{"id":200658,"date":"1991-03-14T00:00:00","date_gmt":"1991-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-nagamalleshwara-rao-and-ors-vs-state-of-andhra-pradesh-on-14-march-1991"},"modified":"2018-10-23T02:05:39","modified_gmt":"2018-10-22T20:35:39","slug":"k-nagamalleshwara-rao-and-ors-vs-state-of-andhra-pradesh-on-14-march-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-nagamalleshwara-rao-and-ors-vs-state-of-andhra-pradesh-on-14-march-1991","title":{"rendered":"K.Nagamalleshwara Rao And Ors vs State Of Andhra Pradesh on 14 March, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K.Nagamalleshwara Rao And Ors vs State Of Andhra Pradesh on 14 March, 1991<\/div>\n
Equivalent citations: 1991 AIR 1075, \t\t 1991 SCR (1) 875<\/div>\n
Author: V I Ramaswami<\/div>\n
Bench: Ramaswami, V. (J) Ii<\/div>\n
           PETITIONER:\nK.NAGAMALLESHWARA RAO AND ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ANDHRA PRADESH\n\nDATE OF JUDGMENT14\/03\/1991\n\nBENCH:\nRAMASWAMI, V. (J) II\nBENCH:\nRAMASWAMI, V. (J) II\nAHMADI, A.M. (J)\nFATHIMA BEEVI, M. (J)\n\nCITATION:\n 1991 AIR 1075\t\t  1991 SCR  (1) 875\n 1991 SCC  (2) 532\t  JT 1991 (1)\t652\n 1991 SCALE  (1)460\n\n\nACT:\n    Criminal  Law: Indian Penal Code, 1980-Section 302\tand\n34-Deceased  attacked by several persons -no specific  overt\nact  attributed to the accused and instead  bald  statements\nthat  15  persons caused injuries to deceased  make  in\t the\nF.I.R.\tand  Dying Declaration which was  later\t treated  as\nstatement  under  section 157 Cr. P.C.\t-Conviction  of\t the\naccused under section 302 and section 302 read with  section\n34 I.P.C. cannot be sustained.\n     Sections 302 and 149-When 15 persons were\tspecifically\ncharged\t of forming unlawful assembly and committing  murder\nin  prosecution of the common object of the assembly but  11\nof them were acquitted, the remaining 4 cannot be  convicted\nunder  section\t302\/149\t as being members  of  the  unlawful\nassembly.\n\n\n\nHEADNOTE:\n     The  4 appellants along with 11 others were  tried\t for\nmurder and for causing injuries. The learned sessions  judge\nwhile acquitting all others of all the charges, convicted A-\n1,  A-2,  A-5  and A-1 on different  counts.  The  sentences\nawarded to them under various charges including the sentence\nof  life imprisonment under section 302 IPC were ordered  to\nrun concurrently. The convicted accused preferred appeal  to\nthe  High Court against their conviction and  sentences\t and\nthe State appealed against the acquittal of the rest of\t the\naccused. The High Court altered the convection of A-1 and A-\n2  under  section 302 I.P.C. and 302 read  with\t section  34\nrespectively  into one under section 302 read  with  section\n149  I.P.C. and confirmed the sentence for imprisonment\t for\nlife.  Except  for this modification  the  convictions\t and\nsentences in respect of all the four accused were confirmed.\nThe state appeal against acquittal of all  other accused was\ndismissed.\n     In this appeal preferred by the four convicted  accused\nnamely,\t A-1, A-2, A-5 and A-11 their counsel  confined\t his\narguments  against  their convictions  and  sentences  under\nsection\t 302  read  with  section 149  I.P.C.  only  as\t the\nappellants had either already served or had almost  finished\nserving\t to   their sentences awarded to  them\tunder  other\ncharges.\n\t\t\t\t\t\t       876\nThe  argument was that in the absence of a specific  finding\nto  the\t effect\t that  apart  from  the\t 4  appellants\t the\nprosecution  has  proved the involvement of  other  persons,\nsection\t 149  I.P.C. cannot be invoked for  convicting\tthem\nunder  section\t302 I.P.C. Confirming  the  convictions\t and\nsentences of the appellants under other charges but allowing\ntheir  appeal against their conviction and  sentence   under\nsection 302 I.P.C. read with section 149 I.P.C. this Court,\n     HELD:  Since  the accused who are convicted  were\tonly\nfour  in  number  and the prosecution  has  not\t proved\t the\ninvolvement  of\t other\tpersons and  the  court\t below\thave\nacquitted the other accused of all the offences, section 149\ncannot be invoked for convicting the four appellants herein.\nThe learned judges were not correct in stating that A1,\t A2,\nA5  and\t A11 can be held to be the members  of\tan  unlawful\nassembly  along with some other unidentified persons on\t the\nfacts and circumstances of this case.The charge was not that\naccused 1,2,5 and 11 \"and others\" or \"and other unidentified\npersons\"  formed  into an unlawful assembly but it  is\tthat\n\"you  accused 1 to 15\" formed into an unlawful assembly.  It\nis  not\t the prosecution case that apart from  the  said  15\npersons\t  there were other persons who were involved in\t the\ncrime.\tWhen  the 11 other accused were acquitted  it  means\nthat  their involvement in the offence had not been  proved.\nIt would not also be permissible to assume or conclude\tthat\nothers\tnamed or unnamed acted conjointly with\tthe  charged\naccused\t in the case unless the charge\titself\tspecifically\nsaid so and there was evidence to conclude  that some others\nalso  were  involved  in  the  commission  of  the   offence\nconjointly  with  the charged accused in  furtherance  of  a\ncommon object. [882A-D]\n     Amar  Singh  v. State of Punjab, [1987]  1SCC  679\t and\nMaina Singh v. State of Punjab, [1976]3SCR 651, followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL  APPEALLATE JURISDICTION:Criminal\t Appeal\t No.
