minal Appeal No 134 of 1955
Appeal by special leave from the judgment and order dated  January 13 1955 of the Patna High Court in Criminal Appeal No 339 of 1953 arising out of the judgment and order dated May 22 1953 of the Court of the Special Judge at Gaya in Special Case No 3 of 1952
C K Daphtary Solicitor General of India A K Dutta and section P Varina for the appellant
H J Umrigar and Ratnaparkhi A G for the respondent
March 21
The Judgment of the Court was delivered by 197 section K DAS J
This appeal by special leave has been brought by the State of Bihar from the judgment and order of a learned single Judge of the High Court of Patna dated January 13 1955 by which the learned Judge set aside the conviction and sentence passed against the present respondent Basawan Singh and acquitted him of a charge under section 161 Indian Penal Code on which charge he had been convicted by the learned Special Judge of Gaya by his judgment and order dated May 22 1953
It is necessary to state here very briefly the salient facts of the prosecution case
One Bhagwan Das prosecution witness No 7 had a ration shop at a short distance from police station Arwal in the district of Gaya
One of the persons entitled to receive rationed articles from the said shop was Mahabir Prasad prosecution witness No 10 who was a brother of a businessman named Parmeshwar Prasad prosecution witness No 11
Mahabir Prasad held a ration card for ten units and on October 4 1951 he purchased five maunds of wheat on the strength of his ration card from the shop of Bhagwan Das
A cash memo was issued for the purpose and the sale was entered in the register of the shop
Mahabir Prasad carried the wheat in four bags on two ponies
He himself went ahead on a cycle and the ponies followed him
A gentleman named Ram Singhasan Singh stated to be the Secretary of Arwal Thana Congress Committee sent an information to the police station to the effect that Bhagwan Das had sold the wheat in what was called the  black market 
On receipt of this information Basawan Singh who is respondent before us and who was at that time subinspector of police attached to the said police station instituted a case under section 7 of the Essential Supplies Temporary Powers Act 1946 against Bhagwan Das and Mahabir Prasad
He seized the wheat which was being carried on the two ponies went to the shop of Bhagwan Das and questioned him about the transaction
Bhagwan Das denied the charge of blackmarketing and alleged that the transaction was a bona fide sale on the strength and authority of a ration 198 card
He showed the duplicate copy of the cash memo and the entry in the sale register to the respondent
The respondent then checked the stock of wheat in thee shop of Bhagwan Das and found that the stock tallied with the relevant entry in the stock register
In the meantime Mahabir Prasad who had been sent for also came to the shop with his cash memo and ration card
These were shown to the respondent who however arrested both Bhagwan Das and Mahabir Prasad and took them to the police station
It was alleged that at the police station the respondent demanded Rs 500 as a bribe from Mahabir Prasad
Mahabir Prasad could not pay the amount but said that he would consult his brother Parmeshwar Prasad and the latter would come and pay to the respondent whatever sum was thought necessary
Both Bhagwan Das and Mahabir Prasad were then released on bail
On the next day Bhagwan Das was called to the police station and a bribe Rs 500 was demanded from him also
It was alleged that the respondent told Bhagwan Das that if he did not pay the amount the respondent would harass him but if Bhagwan Das paid the amount the respondent would submit a final report and no case would be started against him
Bhagwan Das expressed his inability to pay such a big amount and it was alleged that ultimately the amount was reduced to Rs 300
Bhagwan Das however did not pay it for some time and the prosecution case was that the respondent took wheat from the shop of Bhagwan Das without payment of any price between the date October 26 1951 and November 30 19 1 in this way seven maunds and ten seers of wheat it was alleged were taken by the respondent from the shop of Bhagwan Das though the sales were noted in the sale register in the names of various persons
On December 1 1951 the respondent it was stated agreed to accept Rs 50 from Bhagwan Das in addition to the wheat already taken by him in full satisfaction of the demand of Rs 300
When Bhagwan Das found that he had no other alternative but to pay the amount demanded by the 199 respondent he decided to approach the Anti Corruption Department of the Government of Bihar
One section P Mukherji Deputy Secretary to the Government of Bihar was then in charge of the Department
Bhagwan Das met Mukherji on two dates December 3 1951 and December 5 1951 and filed a written petition to him
Mukherji sent for his Deputy Superintendent of Police a gentleman named Dharnidhar Misra who was also attached to the Anti Corruption Department
