minal Appeal No 618 of 1985
From the Judgment and Order dated 1751984 of the Allahabad High Court in Criminal Appeal No 564 of 1977
RL Kohli and CP Lal for the Appellant
SP Pandey and AS Pundir for the Respondent
The Judgment of the Court was delivered by 584 NP SINGH J
The appellant along with Radhey Shayam and Munni Lal was put on trial for an offence under Section 302 read with Section 34 of the Penal Code for having committed the murder of Gokaran Prasad on 24111975 at about 500 PM
It is the case of the prosecution that the deceased along with his brother Parbhu Dayal PW 1 on 24111975 had one to the Court of Tehsildar at Sitapur to attend their case which had been fixed for hearing
The case was however postponed
In the evening they were returning to village
On Sitapur Lucknow Road
at about 500 PM the three accused persons all armed with Bankas emerged from the field of Rani Saheba and ran towards to deceased
PW 1 started shouting for help
The deceased fell down on the brick stack
It is said that the appellant Ram Asrey pressed down the deceased while Radhey Shyam and Munni Lal gave the blows with Bankas
The occurrence was witnessed by Parbhu Dayal PW 1 Jagannath PW 5 and Narain PW 6
In respect of the motive for the commission of the offence
it is said that two years prior to the occurrence aforesaid accused Radhey Shyam had erected a wall in front of the house of the deceased who resisted and did not allow the wall to be constructed
For that Radhey Shyam was prosecuted and because of that he bore a grudge against the deceased
The First Information Report was lodged by PW 1 at about 645 PM in which he gave the details of the occurrence and named PW 5 and PW 6 as the eyewitnesses of the occurrence
The Investigating Officer visited the spot made the inquest and sent the body for post mortem which was held the next day
During post mortem examination the following injuries were found 1
Incised wound 7 cms
x 1 cm
x bone deep on the right side of head 6 cms
above the right eye brow
Lacerated wound 4 cms
x 15 cms
x scalp deep in the mid line of head 6 cms
above the root of nose
Lacerated wound 4 cms
x 15 cms
x bone deep on the left side of head 3 cms
above left eye brow
Lacerated wound 45 cms
x 1 cm
x bone deep on the outer part of left eye brow extending down on the outer side of the outer angle
of left eye and below its level
585 5
Incised wound 8 cms
x 3 cms
x scalp deep on the back of head on the left side of middle line 5 cms
behind the left ear
Incised wound 11 cms
x 3 cms
x vertebrae bone deep 4 cms
below the right ear and 25 cms
below left angle of left lower jaw at the level of the body of third cervical vertebrae underneath of injury oecsophagus
Thyroid cartilage and neck vessels of both the sides out
Incised wound 25 cms
x5 cm
x muscle deep over the front of 1st Pharyanx region of right thumb
Incised wound 9 cms
x 2 cms
x muscle deep over the palmar aspect of left hand starting from the web of left thumb and index finger going inner and upper side towards the wrist
 According to the doctor who held the post mortem examination the incised wound might have been caused by weapon like Banka
He however pointed out that Banka had a sharp edge on one side and blunt on the other
He stated Injury No 2 3 4 might be caused by some blunt weapon
Injury No 4 might be caused by some blunt side of the banka
As in my opinion blunt part of the banka is about 1 cm
in width injury No 2 and 3 might be caused by sharp fall on the heap of Bajri
Injury No 2 and 3 might be caused by blunt part of bank a if its width was 14 cms
 In cross examination he states Injuries No 2 3 and 4 are likely to be caused by lathi
There was a fraction of fractured bone below injury No 2
The injury No 2 is likely to occur if heavy weight weapon is struck with considerable force
The injury No 3 might occur by fall on the Bajri
If anyone fall with face side in addition to injury Nos 2 and 3 other abrasions are likely to occur on the face
 Again in cross examination about injuries Nos 2 3 and 4 he has stated that they are likely to be caused with lathi portion
586 The Trial Court on consideration of the evidence came to the conclusion that prosecution had failed to prove the case beyond reasonable doubt
On that finding the accused persons were acquitted
The State Government filed an appeal against the judgment of acquittal
During the pendency of the appeal the main accused Radhey Shyam died
The High Court however after referring to the different facts and circumstances of the case recorded a finding that the charge levelled against the two accused persons namely the appellant and Munni Lal had been proved beyond reasonable doubt
On that finding the High Court convicted the appellant along with Munni Lal for an offence under Section 302 read with Section 34 of the Penal Code and sentenced each of them to undergo rigorous imprisonment for life
This appeal under Section 379 of the Criminal Procedure  ode has been filed on behalf of Ram Asrey the appellant
We are informed that Munni Lal has not preferred any appeal to this Court
On behalf of the appellant it was urged that the Trial Court had rightly disbelieved the evidence of the three eye witnesses PW 1
PW 5 and PW 6 because of the inherent improbabilities in their deposition and lack of consistency and there was no occasion for the High Court while hearing the appeal against acquittal to reverse the finding recorded about their credibility