\n680 of 1987.\n<\/p>\n
     From  the\tJudgement and Order dated 16.8.1984  of\t the
\nAndhra Pradesh High Court in Crl. A. No. 604 of 1982.\n<\/p>\n
     N. Santosh Hegde, A.D.N. Rao and A, Subha Rao  for\t the
\nAppellants.\n<\/p>\n
     G. Prabhakar  for the Respondent.\n<\/p>\n
     The Judgement of the Court was delivered by
\n\t\t\t\t\t\t      877<\/span>
\n     V.RAMASWAMI,  J.  The appellants along 11\tothers\twere
\ntried  for causing the murder of on Appikatla  Tataiah,\t and
\nfor  causing injuries on Jarugu Rama Koteshwararao (PW2)  on
\n24th June, 1981 near `Manchineeti Cheruyu'(fresh water tank)
\nat or about 8.00 P.M. in Machavaram Village.\n<\/p>\n
     The   learned   Sessions\tJudge,\t Krishna    Division
\nMachilipatnam by his Judgment dated 16.7.1982 acquitted A-3,
\nA-4,  A-6  to  A-10, A-12 and A-15 of all  the\tcharges.  He
\nconvicted Kurakula Nagamelleswarao (A-1), Jarugu Kotaiah (A-\n<\/p>\n
2),  Appikatla Krishnamurthy (A-5) and Appikatla Nagulu\t (A-\n<\/p>\n
11) under section 148, Indian Penal Code and sentenced\teach
\nof them to undergo two years rigorous imprisonment. A-1\t was
\nfurther\t convicted under section 302, IPC and  sentenced  to
\nimprisonment  for life. A-2 was convicted under section\t 302
\nread with section 34, IPC and sentenced to imprisonment\t for
\nlife.  A-5  and A-11 were convicted under section  302\tread
\nwith  section  149, IPC and each of them were  sentenced  to
\nundergo\t imprisonment of life. Regarding the attack on\tPW-2
\njarugu\t Rama  Koteshwararao  the  learned  Sessions   Judge
\nconvicted  A-1\tand  A-2 under section 326,  IPC  read\twith
\nsection\t 149 and sentenced each of them to undergo  rigorous
\nimprisonment  for  four\t years. The  learned  Judge  further
\nconvicted  A-5 and A-11 under section 324, IPC\tfor  causing
\nsimple\thurt  to  PW-2 and sentenced each  one\tof  them  to
\nundergo\t rigorous imprisonment\tfor two years. A-1  and\t A-2
\nwere also convicted under section 324 read with section 149,
\nIPC  and each of them were sentenced to two  years  rigorous
\nimprisonment.  The  sentences awarded against  each  accused
\nunder various ground were ordered to run concurrently.\n<\/p>\n
     The convicted accused preferred Criminal Appeal No. 604
\nof 1982 and the State appealed against the acquittal of\t the
\nrest  of the accused in Criminal Appeal No. 630 of 1983.  At
\nthe  time of admission of appeal, however, the State  appeal
\nwas dismissed as against A-9, A-10, A-12, A-13, A-14, and A-
\n15 and it was admitted only as against acquittal of A-3, A-4
\nand A-6 to A-8. The High Court confirmed the conviction\t and
\nsentence  of A-1, A-2, A-5 and A-11 under section 148,\tIPC.
\nHowever,  it  alterted the conviction of A-1 and  A-2  under
\nsection\t 302,  IPC  and Section 302  read  with\t section  34
\nrespectively into one under section 148 and section 302 read
\nwith  section 149 and  the sentence awarded thereunder\twere
\nalso confirmed. The High Court also confirmed the conviction
\nand sentences on the accused under sections 326 and 324 read
\nwith section 149 and sections 324 read with
\n\t\t\t\t\t\t       878<\/span>
\nsection\t 149,  IPC.  The  sentences  were  directed  to\t run
\nconcurrently. the lerned Judges of the High Court  dismissed
\nthe appeal preferred by the State in respect of acquittal of
\nthe other accused.\n<\/p>\n
     In\t this  appeal  Sh. Santosh  Hedge,  Senior  Advocate
\nappearing  for the accused appellants  did not\tcanvass\t the
\nconviction of the four appellants, namely, A-1, A-2, A-5 and
\nA-11  under  section 324 and 326, IPC and section  324\tread
\nwith section 149, IPC and section 326 read with section 149,
\nIPC in relation to the attack on PW-2 but without  prejudice
\nto  his contention that on the facts section 149, IPC  could
\nnot  have  been\t invoked in relation to\t the  offence  under
\nsection 302,IPC. This stand was taken on the basis that\t the
\nappellants had already served or had almost finished serving
\nthe  four year terms which was awarded for  those  offences.