Bhagwan Das produced before Mukherji five Government currency notes of Rs 10 each the numbers of which were noted in his written petition
Mukherji put his initials on these notes and then returned them to Bhagwan Das
Mukherji then requested the District Magistrate of Patna to depute a first class Magistrate and one Rudra Dev Sahai was so deputed
It was settled that on December 8 1951 at about 7 pm the bribe money in the shape of the initialled notes would be paid to the respondent and it was arranged that Bhagwan Das would meet the officers from Patna on the canal road from Patna to Arwal at some distance from the police station
Nothing however happened on December 8 1951 because the respondent was away from the police station
On the next day that is December 9 1951 the officers from Patna namely Mukherji Misra and Sahai met Bhagwan Das at the appointed place at about 630 pm
Bhagwan Das then told the officers that Parmeshwar Prasad had also arrived there for paying Rs 50 as bribe to the respondent for the release of the wheat which had been seized and which was still at the police station
Parmeshwar Prasad was then brought to Mukherji at about 730 pm
Mukherji questioned him and recorded his statement which was endorsed by the Magistrate Rudra Dev Sahai
Parmeshwar Prasad then produced five notes of Rs 10 each the numbers of which were also noted in the statement
The notes were then initialled by Mukherji
After this the party went to the police station
The officers who had dressed themselves as ordinary villagers any posed to be relatives of Bhagwan Das squatted on the ground a few feet away 200 from the verandah of the quarters which the respondent occupied and Bhagwan Das and Parmeshwar Prasad stood on the steps of the verandah where the respondent met them
Leaving out details which are not necessary for our purpose what happened then was this
Bhagwan Das paid Rs 50 in currency notes which the respondent took in his left hand
Parmeshwar Prasad also paid his amount in notes to the respondent
The officers were then called
The Magistrate and the Deputy Superintendent of Police disclosed their identity and the Deputy Superintendent told the respondent that he had received a bribe
The respondent tried to throw away the currency notes but the Deputy Superintendent of Police caught hold of his left palm and the Magistrate caught hold of his right hand
There was a scuffle and the respondent was brought down from the verandah and was taken to an open place south west of the police station
Nine currency notes were found in the hand of the respondent and they tallied with the numbers noted down earlier
One currency note was not found till a search was made by means of a petromax lantern in the presence of two search witnesses Ganesh Prasad prosecution witness No 5 and Janki Sao prosecution witness No 4
The search was made at about 9 pm and the missing note was found in a crumpled condition in the southwestern corner of the verandah
A report of the whole incident was then prepared by the Deputy Superintendent of Police and handed over to the officer in charge of Arwal police station
The case was then investigated into by another Deputy Superintendent of Police one Hasan of Aurangabad
After completion of investigation the Deputy Inspector General of Police CID accorded sanction to the prosecution of the respondent on April 1 1952
Thereafter the respondent was tried by the Special Judge of Gaya who by his judgment and order dated May 22 1953 found the respondent guilty of the offence under section 161 Indian Penal Code and sentenced him to rigorous imprisonment for one year only
It may be here stated that the defence of the 201 respondent was that in the case against Bhagwan Das and Mahabir Prasad he had submitted a final report on October 8 1951 to the effect that there was a mistake of fact with regard to the allegation of black marketing and that the case should be entered as false  mistake of fact  This report was supported by the Inspector of Police Jehanabad and accepted by the Sub divisional Magistrate on October 19 1951
The respondent denied that he ever demanded any bribe from either of the two aforesaid persons or that he had accepted as a bribe ten currency notes from Bhagwan Das and Parmeshwar Prasad on December 9 1951
It was suggested that the officers did not actually see what had happened on the steps of the verandah and were deluded into thinking that nine currency notes were recovered from him and with regard to the crumpled note found on the verandah it was suggested that Bhagban Das might have planted it when he bowed down before the respondent The learned Special judge accepted the prosecution evidence as trustworthy and rejected the defences as unworthy of credences
Against his conviction the respondent filed an appeal to the High Court and the learned single Judge who heard the appeal acquitted the respondent on the main ground that there was no independent witness to support the testimony of the  raiding party  consisting of the two bribe givers Bhagwan Das and Parmeshwar Prasad and the two Magistrates and the police officer namely
