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The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefore. Ratio |
Such an attitude could do neither credit to the magistracy nor good to the public. Ratio |
It can only run down the prestige of the police administration. Ratio |
It is the case of the prosecution that the appellant unearthed a false beard, which he had buried underneath a shami tree in Shiva, and that he had worn it at the time of the murder. Ratio |
The appellant did not deny the recovery, but stated that it was not he that had uncovered it but the jamadar. Ratio |
Both the courts below have accepted the version of the prosecution as true, but while the Sessions Judge held that it was not sufficient to implicate the appellant, the learned Judges held otherwise. Ratio |
P.W. 16 deposed that he saw the appellant at midnight on the 18th May on the outskirts of Kalawad wearing a false beard, and the comment of the Sessions Judge on this evidence is: " I do not see bow this evidence will prove the 1312 prosecution case beyond reasonable doubt. Ratio |
At best, it will suffice to raise suspicion against the accused". Ratio |
But if the beard was discovered by the appellant, then surely it is a valuable link in the chain of evidence against him. Ratio |
Then we come to the confession made by the appellant to P.W. 21. Ratio |
The Magistrate has deposed that he had satisfied himself that it was voluntary, before he recorded it. Ratio |
Now, the facts relating to this matter are these, The appellant was, as already stated, arrested on the 20th May and discoveries of the axe and the false beard were made through him, and on the 21st he was sent to the Magistrate with a letter that he desired to make a confession. Ratio |
The Magistrate has given evidence that he did not record the confession at once, as he wanted the appellant "to cool down", and accordingly gave him ten days to reflect, and committed him to judicial lock up. Ratio |
There is nothing improper in this, and indeed ' it is a commendable precaution for ensuring that the confession was made voluntary. Ratio |
From 21 5 1952 to 3 6 1952 the appellant continued in judicial lock up, and this is a circumstance which normally should negative the possibility of there having been a threat or inducement. Ratio |
But the Sessions Judge declined to attach any weight to it, because both the police lock up and the judicial lock up were situated in the same compound, separated by a distance of 20 feet, and were guarded by the same police officers, and though the judicial lockup had its own warder and clerk jailor, they kept watch o... |
The Sessions Judge accordingly held that the confession was not voluntary. Ratio |
On appeal, the learned Judges came to a different conclusion. Ratio |
They considered that the possibility of threats having been uttered through the bars was too remote and unsubstantial to form the 'basis for any 1313 conclusion, and that all the circumstances indicated that the confession was voluntary. Ratio |
These are the salient points that emerge out of the evidence. Ratio |
The position may be thus summed up: (1) No special weight attaches to the findings of the Sessions Judge on the around that they are based on the evidence of witnesses whom he had the advantage of seeing in the box, and believed. Ratio |
The oral evidence was all on the side of the prosecution, and that was substantially accepted by the Sessions Judge. Ratio |
His judgment is based on the probabilities of the case, and of them, the learned Judges were at least as competent to judge, as he. Ratio |
(2) The finding of the Sessions Judge in so far as it related to the recovery of bloodstained axe was clearly erroneous, as it did not follow on his reasoning. Ratio |
(3) As regards the confession, the conclusion of the Sessions Judge rests on nothing tangible, and is largely coloured by a general distrust of the police, not based on evidence or justified by the circumstances. Ratio |
(4) The learned Judges were of the opinion that even excluding the confession, the other evidence in the case was sufficient to establish the guilt of the appellant. Ratio |
(5) All the four assessors were of the opinion that the appellant was guilty. Ratio |
Now, returning to the two questions which have formed the basis of the preceding discussion, (1) what is it that the High Court has to do in exercise of its powers under section 417, having regard to the findings reached by it and set out above, and how does the doctrine of "compelling reasons" bear upon it? (2) What a... |
Wherein does the theory of "compelling reasons" come in the scheme? There is no need for it in the second category, because even apart from it, the same result must, as already stated, follow on the principles applicable to all courts of appeal. Ratio |
Then, there remains the third category of cases. Ratio |
If the High Court comes to the conclusion on an appreciation of the evidence that the appellant is guilty, has it, nevertheless, to confirm the order of acquittal on the basis of this theory? Surely not, as that would render the right conferred by section 417 illusory. Ratio |
It has no independent value as bearing on its powers under section 417. Ratio |
If that is the true position, it follows on the principles laid down in Sheo Swarup vs King Emperor(1) and Nur Mohammad vs Emperor(2) and in Pritam Singh vs The State(3) that this Court cannot interfere with the orders passed under section 417 merely on the ground that the findings of fact were not justified, having re... |
In my opinion, this appeal ought to be dismissed. RPC |
ORDER. RPC |
BY THE COURT. RPC |
In accordance with the Judgment of the majority this Appeal is allowed. RPC |
The conviction and sentence are set aside and the Appellant is acquitted. RPC |
(1) [1934] L.R. 61 I.A.398. RPC |
(2) A.I.R. 1945 P.C. 151. RPC |
Civil Appeal No. 1271 of 1969. FAC |
