Criminal Appeal E No 289 of 1978 were Cri
Appeal No 403 of 1978
From the Judgment and Order dated 1051978 of the Allahabad High Court in Criminal Appeal No 213 of 1973
SK Dhingra and K B Rohtagi of the Appellant inn Crl
A No 289 of 1978
RK Jain Rakesh Khanna and RP Singh for the Appellant in Crl
A No 403 of 1978
Prithvi Raj Singh and Dalveer Bhandari for the Respondent
PG NO 247 The Judgment of the Court was delivered by JAGANNATHh SHETTY J
This appeal by Special leave is from a Judgment of the Allahabad High Court dated 10 May 1978 dismissing Criminal Appeal No 1 13 of 1973
The appellants were convicted and sentenced under Section 302364 and 210 IPC by the trial Judge
On appeal the High Court maintained the said conviction and sentence of appellant No 1 but reduced the same of appellant No 2 to one under Section 201
The prosecution case in brief is as follows lslam the deceased is the younger brother of Shabbir PW 1
They were not living together
The former used to live with his mother
Islam had his own share of lands measuring 16 Bighas
He was separately cultivating the same
The appellants were once his close associates
They were of bad character
So mother and brother advised lslam to part company with them
So lslam did and went on minding his own work
He was unmarried
The appellants had an evil eye on the property of Islam
They got executed a fraudulent sale deed exhibit Ka 12
The deed Was dated 15 February
One Ahsan who has been examined as PW 1  has impersonated Islam before the Sub Registrar
They deed purports to transfer that agricultural land of Islam in favour of the wife of appellant No  1
It is said that the appellants in order to eliminate the possibility of this fraud being detected
murdered Islam
Shabbir suspecting foul play of the appellants lodged a report on 21 April 1971
Zakir Ali appellant No 1 was first arrested
He pointed out a dead body on IX July 1971
It wits recovered from a place deeply burried in a water logged pond
However it was said to be identified as that of islam
The identification was based on a shirt exhibit 1 and a tahmad exhibit 2
Upon the post mortem
the Doctor was unable to give his opinion regarding the cause of death or its duration
The evidence against appellants is purely circumstantial i motive for the crime ii the evidence as to last seen iii recovery of the body at the instance of Appellant No 2 and iv identification of the clothes with which the dead body was found
PG NO 248 We will first examine whether the motive which is of course relevant in this case has been satisfactorily established
exhibit Ka
12 is the sale deed by which the properties belonging to Islam were said to have been sold to the wife of Sardar Hussain appellant No 1
Usman Ali PW 11 who is the scribe of the sale deed has deposed to its contents
He has stated that one Sarfaraz PW 20 along with the accused came to him with a request to draft the sale deed
They gave the particulars
He has written the sale deed of which the executant was Islam
In the Court he has identified Ahsan PW 12 as the person who impersonated Islam and put his thumb impression
He has also identified Zakir Ali appellant No 2 who affixed his thumb impression to the sale deed as a witness
But when Sarfaraz Hussain was examined as PW 20 in the Court
nothing was elicited about the sale deed or the persons who accompanied him to PW 1 1
No question was put to him as to the contents of sale deed exhibit Ka 12 or to the identification of persons who affixed the thumb impressions thereon
PW 12 has no doubt deposed that he had put his thumb impression on exhibit Ka
But the prosecution has not sent the thumb impression of the executant of exhibit Ka
12 with the admitted thumb impression of PW 12 for expert opinion
There is therefore no satisfactory evidence that the sale deed exhibit Ka 12 was executed by somebody impersonating Islam
As to identification of the dead body the evidence on record is equally unsatisfactory
Shabbir PW 1 has deposed that about 14 months before Islam was taken by Sardar Hussain and Yasin
Yasin is the father in law of Sardar Hussain
He has also stated when Islam went with them he was wearing a Shirt of green check and a black striped tahmad
Islam was taken on the pretext that they would get him married
He has further stated that Mian Jan PW 1 andSadiq PW 3 and one other person called Majid had seen Islam going with the Sardar Hussain and Yasin
But Main Jan PW 2 and Sadiq PW 3 did not speak anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin
Secondly how could Shabbir see all that he had stated
Islam and Shabbir were living separately
Islam was not taken after a meeting with Shabbir
It is not the case of Shabbir that Islam came to him and told him about the purpose of his going with the accused
If the purpose was to get Islam married
why did he allow Islam to go with the accused
Islam had by then parted company with them at the instance of Shabhir and mother because they were of bad character
Is it understandable that such bad characters should arrange the marriage without the assistance or approval of Shabbir and mother It is difficult to believe Shabbir in the circumstances
PG NO 249 Islam was said to have disappeared on 12 Aprial 1971
PW 1 lodged the report on 21 April 1971
The dead body was recovered on 18 July 1971
The post mortem was done on 20 July 1971
It was more than three months from the date of alleged disapearance of Islam
Dr DP Manchanda CW 1 who conducted the post mortem was not able to give the cause of death
He has stated that it was a skeleton of a young adult male
According to him it would be difficult to tell correctly as to when the death of the deceased had taken place
There was no flesh left in the body
The eye balls were missing
The Vertabrae was not found attached to the skull
With this condition of the skeleton the Doctor could not have given any better opinion
Gulab Singh PW 7 is a Panch witness for the recovery of the dead body