Mukherji Sahai and Misra
The learned Judge referred to the decision of this Court in Rao Shiv Bahadur Singh vs State of Vindhya Pradesh 1 and he expressed the view that that decision laid down an invariable rule that in cases of this nature the testimony of those witnesses who form what is called the raiding party must be discarded unless that testimony is corroborated by independent witnesses
He then posed the question if there were any independent witnesses in the present case and observed  There are no independent witnesses on the transaction itself
It was submitted however that there 1 26 202 are search witnesses and they are independent indeed they are
But they have proved nothing except this that at the quarters of the appellant a ten rupee note crushed was found and a few other articles
They did not prove the transaction nor they were present at the time of the occurrence itself
The prosecution case depends for all practical purposes on the evidence of the witnesses who are members of the raiding party
 The principal questions which fall for decision in this appeal are 1 whether the learned Judge is right in his view that the decision in Rao Shiv Bahadur Singh 1 lays down any universal or inflexible rule that the testimony of witnesses who form the raiding party must be discarded unless corroborated by independent witnesses 2 if not what is the correct rule with regard to such testimony in cases of this nature and 3 whether the learned Judge is right in his view that there is no independent corroboration of the testimony of the witnesses of the raiding party in the present case
But before we consider these three ques tions it is advisable to dispose of the findings of fact which have been affirmed on appeal or arrived at by the learned Judge
In his judgment the learned Judge has observed  The first point to be determined in this case is whether Bhagwan Das was in fact arrested in connection with the case under the Essential Supplies Temporary Powers Act
That has been well proved and it has not been challenged
It is also established that the appellant did arrest Bhagwan Das as well as Mahabir Prasad and that on that very day Bhagwan Das was released
It is also well established that Bhagwan Das had gone to Mr Mukherji at Patna and related an incident and as a result of that a trap was laid and on the alleged date of occurrence the three officers namely Mr Mukherji Mr Sahai and Mr Misra had gone to the Arwal police station followed by the Gorkha Police
It is also well established that the appellant on the date of occurrence was in his quarters and that it is also established beyond doubt that Bhagwan Das and Parmeshwar were with the appellant in his quarters that evening
1 203 It is also established that the three officers were just near the quarters of the appellant and they were dressed in dhotis kurtas etc like dehaties
It is further established that the appellant was caught by Mr Misra and Mr Sahai and in his possession were found the nine notes of Rs 10 each and that it was established that one Rs 10 note was found in the verandah of the quarters
It is therefore not necessary to discus the evidence on these points because as I have said these facts are well established and admitted before me in the course of the argument
 It is fairly obvious from the observations quoted above that the learned Judge accepted the testimony of the witnesses of the raiding party as to the essential parts of the prosecution case and in particular their evidence to the effect that nine initialled notes of Rs 10 each were found in the possession of the respondent this finding which is tantamount to accepting the prosecution case as correct militates against his later observation that in the absence of independent corroboration he cannot accept the testimony of the witnesses of the raiding party
We say this without meaning any disrespect but the learned Judge perhaps thought that the witnesses of the raiding party were intrinsically trustworthy and gave true evidence yet he based his order of acquittal on what he thought was the effect of the decision in Rao Shiv Bahadur Singh 1 namely the adoption of an inflexible rule in the words of the learned Judge  that the evidence of the raiding party is necessarily tainted  and on their evidence alone it would be difficult to carry the guilt home  to the respondent
In two respects on questions of fact the learned Judge expressed a view different from that of the trial Court first with regard to the motive or reason for the bribe and secondly with regard to the purchase of 7 maunds 10 seers of wheat without payment between the dates October 26 1951 to November 301951
