civil appellate jurisdiction civil appeal number 1605 of 1972.
appeal by special leave from the award dated numberember 24
1971 of the labour companyrt delhi in l.c.i.c. number 31 of 1971.

k. ramamurthi and j. ramamurthi for the appellant. m. tarkunde o. c. mathur d. n. mishra and sudhir k.
khanna for the respondent. the judgment of the companyrt was delivered by
krishna iyer j.-industrial law in india has many twilight
patches illustrated by the present appeal which projects
the problem of an employee whose services have been
terminated similiciter by the management a pump
manufacturing enterprise issuing a numberice ending the
employment and offering one months pay as authorized by
the relevant standing orders. the thorny legal issue is
whether the ipse dixit of the employer that he has lost
confidence in the employee is sufficient justification
jettison the latter without levelling and proving the objec-
tionable companyduct which has undermined his companyfidence so that
the tribunal may be satisfied about the bona fides of the
firing as companytrasted with the companyourable exercise of power
hiding a number-so-innumberuous purpose. the backdrop
the facts and circumstances become decisive of the fate of
the case even where the law is simplistic or fair in its
face. here what are the events and environments of
employment leading to the worker being given the boot ? is
the order an innumberent and therefore legal quit numberice
sanctioned by the standing orders which does number stigmatize
the worker but merely bids him good-bye ? oris it a sinister
intent to punish as a guileless order based on loss of
confidence an alibi which on a certain reading of this
courts rulings is also a protective armour against
judicial probe and setting aside ? michael a permanent employee of proved efficiency and six
years standing was appreciatively given two merit
increments. but a letter of september 2 1970 told him off
service giving him one months numberice-pay discharging him
without damning as distinguished from dismissing him for
misconduct. the rival versions illumine the factual companyfrontation the
resolution of which is numbereasy legal essay. the worker
michael through his union protested against the sack
order as victimisation of a trade union activist but the
management was heedless companyciliation was fruitless and the
dispute between the union and the management was eventually
referred by the delhi administration to the labour companyrt for
adjudication. the reference ran thus
whether the termination of services of shri

michael is illegal and or unjustified and
if so to what relief is he entitled and what
directions are necessary in this respect ? both sides stated their cases in their pleadings and the
true nature of the companyflict emerges from them. the story set out by the employee in his statement before
the labour companyrt was that although he was efficient
appreciated and awarded merit increments the management was
antagonized by his active part in the formation of an
employees union especially because oral warnings by the
regional manager against his unionist proclivity was
ignumbered. michael became the treasurer of the union. this
union chapter claimed its price for the management quietly
terminated his services by a simple letter which reads
we are sorry to advise that your services are
numberlonger required by the companypany. as such
this letter may be treated as a numberice for the
termination of your services with immediate
effect. as for the terms of your employment
letter on termination of services you will be
paid one months salary extra. you may please
call on the undersigned and have your accounts
settled. this act claims the worker was in flagrant violation of
elementary principles of natural justice without assigning
any reason and without giving him an opportunity to defend
himself. this in his statement he challenged the
termination as wrongful mala fide illegal and an act of
victimisation. the companynter case of the management get up
in its statement as is apparent from the discharge order
is that numberdismissal is involved numberenquiry necessary and
numberillegality invalidates. the management claimed that the alleged annumberance with the
workman for union activity was a companycoction in self-defence
as the management had number even knumberledge of the formation of
the union. this fatter limb of the plea is a little too
naive. the warning by the regional manager was denied and
the reference to trade union activities by the worker was
more to create a ground for the workmans claim and has
been leveled as a matter of habit and routine. the basic
plea of the management was that the action being a simple
termination without a sting the process and companysequence of
a disciplinary action were number attracted. the management however took the companyrt into companyfidence to
explain why the employee was discharged. he was employed as
a receipt and dispatch clerk in the office upto 10-3-1970.
as an insider with a to office companyrespondence the
employee misused his position by passing on very important
and secret information about the affairs of the companypany to
certain outsiders. he was companysequentially shifted to the
post of clerk handling posting of bins and companylection of
payments but the workman although denied direct access to
correspondence in the receipt and dispatch section made
attempt to elicit information from the section with a view
to pass it on to outsiders. the upshot of these activities
of which the management was alerted was a loss of companyfidence
in the employee. this unreliability was visited with number-
injurious termination of service by a bona fide order. therefore the action was claimed to be legal and immune to
judicial interference. two socially vital factors must inform the understanding and
application of industrial jurisprudence. the first is the
constitutional mandate of part iv obligating the state to
make provision for securing just and humane companyditions of
work. security of employment is the first requisite of a
workers life. the second equally axiomatic companysideration
is that a worker who willfully or anti-socially holds up the
wheels of production or undermines the success of the
business is a high risk and deserves in industrial
interest to be removed-without tears. legislation and
judicial interpretation have woven the legal fabric. we
have to see whether on the facts of the present case what
the relevant law is whether it has been applied by the
labour companyrt rightly and whether the appellant has merit on
his side judged by the social companyscience and judicial
construction of the law in this branch of discharge
simpliciter versus disguised dismissal. a few salient facts need emphasis before the principles of
law are applied. the workman in his statement stressed the
case of malaus antinus due to his union activities although
he did vaguely refer to the termination of service as
wrongful and malafide. from this it cannumber be argued as
the management sought to make out that his denial of
leaking out office secrets was an after-thought pleaded only
in the rejoinder and therefore liable to be discredited. how companyld the worker have a hunch about the managements
undisclosed ground for dismissal ? when the latter stated
the reason which prompted this action for the first time
before the labour companyrt the workman in his reply refuted
this case. it is numbereworthy that there is numberspeck of
record or any hint of written material in support of the
story that the management had credible information of the
appellant betraying sensitive secrets of business. the
letters sent by the union and the worker requesting for
reinstatement were being ignumbered. the management companyld well
have disclosed their suspicion in reply and told the union
and the workman that they resorted to an innumberuous discharge
to avoid punitive trauma. the management companyld have
divulged in writing to
the companyciliation officer their legitimate fears about the
workers integrity and their companysiderate action of simple
termination. this too they failed to do. in their written
statement in companyrt the management asserted for the first
time that the employee was an intractable smuggler of inside
information. the statement winds up with the legalistic
plea the management had in the meanwhile lost companyfi-
dence in the workman. this culminating companylapse of trust
is alleged to be the primary cause for the discharge from
employment. at the time of the evidence m.w.1 a former regional
manager swore that the workman joined as a pump operator in
1963 was promoted as clerk in 1967 that the suspicion of
disloyal companymunication arose for the first time in 1968
and yet thereafter he was given two increments extra in
addition to numbermal increments. he was a hard working man
and has a very good memory but the suspicion was there. these are the facts and the evidence in the case and it has
been fairly companyceded before the labour companyrt by the
managements representative that were the action regarded as
punitive it was bad there having been numberenquiry whatever
with liberty to the employee to meet the charge. but the
single slender strand on which the discharge was suspended
was loss of companyfidence of the management in the employee. the labour companyrt argued
according to the management as there was no
proof with it for this suspicion it companyld number
proceed against him departmentally and in the
circumstances it was companysidered desirable to
terminate his services by passing an order of
discharge without any stigma attached to it. while on all hands it was agreed that the employee was
efficient the companyrt took the view that the motivation for
the termination was the suspicion which lurked in the mind
of the regional manager that information regarding tenders
was being passed on by the workman. we have to find out
whether the holding in the award that on the materials
above placed the action companyld be called companyourable or saved
as bona fide companyld be castigated as achieving an
illegitimate end or supported as a premature but straight-
forward and harmless farewell. in short was loss of
confidence a legal label affixed by the management to eject
the workman there being numberother legal method of accompli-
shing their wish to remove him for misconduct ? two questions therefore fall for decision. can a person
reasonably instructed in the law and scrutinising with
critical faculties the facts on record companyic to the
conclusion that the snapping of the tic of master and
servant in the present case was innumberuous andbona-fide
or oblique circumvention of the processual protection the
law provides before a workman is dismissed for mis-conduct ? we can discern harmony and companysistency in case lawfrom
chartered bank 1  and murugan 2  through sudder office 3
and
 1  1960 3 s. c. r. 441.  2  1965 2 s. c. r. 149.  3  1970 ii l. l. j. 620. -423sci/75
air india companyporation 1 . the social justice ice
perspective and particular facts are important though. the
plethora if precedents need number be companyered in extenso as
the law laid-down is the same except that judicial response
to each case situation leads to emphasis on different facets
of the principle. even so some milestone decisions if we
may say so may be companysidered. in murugan mills case  supra  wanchoo j  as he then was
speaking for the companyrt made the following observations
the right of the employer to terminate the
services of his workman under a standing order
like cl.17 a  in the present case which
amounts to a claim to hire and fire an
employee as the employer pleases and thus
completely negatives security of service which
has been secured to industrial employees
through industrial adjudication came up for
consideration before the labour appellate
tribunal in buckingham carnatic company limitedv.
workers of the companypany  1952 l.a.c. 490 . the
matter then came up before this companyrt also in
chartered bank v. chartered bank employees
union  1960 3 scr 441 and the management of u.

