SHREEKANTIAH RAMA YYA MUNIPALLI v. THE STATE OF BOMBAY
Citation: [1955] 1 S.C.R. 1177; 1954 INSC 124
Court: Supreme Court of India
Bench: BIJAN KUMAR MUKHERJEA , SUDHI RANJAN DAS, VIVIAN BOSE
Judgment date:
Case summary
1954 INSC 124. Supreme Court of India judgment dated 1954-12-12. SHREEKANTIAH RAMA YYA MUNIPALLI v. THE STATE OF BOMBAY. Read the judgment and case details...
Judgment text
- •. .. • S. C. R. SUPREME COURT REPORTS 1177 have also held that there is no proof that the defen- dants 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-pay- ment 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 1860- Separated from each other-Sanction granted under s. 5(2) of the Pre- vention of Corruption Act-Whether could be extended as to cover pro- secution 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 Cor- ruption Act, 1947 and all three were further jointly charged with , having committed breach of trust in furtherance of the common in- tention 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 Bhreekantiah RamaY. Jla Munipalli v. TheSlate of Bombay 1178 SUPREME COURT REPORTS [1955] jointly charged under s. 409. read with s. 109 for having abetted each other in the commission of a criminal breach of trust under s. 409. On objection taken to these charges, the trial for the offence under. s. 5(2) of the Prevention of Corruption Act was separated from the trial· under s. 409 of the Indian Penal Code. The charges were re- framed. One under s. 5(2) was dropped while others remained. On 27-10-1949 the Governor~General acting under s. 197 of the Code of ,- Criminal Procedure sanctioned the prosecution of the first accused \-"- (appellant No. I) for offences under ss.
120-B, 409, 109 for having , conspired with the other two to commit criminal breach of trust in respect of properties belonging to Government and for having thus abetted the commission of that offence and also for having con1- mitted it. Similar sanction was not given against the other two ac- cused and was limited only to the Rrst accused. On the same date sanction was given for the prosecution of the first accused under s. 5(2) of the Prevention of Corruption Act, 1947 and a similar sanc- tibn was given against the second accused. The question ·was whe- ther this sanction. against the second accused could be extended to cover his prosecution under s. 409 and whether his trial was valid. Held, (answering the question in the n~gative) that under s. 197 of the Code of Criminal Procedure the sanctioning authority was the Governor~General.
Under the Prevention of Corruption Act, 1947 the sanctioning authority was the Central Government, Either one, or two, Government authorities were given the right and in- vested with the duty of making an election. If two Government authorities are given the right to' choose and neither can encroach upon the preserve of the other, then the Governor-General has not sanctioned the present prosecution agains. t the second accused (appellant No. 2) and no -other authority ·has the power to do so. Therefore the sanction given to prosecute under s. 5(2) of Act II of 1947, could not be used to cover the present trial, bec~use it was given by an authority not competent to give it. If, on the other hand, the twO authorities are really one, then . the election has been made clearly. The sanction under s. 5(2) of the Prevention of Corruption Act, 1947 as amended by Act LIX of 1952 and Act LXVI of 1952 is to proceed in special courts with a special procedure so the present ,tf.
ial against the second accused was incompetent. It is well-settled tha:t a ' pealed separately. Their appeal was heard by another Bench and was admitted, and a reasoned judgment followed on 23-11-1953. This, to say the least, was, in the circumstances of this case, anomalous. The al>' peals arise out of the same trial and are from one judgment and relate to the same charge to the Jury, and what is more they raise substantially the same points. This Court was constrained to express its disapproval of the summary rejections of appeal> which raise issues of substance and importance. . w~· draw attention to the remarks in Mushtak Hussein v. The State of Bombay ( 1 ). Those observations apply. with even greater force in the present case. The three accused are Government servants. At all material times, the first was the Officer Command~ ing the Military Engineering Stores Depot at Dehu Road near Poona. He was in over-all charge. The 1) [1953) S. C. R. 809, 820. • - ) , • S. C. R.
SUPREME COURT REPORTS 1181 second was under him as· the officer -in charge of the Receipts and Issue control section. The third worked directly under the · secon . y· S;C. R. SUPREME COURT REPORTS 1191 to direct a retrial though this is. the rionnal course . when a jury frial is set aside on the grounds of i:nis- direction and non-direction. We tl). erefore discharge (nqt acquit) both the appellants leaving it to Govern- ment ~ither to drop t. he e. ntire matter or to p~oceed in such. manner as it may be advised. ,. We do . this because the accused· expressly asked that the • · charge· under the Prevention · of ·Corruption Act shbuld· be''· left over ··for a separate ~rial,. ·The two convictioμ:s ~re, ' therefore quashed and. ·also . the sentences: ~e. are . told that the first accused has already . served out his. ; sentence. The fine if paid, will be refunded. The bail bond of the second accused will . be cancelled. MAHANT SALIG RAM v. MUSAMMAT MAYA DEVI. ' (~: ~· DAS, BHAGWAT!
and SYED JAFER IMA¥ JJ. ] '. ' Custom-succession-Non-ancestral property-Daughter virsus collateral within fourth degree-Saraswat Brahmins of Pathahl{ol •in the District of Gurdaspur-Riwaj-i-am-Entries ih'erein-Value of -Riwaj-i-am of Gurdaspur District of the year 1913-Whether a t·eliable document-,-Answer to questions 16 and 17. -Value of, It is now well-settled that the general custoin of the P~njab, being that a daughter excludes the collaterals from succession to the self-acquired property of her father. the initial onus, therefore, must, on principle, be on. the. collaterals to show that the general custom in favour of the daughter's succession to the. self-acquired property <1f her tather has been varied by a special local . custom . excluding· t~c, daughter which is binding on the parties. . . . , .
• It is also well-settled that though the entri~s ·in the'· Riwaj-i~am are entitled to an initial presumption in favour of their cortectne,s· irrespective of the question whether or not the custom, 'as recorded, is in accord ·with the general custom, the quantum of evidence neces' sary to rebut that presumption will, however, 'vary with the ·facts and circumstances of each case. Where, for instance; the Riwaj-i- am lays down a custoin in consonance with the general agricultural custom of the province, very strong proof would be required to dis- · place that presumption; but where, on the other hand, the custom as recorded in the Ri waj'i-am is opposed to the custom generally prevalent; the presumption will be considerably weakeneq, Likewise 1 40-89 S. C. India/59 1 954 · Shreekanliak . Ramayya · Munipalli v. The Stale of Bomha. J Bose]. 1955 January ~1
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