As to motive the learned Judge referred to the circumstance that the respondent had already submitted a final report on 1 204 October 8 1951 which was accepted by the Sub divisional Magistrate on October 19 and therefore there was no case pending against Bhagwan Das and Mahabir Prasad and the motive for the bribe could not be what was alleged by the prosecution
The learned Judge then indulged in a highly speculative finding to the effect that the  possession of the nine notes can be reasonably explained by the fact that his the present respondent s advice was sought for a land dispute between the relations  meaning thereby the two Magistrates and the Deputy Superintendent of Police who posed as relations of Bhagwan Das
This line of reasoning adopted by the learned Judge completely overlooks certain salient facts and circumstances on which the trial Court had relied
The trial Court had found on the evidence given in the case that Bhagwan Das had no information that the case against him had ended in a final report besides the wheat seized had not been released and Mahabir Prasad naturally wanted the wheat back
Then again there was nothing to prevent the respondent from demanding a bribe even after the submission of a final report saying that he would otherwise harass Bhagwan Das and Mahabir Prasad and lastly it was nobody s case nor was there any evidence in support of it that the nine notes were accepted by the respondent for giving legal advice in a land dispute
The suggestion of a land dispute was made to allay any suspicion as to the pre sence of Mukherji Sahai and Misra who were dressed as ordinary villagers none of the witnesses said that the nine notes were paid for advice in connection with a land dispute
The respondent himself did not suggest that he had accepted nine notes for giving legal advice his case was that no notes were found on him
In this state of the evidence the learned Judge was clearly in error in holding that the motive for the bribe was something other than what was alleged by the prosecution
His finding on this point is based on no evidence and is mere speculation
As to the 7 maunds and 10 seers of wheat the learned Judge found that the prosecution had not satisfactorily proved that the respondent was supplied 205 with wheat without payment
The trial Court pointed out however that at least two of the entries in the sale register of Bhagwan Das exhibit 1010 and 1111 stood in the name of the respondent and it was not the respondent s case that he had paid for the wheat referred to in the two entries
Whatever be the correct finding with regard to the sale or supply of these 7 maunds and 10 seers of wheat we agree with the trial Court that the prosecution case is not essentially or vitally dependent on the sale or supply of 7 maunds 10 seers of wheat free of cost to the respondent
The charge against the respondent is the acceptance of Rs 100 as a bribe from Bhagwan Das and Parmeshwar Prasad on December 9 1951
That charge does not necessarily depend upon the truth or otherwise of the supply of 7 maunds and 10 seers of wheat between certain earlier dates
Having dealt with the findings of fact we proceed now to consider the principal questions which arise in this appeal
We take first the decision in Rao Shiv Bahadur Singh 1
It is not necessary to recapitulate all the facts of that case it is sufficient to state that in the trap that was laid in that case the most important witness was one Nagindas who offered the sum of Rs 25000 and the two important witnesses of the raiding party were Pandit Dhanraj Superintendent Special Police Establishment Delhi and Shanti Lal Ahuja Additional District Magistrate Delhi
Nagindas who was acting on behalf of his master Sir Chinubhai did not have the money to offer as a bribe and the money was provided by the police authorities which money was offered by Nagindas in that case
The first point for consideration in the case was whether Nagindas and one Pannalal who was also a servant of Sir Chinubhai and who accompanied Nagindas were accomplices and therefore their evidence should be treated on that basis
This was answered in the negative on the ground that neither of them was a willing party to the giving of the bribe and therefore they did not have the necessary criminal intent to be treated as abettors or accomplices
1 206 This brings out the first distinction which has to be made the distinction between a witness who is an accomplice and one who is not
How the evidence of an accomplice is to be treated is no longer open to any doubt the matter has been dealt with in a large number of decisions and as was observed by this Court in Rameshwar vs The State of Rajasthan 1 the rule laid down in Rex vs Baskerville 2 with regard to the admissibility of the uncorroborated evidence of an accomplice is also the law in India
The rule is that such evidence is admissible in law but it has long been a rule of practice which has virtually become equivalent to a rule of law that the judge must warn the jury of the danger of convicting a prisoner on the un corroborated testimony of an accomplice