dutt company v. workmen of u. b. dutt company
 1962 supp. 2 scr 822  wherein the view taken
by the labour appellate tribunal was approved
and it was held that even in a case like the
present the requirement of bona fides was
essential and if the termination of service
was a companyourable exercise of the power or as a
result of victimisation or unfair labour
practice the industrial tribunal would have
the jurisdiction to intervene and set aside
such termination. the form of the
order in
such a case is number companyclusive and the tribunal
can go behind the order to find the reasons
which led to the order and then companysider for
itself whether the termination was a
colourable exercise of unfair labour practice. if it came to the companyclusion that the
termination was a companyourable exercise of the
power or was a result of victimisation or
unfair labour practice it would have the
jurisdiction to intervene and set aside such
termination. in that case the form of the order had numberfoul trace but
before the tribunal dereliction of duty and go-slow tactics
were disclosed as the inarticulate reasons. this companyrt
ruled
this clearly amounted to punishment for
misconduct and therefore to pass an order
under cl.17 a  of the standing orders in such
circumstances was clearly a companyourable
exercise of the power to terminate the
services of a workman under the provisions of
the standing orders. shri m. k. ramamurthy companynsel for the appellants companytended
for the proposition that even where a management had the
power to terminate the services of its employee without
reasons but with numberice pay only the companyourable exercise of
that power invalidated it and the
 1 1972 3 s. c. r. 606.
court companyld probe beneath the surface to check upon the
bonafides behind the exercise of the power. if the reasons
including the termination were victimisation unfair labour
practice or misconduct it was foul play to avoid a fair
enquiry and fall back upon the power to terminate
simpliciter there are myriad situations where an employer
may in good faith have to reduce his staff even though he
may have only a good word for his employees. simple
termination is a weapon usable on such occasions and number
when the master is willing to strike but afraid to wound. we have been referred to the bihar state road transport
corporation case 1 . the power of the companyrt to go behind
the language of the order is reaffirmed there. in suddek
office  supra  the companyrt apparently laid stress on the
managements right to terminate the services simpliciter
under the terms of companytract where there was numberlack of bona
fides unfair labour practice or victimisation. it is
significant that this companyrt used language and laid down law
very much like in the earlier cases and did refer to the
precedents on the point. for instance vaidialingam j.
there observed
it is needless to point out that it has been
held by this companyrt in the chartered bank
bombay v. the chartered bank employees union
 1960 11 llj 222  that if the termination of
service is a companyourable exercise of the power
vested in the management or as a result of
victimisation or unfair labour practice the
industrial tribunal would have jurisdiction to
intervene and set aside such termination. in
order to find out whether the order of
termination is one of termination simpliciter
under the provisions of companytract or of
standing orders the tribunal has ample
jurisdiction to go into all the circumstances
which led to the termination simpliciter. the manner of dressing up an order does number matter. the
court will lift the veil to view the reality or substance of
the order. the companyrt in that case examined the
circumstances in detail to see whether a dismissal for
misconduct was being masked as a simple send off with a
months pay and held ultimately
we are satisfied that the management has
passed the order of termination simpliciter
and the order does number amount to one of
dismissal as and by way of punishment. of companyrse loss of companyfidence in the workman was alleged by
the management and the companyrt found that it was number a
camouflage. it may be numbericed that in that case the workman
was being entrusted with stores worth several lakhs of
rupees some goods were lost from the stores and the union
was informed by the management that it had lost companyfidence
in the workman. in the written statement before the labour
court the management alleged that the workman was the head
godown-clerk who was the custodian of the companypanys
property the post being one of trust and companyfidence. it is
numbereworthy that in the high companyrt the workman did number even
file a companynter-affidavit and the companynsel for the union and
the workman agreed that the order of termination was number a
camouflage to companyer up what really was an order
 1  1970 s.c.r. 708.
of dismissal. he merely urged that the termination of the
services was really by way of dismissal. in this companyspectus
of circumstances this companyrt found that the head clerk in
charge of the engineering godown and responsible for the
maintenance of companysiderable stores held a sensitive
position. this companyrt observed
the entire basis of the labour companyrts award
for holding that the order is one of dismissal
is its view that the management has invoked
cl. 9 to camouflage its action. when that
approach has been given up on behalf of the
workman before the high companyrt the reasoning of
the labour companyrt falls to the ground and the
high companyrt has acted within the jurisdiction
under art. 226 when it set aside the order of
the labour companyrt especially when there has
been numberfinding of victimisation unfair
labour practices or mala fides recorded
against the management. to companyclude we are
satisfied that the high companyrt was justified in
setting aside the order of the labour companyrt. we have gone into this decision at length to disabuse the
impression that a new defence mechanism to protect
termination of service simpliciter viz. loss of
confidence had been propounded in this ruling. we do number
agree that any such innumberation has been made. the air
india companyporation case  supra  may seem to support the no
confidence doctrine but a closer study companytradicts any such
view. of companyrse shri tarkunde companynsel for the management
placed great reliance on this ruling. needless to say this
court recognised the power of the tribunal to go behind the
form of the order look at the substance and set aside what
may masquerade as termination simpliciter if in reality it
cloaked a dismissal for misconduct as a companyourable exercise
of power by the management. the companyrt repeated that an
industrial employer cannumber hire and fire his workmen on
the basis of an unfettered right under the companytract of
employment. on the facts of the air-india case  supra  the
court companycluded that it-was number possible to hold this order
to be based on any companyceivable misconduct. special
reference was made to the grave suspicion regarding the
complainants private companyduct with air-hostesses. where no
misconduct spurs the action and a delicate unsuitability for
the job vis a vis the young women in employment in the same
firm is strongly suspected resort to termination
simpliciter cannumber be criticized as a malafide machination. in that background the action was held to be bonafide and
the overall unsuitability led-to a loss of companyfidence in the
employee. number that the loss of. companyfidence was exalted as a
ground but the special circumstances of the case exonerated
bad faith in discharge simpliciter. before companycluding the discussion we may refer to the case
of delhi transport undertaking v. goel 1  adverted to by the
labour companyrt. indeed that decision turned on regulations
framed under the delhi road transport authority act 1950
and number on pure industrial law or companystruction of the
standing orders. moreover the companyrt in that
 1  1970 ii llj 20.
case appears to have discussed rulings under art. 311 also. however on the facts of that case the companyrt was satisfied
that order of termination was number a disguise or cloak for
dismissing the employee and the ground given that he was a
cantankerous person undesirable to be retained-was good. we do number read the delhi transport case  supra  to depart
from murugan mills case  supra . indeed the latter did
number and maybe companyld number over-rule the former. the above study of the. chain of rulings brings out the
futility of the companytention that subsequent to murugan mills
case  supra  companyourable exercise of power has lost validity
and loss of companyfidence has gained ground. the law is. simply this the tribunal has the power land indeed the
duty to x-ray the order and discover its true nature if
he object and effect if the attendant circumstances and
the ulterior purpose be to dismiss the employee because he
is an evil to be eliminated. but if the management to
cover up the inability to establish by an enquiry
illegitimately but ingeniously passes an innumberent-looking
order of termination simpliciter such action is bad and is
liable to be set aside. loss of companyfidence is numbernew armour
for the management otherwise security of tenure ensured by
the new industrial jurisprudence and authenticated by a
catena of cases of this companyrt can be subverted by this neo-
formula. loss of companyfidence in the law will be the companyse-
quence of the loss of companyfidence doctrine. in the light of what we have indicated it is clear that
loss of companyfidence is often a subjective feeling or
individual reaction to an objective set facts and
motivations. the companyrt is companycerned with the latter and number
with the former although circumstances may exist which
justify a genuine exercise of the power of simple
termination. in a reasonable case of a companyfidential or
responsible post being misused or a sensitive or strategic
position being abused it may be a high risk to keep the
employee once suspicion has started and a disciplinary en-
quiry cannumber be forced on the master. there a termination
simpliciter may be bow fide number companyourable and loss of
confidence may be evidentiary of good faith of the employer. in the present case the catalogue of circumstances set out
in the earlier part of the judgment strikes a companytrary numbere. the worker was number told when he wrote the union was number
disclosed when they demanded the labour companyrt was treated
to verbal statements like very reliable sources and other
credulous phrases without a modicum of evidence to prove
bonafides. some testimony of unseemly attempts by the
workman to get at secrets outside his orbit some indication
of the source of suspicion some proof of the sensitive or
strategic role of the employee should and would have been
forthcoming had the case been bona fide. how companytradictory
that even when a strong suspicion of leaking out sensitive
secrets was being entertained about the employee he was
being given special merit increments over and above the
numbermal increments a case of res ipsa loauitur. circums-
tances militate against the i say so of m.w.1 that the
management had suffered an ineffable loss of companyfidence. to
hit below the belt by trading legal pharses is number
industrial law. we are companystrained to express ourselves
unmistakably lest industrial unrest induced by
wrongful terminations based on companyvenient loss of companyfidence
should be generated. before we companyclude we would like to add that an employer who
believes or suspects that his employee particularly one
holding a position of companyfidence has betrayed that
confidence can if the companyditions and terms of the
employment permit terminate his employment and discharge
him without any stigma attaching to the discharge. but such
belief or suspicion of the employer should number be a mere
whim or fancy. it should be bona fide and reasonable. it
must rest on some tangible basis and the power has to be
exercised by the employer objectively in good faith which
means honestly with due care and prudence. if the exercise
of such power is challenged on the ground of being
colourable or mala fide or an act of victimisation or unfair
labour practice the employer must disclose to the companyrt the
grounds of his impugned action so that the same may be
tested judicially. in the instant case this has number been
done. there is only the ipse dixit of the employer that he
was suspecting since 1968 that the appellant was divulging
secrets relating to his business. the employer has number dis-
closed the grounds oil which this suspicion arose in 1968.
further after 1968 the appellant was given two extra
increments in addition to his numbermal increments as stated
already in appreciation of his hard work. this
circumstance companypletely demolishes even the whimsical and
tenuous stand taken by the employer. it was manifest
therefore that the impugned action was number bona fide. it was urged by mr. tarkunde learned companynsel for the
employer that the question whether or number the employer had
lost companyfidence in the employee was essentially one of fact
aad this companyrt should number disturb the finding of fact
recorded by the trial companyrt on this point. it is true that
this companyrt in appeal as a rule of practice is loath to
interfere with a finding of fact recorded by the trial
court. but if such a finding is based on numberevidence or is
the result of a misreading of the material evidence or is
so unreasonable or grossly unjust that numberreasonable person
would judicially arrive at that companyclusion it is the duty
of this companyrt to interfere and set matters fight. the case
before us is one such instance- where we are called upon to
do so. the labour companyrt has misled itself on the law land we set
aside its order.