Appeal from the Judgment and Order dated 17 8 1966 of the Andhra Pradesh High Court in Appeal Nos. 252 and 283 of 1960. FAC |
427 V. Gopala Krishnaiah,, A. K. Ganguli and D. P. Mukherjee for the Appellant. FAC |
Upendralal Waray and A. Subba Rao for the Respondent. FAC |
The Judgment of the Court was delivered by DESAI J. FAC |
This appeal by certificate granted under Article 133(1)(a) of the Constitution arises from Civil Suit No. 23/1 of 1952 filed by the appellant against 56 respondents for recovering possession of lands more particularly set out in the Schedule annexed to the plaint, mesne profits, accounts and injunction, which suit was ... |
A brief narration of facts necessary for appreciating the contentions raised herein may be set out. FAC |
Plaintiff appellant is the son of late Kazim Yar Jung who was a Minister of H.E.H. the Nizam of Hyderabad. FAC |
The father of the plaintiff obtained grant of certain lands in Ryalamadugu village from the Government of Nizam, the patta having been granted in the name of the plaintiff. FAC |
At about the time of police action in 1948 when the local conditions in Hyderabad City and State were disturbed, the plaintiff, his father Kazim Yar Jung and his step brother Mustafa found it difficult to even approach their lands and the plaintiff was then contemplating to shift to Pakistan with others. FAC |
Defendant No. 1 Rami Reddy who was a police Patel approached the plaintiff and represented that he would manage the affairs of the plaintiff, his brother and father, out that is he was not keeping well a nominal Power of Attorney would have to be granted to defendant No. 34 Uppara Sattayya whereupon the plaintiff, his ... |
The plaintiff alleged that in October 1949 he came to know that defendants nos.1 and 34 were perpetrating fraud when on 25th October 1949 the plaintiff and his brother Mustafa published a notice in the newspapers and the Gazette cancelling the Power of Attorney granted in favour of defendant No. 34. FAC |
Plaintiff then came to know that defendant nos, 1 and 34 and other defendants in collusion with each other got Transferred the lands of the plaintiff for inadequate or 110 consideration and that a fraud was perpetrated. FAC |
The plaintiff further alleged that the Power of Attorney is vague and void and inoperative and would not clothe defendant No. 34 with legal authority to deal with the properties in the manner in which they have been dealt 428 with. FAC |
At any rate, the Power of Attorney did not clothe defendant no, 34 with the authority to sell the land and, therefore, the purchasers have not acquired any title to the lands purporting to have been sold by defendant No. 34. FAC |
The plaintiff accordingly sued for possession, mense profits and accounts from the defendants. FAC |
Different groups of defendants filed three separate written statements but more or less the contentions raised in the various written statements are identical. FAC |
The first contention is that the plaintiff was not the lull and absolute owner of the suit lands but was a benamidar inasmuch as the lands were granted to the father of the plaintiff who was a Minister in the Nizam 's Government but the patta was formally taken in the name of the plaintiff who was then a minor. FAC |
It was also contended that the Power of Attorney, Ext, P l with P 2 was legal and valid and binding and it clothed del`defendant 34 with an authority to sell the lands and different parcels of lands have been sold to different defendants for full consideration and the plaintiff was aware of it and is now trying to take... |
There were some other contentions which at this stage are hardly relevant. FAC |
The trial Court held that the plaintiff was the full and absolute owner of the suit properties. FAC |
The Power of Attorney Ext.P 1 was not vitiated by fraud and has clothed defendant No. 34 with the necessary authority to sell the lands and the sale of different parcels of lands in favour of different defendants were not vitiated by fraud and each sale was for consideration and binding on the plaintiff. FAC |
The Trial Court further held that the properties bearing Items 27 to 40, 42 44, 46, 47, 55 67 and 69 set out in the ' Schedule annexed to the plaint were not proved to have been sold, the conclusion having been based on the only ground that no sale deeds were forthcoming and accordingly it was held that the plaintiff w... |
The trial Court accordingly dismissed the suit except for the aforementioned pieces of land in respect of which a decree for possession and mesne profits was granted in favour of the plaintiff. RLC |
Two appeals came to be filed to the High Court. FAC |
Appeal bearing A. section 252/60 was preferred by original defendants 8, 9 and 11 to the extent decree was made against them by the trial Court. FAC |
Appeal bearing A.S. 283/60 was preferred by the plaintiff to the extent the suit was dismissed. FAC |
Both the appeals came to be disposed of by a Division Bench of the Andhra Pradesh High Court by a common judgment rendered on 17th August 1966 by which A.S. 252/60 preferred by original defendants 8. 9 and 11 was allowed and the decree made against them 429 in favour of the plaintiff was set aside, and A.S. 283/6 prefe... |
As a consequence the entire suit of the plaintiff came to be dismissed with costs in one set. FAC |
The plaintiff thereupon approached the High Court for a certificate and on a certificate under Article 133(1) (a) being granted, the plaintiff lodged the present appeal. FAC |
When the appeal reached the stage of hearing on an earlier occasion, CMP. 17845/78 was filed requesting the Court to record a memorandum of compromise between the appellant and the legal representatives of respondents 1, 2, 3, and respondent 34 inviting the Court to dismiss the appeal of the plaintiff appellant against... |
By an order made by this Court, this compromise was recorded and the appeal was so down for further hearing against the remaining respondents. FAC |