It was also pointed out that so far Jaoannath PW 5 is concerned he has been disbelieved not only by the Trial Court but even by the High Court saying that he has changed his statement from stage to stage to make it consistent with the statement of PW 1
The High Court has observed in respect of PW 5 We may therefore exclude his testimony from consideration not so much because he might not have been present at the spot but because there are elements in his testimony which make it unsafe to place reliatice on it having been once disbelieved by the Trial Court
That is the true angle in which the evidence must be considered by this Court when dealing with an appeal against acquittal
 It was urged that the same approach should have been adopted in respect of Narain PW 6 who claimed to have accompanied PW 5 PW 6 has stated that he had clone that day to the market of khairabad to get Salim Mistry for repairing his Chakki but Salim Mistry was not available and when he was returning to village he met PW 5 in the market of Khairabad and both of them started for their village
587 He has further stated that at about 5 PM he saw the deceased and PW Ion Sitapur Lucknow Road
Then he claimed to have seen the accused persons coming out from the field of Rani Saheba
According to him this appellant held down the deceased while the other two accused persons Radhey Shyam and Munni Lal struck the deceased with Bankas and caused his death
The High Court has observed that if the testimony of PW 6 is examined in the light of surrounding circumstances then it is consistent with the version of PW 1 and as such the evidence of PW 1 receives adequate corroboration
The High Court has rightly pointed out that PW 6 was not connected with the prosecution party in any manner and there was no reason for him to depose falsely claiming to be an eye witness of the occurrence
As such his evidence can be taken into consideration to corroborate the evidence of the informant PW 1
On behalf of the appellant it was said about PW 1 that on his own statement he lodged the First Information Report on the basis of a report written by Lallu Ram PW 8 at the spot which he took to Police Station Khairabad
This aspect of the matter has been dealt with in the judgment under appeal
We are in complete agreement
That merely because PW 1 lodged the First Information Report on basis of a report prepared by PW 8 by itself shall not affect the prosecution version
The matter would have been different
if the accused persons had shown some oblique motive on the part of PW 8 who is said to have prepared the report
The occurrence took place at about 500 PM and the First lnformation Report was lodged at 645 PM with in two hours the police station being at the distance of four miles from the place of occurrence
In the First Information Report the same version of the occurrence was disclosed which has been stated in Court
Apart from naming himself PW 1 also named PW 5 and PW 6 as eye witnesses of the occurrence
The Investigating Officer reached the place of occurrence at 900 PM the same evening
In such a situation there does not appear to be any scope for concoction of a false case to implicate the accused persons leaving out the real culprits
PW 1 being the brother of the deceased his going to the Court of Tehsildar at Sitapur and returning to village with the deceased is most natural
His evidence cannot be rejected merely on the ground that he happened to be the brother of the victim
It has been repeatedly pointed out by this Court that near relations will be the last persons to leave out the real culprits and to implicate those who have not participated in the crime
Taking all facts and circumstances into consideration
we are of the view that prosecution has been able to prove the case as disclosed in the First Information Report against the accused persons and there is no reason to reject the same
The next question which has to be examined is as to whether so far the 588 appellant is concerned who according to the prosecution case itself has not given any Banka blow to the victim but is said to have pressed down the deceased before the other two accused persons Radhey Shyam and Munni Lal had given the blows should have been held guilty for an offence under Section 302 read with Section 34 of the Penal Code
It was pointed out that the appellant was a school student and there was no reason on his part to share the common intention of committing the murder of the victim
In this connection reference was made to the injuries found on the person of the victim during the post mortem examination
It was pointed out that the injuries were not consistent with the prosecution case that the other two accused persons caused those injuries with Bankas
About injuries Nos 2 3 and 4 the Doctor who held the post mortem examination has clearly stated that they must have been caused by some blunt weapon
In respect of injury No 4 he has said that it might have been caused by the blunt side of the Banka
This itself shows that amongst the two participants in tile occurrence
They had different intentions
One out of the two assailants ie Radhey Shyam and Munni Lal had used the back side of the Banka