civil appellate jurisdiction civil appeal number. 310/ of 1963
and 121 of 1964.
appeals from the judgments and decrees dated numberember 22
1960 and numberember 16 1961 of the orissa high companyrt in first
appeals number. 53 of 1956 and 78 of 1958 respectively. p. maheshwari for the appellant  in c. a. number 310 of
1963 . k. chatterjee for the appellants  in c. a. number 121 of
1964 . v. gupte solicitor-general and r. n. sachthey for
respondent number 1.  in both the appeals . the judgment of the companyrt was delivered by
civil appeal number 310 of 1963.
ramaswami j. this appeal is brought by a certificate on
behalf of the plaintiff against the judgment and decree of
the orissa high companyrt dated numberember 22 1961.
in the suit which is the subject-matter of this appeal the
plaintiff alleged that his ancestor-dayanidhi mahapatra-con-
structed a temple out of his own funds and established a
family deity and made endowments for the maintenance of
seba-puja of the deity. after the death of dayanidhi the
plaintiff became the manager and shebait of the family
deity. the case of the plaintiff was that the temple and
the endowments were never dedicated to the public number had
the public any kind of right in the temple or the endowed
properties but that respondent number 1 acting under the
provisions of s. 49 of the orissa hindu religious endowment
act  hereinafter referred to as the act  realised a sum of
rs. 386 as the annual companytribution from the plaintiff. companysequently sri baman mahapatra filed an application under
s. 64 1  of the act for a declaration that the temple in
question was a private one and did number fall within the
purview of the act. on numberember 1 1953 respondent number 1
rejected the companytention of the plaintiff and declared the
temple as a public excepted temple within the meaning of
s. 6 5  of the act and appointed members of the plaintiffs
family as the hereditary trustees. thereafter sri baman
mahapatra filed a suit in the companyrt of subordinate judge
puri under s. 64 2  of the act for a declaration that the
order passed by respondent number 1 was illegal and should be
set aside. respondent number 1 filed a written statement in
that suit and after hearing the evidence on behalf of both
the parties the subordinate judge held that the temple was a
private temple belonging to the family of the plaintiff and
defendants 2 and 3 and number a public excepted temple as
erroneously held by respondent number 1 in his order dated
numberember 1 1953. aggrieved by this judgment respondent
number 1 filed an appeal before the orissa high companyrt which
allowed the appeal on the preliminary ground that the suit
was number maintainable as the plaintiff had number impleaded the
public in accordance with the requirements of 0.1 r. 8 of
the civil procedure companye. the high companyrt took the view that
the omission to implied the public in a suit under s. 64 2
of the act was fatal and the suit as framed was
therefore number maintainable and should be dismissed. in
taking this view the high companyrt followed its previous
decision in padma charan v. companymissioner hindu religious
endowments orissa.  1
the question of law involved in this appeal is whether the
high companyrt is right in its view that in a suit brought under
s. 64  2  of the act the public should be impleaded as
necessary parties under 0. 1 r. 8 of the civil procedure
code. section 6 13  of the act defines a temple as a place by
whatever designation knumbern used as a place of public
religious worship and dedicated to or for the benefit of
or used as of right by the hindu companymunity or any section
thereof as a place of religious worship. section 6 5
defines an excepted temple to mean and include a temple
the right of succession to the office of trustee or the
offices of all the trustees  where there are more trustees
than one  whereof has been hereditary or the succession to
the trusteeship whereof has been specially provided for by
the founder. section 64 of the act states
64.  1  if any dispute arises as to whether
an institution is a math or temple as defined
in this act or whether a temple is an excepted
temple such dispute shall be decided by the
commissioner. any person affected by a decision under
subsection  1  may within one year institute
a suit in the companyrt to modify or set aside
such decision but subject to the result of
such suit the order of the companymissioner shall
be final. the right of instituting a suit companyferred by s. 64 2  on any
person affected by the decision of the companymissioner is a
statutory right and there is numberhing in that section which
makes it incumbent upon the plaintiff to make the public as
party-defendants to the suit or to take recourse to the
procedure prescribed under 0.1 r. 8 civil procedure companye. it was companyceded by the solicitor general on behalf of
respondent number 1 that there is also numberhing in the rules
framed under s. 52 of the act requiring the companymissioner to
give public numberice and invite objections from the members of
the public interested in the temple in a proceeding under s.
64 1  of the act. if the companymissioner is number required to
give public numberice or to grant a hearing to members of the
public before making an order under s. 64 1  of the act
there

i.l.r. 1961 calcutta 183.
is numberreason why the person affected by the decision of the
commissioner should be companypelled to implead members of the
public as party-defendants in a suit brought under s. 64 2
of the act in our opinion the suit brought under s. 64  2
is number a suit of the nature companytemplated by 0. i r. 8 of the
civil procedure companye. having regard to the scheme and
object of the act it is manifest that the companymissioner
represents the interest of the public and he is the only
person who is entitled to take proceedings on behalf of the
religious and charitable trust and individual members of the
public have numberlocus standi in the matter. reference may be
made in this companynection to s. 54 of the act which states
54.  1  the companymissioner or any person having
interest and having obtained the companysent of
the companymissioner may institute a suit in the
court to obtain a decree-
 a  to recover possession of property
comprised in a religious endowment
 b  appointing or removing the trustee of a
math or excepted temple or of a specific
endowment attached to a math or excepted
temple
 c  vesting any property in a trustee
 d  declaring what proportion of the endowed
property or of the interest therein shall be
allocated to any particular object of the
endowment
 e  directing account and enquiries or
 f  granting such further or other relief as
the nature of the case may require. sections 92 and 93 and rule 8 of order 1
of the first schedule of the companye of civil
procedure 1908 shall have numberapplication to
any suit claiming any relief in respect of the
administration or management of a religious
endowment and numbersuit in respect of such
administration or management shall be
instituted except as provided by this act. all suits or other legal proceedings by
or against the companymissioner under this act
shall be instituted by or against him in his
name. the principle underlying the section is based to some
extent upon the principle of english law for enforcement of
charitable trusts in the interest of general public. in
english law the crown
as parens patriae is the companystitutional protector of all
property subject to charitable trusts such trusts being
essentially matters of public companycern-a. g. v. brown 1
and the attorney general who represents the crown for all
legal purposes is accordingly the proper person to take
proceedings on this behalf and to protect charities-eyre v.
countess of shaftsbury  2 . whenever an action is necessary
to enforce the execution of a charitable purpose to remedy
any abuse or misapplication of charitable funds or to
administer a charity the attorney general is the proper
plaintiff whether he is acting alone ex-officio as the
officer of the crown and as such the protector of charities
or ex relation that is to say at the request of a private
individual who thinks that the charity is being or has been
abused. the same principle is to some extent the basis of
different legislative enactments in our companyntry with regard
to enforcement of public religious and charitable trusts.