In Rameshwar s casel it was pointed out  The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury
In these cases it is necessary that the Judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case
 If the witnesses are not accomplices what then is their position  In Rao Shiv Bahadur Singh s case 3 it was observed with regard to Nagindas and Pannalal that they were partisan witnesses who were out to entrap the appellant in that case and it was further observed  A perusal of the evidence  leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value
 We have taken the observations quoted above from a full report of the decision as the authorised report does not contain the discussion with regard to evidence
It is thus clear that the decision did not lay down any universal or inflexible rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses
It is plain and obvious 1  385 3 2 207 that no such rule can be laid down for the value of the testimony of a witness depends on diverse factors such as the character of the witness to what extent and in what manner he is interested how he has fared in cross examination etc
There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases as in Rao Shiv Bahadur Singh s case 1 where the Court will as a matter of prudence look for independent corroboration
It is wrong however to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded unless independent corroboration is available
With regard to the other two witnesses Pandit Dhanraj and Shanti Lal Ahuja it was observed that the former was a willing tool in the hands of Nagindas and the latter reduced himself to the position of a police witness therefore their evidence  was not such as to inspire confidence in the mind of the Court 
Here again no universal or inflexible rule is being laid down
It should be noticed that in Rao Shiv Bahadur Singh s case 1 the police authorities provided the money and that was taken into consideration in assessing the value of the testimony of Pandit Dhanraj and Shantilal Ahuja
In the case before us no such consideration arises because the money was provided by Bhagwan Das and Parmeshwar Prasad and the officers went there to see what happened
We must make it clear that we do not wish it to be understood that we are deciding in this case that if the money offered as a bribe is provided by somebody other than the bribe giver it makes a distinction in principle
That question does not arise for decision here
All that we say and have said so far is that in assessing the value of the testimony of a witness diverse factors must arise for consideration and the comparative importance of this or that factor must depend on the facts or circumstances of each case
No standard higher or stricter than this can be laid down or was laid down in Rao Shiv Bahadur Singh s decision 1
We must advert here to two other aspects of that decision
It was observed there in clear and emphatic 1 208 words that it is the duty of the police authorities to prevent crimes being committed but it is no part of their business to provide the instruments of the offence
With these observations we are in agreement
In Brannan vs Peck 1 a police officer went inside a public house and made a bet on a horse which act amounted to an offence
The motive in making that bet was to detect the offence under the Street Betting Act 1906 which was being committed by the accused person in that case
In these circumstances Goddard C J made the following observations  I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone 
We also express the same hope for our country but must hasten to add that in the case before us no offence was committed by any of the three officers Mukherji Sahai and Misra in order to get evidence against the respondent
This point was again emphasised in a later decision of this Court in Ramjanam Singh vs The State of Bihar 2
It was therein observed  The very best of men have moments of weakness and temptation and even the worst times when they repent of an evil thought and are given an inner strength to set Satan behind them and if they do whether it is because of caution or because of their better instincts or because some other has shown them either the futility or the wickedness of wrongdoing it behaves society and the State to protect them and help them in their good resolve not to
place further temptation in their way and start afresh a train of criminal thought which had been finally set aside
This is the type of case to which the strictures of this Court in Shiv Bahadur Singh vs State of Vindhya Pradesh  at p 334 apply
 The other aspect of the decision in Rao Shiv Bahadur Singh s case 3 is the employment of Magistrates as witnesses of police traps
Here again we are in full agreement with the view that the independence and impartiality of the judiciary requires that Magistrates 1 3 2 AIR 1956 SC 643651
209 whose normal function is judicial should not be relegated to the position of partisan witnesses and  required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever At the same time it is necessary to make some distinctions