If one of the two assailants had used the back side of the Banka then from this conduct it can be reasonably inferred that such assailant had not the intention to cause the death of the victim otherwise there was no reason to use the back side of the Banka instead of sharp side which in normal course could have caused the death of the victim
However so far the present appeal is concerned we are not concerned with either of the two other accused persons
But this circumstance can be taken into consideration for judging the role played by the appellant
According to us by merely pressing down the victim before the other two accused persons assaulted him it cannot be held that appellant had shared the common intention of causing the death of the victim
In the facts and circum stances of the case of course it has to be held that he shared only the common intention of culpable homicide not amounting to murder
He can be attributed with the intention that the injuries which were being caused by the other two accused persons were likely to cause the death of the victim
Accordingly we set aside the conviction of the appellant under Section 302 read with Section 34 as well as his sentence to imprisonment for life
He is convicted under Section 304 Part 1 read with Section 34 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years
The appeal is accordingly allowed in part to the extent indicated above
SK Appeal Partly allowed


Summary:
In respect of some private dispute between two neighbors a writ application was filed in the High Court
On the material produced in the case it was treated as a Public Interest Litigation and the High Court was to rind out a solution in respect if unauthorised constructions alleged to have been made by different ownersoccupiersbuilders without sanctioned plans or by making deviations from the sanctioned plans
The High Court wanted to ensure that such unauthorised constructions were not perpetuated on the basis of interim orders of injunction passed by the Civil Courts 
The High Court disposed of the petition holding that the owners occupiersbuilders were to be given liberty to file fresh building plans and that the Municipal Corporation was to examine such building plans in accordance with law and that the Corporation was to seal and to demolish those constructions which were beyond the compoundable limits
The High Court also directed that no civil suit would be entertained by any Court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing andor demolition of any building or any part thereof
The High Court directed further that person aggrieved by an order of sealing or demolition had the right to file an appeal to the Appellate Tribunal under the Delhi Municipal Corporation Act 1957
522 523 Against the High Court s order the present appeals were filed by special leave
On the question whether the jurisdiction of the Court has been statutorily barred in respect of suits in connection with the orders passed or proceedings initiated for demolition of constructions which have been made without sanction or by deviating from the sanctioned plans allowing the appeals this Court HELD11
With the increase in the number of taxing statutes welfare legislations and enactments to protect a class of citizensa trend can be noticed that most of such legislations confer decision making powers on various authorities and they seek to limit or exclude Court s power to review those decisions
The result is that the power of the Court under section 9 of the Code is being denuded and curtailed by such special enactments in respect of liabilities created or rights conferred
The ouster of the jurisdiction of the Court is upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein Was adequate
535 D F 12The situation will be different where a statute purports to curb and curtail a pre existing common law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute are concerned
In such casesthe courts have to be more vigilant while examining the question as to whether an adequate redressal machinery has been provided before which the person aggrieved may agitate his grievance
535 G 13In spite of the bar placed on the power of the Court orders passed under such statutes can be examined on jurisdictional question
A suit will be maintainable
536 F Katikara Chiniamani Dora vs Guatreddi Annamanaidu   Desika Charyutttu vs State of Andhra Pradesh AIR 1964 SC 807 PYX Granite Co Ltd vs Ministry of Housing and Local and Government and Anisminic Ltd vs Foreign Compensation Commission   relied on
Wolverhampton New Waterworks Co vs Hawkesford 1859 6  Neville vs London Express Newspaper Limited
1919 Appeal Cases 368 Baraclough vs Brown 1897 Appeal Cases 615 Secretary of State vs Mask  Co AIR 1940 PC 105 Firm Seth Radha Kishan vs Administrator
Municipal committee Ludhiana   Finn of Illuri Subbayya Chetty and Sons vs State of Andhra Pradesh   Ms Kamala Mills Ltd vs State of Bombay   Ram Swarup and Ors
vs Shikar Chand   State of Kerala vs Ms N Ramaswami Iyer and sons   Rain Gopal Reddy vs Additional Custodian Evacuee Property Hyderabad 19663 SCR 214 Custodian of Evacuee Property Punjab  Ors
vs Jafran Begum 19673 SCR 736 Dhulabhai vs Stale of Madhya Pradesh   The Premier Automobiles Ltd vs Kamlaker Shantarm Wadke  1 SCC 496 Bata Shoe Co Ltd vs Jabalpur Corporation   Munshi Ram vs Municipal Commitee Chheharta AIR 1979 SC 1250 19793 SCC 83 Rain Singh vs Grain Panchayat Mehal Kalan  SCC 364 Raja Ram Kumar Bhargava vs Union of India  and Sushil Kumar Mehta vs GobindRam Bohra   referred to