criminal appellate jurisdiction criminal appeal number 575
of 1986.
from the judgment and order dated 31.3.1986 of the
bombay high companyrt in crl. w.p. number 153 of 1986.

s. gupte rajendra desai and v.b. joshi for the appel-
lant petitioner. v. deshpande a.m. khanwilkar and a.s. bhasme for the
respondents. the judgment of the companyrt was delivered by
khalid j. the same questions of law and facts are
involved in these two cases. one is a criminal writ petition
under article 32 filed by the detenues wife and the other a
special leave petition filed by him against the judgment of
the bombay high companyrt rejecting his plea to quash the order
of detention. special leave granted. both are being disposed
of by this companymon judgment. we will refer to the detenue as
the petitioner in this judgment. the petitioner was detained pursuant to an order of
detention dated 15th january 1986 issued by the companymis-
sioner of police bombay who is respondent number 2 herein
under section 3 2  of the national security act 1980. the
grounds of detention are given in annexure-c. the detention
is based on three incidents one on 16-9-1985 the other on
1-12-1985 and the third on 25-12-1985 the offences involved
in the three cases being 324 336 i.p.c. 324 506 ii

p.c. and 452 i.p.c. respectively. there are three cases
pending in respect of these three incidents. the order of detention discloses that the people within
the jurisdiction of bandra police station in greater bombay
are experiencing a sense of insecurity and fear to their
lives due to the petitioners activities which are prejudi-
cial to the maintenance of public order in the said locali-
ties and areas. from the materials placed before us we find that the
first two incidents involve the same person between whom and
the petitioner there appears to be some enmity. the third
incident relates to some
other person. the petitioner was an under trial prisoner at
the time the detention order was made. we do number think it necessary to go into all the grounds
urged before us by the petitioners companynsel in support of
his prayer to quash the order of detention. the one companyten-
tion strongly pressed before us by the petitioners companynsel
is that the detaining authority was number made aware at the
time the detention order was made that the detenue had moved
applications for bail in the three pending cases and that he
was enlarged on bail on 13-1-1986 14-1-1986 15-1-1986. we
have gone through the detention order carefully. there is
absolutely numbermention in the order about the fact that the
petitioner was an under trial prisoner that he was arrested
in companynection with the three cases that applications for
bail were pending and that he was released on three succes-
sive days in the three cases. this indicates a total absence
of application of mind on the part of detaining authority
while passing the order of detention. in our view this is the short manner in which the two
cases can be disposed of. if the petitioner is found dis-
turbing law and order or misusing the bail granted to him
the authorities would be at liberty to move the appropriate
court to get the bail orders cancelled. one does number knumber
how the detaining authority would have acted if he was made
aware of the above details. we are number satisfied that this is a fit case to resort
to preventive detention. we refrain from referring to the
other grounds urged before us and from examining them. the
petitioner is entitled to succeed on the first ground.


civil appellate jurisdiction civil appeal number 778 of
1966.
appeal by special leave from the order dated may 25
1965 of the punjab high companyrt in letters patent appeal number
146 of 1965.

v. gupte and naunit lal for the appellant. k. sen s.c. mohatta and a.d. mathur for respondent
number1. c. mahajan and r.n. sachthey for respondent number. 2
3 and 4.
the judgment of the companyrt was delivered by
sikri j. this appeal by special leave is directed
against the judgment and order of the high companyrt of punjab
in letters. patent appeal number 146 of 1965 whereby the high
court dismissed in limine the letters patent appeal filed by
the appellant surja against the judgment of the learned
single judge allowing the writ petition filed by the
respondent hardeva. . the relevant facts for determining the points raised
before us are as follows hardeva respondent before us is
a big landlord of village panniwala mota in sirsa tahsil of
hissar district. surja the appellant was an old tenant of
hardeva and had been cultivating the land in dispute since
about 1949. section 18 of the punjab security of land
tenures act 1953  punjact x of 1953 -hereinafter referred
to as the act--entitles a tenant of a land-owner other than
a small land-owner to purchase from the land-owner .the land
held by him but number included in the reserved area of the
land-owner if he satisfies the companyditions laid down in that
section. section 18 1   2  may be set out. 18 1  numberwithstanding anything to the companytrary
contained in any law usage or companytract a tenant of a
land-owner other than a small land-owner-

who has been in companytinuous occupation of the land
comprised in his tenancy for a minimum period of six years
or

who has been restored to his tenancy under the
provisions of this act and whose periods of companytinuous
occupation of the laud companyprised in his tenancy immediately
before ejectment and immediately after restoration of his
tenancy together amounts to six years or more or

who was ejected from his tenancy after the 14th
day of august 1947 and before the companymencement of this act
and who was in companytinuous occupation of the land companyprised
in his tenancy for a period of six years or more
immediately before his ejectment shall be entitled to
purchase from the land-owner the land so held by him but number
included in the reserved area of the land-owner in the case
of a tenant falling within clause  i  or clause  ii  at any
time and in the case of a tenant falling within clause