We take note of this compromise because on the basis of this compromise a submission has been made on behalf of the remaining respondents that the appeal against them would no more survive. Ratio |
Mr. V. Gopalakrishnayya, learned counsel for the appellant urged that it is impermissible in law to give a joint Power by three persons in favour of one agent. ARG |
Alternatively it was contended that if such a power of Attorney is legal and valid it would clothe the agent with the only authority to Act in respect of the joint affairs or property of the principals and not for any individual affair or property of any one of them. ARG |
It was further urged that upon a true construction of the authority conferred by the Power of Attorney, Ext P 1 the scope of authority only encompassed the management of the joint properties of the three co principals or at best the management of property of each one of the principal but it did not clothe him with an a... |
Alternatively it was contended that if exhibit P 1 conferred an authority to sell the land it was hedged in with a prerequisite that the property can be sold to finance the litigation or to repay the loan, if any, borrowed for the aforesaid purpose. ARG |
In this context it was submitted that the Court should bear in mind that the garden is on the party who seeks to rely on the authority of the constituted attorney to establish that the impugned transaction falls within the ambit of authority of the attorney, and in this connection it may be borne in mind that ordinaril... |
It was then urged that even if it is held that by the combined operation of Exts.P 1 and P 2 the Attorney had the authority to sell the land he had not acted on his own but merely completed the sale negotiated by an outsider and thereby he acted as a rubber stamp and such an act of the attorney would not bind the princ... |
It was also contended that the High Court was in error in admitting the three sale deeds by granting CMP. 2762/61 purporting to act under Order 41, rule 27, Civil Procedure Code, and if they are excluded from consideration, in the absence of sale deeds the decree of the trial Court against original defendants 8, 9 and ... |
On behalf of the contesting respondents it was urged that the plaintiff being benamidar, cannot maintain the suit on the allegation that he is the full and absolute owner of the properties. ARG |
The first contention of the appellant is that it was impermissible in law for three persons to jointly grant a Power of Attorney in favour of defendant 34. ARG |
Barring the ipse dixit of the learned counsel nothing was shown to us to make such a joint power impermissible in law. Ratio |
The relation between the donor of the power and the donor of the power is one of principal and agent and the expression 'agency ' is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. R... |
The relation of agency arises whenever one person called the agent has authority to act on behalf of another called the principal and ' consents so to act. Ratio |
The relationship has its genesis in a contract. Ratio |
If agency is the outcome of a contract between the principal and the agent, in order to show that three principals jointly constituting an agent by a deed called 'Power of Attorney ' was impermissible, provisions of Contract Act or the general law of contract should have been shown as having been violated by such a con... |
Nothing of the kind was pointed out to us. Ratio |
On the contrary, in Halsbury 's Laws of England, Vol.I, 4th Edn.para 726, the following proposition has been stated: "Co principals may jointly appoint an agent to act for them and in such case become jointly liable to him and may jointly sue him. Ratio |
" We are in agreement with this view and, therefore, three principals could jointly appoint an agent. Ratio |
The next limb of the submission was that if three co principals jointly constituted an agent then unless contrary is indicated by the deed of the Power of Attorney, the necessary inference would be that the agent can act in respect of those affairs in which all the co principles are jointly interested. Ratio |
In other words, it was said that such a Power of Attorney would clothe the agent with an authority to act in respect of joint affairs of the co principals. Ratio |
We are unable to find any force in this 431 argument, for what the Power of Attorney authorises depends on its terms and the purpose for which it is executed. Ratio |
It would, therefore, be necessary to refer to the Power of Attorney, Ext.P l and the supplementary deed, Ext.P l is dated 10th April 1949 and is styled as general Power of Attorney. Ratio |
The co principals are: (1) plaintiff Syed Abdul Khader (2) Kazim Yar Jung, and (3) Syed Mustafa Hussain. FAC |
The purpose for which the power was executed is set out in Ext.P l in the following words: "that in view of our private needs and as we are unable to conduct cases and answer them in time, we therefore appoint Copper Sattayya son of Coper Durgayya resident of Ghanpur, Medak Taluq as our general power of Attorney to act... |
Subsequently on 20th April 1949 a supplementary Power of Attorney in addition to Ext.P l was executed by the aforementioned three donors of Power in favour of defendant No. 34 in which it is specifically stated that they affirm earlier Power of Attorney dated 10th April 1949 and thereafter the relevant recital is as un... |
It was urged that the Court should bear in mind the first principle that a Power of Attorney has to be strictly construed. ARG |
Undoubtedly, where someone other than the person who has a right to act in respect 432 of certain things has, under a contract of agency, the right to ac. Ratio |
On be half of principal, the authority conferred by the written instrument has to be strictly construed. Ratio |
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