He has deposed that when the body was removed the tahmad and shirt were intact and they were taken out by Sub Inspector
Man Singh PW 8 is another Panch witness
He has also stated that the shirt and tahmad were removed by the Sub Inspector
washed packed and sealed
The Panch witnesses could not identify the shirt and tahmad as belonging to the deceased
That clothes are said to have been identified by Shabbir and his wife Smt
Bhoori PW 13 
The identification was conducted by Ramakant Dube PW 9
He had mixed up the said clothes with five like clothes resembling with each other
He has stated that Shabbir and Smt
Bhoori correctly identified them and did not commit mistake
But if one carefully peruses his evidence the identification was nothing but farce
The dead body was not recovered in the presence of Shabbir
He was called to tbe Court of the Magistrate only for the identification of the clothes and the body
He has stated that the dead body by appearance looked like that of his brother
We have earlier seen that the Sub Inspector had removed the clothes washed dried and packed them separately with the seal of the panchas
Shabbir could not have seen the dead body with the clothes
The shirt exhibit 1 and tahmad exhibit 2 were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9
But the witness identified exhibit 1 because there was paper chit pasted on it
He identified exhibit 2 because it had a knot
That is why we said earlier that the identification was a farce
We are surprised that the Courts below should rely upon this kind of evidence
The circumstantial evidence in the case thus falls short of the required standard on all material particulars
We are therefore unable to sustain the conviction of the appellants
PG NO 250 In the result these appeals are allowed
The conviction and sentence passed against the appellants are set aside
They are acquitted of all the charges
They be set at liberty if they are in custody and if they are not required in any other case
NPV Appeals allowed


Summary:
The appellant let out his godown to a Textile company which was subsequently amalgamated with the respondent Company under a scheme of amalgamation approved by the High Court
On August 29 1985 the appellant issued a notice to the erstwhile company under section 106 of the Transfer of Property Act read with section 136 of West Bengal Premises Tenancy Act 1956 to quit and hand over vacant possession of the godown
Thereafter he filed a suit for eviction in the City Civil Court against the erstwhile Company and the respondent Company
The respondent also filed a suit under Order 39I and 2 of the Civil Procedure Code for temporary injunction restraining the appellant from disconnecting electricity in the said premises
The appellant filed an application in the High Court under clause 13 of the Letters Patent for transfer of the two suits on the ground that the respondent had adopted dilatory tactics and had taken several adjournments to file written statement and that the original records relating to amalgamation were available in the High Court
By consent of the parties the High Court transferred these suits to itself for trying in its extraordinary original civil jurisdiction
PG NO 205 When the suits appeared before the Single Judge it was represented that the suits were transferred to the High Court only on the understanding that the suits would be settled and that the efforts to settle the suit had failed
Hencethe Judge fixed a date for hearing of the two suits
On February 17 l9S8 the respondent filed an application for recalling the order of transfer
Accordingly the High Court recalled its earlier order and retransferred them to the City Civil Court
Aggrieved the appellant filed an appeal by special leave contending that there was simply an agreement to have the suits transferred to the High Court for quick and expeditious disposal in view of the long delay in filing written statements
The Respondent however contended that the agreement was that the suits would be settled in the High Court
Disposing of the appeal HELD 11 Clause 13 of the Letters Patent enables the High Court to exercise the extraordinary original civil jurisdiction
The Letters Patent contemplates two contingencies for the High Court to exercise extraordinary jurisdiction namely on agreement of the parties to that effect the suits be transferred and secondly for the purpose of justice
It further stipulates that the reasons for so doing to be recorded on the proceedings in the High Court
209C D 12 The disposal of the suits by the High Court would serve the purpose of justice
It would shorten litigation in the sense that there would be lesser number of appeals to the higher Court and the possibility of settlement is there in the High Court more than anywhere else
Suits are likely to be more expeditiously disposed of under the supervision of the High Court Judge than before the City Civil Court or the Court subordinate to High Court
2l0B 13 The purpose of justice must be determined by reference to the circumstances of each case and the balance of convenience having regard to those circumstances is one of the matters for consideration
2l0D In the instant case even though initially the agreement to transfer might have been on the basis that the suits would be settled but the agreement to transfer was not PG NO 206 unequivocal
The possibility of settlement might have been the motivation
But the High Court has undoubtedly for the purpose of justice rightly power to dispose of the suits
Having once transferred the suits it would be just and fair and would also serve the purpose of justice that the suits should continue to be disposed of by the High Court
210C D Though the suits are at a preliminary stage but for the purpose of justice the Court must oversee the administration of justice by different Courts and orders passed High Court as well as City Civil Courts
210E Therefore the purpose of justice would be served by directing expeditious disposal of the suits by the High Court
210F