within a period of one year from the date of
commencement of this act
provided that numbertenant referred to in this
subsection shall be entitled to exercise any such fight in
respect of the land or any portion thereof if he had sublet
the land or the portion as the case may be to any other
person during any period of his companytinuous occupation
unless during that period the tenant was suffering from a
legal disability or physical infirmity or if a woman was
a widow or was unmarried
provided further that if the land. intended to be
purchased is held by anumberher tenant who is entitled to
preempt the sale under the next preceding section and who
is number accepted by the purchasing tenant the tenant in
actual occupation shall have the right to pre-empt the sale. a tenant desirous of purchasing land under sub-
section  1  shall make an application in writing w an
assistant companylector of the first grade having jurisdiction
over the land companycerned and the-assistant companylector after
giving numberice to the land-over and to all other persons
interested in the land and after making such inquiry as he
thinks fit shall. determine the value of
the land which shall be the average of the
prices obtaining for similar land in the
locality during 10 years immediately preceding
the date on which the application is made. surja accordingly applied on august 5 1957 to the
collect orhissar district stating that he intended to
purchase the land in dispute and that the land is outside
the reserved area of the landowner. he further alleged that
he had been in possession of the land for the last eight
years. hardeva in his written statement inter alia stated
that surja was in possession of the land only for three or
four years. he alleged that surja had already 150 bighas of
cultivable land. he further stated that the land is
reserved and for that reason surja was number entitled to
purchase it. in his evidence before the assistant companylector
given on march 25 1958 hardeva deposed
the land is reserved. i do number knumber whether the land in
dispute is reserved or number. by his order dated march 31 1959 the assistant
collector sirsa held that surja was entitled to purchase
the land in dispute and accordingly fixed the price. regarding reservation he observed
it is admitted by the respondent that they
are big land-owners and got this land
reserved but later on during his very cross-
examination he denied any knumberledge about the
reservation. the respondent produced no
evidence with regard to having this land got
reserved though they are big land-owners. hardeva thereupon filed an appeal before the companylector and
one of the grounds taken was that the assistant companylector
erred in holding that the land in dispute was number reserved
land. the companylector by his order dated july 20 1960
dismissed the appeal. it was companymon ground before him that
hardeva was a big landowner and that surja had been in
continuous possession of the land in dispute for more than
six years and the only point he determined was whether with
the addition of the 28 bighas and 12 biswas of land which
surja had been permitted to purchase his total area would
exceed the permissible area or number. on this point he held in
favour of surja and accordingly dismissed the appeal . hardeva then filed a revision before the companymissioner. in the grounds of revision dated october 27 1960 various
grounds were taken but there was numberground regarding
reservation of land or selection of land under s. 5-b of the
act. on february 1 1961. hardeva filed an application in
the companyrt of the companymissioner. in this application he
stated that the entire land in dis-
pute was included in the permissible area selected by him
under s. 5-b of the act by submitting form e. he further
stated that the financial companymissioner had in karan
singh v. angraz singh  1 . held that selection under s. 5
-b 1  had the same force as. reservation under s. 5 of the
act and this disentitled. surja from purchasing the land in
dispute. he prayed that he may be allowed to raise the plea
of selection under s. 5-b  1 . he stated that tiffs plea
involved a question of jurisdiction and in the interest
of justice he may be permitted to raise this plea as an
additional ground of revision. the companymissioner allowed the ground to be taken but as
surjas companynsel suspected the bona fides of the selection
the companymissioner sent for the original file and he satisfied
himself after examining the original form e and the
affidavit in relation to form e that. hardeva had duly
submitted the selection document to the companylector within
time on june 19 1958. it appears that the financial
commissioner had held in dhanpat raf v. state punjab 2  that
the period of six months allowed by s5-b for making
selection would start from march 22 .1958 the date when
the punjab government numberification proscribing the form was
issued. the companymissioner felt that the selected land companyld
number be purchased under s. 18 by the tenant. lie accordingly
submitted the case to the financial companymissioner with the
recommendation. that the revision petition be accepted and
that the orders of the assistant companylector and the
collector be set aside. the financial companymissioner dismissed the revision. he
held that as hardeva had number put forward the plea of
selection before the assistant companylector or the companylector he
could number be allowed to do so at that stage. lie observed
in other words the companysideration that reservation of
area under section 5 and selection of area under section 5-b
are identical in their effect has numberrelevance in the
present. cases for the reasons that it was never claimed
 except in revision  that the .area .had .been selected
under section 5-b. if such a claim had been made and
substantiated the position would have been .different but
since this. was number done the decision against the
petitioner cannumber be challenged. it is also clear that
there is numberquestion in these eases of authorities
concerned having acted without jurisdiction or having
exercised. it with illegality or material .irregularity
which alone companyld justify interference in revision. hardeva then filed a petition under arts. 226 and 227. of
the companystitution. the companyrt held that the financial companymis
 1   1960  39 lahore law times 57  2   1961  lahore law
sioner should have accepted. the recommendation made by. the
commissioner and accordingly allowed the petition and
declared that surja was number entitled to purchase the land in
dispute selected by the land-owner under the provisions of
s. 5-b of the act. the learned single judge was of the view
that the disputed question related. to junsdiction and .went
to the root of the whole matter. it appears that there was some dispute before the
learned single judge about the date of the selection
because the learned judge observed
there is a slight dispute on the question whether the
intimation of selection was given on 19th or 20th of june
1958.
he however. preferred to accept the finding of the learned
commissioner on the point and gave the land.owner the
benefit of it. he further observed that the question companyld
number have been raised before the assistant companylector and the
collector because the prevailing view up till 1960 appears
to have been that the selected area had. number been equated
with the reserved area and it was because of this that
hardeva had number placed it before the assistant companylector
and the companylector although he had placed the point that the
area was part of the reserved area. it seems to us that the high companyrt was right in holding
that the question whether the land sought to be purchased
by surja was part of the reserved or selected area was a
jurisdictional fact. under s. 18 of the act a tenant is only
entitled to purchase land which as number included in the
reserved or selected area of the landowner. under s. 18 2
the assistant companylector is only authorized to determine the
value of the land after making such enquiries as he thinks
fit. he is number authorized expressly to go into the question
whether the land sought to be purchased is included in the
reserved or selected area of the land-owner or number. but
obviously it must be the intention that he should go into
these questions before embarking on determining the price. but by wrongly deciding that question he cannumber finally
confer on himself jurisdiction to deal with the matter. in
exercise of the powers under s. 24 of the act read with s.
84 of the tenancy act the financial companymissioner had
jurisdiction to go into the question whether the assistant
collector or the companylector had rightly assumed jurisdiction. it was urged before us that the orders of the assistant
collector and the companylector were final and companyld number be
assailed on the ground that they had wrongly assumed
jurisdiction. reliance was placed on authorities. like rai
brij raj krishna v. sk. shaw 1  where
 1  1951 s.c.r. 145.
this companyrt referred to queen v. companymissioners for special
purposes of income tax  1  and companyonial bank of australia

willan 2  that was a case of a suit whereby the order of
the companymissioner under the bihar buildings  lease rent and
eviction  companytrol act 1947  s. 11  was sought to be
declared illegal ultra vires and without jurisdiction but
we are companycerned with the revisional power.of the financial
commissioner which is the same as that of the high companyrt. as observed by kapur j. speaking for the companyrt in chaube
jagdish prasad v. chaturvedi.  3  these cases have no
application to the exercise of revisional power. he
observed
the appellant also relied on rai brijrai
krishna v.s.k. shaw and bros. 4  where this
court quoted with approval the observations of
lord esher in queen v. companymissioner for pecial
purposes of the income tax 1  and companyonial
bank of australia v. willan a  where sir
james companyville said
accordingly the authoritiesestablish
that an adjudication by a judge having
jurisdiction over the subject matter is if no
defect appears on the face of it to be taken
as companyclusive of the facts stated therein and
that the companyrt of queens bench will number on
certiorari quash such an adjudication on the
ground that any such fact however
essential has been erroneously found. but these observations can have no
application to the judgment of the additional
civil judge whose jurisdiction in the present
case is to be determined by the provisions of
s. 5  4  of the act. and the power of the
high companyrt to companyrect questions of
jurisdiction is to be found within the four
corners of s. 115. h there is an error which
falls within this section the high companyrt will
have the power to interfere number otherwise. the only question to be decided in the
instant case is as to whether the high companyrt
had companyrectly interfered under s. 115 of the
code of civil procedure with the order of the
civil judge. as we have held above at the
instance of the landlord thesuit was only
maintainable if it was based on the inadequacy
of the reasonable annual rent and for that
purpose the necessary jurisdictional fact to
be found was the date of the companystruction of
the accommodation and if the companyrt wrongly
decided
 1  21 q.b.d. m3.  2  l.r. 5 p.c. 417.  3  1959 supp. 1 s.c.r. 733 746.  4  1951 s.c.r. 145.
that fact and thereby companyferred jurisdiction
upon itself which it did number possess it
exercised jurisdiction number vested in it and
the matter fell within the. rule laid down by
the privy companyncil in joy chandlal babu v.
kamalksha chaudhury 1 . the high companyrt had
the power to interfere and once it had the
power it companyld determine whether the question
of-the date of companystruction was rightly or
wrongly decided. the high .court held that
the civil judge had wrongly decided that the
construction was of a date after june 30
1946 and therfor fell within s. 3-a. similarly in jagannath ramchandra datar v. dattaraya
balwant hingmire 2  this companyrt observed
therefore if it can be shown that the
subordinate companyrt without any evidence
whatsoever held that the transaction in
question was number a sale but a mortgage and
that the relationship between the parties was
that of a debtor and a creditor and on that. footing proceeded to exercise its power under
section 3 and 10 a of the dekhan
agriculturists relief act the high companyrt would
be entitled to interfere with such a decision
under both the parts of s. 115. it would
then be possible to say that the subordinate
court had clutched at jurisdiction which it
had number under the said section and it would
also be possible to say that companyrt had
exercised its jurisdiction illegally or with
material irregularity. it seems to us that the financial companymissioner did number
appreciate the companytent of his powers of revision under s.
24 read with s. 84 of the tenancy act. it was obvious from
the report of the companymissioner that if the finding arrived
at by the companymissioner was accepted the assistant companylector
and the companylector had numberjurisdiction in the matter. in our opinion the financial companymissioner should have
gone into the question whether the companymissioners report was
acceptable or number on merits. it is urged by the learned companynsel for surja that the
high companyrt did number decide the question whether the selection
had been properly made within time but it merely accepted
the report of the companymissioner. he therefore still
disputes the fact that the selection was made within time. he also says that it is number a genuine and valid selection. these points should be gone into by the financial
commissioner. under these circumstances we allow the
appeal set aside the orders passed by the high companyrt
 1  1949 l.r. 76 i.a.


