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We are unable to accept this suggestion. Ratio |
Suppose a statute sets tip a special criminal Court for the trial of certain offences, and it gives no power to the police to arrest any person. Ratio |
Nevertheless, the police has under its general powers under the Code of Criminal Procedure authority to arrest any person concerned in any cogniscible offence. Ratio |
If in the exercise of these powers the police arrests some person on the accusation of a crime for which he is liable to be tried before the special criminal Court, the arrested person has the constitutional right to be defended by counsel at the trial before the special criminal Court in respect of the offence for whi... |
It has also been suggested that the trial of an offence before the Nyaya Panchayat is akin to an action for recovery of money and as an arrested person has no constitutional right to be defended by counsel in the action for recovery of money, so, also he has no such right in a trial of all offence before the Nyaya Panc... |
A person arrested on the accusation of a crime has the constitutional right to be defended by counsel at a subsequent trial of the crime for which he is arrested. Ratio |
He cannot, therefore claim this right in a subsequent action against him for recovery of money, but he can claim this right in a subsequent trial of the offence before the Nyaya Panchayat. Ratio |
As soon as the respondents were arrested without warrants issued by a Court, they acquired the rights guaranteed by cl.(1) of article 22. Ratio |
It is true that they were subsequently released on bail and at the time of the trial before the Nyaya Panchayat they were not being detained. Ratio |
But the right attaching to them on their arrest continued though they were not under detention at the time of the trial. Ratio |
The right was not lost because they were released on bail. Ratio |
The respondents were arrested otherwise than under a warrant issued by a Court on the accusation that they had committed crimes. Ratio |
Their arrests, therefore, satisfy the test laid down in Ajaib Singh 's case(1), and are within the purview of cl.(1) of article 22. Ratio |
We express no opinion on the question whether the test of an arrest laid down in that case is exhaustive. Ratio |
We may now briefly notice a few decisions under other Pan chayat Acts. Ratio |
In Lal Bachan Singh vs Suraj.Bali(2), the Allababad High Court held that a provision of the U. P. Panchayat Raj Act (26 of 1947) under which no counsel was permitted to appear in the Court of the Panchayati Adalat did not infringe any right of an accused who had not been arrested. PRE |
In Gurdial Singh vs The State(1), the Punjab High Court held that a provision of the Punjab Gram Panchayat Act (4 of 1953) under which the accused was not allowed to be defended by counsel of his choice did not infringe any right under article 22. PRE |
In Digambar Aruk vs Nanda Aruk(4), the Orissa High Court held that no 'tight of the accused was infringed by section 94 of the Orissa Gram Panchayat Act (15 of 1948), which prohibited any legal practitioner from appearing before an Adalti Panchayat, having power to award a sentence of imprisonment in lieu of fine. PRE |
The reports of the two last cases do not set out full facts. Ratio |
Presumably, in both cases the accused were not arrested at all, and if so, there could be no infringement of any right under article 22. Ratio |
We do not approve of these decisions if and so far as they might have held that the right of an arrested person to be defended by a legal practitioner of his choice before the Panchayati Adalat was not infringed by the provisions precluding such defence. Ratio |
We, therefore, hold that section 63 of the Madhya Bharat Pan chayat Act, 1949 is violative of article 22(1) and is void to the extent it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial of the crime for which he is arrested. Ratio |
Most of the safeguards embodied in cls.(1) and (2) of article 22 are to be found in the Code of Criminal Procedure. Ratio |
But the Constitution makes the fundamental change that the rights guaranteed by cls.(1) and (2) of article 22 are no longer at the mercy of the legislature. Ratio |
No legislature can enact a law which is repugnant to the Constitution. Ratio |
A pre Constitution law which is inconsistent with the provisions of article 22 is, to the extent of such inconsistency, void. Ratio |
The next question is whether the trial and convictions were illegal. Ratio |
During the trial, the respondents never claimed that they should be defended by counsel. Ratio |
Had they wanted the assistance of counsel, the Nyaya Panchayat might have under section 79(c) returned the complaint for being filed before a magistrate. Ratio |
They were happy and content to be tried before the Nyaya Panchayat without the assistance of counsel. Ratio |
There was no occasion for enforcing the provisions of section 63 against them. Ratio |
Even if section 63 were repealed or struck down before the trial, they would not have engaged any counsel for their defence. Ratio |
The existence of section 63 on the statute book did not cause them any prejudice. Ratio |
In the circumstances, the High Court ought not to have quashed the trial and convictions. Ratio |