\nThe  conviction and sentence under section 148 was also\t not
\ncanvassed  for the same reason without prejudice  the  above
\nsaid  contention.  He  confined his  arguments\tagainst\t the
\nconvictions  and sentences of A-1, A-2, A-5 and\t A-11  under
\nsection 302 read with section 149, IPC. The argument of\t the
\nlearned counsel for the appellant was that in the absence of
\nspecific  finding  to  the effect and apart  from  the\tfour
\nappellants  the\t prosecution has proved the  involvement  of
\nother persons, section 149 IPC cannot be used for convicting
\nfor  four appellants under section 302. In this\t connection,
\nhe also relied on the decisions of this Court in Amar  Singh
\nV. State of Punjab, [1987] 1SCC 679 and Maina Singh V. State
\nof Punjab, [1976]3SCR651.\n<\/p>\n
     So\t far  this  part of the case  is  concerned  in\t the
\npresent case the High Court observed:\n<\/p>\n
\t “The  lower court has convicted A-1  under  section
\n\t 302  of  the Indian Panal Code\t for  attacking\t the
\n\t deceased.  A-2, was convicted under  sections\t149,
\n\t 302  r.w. section 34, 324 r.w. section 149 and\t 326
\n\t I.P.C.\t for  attacking the deceased. A-5  and\tA-11
\n\t were convicted under sections 148, 302 r.w. section
\n\t 149,  324 and 326 r.w. section 149 IPC. As  already
\n\t observed  the facts and  circumstances\t undoubtedly
\n\t show that there was an unlawful assembly consisting
\n\t of more than five persons and the common object  of
\n\t the  unlawful assembly was to attack  and kill\t the
\n\t deceased and attack PW 2. As already observed\tonly
\n\t such of accused whose presence and participation is
\n\t established can safely be held to be the members of
\n\t the   unlawful\t assembly.  To\tarrive\tat  such   a
\n\t conclusion we have  indicated\tthat the evidence of
\n\t PW  2\tto  extent  consisting\t with  the   earlier
\n\t versions of Ex. P-2 can
\n\t\t\t\t\t\t       879<\/span>
\n\t safely\t  be  accepted\tto  be\tthe  basis  and\t  if
\n\t corroboration is necessary the same can be found in
\n\t the  evidence of PWs 1, 3 and 4P. Ws. 2’s  evidence
\n\t is  subjected\tto  scrutiny in\t the  light  of\t the
\n\t contents   in\tEx.  P-2.  The\tconsistent   version
\n\t regarding the presence and participation by  A-1,A-
\n\t 2, A-5 and A-11 can safely be accepted and they can
\n\t be held to be\tthe members of the unlawful assembly
\n\t along\twith some others unidentified  persons.\t The
\n\t common\t object of the unlawful assembly along\twith
\n\t some others unidentified persons. The common object
\n\t of  the unlawful assembly  was to commit murder  of
\n\t the  deceased. All of them can be conviction  under
\n\t section 302 read with section 149 IPC in as much as
\n\t there can be no doubt whatsoever that the object of
\n\t such  an unlawful assembly of which A-1,  A-2,\t A-5
\n\t and A-11 are members is to attack the deceased\t and
\n\t PW-2.\tIn this context it must also  be  remembered
\n\t that PW 2 who received the serious injuries,  would
\n\t be the last person to leave out the real assailants
\n\t and implicate the innocent persons.”.\n<\/p>\n
\t\t\t\t       (Emphasis supplied)
\n     We are of the view that there is some confusion in\t the
\nstatement  of the High Court. The charges under section\t 324
\nand  section 326 read with section 149 and section  326\t and
\nsection\t 324  read with section 149 are in relation  to\t the
\ninjuries inflicted on PW 2. So far as injuries inflicted  on
\nPW  2  is  concerned as already stated\tthe  conviction\t and
\nsentence  in  regard to the same are not canvassed  in\tthis
\nappeal. So far as the attack on the deceased is concerned  P
\n1  the\tstatement  of PW 1 given to the\t village  Munsif  on
\n24.6.1981 immediately after the occurence stated that:\n<\/p>\n
\t  “…surrounded  my husband and my   elder  brother
\n\t  armed\t with axes, curved knives, and spears.\tThen
\n\t  Kurakula Nagamalleswararao hacked my elder brother
\n\t  with\tcurved\tknife (Yerukala Kathi) on  the\tleft
\n\t  shoulder.  Jargugu Kotiah hacked my elder  brother
\n\t  with an axe on the left shoulder. Appikatla Nagulu
\n\t  beat\tmy  elder  brother on the  head\t with  stick
\n\t  portion of the spear. I raised hue and cry  loudly
\n\t  that\tthey  are killing my husband  and  my  elder
\n\t  brother. On hearing my cries Ummadisetti Pooraniah
\n\t  and  my sister-in law Srikrishna came\t there.\t the
\n\t  above\t fifteen  persons  caused  injuries  to\t  my
\n\t  husband  by beating and hacking with axes,  spears
\n\t  and  curved knives (Yerukala Kathi)which  were  in
\n\t  their\t hand.\tMy husband succumbed  to  the  knife
\n\t  injuries.”\n<\/p><\/blockquote>\n
\t\t\t\t\t\t       880<\/span><\/p>\n
It  may\t be  seen from this report that\t there\t is  a\tbald
\nstatement  that\t fifteen  persons  caused  injuries  to\t her
\nhusband (deceased) by beating and hacking with axes,  spears
\nand curved knives (Yerukala Kathi) which were in their hands
\nand her husband succumbed to the knife injuries. It did\t not
\nattribute  any overt act to A-1, A-2, A-5 and A-11, who\t are
\nthe appellants in this case. The PW2 gave the statement\t Ex.
\nP  2  dated 25.6.1981 recorded by  the\tMunsiff\t Magistrate,
\nAvamigadda as a dying declaration which was later taken as a
\nstatement  under section 157 Code of Criminal Procedure.  In
\nthis  so far as the injuries inflicted on the  deceased\t are
\nconcerned he had merely stated:\n<\/p>\n
\t  “The\taforesaid four persons and the other  eleven
\n\t  persons,  beat  and  hacked  my  younger  sisters’
\n\t  husband Appikatla Tataiah and felled him down.”