criminal appellate jurisdiction criminal appeal number 278 of
1975.
appeal by special leave from the judgment and order
dated the 16th october 1974 of the madhya pradesh high
court in misc. criminal case number 786 of 1974.
gopal subramaniam for the appellant. d. sharma for the respondent. the judgment of the companyrt was delivered by
sen j. the short question involved in this appeal by
special leave from the judgment and order of the madhya
pradesh high companyrt is whether an application for leave to
appeal under sub-s.  3  of s. 378 of the companye of criminal
procedure 1973  hereinafter referred to as the companye
without which numberappeal under sub-s.  1  or sub-s.  2
thereof can be entertained being an integral part of the
appeal must be laid before a bench of two judges of the high
court under r. 1  q   ii  chap. i part i of the madhya
pradesh high companyrt rules or can be heard and disposed of by
a single judge of the high companyrt under r. 1  q  of the
rules. the material facts giving rise to the appeal are these. the state government of madhya pradesh having decided to
prefer an appeal under sub-s.  1  of s. 378 of the companye
filed an application for leave to appeal under sub-s.  3
thereof setting out therein the grounds of appeal. according to the practice prevalent in the madhya pradesh
high companyrt the application was listed before a single
judge as per rule 1  q  chapter i part i of the madhya
pradesh. high companyrt rules the learned single judge refused
to grant leave to appeal under sub-s.  3  of s. 378 on the
ground that the judgment of acquittal was based on
appreciation of evidence and was number perverse or
unreasonable. the state government applied for grant of a
certificate under art. 134  1   c  of the companystitution. the
application for grant of a certificate was placed before and
heard by a division bench. the companytention on behalf of the
state government was that an application for grant of leave
under sub-s.  3  of s. 378 of the companye must be treated as a
part of the appeal preferred by the state government under
sub-s.  1  thereof and
therefore should have been placed before a bench of two
judges and companysequently the order of the learned single
judge rejecting the application for grant of leave under
sub-s.  3  of s. 378 of the companye was a nullity. the division
bench following the decision of anumberher division bench in
the state of madhya pradesh v. narendrasingh rejected the
contention of the state that the learned single judge had no
jurisdiction to entertain or decide the application for
leave to appeal under sub-s.  3  of s. 378 of the companye. it
however numbericed the incongruity of the requirement that an
appeal under sub-s.  1  or sub-s.  2  of s. 378 should be
placed before a bench of two judges under r. 1  q   ii  of
the madhya pradesh high companyrt rules and the hearing and
disposal of an application for leave under sub-s  3  thereof
should be by a single judge and observed
the matter is being examined by the rule making
committee. it is rather anumberalous that under rule 1  q
item  ii  of chapter i of the madhya pradesh high companyrt
rules an appeal against acquittal filed by the state
government has to be heard by a division bench still
the application for leave under section 378  3  of the
code should be laid before a single judge. as the case involved an important question relating to
procedure and practice and as the companyrectness of the
decision of the high companyrt in narendrasinghs case was open
to question special leave was granted by this companyrt. it appears that a practice was prevalent in the madhya
pradesh high companyrt requiring the state government or the
central government desirous of preferring an appeal under
sub-s.  1  or sub-s.  2  of s. 378 of the companye to make an
application for leave under sub-s.  3  thereof and it was
registered as a miscellaneous criminal case and treated as a
petition and as such placed before a single judge for
hearing as per r. 1  q  chap. i part 1 of the madhya
pradesh high companyrt rules. it was only when the single judge
granted leave to appeal under sub-s.  3  that the petition
for leave was registered as a criminal appeal and placed
before a division bench for admission under sub-s.  1  of s.
384 of the companye. the companytention that there was inherent lack of
jurisdiction on the part of a single judge to hear and
decide an application for leave under sub-s.  3  of s. 378
of the companye and therefore the proceedings were null and
void is based on the provisions companytained in r. 1  q  ii
chap. i part i of the madhya pradesh high companyrt rules
which read as follows

the following matters shall ordinarily be
heard and disposed of by a judge sitting alone
xx xx xx xx

an appeal petition or reference under the
code of criminal procedure other than
xx xx xx xx

an appeal by the provincial government under
section 417 of the companye from an order of acquittal. the heading of chap. i in which the rule finds place is
jurisdiction of a single judge and of benches of the
court. it is urged that any breach of the rule would render
the judgment a nullity. rule 4 of the said rules provides
that save as provided by law or by rules or by special
orders of the chief justice all matters shall be heard and
disposed of by a bench of two judges. by reason of s. 8  2
of the general clauses act 1897 reference to an appeal
against acquittal under s. 417  1  of the companye of criminal
procedure 1898  hereinafter referred to as the old companye
by the provincial government has to be read as an appeal
against acquittal by the state government under sub-s.  1
of s. 378.
it is companytended on behalf of the state government that
the making of an application for leave under sub-s.  3  of s
378 of the companye is tantamount to filing an appeal under sub-
s.  1  thereof and the high companyrt can grant leave and
entertain the appeal at one and the same time inasmuch as
such an application by the state government under sub-s.  3
is transmuted into an appeal against acquittal under sub-s.
 1  of s. 378 when leave is granted under sub-s.  3  and
therefore the application for leave under sub s.  3  had to
be heard by a bench of two judges. it is urged that a company-
parison of the language employed in sub-ss.  3  and  4  of
s. 378 would make it clear that the parliament never
intended in the case of an acquittal that the state
government should first make an application for leave under
sub- 3  of s. 378 and then if leave is granted present an
appeal under sub-s.  1  of s. 378. it is further urged that
the jurisdiction of a single judge is limited by the words
other than in r. 1  q  of the madhya pradesh high companyrt
rules and an appeal preferred by the state government under
sub-s.  1  of s. 37.8 of the companye companyld be heard and decided
only by a bench of two judges as required by r. 1  q   ii
of the rules. the submission advanced on behalf of the respondents
on the other hand is that the introduction of the new
provision in sub-s.  3  of s. 378 and the use of the words
leave of the high companyrt and the word entertained clearly
indicates the legislative intent to prescribe for two
different stages  1  the making of an application for leave
under sub-s.  3  of s. 378 and  2  then if leave is
granted presenting the petition of appeal under s. 382 of
the companye. it is urged that the state government must obtain
leave of the high companyrt under sub-s.  3  of s. 3.78
before an appeal against acquittal is preferred under sub-s.
 1  thereof as in the case of a private companyplainant under
sub-s.  4  of s. 378 and the difference in language in sub-
s.  3  and sub-s.  4  is of little companysequence. in narendrasinghs case the state government being. desirous of preferring an appeal against acquittal under
sub-s.  1  of s. 378 made an application for grant of leave
under sub-s.  3  and the proposed memorandum of appeal was
annexed thereto. an application was filed on behalf of the
state government stating that the prayer for grant of leave
under sub-s.  3  be treated as a part of the appeal itself
and number separately. it was further prayed that the case
which had originally been registered as a miscellaneous
criminal case relating to the grant of leave should be
registered as a criminal appeal. the matter was
therefore placed before a division bench. the learned
judges of the high companyrt referred to the report of the law
commission and observed that the legislative object in re-
enacting the provisions of s. 417 of the old companye with the
addition of the new provision companytained in sub-s.  3
of s. 378 of the companye was that there had to be a further
scrutiny of a state appeal by the companyrt even prior to the
stage of admission requiring the companyrt to companysider at the
very outset whether the appeal should be entertained or number. it was only after the appeal was entertained with the
leave of the companyrt that it had to be heard for admission
and it may be dismissed summarily without numberice to the
other side. it was further observed that the legislature
brought about the change while accepting the recommendation
of the law companymission to retain the power of the high companyrt
to dismiss state appeals summarily without numberice to the
respondents. in substance the decision in narendrasinghs case as
expressed in the words of the learned judges may be thus
stated
 a  the very outset on an appeal against
acquittal being lodged by the state the high companyrt is
to companysider whether leave should be granted or number. it
is only when leave is granted under section 378 3  that
the appeal is entertained. on the appeal being so
entertained as a company sequence of the grant of leave it
is to be listed for admission and in case it is number
dismissed summarily under section 384  1  numberice is to
be issued to the accused under section 385  1   iv . xx xx xx xx
the appeal being entertained only on the grant of
leave under sec. 378  3  the matter relating to grant
of leave has to be ordinarily heard and disposed of by
a single bench of this companyrt according to rules. the
appeal itself being entertained only when leave is
granted there is in fact numberappeal as such till the
leave is granted even though it may have been lodged
while praying for leave. the matter has therefore to
be initially registered only as a miscellaneous
criminal case and it is only when the leave is granted
resulting in the appeal being entertained that it can
be registered as a criminal appeal. thereafter it has
to be listed before the division bench for admission. in making these observations the learned judges appear
to have been swayed by a practice which was prevalent in
their companyrt. the jurisdiction of the companyrt in these matters is however
statutory and the companyrt is number entitled to go outside the
provisions of a statute but must interpret them as they are. the answer to the question involved must turn on a
proper companystruction of sub-s.  3  of s. 378 of the companye. section 378 of the companye companyresponds to s. 417 of the old
code as amended in 1955. sub-s.  1  of s. 378 of the companye
is in terms the same as sub-s.  1  of s. 417 of the old companye
and it provides that save as otherwise provided in sub-s.
 2  and subject to the provisions of sub-ss.  3  and  5
the state government may in any case direct the public
prosecutor to present an appeal to the high companyrt from an
original or appellate order of acquittal passed by a companyrt
other than a high companyrt. sub-s.  2  of s. 378 companyresponds
to sub-s.  2  of s. 417 and companyfers the right of appeal on
the central government in certain class of cases subject to
the provisions of sub-s.  3  from such an order of
acquittal. sub s.  3  of s. 378 is a new provision inserted
to implement the recommendation of the law companymission made
in its 48th report on appeals against acquittals and
provides that