In the result, we declare that section 63 of the Madhya Bharat Panchayat Act is violative of article 22(1) of the Constitution, and is void to the extent that it denies any person who is arrested, the right to be defended by a legal practitioner of his choice in any trial of the crime for which he is arrested. Ratio |
Subject to this declaration, the appeal is allowed, the order of the High Court is set aside and the convictions and sentences passed by the Nyaya Panchayat, Barwani are restored. Ratio |
ORDER In view of the majority, the Appeal is allowed, the judgment of the High Court is set aside and that of the Courts below is restored. RPC |
Appeal No. 205 of 1964. FAC |
Appeal by special leave from the judgment and decree dated November 30, 1961 of the Orissa High Court in First Appeal No. 63 of 1957. FAC |
A. K. Sen and P. K. Chatterjee, for the appellant. FAC |
Niren de, Addl. FAC |
Solicitor General, Dipak Datta Chaudhuri and R. N. Sachthey, for respondent No. 2. FAC |
The Judgment of the Court was delivered by Raghubar Dayal, J. FAC |
This appeal, by special leave, is against the judgment and decree of the Orissa High Court, confirming the judgment and decree of the Additional Subordinate Judge, Puri dismissing the suit instituted by Mahant Gadadhar Ramanuj Das, represented after his death by Mahant Srinivas Ramanuj Das, for the setting aside of the... |
The allegations in the plaint are as, follows. FAC |
The premises on which the residential quarters of the plaintiff existed was said to 438 be popularly known as (i) Srinivas Kote; (ii) Rajagopal Math; and (iii) Emar Math, according to. FAC |
the names of the different ancestors of the plaintiff, Srinivasachari, Rajagopalachari and Embarachari. FAC |
It was alleged that these premises, though known as Emar Math, was not a 'math ' as defined in the Act. FAC |
Embarachari and his ancestors were alleged to be grahasts. FAC |
His successors to the Emar Math were celibate. FAC |
Srinivasachari was the grand father of Embarachari. FAC |
It is alleged that he acquired a portion of the present site of the plaintiff 's residential quarters and built his residence there and installed therein his family deity Sri Raghunathji for his own spiritual benefit and the spiritual benefit of his family members and that Embarachari acquired a large Plot of land adja... |
The buildings therefore became popularly known as Emar Math, although Embarachari was a married man and was living there with his wife and children with the private deity Sri Raghunathji. FAC |
The plaintiff alleged that the properties described in Schedule Ka of the plaint were his personal properties, those in Schedule Ka 1 as acquired through absolute gifts to the plaintiff or his ancestors and those in Ka 2 as gifted to or purchased by the plaintiff or his predecessors and that they were wrongly recorded ... |
The properties in Schedule Kha are alleged to be Amrit Manohi properties of Lord Jagannath held by the plaintiff as marfatdar and to have been acquired either by purchase or 'krayadan ' or by way of gift subject to the charge of some offering to Lord Jagannath. FAC |
The properties in Schedule Ga were alleged to be owned and possessed by the plaintiff as marfatdar of various private deities. FAC |
It was alleged that none of the properties in these schedules was however dedicated to the public and that the public had no interest in or right to any of the properties. FAC |
The properties therefore did not constitute 'Public religious endowments ' within the meaning of the Act which, accordingly, could not apply to them. FAC |
The Commissioner of Hindu Religious Endowments, Orissa, hereinafter called the Commissioner. FAC |
demanded contribution under section 49 of the Act and took steps to enforce certain other provisions of the Act against the plaintiff and the properties in suit. FAC |
This led the plaintiff to formally ask for a decision under section 64(1) of the Act. FAC |
The Commissioner decided against him on July 20, 1946 and held that the Emar Math was a 'math ' as defined in the Act and that the properties constituted a 'religious endowment ' to which the Act applied. FAC |
Thereafter the plaintiff instituted this suit and prayed for the setting aside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit. FAC |
439 The Commissioner, defendant No. 2, contested the suit asserting that the properties in suit were public debonair properties and were public endowments to which the Act applied. FAC |
It was further contended that the premises of Emar Math was a 'math ' as defined in the Act and the public had a right to go there and had been actually going there from time immemorial. FAC |
The trial Court accepted the contentions of the defendant Commissioner and dismissed the suit. RLC |
The High Court, on appeal by the plaintiff, agreed with the findings of the trial Court and accordingly dismissed the appeal. RLC |
Two main contentions have been raised before us. ARG |
One is that the Emar Math in suit is not a public math and that therefore the Act does not apply to it. ARG |
The other is that the properties in Schedule Ka were the personal property of the appellant plaintiff and that the properties in schedules Kha and Ga were private debottar properties of the plaintiff. ARG |
Before dealing with the contentions, we may refer to the object and the relevant provisions of the Act. Ratio |