\n\t  The charges framed against the accused  appellants
\n\t  also stated:\n<\/p><\/blockquote>\n
\t  “That\t you, accused Np. 1 to 15, on the  night  of
\n\t  24th\tday of June, 1981, at about 8.P.M. near\t the
\n\t  Manchineeti  Cheruvu’ in Machavaram Village,\tDivi
\n\t  taluk,  were members of an unlawful  assembly\t and
\n\t  did, in prosecution of the common object of  which
\n\t  viz.\tin killing Appikatla Tataiah, S\/o  Chittonna
\n\t  alias\t Chinna Ammanna an d Jarugu  Rama  Koteswara
\n\t  Rao, S\/o Mangaiah of Machavaram village….”\n<\/p><\/blockquote>\n
Thus the specific prosecution case was that accused 1 to  15
\nattacked  the  deceased\t and  no  specific  overt  act\t was
\nattributed  to any of the accused. It is true that PW  1  in
\nher evidence stated that A-1 hacked the deceased on the left
\nside of neck with Yerukala Kathi and the evidence of  doctor
\nPW 8 showed that this is injury No. 2 which proves fatal  by
\nitself. But in the light of the first information report P-1
\nand the dying declaration Ex. P-2 dated 25.6.1981 of P.W.  2
\nrecorded  by  the  Munsiff Magistrate  which  was  later  on
\ntreated\t as  statement\tunder section  57  of  the  Criminal
\nProcedure  Code which did not attribute any  specific  overt
\nact to any of the appellant accused in this case, this\tcase
\nwas  not accepted by the High Court. It is because  of\tthis
\nreason\tthe High Court did not accept the conviction of\t the
\nappellants  1 and 2, namely, accused 1 and 2  under  section
\n302  and section 302 and section 302 read with\tsection\t 34,
\naccused 1 and 2 under section 302 and section 302 read\twith
\nsection\t 34, IPC  and altered the conviction into one  under
\nsection 302 read with the section 149, IPC.\n<\/p>\n
     The  learned counsel for the appellant  also  contended
\nthat  the  evidence of PW 1 apart from the fact it  was\t not
\naccepted by the High
\n\t\t\t\t\t\t       881<\/span>
\nCourt in so far as it related to the specific overt acts  of
\nA-1,  2, 5 and 11 are concerned are also not  acceptable  as
\nthey  are full of infirmities and improbabilities and also by
\nreason\tof  the possibility of improving the  case.  He\t had
\npointed out that though PW 2 and deceased were said to\thave
\ngone to the Manchineeti Cheruyu (fresh water tank) to verify
\nwhether\t the  paddy bags kept by them for  soaking  were  in
\ntact, paddy bags were not found the investigating officer or
\nanybody\t and  they were not recovered. the  learned  counsel
\nalso  pointed out, the story that PWs 1 and 3 and  had\tgone
\nthat side for calls of nature are also not believable as the
\nplace\twere ladies ease was on the opposite  direction\t and
\nnot  in the direction of the fresh water. The houses of\t the
\ndeceased and PW 2 and that of Pw 4 were about 150 yards away
\nfrom the scene of occurence and the occurrence is stated  to
\nhave taken place at 8.00 P.M. These ladies ran to the  scene
\nof occurrence on hearing the cries of the deceased and PW 2.
\nIt  was also pointed out that though they stated  that\twhen
\nthey  (ladies) went to answer the calls of nature  they\t had
\ntaken along with them chambus or lotas with water, and those
\nchambus\t or lotas were not recovered. In her evidence  PW  1
\nstated\tthat  when  she found her husband  lying  dead\twith
\nnumber\tof injuries and blood everywhere she fell  over\t her
\nhusband and wept but none of her blood stained clothes\twere
\nrecovered.  Though they had stated that when she  found\t her
\nhusband\t PW 2 injured she carried him but her blood  stained
\nclothes\t were  also not recovered. Though  they\t had  stated
\nbefore going to the village Munsiff for giving the complaint
\nand  after  taking PW2 to the house they  have\tchanged\t the
\nclothing  their\t evidence clearly throw a doubt\t as  to\t the
\npresence  at  the time of occurrence. It should be  kept  in
\nmind that PW1 is the wife of the deceased PW3. And thus they
\nare   all  closely  related  and  the  possibility   of\t  an
\nexaggeration  or  of improving in their evidence  cannot  be
\nruled  out. It may also be pointed out that these  witnesses
\nstated\tthat there was electric lamp post and  there was  no
\nquestion  of  any electric light being on.  There  is  ample
\nevidence  of  rivalry  between the parties  also.  In  these
\ncircumstances  their presence at the time of  occurrence  is
\ndoubtful and it is also not possible to believe the evidence
\nof  PWs 1,2,3 and 4 in respect overt acts attributed to\t the
\nfour appellants herein. In fact, as already stated the\tHigh
\nCourt  was  not\t willing to accept their  evidence  in\tthis
\nregard and that is why the conviction was made under section
\n302 read with section 149, IPC.\n<\/p>\n
\t\t\t\t\t\t       882<\/span><\/p>\n
     However, the learned Judges over-looked that since\t the
\naccused\t who are are convicted were only four in number\t and
\nthe   prosecution  has not proved the involvement  of  other
\npersons\t and the courts below have acquitted all  the  other
\naccused\t of all the offences, section 149 cannot be  invoked
\nfor  convicting\t the  four appellants  herein.\tThe  learned
\nJudges\twere not correct in stating that A1, A2, A5 and\t A11
\n“can  be  held to be the members of  the  unlawful  assembly
\nalong  with some others unidentified persons’ on  the  facts
\nand  circumstances  of this case. The charge  was  not\tthat
\naccused\t 1,  2,\t 5  and\t 11  “and  others’  or\t“and   other
\nunidentified  persons” formed into an unlawful assembly\t but
\nit  is\tthat  “you  accused 1 to 15”  who  formed   into  an
\nunlawful assembly. It is not the prosecution case that apart
\nfrom  the said 15 persons there were other persons who\twere
\ninvolved  in  the  crime. When the  11\tother  accused\twere
\nacquitted it means that their involvement in the offence had