numberappeal under sub-s.  1  or sub-s.  2  shall
be entertained except with the leave of the high
court. sub-s.  4  and sub-s.  5  deal with an order of
acquittal passed in any case instituted upon a companyplaint. sub-s.  4  provides that if an order of acquittal is passed
in such a case and the high companyrt on an application made to
it by the companyplainant in that behalf grants special leave
to appeal from the order of acquittal the companyplainant may
present such an appeal to the high companyrt. sub-s.  5
provides for two distinct periods of limitation. no
application under sub-s.  4  for grant of special leave to
appeal from an order of acquittal in a companyplaint case shall
be entertained by the high companyrt at the expiry of six months
where the companyplainant is a public servant and sixty days in
other cases companyputed from the date of the order of
acquittal. there is numberperiod of limitation prescribed for
presenting an application for grant of leave to appeal under
sub-s.  3  of s. 378 from an order of acquittal passed in a
case instituted otherwise than upon a companyplaint obviously
because the companye does number companytemplate the making of an
application for leave under sub-s.  3  of s. 378 of the
code. thus the period of limita-
tion in such a case is for an appeal from an order of
acquittal under sub-s.  1  or sub-s.  2  of s. 378 of the
code as prescribed by art. 114 of the limitation act 1963.
the period of limitation prescribed therefor is sixty days
from the date of the order appealed from. under the scheme of the companye the state government or
the central government may prefer an appeal under sub-s.  1
or sub-s.  2  of s. 378 of the companye but such appeal shall
number be entertained unless the high companyrt grants leave
under sub-s.  3  thereof. the words numberappeal under sub-s.
 1  or sub-s.  2  shall be entertained used in sub-s.  3
of s. 378 create a qualified bar to the entertainment of an
appeal filed by the state government or the central
government under sub-s.  1  or sub-s.  2  from an order of
acquittal passed in a case instituted otherwise than upon a
complaint. the companye by enacting sub-s.  3  of s. 378
therefore brought about a change in that there is numberlonger
an unrestricted right of appeal against the orders of
acquittal passed in such cases. the making of an application
for grant of leave to appeal by the state government or the
central government under sub-s.  3  of s. 378 is however
number a companydition precedent to the entertainment of such an
appeal. the prayer for grant of leave under sub-s.  3  may
as it should be companytained in the petition of appeal filed
under s. 382 of the companye. there is numberwarrant for the view expressed by the high
court in narendrasinghs case that the legislative object in
re-enacting the provisions of s. 417 of the old companye with
the addition of the new provision companytained in sub-s.  3  of
s. 378 of the companye was that there was to be a preliminary
scrutiny of a state appeal by the companyrt even prior to the
stage of admission requiring the companyrt to companysider at the
very outset whether the appeal should be entertained or number
and that it was only after the appeal was entertained with
the leave of the companyrt that it was to be heard for admission
under sub-s.  1  of s. 384 read with sub-s.  1  of s. 385 of
the companye. the high companyrt appears to rest its decision more
on the report of the law companymission than the actual language
of sub-s.  3  of s. 378 of the companye in companying to the
conclusion that sub-s.  3  companytemplated two stages. sub-s.
 3  of s. 378 is number susceptible of any such companystruction. the law companymission in its 48th report had observed. while one may grant that cases of unmerited
acquittals do arise in practice there must be some
limit as to the nature of cases in which the right
should be available. and keeping in view the general rule in most companymon law
countries number to allow an unrestricted right of appeal
against acquittals it recommended
with these companysiderations in view we recommend
that appeals against acquittals under s. 417 even at
the instance of the central government or the state
government should be allowed only if the high companyrt
grants special leave. it may be pointed out that even number the high companyrt
can summarily dismiss an appeal against an acquittal
or for that matter any criminal appeal.  section 422
criminal p.c. . therefore the amendment which we are recommending
will number be so radical a departure as may appear at the
first sight. it will place the state and the private
complainant on equal footing. besides this we ought to
add that under s. 422 of the companye it is at present
competent to the appellate companyrt to dismiss the appeal
both of the state and of the companyplainant against
acquittal at the preliminary hearing. the recommendations of the law companymission were number however
fully carried into effect. sub-s.  3  of s. 378 of the companye
was introduced by parliament to create a statutory
restriction against entertainment of an appeal filed by the
state government or the central government under sub-s.  1
or sub-s.  2  of s. 378 from an order of acquittal passed in
a case instituted otherwise than upon companyplaint. at the same
time parliament re-enacted sub-ss.  3  and  4  of s. 417 as
sub-ss.  4  and  5  of s. 378 which deal with an order of
acquittal passed in any case instituted upon a companyplaint. the result of this has been that there is a difference in
the procedure regulating entertainment of state appeals
against acquittals under sub-s.  1  or sub-s.  2  of s. 378
and appeals against acquittals filed by a companyplainant under
sub-s.  5  of s. 378. on a companyparison of the language
employed in sub-s.  3  and sub-s.  4  of s. 378 it is clear
that the legislature has chosen to treat state appeals in a
manner different
from appeals by a companyplainant in the matter of preferring
appeals against acquittals. in the case of an appeal from an
order of acquittal passed in a case instituted otherwise
than upon companyplaint preferred by the state government or the
central government under sub-s.  1  or sub-s.  2  of s 378
the companye does number companytemplate the making of an application
for leave under sub-s.  3  thereof while the making of an
application under sub-s.  4  of s. 378 is a companydition
precedent for the grant of special leave to a companyplainant
under sub-s.  5  the difference in language used in sub-s.
 3  and sub-s.  4  of s. 378 manifests the legislative
intent to preserve a distinction between the two classes of
appeals by prescribing two different procedures in the
matter of entertainment of appeals against acquittals. it
therefore follows that the state government or the central
government may while preferring an appeal against acquittal
under sub-s.  1  or sub-s.  2  of s. 378 incorporate a
prayer in the memorandum of appeal for grant of leave under
sub-s.  3  thereof or. make a separate application for
grant of leave under sub-s.  3  of s. 378 but the making of
such an application is number a companydition precedent for a state
appeal. in the state of rajasthan v. ramdeen ors. this companyrt
dealt with a case where the rajasthan high companyrt granted the
state government leave to appeal under sub-s.  3  of s. 378
of the companye but dismissed the appeal filed thereafter on
the ground that it had number been filed within ninety days
from the judgment appealed from and was therefore barred by
limitation under art. 114 of the limitation act 1963. the
application for grant of leave under sub-s.  3  companytained
all the requisites of a memorandum of appeal and had been
filed within ninety days from the date of order of acquittal
but was number accompanied by a petition of appeal. it was held
that an appeal under sub-s.  1  of s. 378 was an integral
part of an application for leave to appeal under sub-s  3
accordingly the order passed by the high companyrt dismissing
the appeal as barred by limitation was set aside. in dealing
with the question it was observed
under the law it will be perfectly in order if a
composite application is made giving the necessary
facts and circumstances of the case along with the
grounds which may be urged in the appeal with a prayer
for leave to enter-
tain the appeal. it is number necessary as a matter of
law that an application for leave to entertain the
appeal should be lodged first and only after grant of
leave by the high companyrt an appeal may be preferred
against the order of acquittal. if such a procedure is
adopted as above it is likely as it has happened in
this case the appeal may be time-barred if the high
court takes more than ninety days for disposal of the
application for leave. the possibility that the high
court may always in such cases companydone the delay on
application filed before it does number in law solve the
legal issue. the right companyferred by section 378  1
cr. p.c. upon the state to prefer an appeal against
acquittal will be jeopardised if such a procedure is
adopted for in certain cases it may so happen that the
high companyrt may refuse to exercise its discretion to
condone the delay. the right companyferred under the
section cannumber be put in peril by an interpretation of
section 378 cr. p.c. which is likely to affect
adversely or even perhaps to destroy that right. the view expressed by the high companyrt in narendrasinghs case
being in companyflict with the decision of this companyrt in
ramdeens case must be overruled. it must accordingly be held that the learned single
judge had numbercompetence to entertain hear or dispose of the
question of grant of leave under sub-s.  3  of s. 378 as it
had virtually entailed dismissal of the appeal preferred by
the state government under sub-s.  1  thereof. the matter
should have been dealt with by a bench of two judges in
terms of r. 1  q   ii  chap. 1 part i of the madhya
pradesh high companyrt rules. the question at issue has number become academic. as
already stated the high companyrt while refusing the grant of
certificate of fitness had adverted to the fact that the
matter was being examined by the rule-making companymittee. it
has since amended r. 1  q  and made a distinction between
appeals from orders of acquittals under sub-s.  1  of s. 378
in respect of  1  offences punishable with sentence of
death or imprisonment for life and triable by companyrt of
sessions and  2  other offences. all appeals falling under
category  1  together with applications for leave under
sub-s.  3  of s. 378 have to be heard by a bench of two
judges and other appeals falling under category  2
together with applications for leave under sub-s  3  of s.
378 are to be heard by a single judge.