The Act was enacted for the better administration and gover nance of certain Hindu Religious Endowments. Ratio |
Section 2, sub section(a), states that the Act applies, save as thereinafter provided, to all Hindu public religious endowments which, according to the Explanation to that sub section, do not include Jain religious endowments. 'Math ' is defined in sub section(7) of section 6 as: " ' math ' means an institution for the... |
" Sub section(10) of section 6 defines the expression 'person having interest ' to mean, in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs. STA |
Sub section(12) of section 6 defines 'religious endowment ' or 'endowment ' as meaning: "all property belonging to, or given or endowed for 'the support of maths or temples or for the performance of any service or charity connected therewith whether or not such maths or temples be in ruins or the worship in connection ... |
The explanation thereto reads: "Where an endowment has been made or property given for the support of an institution which is partly of a religious and partly of a secular character or for the performance of any service or charity connected therewith, or where an endowment made or property given is appropriated partly ... |
" General superintendence of all religious endowments vested in the Commissioner under section 11 of the Act. STA |
Clause (b) of sub section (1) of section 12 requires the Commissioner to maintain a register for every math or temple and all title deeds and other documents relating thereto. STA |
Sub section(2) provides that the register shall be prepared, verified and signed by the trustee of the math or temple or by his authorised agent and submitted by him to the Commissioner within such period after the commencement of the Act as the Commissioner may fix. STA |
Sub section (3) authorises the Commissioner to make such enquiry as he may consider necessary and to direct that the register be approved with such alterations, omissions or additions as he thinks fit to order. STA |
Section 13 requires the annual verification of the entries in this register. STA |
Section 46 reads: "The trustee of a math or temple may, out of the funds of the endowments in his charge, after satisfying adequately the purposes of the endowments, incur expenditure on arrangements for securing the health, safety or convenience of disciples, pilg rims or worshippers resorting to such math or temple: ... |
" Section 49 provides that every math or temple and every specific endowment attached to a math or temple shall pay annually contributions at specified rates for meeting the expenses of the Commissioner when the annual income exceeds a specified amount. STA |
441 Under section 51(1), the amount of contributions payable by a math under section 49 was to be assessed on and notified to the trustee of the math, temple or specified endowment concerned in the prescribed manner. STA |
Section 64 reads: "(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. STA |
(2)Any person affected by a decision under subsection (1) may, within one year, institute a suit in the Court to modify or set aside such decisions; but subject to the result of such suit, the order of the Commissioner shall be final. STA |
" Before we deal with the contention about the Emar Math being not a public math, we may first consider what the Commis sioner had to do under section 64(1) of the Act. STA |
The Commissioner had to decide under that sub section whether the Emar Math was a math as defined in the Act. Ratio |
He held that it was and we have to see whether he was right in so doing. Ratio |
An institution comes within such a definition if it satisfies three conditions: (i) that the institution be for the promotion of the Hindu religion; (ii) that it be presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of dis... |
There is ample evidence on the record to show that the Emar Math was presided over by the Mahant, that the Mahant exercised spiritual headship over the disciples, and that the succession to the office of the Mahant was regulated by the usage of the institution. Ratio |
There could be no question that such an institution must have been for the promotion of the Hindu religion. Ratio |
It was for such an object that one would have a body of disciples. Ratio |
It is in evidence that the Mahant used to preach and had a large number of disciples who were attracted by the high reputation the Mahant enjoyed. Ratio |
It is said that Embarachari was regarded with great respect in his times and that it was on account of such respect that the gift of the land evidenced by the Deed, Exhibit 110, executed sometime is 1767, was made in his favour. Ratio |
It is not disputed for the appellant that the institution is a math. Ratio |
What is disputed is that it is not a public math as required by the Act. Ratio |
The premises of the Emar Math constituted a religious endowment, which includes the premises of maths or temples. Ratio |
442 Further, if the premises of the Emar Math had been used both for secular purposes and for religious purposes, it, according to the explanation to sub section Ratio |
This makes it clear that the premises of the Math is not only deemed to be a religious endowment, but is deemed to be a Hindu public religious endowment to which the Act applies, as the provisions of the Act govern its administration. Ratio |
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