\nnot  been proved. It would not also be permisible to assume
\nor  conclude that others named or unnamed  acted  conjointly
\nwith  the  charged  accused in the case\t unless\t the  charge
\nitself\tspecifically  said  so and there  was  evidence\t  to
\nconclude  that\tsome  others  also  were  involved  in\t the
\ncommission  of\tthe  offence  conjointly  with\tthe  charged
\naccused in furtherance of a common object.\n<\/p>\n
     In\t Maina\tSingh’s case (supra) the appellant  in\tthat
\ncase  and  four\t others were  charged  with  offences  under
\nsections 302\/149, IPC, the appellant with having shot at the
\ndeceased  and  the other accused with giving  blows  to\t the
\ndeceased   with\t a  sharp-edged\t weapon.  The  Trail   Court
\nacquitted the four accused and convicted the appellant under
\nsection\t 302  read  with section 34.  IPC.  The\t High  Court
\ndismissed the appeal for the State against the acquittal  as
\nalso  the appellants appeal against the conviction.  In\t the
\nappeal\tbefore\tthe Supreme Court it was contended  for\t the
\nappellant that it was not permissible to take the view\tthat
\na  criminal act was done by the appellant in furtherance  of
\nthe common intention of other co-accused when those  accused
\nwho had been named had all been acquitted and that all\tthat
\nwas  permissible  for  the High Court  was  to\tconvict\t the
\nappellant of an offence which he might have committed in his
\nindividual capacity. The head note in the report brings\t the
\nratio of the judgement correctly and that may be quoted:\n<\/p>\n
\t  “In a given case even if the charge disclosed only
\n\t  the\tnamed\tpersons\t as   co-accused   and\t the
\n\t  prosecution  witness\tconfined their testimony  to
\n\t  them,\t it  would be permissible to  conclude\tthat
\n\t  others, named or unnamed, acted cojointly with one
\n\t  of the charged accused if there was other
\n\t\t\t\t\t\t       883<\/span>
\n\t  evidence  to\tlead  to that  conclusion,  but\t not
\n\t  otherwise.\n<\/p><\/blockquote>\n
\t  The  charge  in the present case  related  to\t the
\n\t  commission of the offence of unlawful assembly  by
\n\t  the  appellant along with four  named\t co-accused,
\n\t  and  with no other person. The trial in fact\twent
\n\t  on the basis throughout. There was also no  direct
\n\t  or  circumstantial  evidence\tto  show  that\t the
\n\t  offence was committed by the appellant along\twith
\n\t  any  other unnamed person. So when the other\tfour
\n\t  co-accused had been given the benefit of doubt and
\n\t  acquitted, it would not be permissible to take the
\n\t  view\tthat there must have been some other  person
\n\t  alongwith  with the appellant in causing  injuries
\n\t  to  the deceased. the appellant would\t accordingly
\n\t  be  responsible  for\tthe offence, if\t any,  which
\n\t  could\t be  shown  to have been  committed  by\t him
\n\t  without regard to the participation of others.”.<\/p><\/blockquote>\n
     The  facts\t in the Amar Singh’s case (supra)  in  short
\nwere  that  seven  accused were\t charged  for  murder  under
\nsection 302 read with section 149 IPC. Two out of the  seven
\naccused were acquitted by the Trial Court and on appeal\t the
\nHigh  Court  acquitted one more accused. However,  the\tHigh
\nCourt  convicted four of the accused under section 302\tread
\nwith   section\t 149  IPC  and\tsentenced  them\t  for\tlife
\nimprisonment.  The four convicted accused appealed  to\tthis
\nCourt  and it was contended on their behalf that  after\t the
\nacquittal  for\tthree  accused\tpersons\t out  of  seven, the
\nappellants  who were remaining four cannot be held  to\thave
\nformed\tan unlawful assembly within the meaning\t of  Section
\n141,  IPC and accordingly the charge under section  149\t was
\nnot  maintainable.  Accepting  this  contention\t this  Court
\nobserved:\n<\/p>\n
\t  “As the appellants were only four in number, there
\n\t  was  no  question  of their  forming\tan  unlawful
\n\t  assembly within the meaning of section 141 IPC. It
\n\t  is  not the prosecution case that apart  from\t the
\n\t  said\tseven  accused\tpersons,  there\t were  other
\n\t  persons who were involved in the crime. Therefore,
\n\t  on  the  acquittal of three accused  persons,\t the
\n\t  remaining four accused, that is, the\t appellants,
\n\t  cannot  be convicted under section 148 or  section
\n\t  149 IPC for any offence, for, the first  condition
\n\t  to  be  fulfilled in designating  an\tassembly  an
\n\t  `unlawful assembly’ is that such assembly must  be
\n\t  of five or more persons, as required under section
\n\t  141  IPC. In our opinion, the convictions  of\t the
\n\t  appellants  under sections 148 and 149 IPC  cannot
\n\t  be sustained.”<\/p><\/blockquote>\n
\t\t\t\t\t\t       884<\/span><\/p>\n
     The  ratio of these judgements are also  applicable  to
\nthe facts and circumstnces of this case.\n<\/p>\n
     In the result the appeal of the appellants against\t the
\nconviction and sentence under section 302 read with  section
\n149, IPC is allowed and the same is set aside. We,  however,
\nconfirm the conviction and sentence of the appellants  under
\nthe other charges.\n<\/p>\n
R.N.J.\t\t\t\t   Appeal allowed.\n\t\t\t\t\t\t       885<\/span>\n\t\t       GURMUKH SINGH\n\t\t\t     V\n\t\t AMAR SINGH MARCH 15, 1991\n\t    [N.M.KASLIWAL AND K. RAMASWAMY, JJ.]\n<\/pre>\n
     Indian  Contract  Act,  1872:  Section  23\t –  Contract
\nopposed\t to  public  policy-What  is-Agreement\tto  purchase
\nproperty  in  public auction and thereafter convey half\t the
\nproperty-Specific performance of -Whether enforceable.\n<\/p>\n
     The respondent field a suit for specific performance of
\nan agreement of sale of land or refund of the money paid  to
\nhim contending that he and the appellant had contracted that
\nthe  appellant would participate, on their behalf in  public
