 36 of the Regulation provides that "the
assessment- is also to be fixed exclusive and indepen- -
dent of all existing lakheraje lands, whether exempted
from the kheraje (or public revenue) with or without
due authority".
Therefore, when it is shown that
lands in an estate are assessed, it must -follow that
they could not have been held on the date of the
permanent settlement as Lakheraj. It would be inconsistent with the scheme of the settlement and section 36 of Regulation No. 8 of 1793 to hold that the
assessed or Mal lands in an estate could have been
held on an anterior Lakheraj grant. It was for this
,(1) [1821) Hl. & AH
~n.
\2) [1852] 18 Q. B. 287.
.--. j"·, ·,,--.~ ' .. '-,
1174
',_.,.·.
~- "
,
'
SUPREME COURT REPORTS
[1955]
1954
reason that the defendants pleaded that the suit lands
Sri Monohar Das -were not comprised in the l\lal lands of the zamindari
Mohantaof Burdwan. But that plea has been negatived, and
v. --
- , it has been found that they are part of the l\lal lands
Charn Chandra 'within the zamindari assessed to revenue, and in view
-Paz ana Others of that finding there is no scope for the presumption
Venkatard,;;~-
of a lost grant. -
Anar J,
Learned counsel for the respondents relied strongly
on the record of rights made in 1931 with reference to
the suit lands as supporting his contention. The entry
in· question describes the lands as "Bhog Dakhal Sutre
Niskar", and has been translated as "without rent by
virtue of possession and enjoyment"; - The plaintiff
attacked this entry as made at the instance of the
defendants acting in collusion with one of his agents.
The Courts below, however, have held that that had
not been established, and therefore the entry must
be taken as properly made. The respondents contended that a strong presumption should be made in
favour of the correctness of the entry, because it was
made in the ordinary course of business, and that it
was sufficient to sustain a presumption of lost grant.
Giving -the entry its full value, does the word
"Niskar" import a rent-free grant? Rule 37 of the
Technical Rules and Instructions issued by the Settlement Department for observance by the settlement
-authorities provides that if property is found in the
possession of a person who is not actually paying rent
for it, it should be described as "Niskar", and if no
sanad or title deed is produced by the occupant show-
-ing a rent-free title, the words "Bhog Dakhal Sntre"
(by virtue of enjoyment and possession) should be
added. In the written statement it was stated that
"as the d!)fendants could not produce any 'revenuefree grant', they (Settlement Officers) recorded Niskar
Raiyati right in a general way". Reading Rule 37_:
-along with the written statement it is clear that the
-entry in the record of rights in 1931 was made in comIJliance with _that Rule, and that what it imports is
not that there was a rent-free grant, but that the person in possession was not actually paying rent. 'Whatever.weight might attach to tht;l word "Nislmr" in ii.
•
S.C.R.
SUPREME COURT REPORTS
1175
I'"'"'
record of rights in other context, where the question
)
is whether a presumption
of
a lost
pre-settlement
Lakheraj grant
could be made, the
inference
to be
drawn from that word cannot outweigh the effect of
the non-exclusion of the lands from the
Mal
or the
~' regularly assessed estate.
We are therefore
of opinion
that a presumption of lost grant
cannot be founded
'
on the entry in the record of rights.
There are also other difficulties in the way of presuming a lost grant in favour
of the predecessors of
the defendants.
The suit properties formed
part of
Mauza Nala within the zamindari of
Burdwan, and if
a grant had been made in favour of the
predecessors
of the defendants, it must have been
made
by
the
Maharaja of Burdwan or by the Rajgunj Asthal.
But
the
defendants have in
their
written
statements
denied the title of both the
Maharaja and the
Asthal,
and having failed in that plea,
cannot fall
back on a
presumption of lost grant by the very
persons,
whose
title they have repudiated.
This does not exhaust
all the difficulties
of the
defendants.
According
to the
District
Judge,
the
suit properties had been settled on the Rajgunj
Asthal
more than 200 years ago.
Therefore, the grant to be
presumed must have been made
by
the
Mahant
of
Asthal in favour of the predecessors of
the defendants.
But before raising such a presumption, it must be
established
that the
grant was one which could have
legally been made by him.
It is well settled
that
it
is beyond the powers of a manager of a religious
institution to grant perpetual lease binding the institution
for all times to a fixed rent, unless there is a
compelling necessity
or· benefit
therefor.
Vide
Palaniappa
Chetty
v. Sreenath Devasikamony( 1 ). And what
is
pleaded in the present case is not even so much as
a
permanent
lease,
because there is
neither
premium
paid nor rent reserved but a Lakheraj
granl unsupported by any consideration. That would clearly
be
beyond the powers of a Mahant,
and
no presumption
of a lost grant could be
made in respect thereto.