In a large part of the country now the directive principle laid down in article 50 of the Constitution has been implemented and there has been a separation of the judiciary from the executive
The principles on which the employment of Magistrates as witnesses of police traps has been condemned have hardly any application where the Magistrates concerned are executive Magistrates who perform no judicial functions or where the officers concerned are officers of the Anti Corruption Department whose duty it is to detect offences of corruption
In the case before us Mukherji and Misra belonged to such a department
Moreover however inexpedient it may be to employ Magistrates as trap witnesses their evidence has to be judged by the same standard as the evidence of other partisan or interested witnesses and the inexpediency of employing Magistrates as trap witnesses cannot be exalted into an inflexible rule of total rejection of their evidence in the absence of independent corroboration
The learned Solicitor General referred in the course of his arguments to the difficulty of detecting corruption cases and of securing conviction in such cases
We do not think that such a consideration should influence the mind of a judge
Whatever be the difficulties admissible evidence given in a case must be judged on its own merits with due regard to all the circumstances of the case
In some of the cases which have been cited at the bar a distinction has been drawn between two kinds of traps  legitimate and illegitimate as In re M section Mohiddin 1 and in some other cases a distinction has been made between tainted evidence of an accomplice and interested testimony of a partisan witness and it has been said that the degree of corroboration necessary is higher in respect of tainted evidence than for partisan 1 27 210 evidence see Ram Chand Tolaram Khatri vs The State 1
We think that for deciding the questions before us such distinctions are somewhat artificial and in the matter of assessment of the value of evidence and the degree of corroboration necessary to inspire confidence no rigid formula can or should be laid down
For the aforesaid reasons we think that the learned Judge of the High Court did not correctly appreciate the effect of the decision in Rao Shiv Bahadur Singh s case 2  and he was in error in thinking that that decision laid down any inflexible rule that the evidence of the witnesses of the raiding party must be discarded in the absence of any independent corroboration
The correct rule is this  if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged their evidence must be treated as the evidence of accomplices is treated if they are not accomplices but are partisan or interested witnesses who are concerned in the success of the trap their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case and in a proper case the Court may even look for independent corroboration before convicting the accused person
If a Magistrate puts himself in the position of a partisan or interested witness he cannot claim any higher status and must be treated as any other interested witness
This brings us to the last question if in the present case there is any independent corroboration
We have pointed out that the two search witnesses Janki Sao and Ganesh Prasad prosecution witnesses 4 and 5 were independent witnesses who had nothing to do with the raiding party
They found one crumpled ten rupee note one of the series initialled by Mukherji and the numbers of which were noted in the statements of Bhagwan Das and Parmeshwar Prasad at the southwestern corner of the verandah where the respondent when seized by the raiding party tried to throw away the notes
In our view the evidence of the two search 1 AIR 1956 Bom
2 211 witnesses does provide independent corroboration in a material particular to the testimony of the raiding party
The crumpled note one of the series testified  to by the raiding party could not come of itself to the verandah  it could be found where it was actually found only if the testimony of the raiding party was true
The learned Judge said that the search witnesses came later and did not see the actual transaction that is the giving and taking of the bribe
That is correct but independent corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses
As was observed by Lord Reading in Baskerville s case 1 even in respect of the evidence of an accomplice all that is required is that there must be  some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it 
In Rameshwar vs The State of Rajasthan 2 to which we have referred in an earlier paragraph the nature and extent of corroboration required when it is not considered safe to dispense with it have been clearly explained and it is merely necessary to reiterate that corroboration need not be by direct evidence that the accused committed the crime it is sufficient even though it is merely by circumstantial evidence of his connection with the crime