\naution\tto purchase the evacuee property and  the  appellant
\nwould  convey  half the property purchased  thereat  and  in
\nfurtherance  of that he had contributed his share,  but\t the
\nappellant  who\tbecame\tthe highest bidder and\tgot  a\tsale
\ncertificate issued by the custodian of the evacuee  property
\nhad not performed his part of the contract.\n<\/p>\n
     The  appellant  resisted  the  suit,  and\tdenied\t the
\nexecution  of  the  agreement.\tHe  also  pleaded  that\t the
\ncontract  was  illegal\tand void, being\t opposed  to  public
\npolicy,\t and that the relief of specific  performance  being
\ndiscretionary  could  not  be  granted\tin  favour  of\t the
\nrespondent.\n<\/p>\n
     The  trial\t court decreed the suit. On  appeal  by\t the
\nappellant, both the first appellate court and the High Court
\nconfirmed the decree. Hence the appeal, by special leave.\n<\/p>\n
     On\t behalf of the appellant it was contended  that\t the
\nagreement was opposed to public policy since it was to knock
\nout  the public property on a minimum price and,  therefore,
\nvoid under s. 23 of the contract Act, 1872.\n<\/p>\n
     Dismissing the appeal, this Court.,
\n     HELD:  1.1\t Section 23 of the Contract  Act  adumbrates
\nthat  the consideration or object of an agreement is  lawful
\nunless it is forbidden by law, or is of such a nature  that,
\nif  permitted, it would defeat the provision of any law;  or
\nis fraudulent; or involved or implied injury to
\n\t\t\t\t\t\t       886<\/span>
\nthe persons or property of another; or the court regards  it
\nas  immoral  or opposed to public policy. In each  of  these
\ncases,\tthe  consideration  or object  of  an  agreement  is
\nunlawful.  Thus,  every agreement of  the  consideration  or
\nobject of which is unlawful is void. [888F-G]
\n     1.2 The word “object” would mean the purpose and design
\nwhich  is  the\tobject of the contracts; it  is\t opposed  to
\npublic policy if it tends to defeat any provision of law  or
\npurpose of law, and it becomes unlawful and void under s. 23
\nof the\tContract Act. Section 23 is concerned with only\t the
\nobject\tor  consideration  of the transaction  and  not\t the
\nreasons\t or motive which prompted it. Public policy  imposes
\ncertain limitation upon freedom of contract. Certain objects
\nof contract are forbidden or discouraged by law; though\t all
\nother  requisites  for\tthe  formation\tof  a  contract\t are
\ncomplied with, yet if these objects are in contemplation  of
\nthe  parties when they entered into the agreement,  the\t law
\nwill  not permit them to enforce any rights under  it.\tMost
\ncases of illegality are of this sort; the illegality lie  in
\nthe  purpose which one or both parties have in mind. But  in
\nsome instances the law strikes at the agreement\t itself, and
\nthe  contract  is then by its very  nature  illegal.  [888G-
\nH,889A-B]
\n     1.3  The  public policy is not static. It\tis  variable
\nwith  the changing times and the needs for the society.\t The
\nmarch of law must match with the fact situation. A  contract
\ntending\t  to  injure public interest or\t public\t welfare  or
\nfraudulent to defeat the right\tof the third parties is void
\nunder s. 23 of the Contract Act. [892F]
\n     1.4  The object of conducting public sale is to  secure
\nas  much price or revenue as possible to redeem the debt  of
\nthe  debtor or to secure maximum price to the exchequer\t for
\nuse  of\t public purpose. If such a contract to form  a\tring
\namong the bidders was to peg down the price and to have\t the
\nproperty  knocked out a low price it would defeat the  above
\neconomic  interest of the debtor or public welfare.  Thereby
\nthe  agreement\tbecomes\t fraudulent and\t opposed  to  public
\npolicy and is void under s. 23. [ 890E-F]
\n     In\t the  instant case, the facts demonstrate  that\t the
\nagreement between the appellant and the respondent was\tonly
\na  combination to participate at an auction of\tthe  evacuee
\nproperty. There is no intention either to peg down the price
\nor  to\tdefraud the Government to knock out the\t sale  at  a
\nlower  price.  Thus,  the object of  the  agreement  is\t not
\nopposed\t to  public policy, and therefore, it  is  not\tvoid
\nunder  s.  23 of the Contract Act. Therefore  the  agreement
\nbetween the appellant and the
\n\t\t\t\t\t\t       887<\/span>
\nrespondent is lawful contract. The courts below committed no
\nerror of law warranting interference.[892H,893A-B]
\n     Rattan Chand Hira Chand v. Askar Nawaj Jung, J.T.<\/a>\t1991
\n1SC  433 and Cheerulal Prakash v. Mabadeodas Maiyua &  Ors.,
\n[1959] (Suppl.) 2 SCR 406, referred to.\n<\/p>\n
     Scott  v. Brown. Deorning Mc Nab & Co., [1892]  2\tK.B.
\n724 and Mohamed Meerta v. S.V. Raghunadha Gopalar, 27 Indian
\nAppeals 17, referred to.\n<\/p>\n
     Kayjay  Industries (P) Ltd. v. Asnew Drums (P)  Ltd.  &
\nOrs.,<\/a>[1974] 3 SRC 678; Central Inland Water Transport Corpn.
\nLtd.  & Anr v. Brojo Nath Ganguli & Anr.,<\/a> {1986] 2  SCR\t 278
\nand Delhi Transport Corporation v. D.T.C. Mazdoor Congress &
\nOrs., A.I.R.<\/a> 1991 SC 190, inapplicable.\n<\/p>\n
     Chandra  Sreenivasa Rao v. Korrapati Raja\tRama  Mohana
\nRao  and  Anr.,\t A.I.R. 1952 Madras 579; Ram  Lal  Misra  v.
\nRajendra Nath Sanyal, A.I.R. (1933) Oudh P. 124 at 127; Nand
\nSingh  @  Ghuddha v. Emperor, A.I.R. (30) 1943\tLahore\t101;
\nHutchegowda  v.\t H.M.  Basaviah,  A.I.R.  1954\tMysore\t 29;
\nRatanchand Hirachand v. Askar Nawaz Jung & Ors., A.I.R. 1976
\nA.P. 112; Mo. Issac V. Sreeramula, A.I.R. Mad. 289= [1946] 1
\nMadras\tLaw  journal, 187; Ramalingiah\tv.  Subbarami  Reddi
\nA.I.R.\t1951  Mad. 390; Mohafazul Rahim v.  Babulal,  A.I.R.
\n1949  Nagpur 113 and Lachhman Das & Ors v Hakim Sita  Ram  &
\nOrs. A.I.R. 1975 Delhi 159, referred to.\n<\/p>\n
     Chitty’s contract, 26th Edn., Vol. I Paragraph 1134, P.