civil appellate jurisdiction civil appeal number 1523 of
1988.
from the judgment and order dated 13.4.1988 of the
bombay high companyrt in w.p. number 479 of 1988.

k. venugopal a.n. haksar s. vazifdar raian
karanjawala mrs. manik karanjawala and hardeep s anand
for the appellant. datta additional solicitor general p. parmeswaran

c. birala and ms. a. subhashini for the respondents. the judgement of the companyrt was delivered by
venkataramiah j. this appeal by special leave is filed
against an interim order of injunction issued by the high
court of bombay aurangabad bench on 13th april 1988
directing the three respondents  i  union of india  2
ministry of information and broadcasting parliament house
new delhi and  3  state of maharashtra number to telecast and
show episodes 12 and 13 of a serial entitled honi-anhoni
pending disposal of writ petition number 479 of 1988 filed by
respondent number 1 lokvidayan sanghatana a registered social
organisation of pune having its branch at aurangabad and
respondent number 2 mahila sangharsha samiti aurangabad
represented by one of its members smt. anagna patil. the
writ petition was in the nature of a public interest
litigation. the prayer in the writ petition was that the
respondents should be directed number to telecast the serial as
such telecasting was number in the public interest. the serial honi-anhoni was being telecast by the
doordarshan which was run by the union of india on every
thursday between 9 p.m. and 9.30 p.m. the 12th episode of
the said serial was to be telecast on 14th april 1988 and
the 13th episode was to be telecast on 21st april 1988. by
virtue of the interim order passed on 13th april 1988.
episode number 12 companyld number be telecast on 14th april 1988.
aggrieved by the interim order passed by the high companyrt the
appellant odyssey companymunication pvt. limited which was the
producer of the serial honi-anhoni filed the special leave
petition before this companyrt under article 136 of the
constitution of india out of which this appeal arises. the
said petition came up before this companyrt for companysideration on
april 2 1 1988. after hearing the learned companynsel for the
appellant this companyrt granted special leave to prefer an
appeal against
the order passed by the high companyrt and also stayed the
operation of the interim order dated 13th april 1988 passed
by the high companyrt until further orders and permitted the
doordarshan to telecast the serial in question. in view of
the above order the 12th episode of the serial was telecast
on the 21st of april 1988. the appeal was heard on the 28th
of april 1988 and this companyrt reserved judgment on the
appeal. at the end of the hearing of the appeal on 28th
april 1988 the companyrt expressed that it would set aside the
order passed by the high companyrt against which the appeal had
been filed and would give reasons in the companyrse of its
judgment. since the order of stay passed by the companyrt was
allowed to remain in force the 13th episode which was the
last episode of the serial was telecast on the 28th april
1988.
the grounds mentioned in the writ petition in support
of the prayer made in it were that in each and every episode
telecast in the serial an obscure and mysterious atmosphere
was being created due to the way of the presentation of the
episodes and that it had created fear in the minds of the
common viewers and especially of children as the serial had
the effect of companyfirming blinds faiths superstitious
beliefs in stories of ghosts rebirth precognition etc. and
of spreading the unscientific way of thinking and blind
beliefs. it was further companytended that it was the duty of
the state number to encourage blind beliefs amongst the public
by telecasting such episodes. it was on the basis of these
grounds the high companyrt was requested to grant the interim
order of injunction. the appellant was the producer of the
said serial yet the appellant was number made a party to the
writ petition. but on its application the appellant was
impleaded as a party on 12.4.1988. on 13.4.1988 the high
court passed the impugned order of temporary injunction. the
appellant rushed to this companyrt immediately thereafter with
the above said special leave petition. the appellant has
stated before us that the said serial and in particular
episodes 12 and 13 did number emphasise superstitious beliefs
but on the companytrary criticised and companydemned superstition
and blind faith as was ex facie apparent from the scripts of
episodes 12 and 13 produced before this companyrt. it is stated
that at the end of both the episodes a doctor and a
professor gave a scientific explanation for the unusual
occurrences portrayed therein and companysidered by people as
supernatural phenumberena. it is alleged that in the 13th
episode after a scientific explanation of what had taken
place the viewers were told as follows
all those who without thinking spread blind
faith ought to feel ashamed of themselves. we
request all of you that whenever any unusual
occurrencces takes place or a
seemingly imporbable event occurs before
believing in it to reflect as to whether there is
a scientific reason for it or is it purely
psychological by nature. if all of us exercise
such caution we believe that the malady of blind
faith will soon be eradicated by our society. the appellant further pleaded that the high companyrt was
in error in issuing the order of injunction without giving a
reasonable opportunity to it  the producer  which was
likely to be affected by the order to explain that the writ
petitioners had numberright to move the companyrt in the
circumstances of the case. it can numberlonger be disputed that the right of a
citizen to exhibit films on the doordarshan subject to the
terms and companyditions to be imposed by the doordarshan is a
part of the fundamental right of freedom of expression
guaranteed under article 19 1  a  of the companystitution of
india which can be curtailed only under circumstances which
are set out in clause  2  of article 19 of the companystitution
of india. the right is similar to the right of a citizen to
publish his views through any other media such as
newspapers magazines advertisement hoardings etc. subject
to the terms and companyditions of the owners of the media. we
hasten to add that what we have observed here does number mean
that a citizen has a fundamental right to establish a
private boardcasting station or television center. on this
question we reserve our opinion. it has to be decided in an
appropriate case. the relevant part of article 19 of the
constitution reads thus

protection of certain rights regarding
freedom of speech etc.- 1  all citizens shall
have the right-
 a  to freedom of speech and expression

numberhing in sub-clause  a  of clause  1
shall affect the operation of any existing law or
prevent the state from making any law in so far
as such law imposes reasonable restrictions on the
exercise of the right companyferred by the said sub-
clause in the interests of the sovereignty and
integrity of india the security of the state
friendly relations with foreign states public
order decency or moral
ity or in relation to companytempt of companyrt
defamation or incitement to an offence. freedom of expression is a preferred right which is
always very zealously guarded by this companyrt. it was number the case of the petitioners in the writ
petition that the exhibition of serial honi-anhoni was in
contravention of any specific law or direction issued by the
government. they had number alleged that the doordarshan had
shown any undue favour to the appellant and the sponsoring
institutions resulting in any financial loss to the public
exchequer. the objection to the exhibition of the film had
however been raised by them on the basis that it was likely
to spread false or blind beliefs amongst the members of the
public. they had number asserted any right companyferred on them by
any statute or acquired by them under a companytract which
entitled them to secure an order of temporary injunction
against which this appeal is filed. the appellant had denied
that the exhibition of the serial was likely to affect
prejudicially the well-being of the people. the union of
india and the doordarshan have pleaded that the serial was
being telecast after following the prescribed procedure and
taking necessary precaution. in such a situation the high
court should number have immediately proceeded to pass the
interim orde of injunction. it was numberdoubt true that the
12th episode was to be telecast on 14th april 1988 and the
13th episode was to be telecast on 21st april 1988. if the
petitioners in the writ petition had felt as they had
alleged in the companyrse of the petition that all the episodes
in the serial were offensive they companyld have approached the
high companyrt as early as possible within the first two or
three weeks after the companymencement of the exhibition of the
serial. but they waited till the exhibition of the 11th
episode of the serial was over and filed the petition only
in the second week of april 1988. they had number produced any
material apart from their own statements to show that the
exhibition of the serial was prima facie prejudicial to the
community. the high companyrt overlooked that the issue of an
order of interim injunction in this case would infringe a
fundamental right of the producer of the serial. in the
absence of any prima facie evidence of grave prejudice that
was likely to be caused to the public generally by the
exhibition of the serial it was number just and proper to issue
an order of temporary injunction. we are number satisfied that
the exhibition of the serial in question was likely to
endanger public morality. in the circumstances of the case
the balance of companyvenience lay in favour of
the rejection of the prayer for interim injunction. what we
have stated here is sufficient to dispose of this appeal. the other questions of law which may arise in a case of this
nature will have to be dealt with in an appropriate case.