While referring to the findings of fact we have pointed out that the learned Judge himself accepted as correct the prosecution case in its essential parts
There is in our opinion no difficulty in accepting the testimony  of the raiding party in this case supported as it is by the independent testimony of the two search witnesses
Learned counsel for the respondent has urged before us as a last resort that we should not exercise the extraordinary jurisdiction vested in this Court by article 136 in a case of acquittal by the High Court unless exceptional or special circumstances are shown to exist or substantial and grave injustice has been done
He has drawn attention to our decision in The 1 2   385 1 212 State Government Madhya Pradesh vs Ramkrishna Ganpatrao Limsey and others 1
In this case the learned Judge accepted as correct all the essential facts constituting the offence with which the respondent was charged but he passed an order of acquittal on a misconception as to the effect of a decision of this Court
We have no doubt whatsoever that this is a fit case for the exorcise of our jurisdiction under article 136 of the Constitution
In view of the findings of fact arrived at by the learned Judge the only reasonable conclusion is that the respondent is guilty of the offence with which he was charged and the order of acquittal is clearly erroneous
A point about the validity of the order sanctioning prosecution of the respondent was urged before the learned Special Judge who held that the sanction was in order
This point was not dealt with in the High Court
But learned counsel for the respondent has frankly conceded before us that he cannot successfully urge that point here
It is therefore un necessary to remand the appeal for a further hearing on merits
The result therefore is that this appeal is allowed
The judgment and order of the learned single Judge of the High Court of Patna dated January 13 1955 are set aside the respondent is convicted of the offence under section 161 Indian Penal Code and sentenced to rigorous imprisonment for one year namely the same sentence as was passed by the learned Special Judge of Gaya
The respondent must now surrender to serve out his sentence
Appeal allowed


Summary:
The Rules of the Central Public Works Department CPWD adopted by the Delhi Development Authority DDA stipulate and provide that 50 of the posts of Assistant Engineers in DDA be filed up by promotion from the cadre of Junior Engineers comprising of both Graduates in Engineering and Diploma Holders in Engineering in the equal ratio 5050 of the promotional posts
Half of it ie 25 were to be filled up by promotion of Graduate Junior Engineers with three years  service experience as Junior Engineers the other 25 to be filled up from Diploma Holder
Junior Engineers
who had X years service experience as Junior Engineers
The Rules further provide that the Executive Engineers  post in DDA were purely promotional and Graduate Assistant Engineers with 8 years  service experience and Diploma Holder Assistant Engineers with 10 years  service experience were eligible for promotion
No inter se quota between the two class of officers was prescribed
The Diploma Holders in the Cadres of junior Engineers and Assistant Engineers filed separate writ petitions in the High Court assailing the constitutional validity of the prescriptions made by the rules in the matter of requirement of differential service experiences between the Graduates and the Diploma Holders for promotion to the higher caders of Assistant Engineers and Executive Engineers respectively
They also assailed the promotion of Graduate Engineers to the higher cadres made on the strength of the Rules
PG NO 253 PG NO 254 The High Court allowed the writ petitions and declared the different standards of service experience prescribed for Degree Holders and Diploma Holders in respect of both the cadres as violative of Articles 1 1 and 16 of the Constitution
In the appeal to this Court on behalf of appellants it was contended l that the view taken by the High Court is demonstrably erroneous and opposed to well settled principles 2 that the High Court took an erroneous view that in Shujat Ali s case  this Court struck down the service rule impugned in that case 3 that the fundamental distinction between Triloki Nath Khosa s case  and Shujat Ali s case was lost sight of by the High Court4 that the present case was not one in which the Diploma Holders proprio vigore and without more were held eligible for promotion
The educational qualification of a Diploma in engineering was not treated as equivalent to a Degree for purposes of determining eligibility
Nor the Degree itself was determinative of eligibility for promotion
The eligibility of promotion is based on a combination of factors which vary according to the basic educational qualification of the two classes of engineers 5 that this distinction was germane to the requirements of higher technical and academic quality for the higher posts which involved expertise in structural design