\n686  and Halsbury’s Laws of England. Fourth Edition, Vol.  9
\nParagraph  392 at p. 266 and paragraph 746 at 383,  referred
\nto.\n<\/p>\n
&
\n     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1335  of
\n1977.\n<\/p>\n
     From  the\tJudgement and Order dated  7.3.1977  of\t the
\nPunjab & Haryana High Court in R.S.A. No. 1162 of 1966.\n<\/p>\n
     J.M. Khanna and Mr. I.B. Gaur for the Appellant.
\n     Dhruv Mehta, Aman Vachhar, S.K. Mehta, Arvind Verma and
\nRomesh Chand for the Respondent.\n<\/p>\n
\t\t\t\t\t\t       888<\/span><\/p>\n
     The Judgement of the Court was delivered by
\n     K.\t RAMASWAMY, J. The unsuccessful\t defendant\/appellant
\nresisted    the\t  suit\tof  the\t respondent   for   specific
\nperformance  of\t the agreement\tof sale of 27 Bhigas  and  2
\nBiswas\tof  the\t land situated in  Chakkar  Karman  Village.
\nAccording to the respondent he and the appellant  contracted
\nthat  the appellant would participate on their behalf  in  a
\npublic\t auction  to  purchase\tthe  evacuee  property.\t  he
\ncontributed  his share. The appellant agreed to convey\thalf
\nthe property purchased at the auction. The appellant  became
\nthe highest bidder for a sum of Rs. 5,000 and he contributed
\nhis share and the sale was confirmed on March 11, 1964 and a
\nsale certificate was issued by the custodian of he   evacuee
\nproperty  but  the appellant had not performed his  part  of
\nthe  contract.\tAccordingly he laid the\t suit  for  specific
\nperformance  or refund the amount advanced by him. The\tsuit
\nwas  resisted by the appellant denying the execution of\t the
\nagreement and also pleaded that the contract is illegal\t and
\nvoid being opposed to public policy. The relief of  specific
\nperformance being discretionary cannot be granted in  favour
\nof  the\t respondent. The Trial Court decreed the   suit;  on
\nappeal\tand on further second appeal the District Court\t and
\nthe  High  Court  confirmed the same. Thus  this  appeal  on
\nsocial leave under Art. 136 of the Constitution.\n<\/p>\n
     The  contention  neatly  argued  by  Shri\tKhanna,\t the
\nlearned counsel for the appellant, is that the agreement  is
\nopposed to public policy and, therefore, it is void under s.
\n23 of the Contract Act, 1872. According to him the agreement
\nwas to knock out the public property on a minimum price\t and
\nthat,  therefore, the object of the agreement is opposed  to
\npublic policy and is hit by s. 23. We found no force in\t the
\ncontention . Section 23 of the Contract Act adumbrates\tthat
\nthe consideration or object of an agreement is lawful unless
\nit  is forbidden by law; or is of  such of nature  that,  if
\npermitted,  it would defeat the provision of any law; or  is
\nfraudulent; or involved or implied injury to the persons  or
\nproperty  of another; or the court regard it as\t immoral  or
\nopposed\t to  public  policy. In each  of  these\t cases,\t the
\nconsideration  or  object of an agreement is a\tsaid  to  be
\nunlawful.   Every   agreement  of  which   the\t object\t  or
\nconsideration  is  unlawful is void. The word  object  would
\nmean  the  purpose  and design which is the  object  of\t the
\ncontract,  if  is opposed to public policy  which  tends  to
\ndefeat\tany provision of law or purpose of law,\t it  becomes
\nunlawful and thereby it is void under s. 23 of the  Contract
\nAct.  Section  23   is concerned with  only  the  object  or
\nconsideration  of  the transaction and not  the\t reasons  or
\nmotive\twhich  prompted it. Public  policy  imposes  certain
\nlimitations upon free-\n<\/p>\n
\t\t\t\t\t\t       889<\/span><\/p>\n
dom  of contract. Certain objects of contract are  forbidden
\nor  discouraged by law; though all other requisites for\t the
\nformation  of  a contract are complied with, year  if  these
\nobjects\t are  in  contemplation of  the\t parties  when\tthey
\nentered into the agreement, the law will not permit them  to
\nenforce any rights under it. Most cases of illegality are of
\nthis  sort: the illegality lies in the purpose which one  or
\nboth  parties  have in mind. But in some instances  the\t law
\nstrikes at the agreement itself, and the contract is then by
\nits  very nature illegal. Whenever a plea of  illegality  or
\nagainst\t  public  policy  is  raised  as  a  defence  to   a
\ncontractual  claim, the test to be applied is:\tDoes  public
\npolicy\trequire\t that this claimant,  in  the  circumstances
\nwhich  have occurred, should be refused relief of  which  he
\nwould  otherwise have been entitled with respect to  all  or
\npart  of his claim . In addition, once the court finds\tthat
\nthe contract is illegal and unenfocreable, a second  question
\nshould\tbe posed  which would also lead to greater  clarity:
\ndo  the\t facts justify the granting  of\t some  consequential
\nrelief (other than enforcement of the contract) to either of
\nthe parties to the contract.\n<\/p>\n
     In Chandra Sreenivasa Rao v. Korrapati Raja Rama  Mohan
\nRao  and Anr., A.I.R. 1952 Madras 579, Subba Rao J.,  as  he
\nthen  was, while considering the word “object” in s. 23\t  of
\nthe  Contract  Act in the context of enforceability  of\t the
\ndebt  secured to celebrate the marriage of the\tminor  which
\nwas  prohibited\t by the Child Marriage Restraint  Act,\theld
\nthat the word “object” in s. 23 meant “purpose” or  “design”
\nof the contract. The purpose of borrowing was unlawful as it
\nwas   opposed  to  the\tpublic\tpolicy\tof  celebrating\t the
\nmarriage   of  a  minor\t in  violation\t of  the   statutory