The Delhi Municipal Corporation Act purports to regulate the common law right of the citizens to erector construct buildings of their choice
This right existed since time immemorial
But with the urbanisation and development of the concept of planned city regulations restrictions on such common law right have been imposed
But as the provisions of the Act intend to regulate and restrict a common law right and not any right or liability created under the Act itself it cannot be said that the right and the remedy have been given unoflatu eg in the same breath
537 E 15
In spite of the bar prescribed under sub sections 4 and 5 of section 343 and section 347E of the Corporation Act over the power of the Courts under certain special circumstancesthe Court can examine whether the dispute falls within the ambit of the Act
But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature have not been followed it shall have jurisdiction to enquire and investigate while protecting the common law rights of the citizens
537 C 16
The regulations and bye laws in respect of buildings are meant to 525 serve the public interest
But at the same time it cannot be held that in all circumstances the authorities entrusted with the demolition of unauthorised constructions have exclusive power to the absolute exclusion of the power of the Court
In some special cases where jurisdictional error on the part of the Corporation is established a suit shall be maintainable
538 C 17
The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition by the Commissioner in terms of section 343 1 of the Corporation Act
The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act
538 D 18
The Court should entertain a suit questioning the validity of an order passed under section 343 of the Act only if the Court is of prima facie opinion that the order is nullity in the eyes of law because of any jurisdictional error in exercise of the power by the Commissioner or that the order is outside the Act
538 E 21
A party is not entitled to an order of injunction as a matter of right or course
Grant of injunction is within the discretion of the Court and such discretion is to he exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit
538 H 22The purpose of temporary injunction is to maintain the status quo
The Court grants such relief according to the legal principles ex debite justitiae
Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him
539B 23 The Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature
But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court
539 1 526 24
Power to grant injunction is an extra ordinary power vested in the Court to he exercised taking into consideration the facts and circumstances of a particular case
The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to he affected by the order so passed
539 E 25
In spite of the statutory requirement in order 39 Rule 3 the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders
It is said that if the reasons for grant of injunction are mentioned a grievance can be made by the other side that Court has prejudged the issues involved in the suit
This is a misconception about the nature and the scope of interim orders
Any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party at the stage of the final adjudication
Apart from that now in view of the proviso to Rule 3 of Order 39 there is no scope for any argument
When the statute itself requires reasons to he recorded the Court cannot ignore that requirement by saying that if reasons are recorded it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant 539 H 540 H 26
Proviso to Rule 3 of Order39 of the Code attracts the principle that if a statute requires a thing to he done in a particular manner it should be done in that manner or not all
Taylor vs Taylor 18751 Ch D 426 Nazir Ahmed vs Emperor AIR 1936 PC 253 and Ramachandra Keshar Adke vs Gavind Joti Chavare   relied on
Whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side it must record the reasons for doing so and should take into consideration while passing an order of injunction all relevant factors including as to how the object of granting injunction itself shall be defeated if an exparty order is not passed
But any such exparty order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned
541 C Supreme Court Practice 1993 Vol 1 at page 514 referred to
527 28The Court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties
541 F 29If the circumstances of a case so warrant and where the Court is of the opinion that the object of granting the injunction would be defeated by delay the Court should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code before passing an order for injunction
The Court must direct that such order shall operate only for a period of two weeks during which notice along with copy of the application plaint and relevant documents should be served on the competent authority or the counsel for the Corporation
Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid
If the Corporation has entered appearance any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation
541 H 542 A 210While passing an exparte order of injunction the Court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of
512 C