In
Barker v. Richardson( 2 ), an easement was
claimed
(1) [1917] L.R. 44 I.A. 147·
19-89 S. C. India/59
(2) [1821] 4 B. & Ald. 079·
Sri Monohar Das
Mohanta
V•
Charu Chandra
Pal and Others
Venkatarama
Ayyar J.
1 95~
Sri Monohar Das ·
Moha.nta ·
v.
.
Charu Chandra
Pal and Othefi -
Venkatarama'
Ayyar J.
1176
SUPREME COURT REPORTS
[1955]
both on the ground of prescription and
presumption
of a lost grant
by a rector.
In negativing this claim,
Abbot, C. J. observed that a grant could
not be presumed, because the rector had
no right to bind. his
successor by it, and it would therefore
be invalid. In
The Rochdale Canal Company v. Radcliffe( 1 ), where the
Court was asked to presume that a company had made
a grant of its surplus waters
for use by the Duke of
Bridgewater, Lord Campbell, C. J. observed
that "if
they had made a grant of the water in the terms of
this plea, such a grant would have
been ultra vires
and bad'', and on that ground, he refused to raise
the
presumption.
We are accordingly of opm10n that
on the facts
found, no presumption of a lost grant could be made
in favour of
the
defendants,
and that the plaintiff
was entitled to assessment of fair
and equitable rent
on the holdings in their possession.
Learned counsel for the respondents also raised
the
plea of limitation.
The Courts below have held that
the suits were
within time under article 131 of the
Limitation Act, as the
final
settlement
of records
was published
on 16-6-1931,
and
the
present
suits
were filed within 12 years thereof
for
establishing
the right
of the institution to
assessment
of
rent.
It was observed by the learned
Judges of
the
High
Court who heard the application for leave to appeal
to this
Court that it was not suggested
before
them
that the decision on the ques(ion of
limitation
was
erroneous.
The contention that is
now
pressed
before us is that in the view that there was no rent-free
grant in favour of the predecessors
of the defendants
they were all trespassers, and
that the
title
of
the
· Asthal had become
extinguished
by
adverse
possession for long over the statutory period. But the question of adverse
possess10n was not made the
subject
of an issue, and there is no discussion of it in the
judgments of the
Courts below. We have already held
that the documents
relied on by the
defendants
as
containing assertions that they held
under a Lakheraj
grant are not shown to relate
to the suit lands.
We
(1) [1852] 18 Q.B. 287.
L~
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S.C.R.
SUPREME COURT REPORTS
1177
have also held that there is no proof that
the defendants claimed to hold under a rent-free grant to
the
. knowledge of
the plaintiff prior to 1931, and that
what all has been established
by
them is
non-payment of
rent
for a
considerable
but unascertained
period of time.
That,
in itself, is
not sufficient
to
m,ake their possession adverse.
It was only in
1931
that the defendants
could be
said clearly
to
have
asserted a hostile title,
and the suits are within time
. from that
date.
There is no substance
in this plea,
which is accordingly rejected .
In the result, the appeals are allowed,
the decrees
of the District
Court and of the High
Court are set
aside, and those of the District Munsif restored with
costs in this Court and in the two Courts below.
The
decrees of the
District Munsif will stand as regards
. costs in that Court.
Appeals allowed.
SHREEKANTIAH RAMA YYA MUNIP ALLI
v.
THE STATE OF BOMBAY
(With Connected Appeal)
[MuKHERJEA, S. R. DAs and V1vIAN BosE, JJ.]
Criminal Procedure Code, (Act V of 1898), s. 197-Prevention of
· Cofruption Act, 1947 (II of 1947), s. 5(2)-Charge thereunder and
charge under s .. 409 of the Indian Penal Code (Act XLV of 1860Separated from each other-Sanction granted under s. 5(2) of the Prevention of Corruption Act-Whether could be extended as to cover prosecution under s. 409 of the Indian Penal Code-S. 197 of the Code
of Criminal Procedure-Scope and
construction of-Indian Penal
Code, s. 34--Essence of-Whether the person must be. physically
. present at the actual commission of the crime.
·
The three accused-Government servants-were jointly charged
with an offence punishable under s. 5(2) of the Prevention of Corruption Act, 1947 and all three were further jointly charged with ,
having committed breach of trust in furtherance of the common intention of all under s. 409 of the Indian Penal Code read with s. 34.
Then followed a number of !!lternative charges in which each was
separately charged with having eommitted criminal breach of trust
personally under s. 409.
As a further alternative, all three were
Sri Monohar Das
Mohanta
v.
Charu Chandra
Pal and Others
Venkatarama
Ayyar J .
1954
December 2a