and 6 that even where recruitment to a particular cadre was made from different sourcesresulting in the formation of a single homogeneous cadre it was not impermissible to make a further classification amongst the members of such a cadre for purposes of further promotion based on the higher educational qualification of the candidates
On behalf of the respondent Diploma Holders it was contended1 that this Court had more than once
cautioned against undue accent in the matter of promotional opportunities on academic qualification alone which might lead to elitist perferences and tend to obscure the egalitarian principle and social justice 2 that the effect of the distinction is really an imperceptible extension or magnification of insubstantial factors subverting the precious guarantee of equality and3 that to discriminate between Diploma Holders and Graduates who belong to the same cadre and hold inter changeable posts both in the present cadre and in the prospective promotional posts on the mere lack of some higher academic attainment is to place a high premium on these social and economic pursuits for the economically disadvantaged difficult
Allowing the Appeals PG NO 255 HELD l
The inherent distinction between a person with a Degree and one who is merely a Diploma Holder is much too obvious
But the question for consideration in the present context is whether the differences have a reasonable relation to the nature of the office to which the promotion is contemplated
The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn from the same source
If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities
that go with and are attendant upon the promotional post the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification
There mayconceivably be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another
Whether the classification is reasonable or not must therefore necessarily depend upon facts of each case and the circumstances obtaining at the relevant time
When the State makes a classification between two sources unless the vice of the classification is writ large on the face of it the person assailing the classification must show that it is unreasonable and violative of Article 14
263A C  2
A wooden equality as between all classes of employees irrespective of all distinction or qualifications or job requirements is neither constitutionally compelled nor practically meaningful
263D The process of classification is in itself productive of inequality and in that sense antithetical of equality
The process would be constitutionally valid if it recognises a pre existing inequality and acts in aid of amelioration of the effects of such pre existent inequality
The the process cannot merely blow up or magnify in substantial or microscopic differences on merely meretricious or plausible
The over emphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in re placing doctrine of equality by the doctrine of the classification264C D 4
The presumption of good faith in and of constitutionality of a classification cannot be pushed to the point of predicating some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality a mere rope of sand
264E PG NO 256 Central Railway vs AVR sidhanti  at 214 and TDevadasan V The Union of India 1964 4 SCR at 689  690 followed
5To overdo classification is to undo equality
The idea of similarity or dissimilarity of situations of persons to justify classification cannot rest on merely differentia which may by themselves rational or logical but depends on whether the differences are relevant to the goals sought to be reached by the law which seeks to classify
The justification of the classification must therefore be sought beyond the classification
All marks of distinction do not necessarily justify classification irrespective of the relevance or nexus to objects sought to be achieved by the law imposing the classification
264F G State of Jammu  Kashmir vs Triloki Nath Khosa  Ors1974 I SCR 771 Bidi Suppy Cov
Union of India   relied no Mohammad shujat Ali vs UOI and others 19751 SCR 449 HC Sharma and Ors
vs Municipal Corporation of Delhi and Ors 19833 SCR 372 and Punjab State Electricity Board Patiala and Anrv
Ravinder Kumar Sharma  Ors
1986 4 SCC 617 distinguished State of Mysore vs Narasinga Rao  and Union of India vs Mrs SB Kohli 19733 SCR 117 referred to
In the present case the possession of a diploma
by itself and without more does not confer eligibility
Diploma for purposes of promotion is not considered equivalent to the degree
268d 7If the educational qualification by itself was recognised as confering eligibility for promotion then the super imposition of further conditions such as a particular period of service selectively on the Diploma Holders alone to their disadvantage might become discriminatory
This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience268G H269A