\nprovisions,  and therefore, the promissory note was held  to
\nbe  unenforcable.  An agreement between A &  B\tto  purchase
\nproperty  at an auction sale jointly and not to bid  against
\neach  other at the auction is perfectly lawful,\t though\t the
\nobject\tmay be to avoid competition between the two. But  if
\nthere  is an agreement between all the competing bidders  at
\nthe  auction sale, be it of the court sale or revenue  sale,
\nor  sale by the government of its property or privilege\t and
\nformed\ta  ring to peg down the price and  to  purchase\t the
\nproperty  at knock out price, the purpose or design  of\t the
\nagreement is to defraud the third party, namely , the debtor
\nor Govt. whose property is sold out at the court auction  or
\nrevenue sale, or public welfare. The object or consideration
\nof the contract, oral or written, to share such property  is
\nunlawful.  There  is  also implied “injury  to\tthe  debtor”
\nwithin\tthe  meaning  of s. 23. Thereby\t the   contract\t was
\nfraudulent.  The  contract thus is also\t opposed  to  public
\npolicy\t and  is  void.\t Take  for  instance  four   persons
\nparticipated  at an aution sale; pursuant to their  previous
\nagreement, they made pretext of partici
\n\t\t\t\t\t\t\t 890<\/span>
\npation\tin the auction; bid upto an agreed price though\t the
\nreal  value of the property is much more than what they\t had
\noffered\t for. Here the design or object of their  forming  a
\nring is to knock out the property for a song to defraud\t the
\ndebtor or public. What is the object of the public policy in
\nthis regard ? The scope of public policy was classified into
\nfive  groups  in  paragraph 1134 at p. 686  of\tChitty’s  on
\nContract , 26th Edn., Vol. I, thus:\n<\/p>\n
\t “Objects   which   on\tground\tof   public   policy
\n\t invalidate  contracts\tmay,  for  convenience,\t  be
\n\t generally  classified\tinto  five  groups;   first,
\n\t objects  which\t are  illegal by common\t law  or  by
\n\t legislation;  secondly, objects injurious  to\tgood
\n\t government  either  in the field  of\tdomestic  or
\n\t foreign  affairs; thirdly objects  which  interfere
\n\t with  the  proper  working  of\t the  machinery\t  of
\n\t justice;  fourthly, objects injurious\tto  marriage
\n\t and  morality\tand  fifthly,  objects\teconomically
\n\t against the public interest.”\n<\/p>\n
     In Halsbury’s Laws of England , Fourth Edition, Vol. 9,
\nin  paragraph 392 at p. 266 it is stated that  an  agreement
\nwhich  tends  to be injurious to the public or\tagainst\t the
\npublic\tgood is invalidated on the ground of public  policy.
\n“The question whether a particular agreement is contrary to
\npublic\tpolicy is a question of law, to be  determined\tlike
\nany other by the proper application of prior decisions”\t The
\nobject of conducting public sale is to secure as much  price
\nor  revenue as possible to redeem the debt of the debtor  or
\nto  secure maximum price to the exchequer for use of  public
\npurpose. If such a contract to form a ring among the bidders
\nwas to peg down the price and to have  the property  knocked
\nout at a low price would defeat\t the above economic interest
\nof  the\t debtor\t or public welfare.  Thereby  the  agreement
\nbecomes fraudulent and opposed to public policy and is\tvoid
\nunder  s.  23 . In Ram Lal Misra v.  Rajendra  Nath  Sanyal,
\nA.I.R.\t(1933) Oudh p. 124 at 127 the finding was  that\t the
\nagreement  was not merely of an honest\tcombination  between
\ntwo  bidders  to purchase the property\tat  an\tadvantageous
\nprice  but goes further by resorting to secret artifice\t for
\nthe purpose of defrauding a third person, namely, the  rival
\ndecreeholder.  Accordingly, it was held that  the  agreement
\nwas fraudulent and that, therefore, void under s. 23 of\t the
\ncontract Act; Same is the view expressed by the Lahore\tHigh
\nCourt  in  Nand Singh @ Ghudda v. Emperor,  A.I.R.  30\t1943
\nLahore\t101  and  in Hutchegowda v.  H.M.  Basaviah,  A.I.R.
\n(1954)Mysore  29. In Rattan Chand Hira Chand v. Askar  Nawaj
\nJung,J.T.<\/a> 1991 1 SC 433 this Court held that an agreement to
\ninfluence authorities to obtain favourable verdict was\theld
\nto
\n\t\t\t\t\t\t       891<\/span>
\nbe  opposed  to\t public\t policy and void  under\t s.  23\t and
\napproved  the decision of the A.P. High Court in  Ratanchand
\nHirachand  v. Askar Nawaz Jung & Ors. A.I.R. 1976 A.P.\t112.
\nAn agreement to rig the market for share has been held to be
\nfraudulent  and\t unenforceable in Scott v.  Drown,  Deorning
\nMcNab & Co. [1872]2K.B. 724.\n<\/p>\n
     In\t Halsbury’s Laws of England Fourth Edition, Vol.  2,
\nparagraph 746 at p. 383, it was stated that where good\twere
\npurchased at an auction by a person who had entered into  an
\nagreement  with\t another  or others that the  other  or\t the
\nothers, or some of them, shall abstain from bidding for\t the
\ngoods,\tand  he\t or the other party, or\t one  of  the  other
\nparties, to the agreement is a dealer, the seller may  avoid
\nthe  contract under which the goods are purchased.  Where  a
\ncontract is avoided by virtue of this provision, then if the
\npurchaser   has\t obtained  possession  of  the\t goods\t and
\nrestitution  thereof  is  not made,  the  persons  who\twere
\nparties to the agreement are jointly or severally liable  to
\nmake  good to the vendor any loss he sustained by reason  of
\nthe operation of the agreement. In Md. Issac v.\t Sreeramulu,
\nA.I.R.1946  Mad.  289=(1946) 1 Madras Lw  Journal,  187\t the
\nMadras High court held that an agreement between two bidders
\nnot  to bid against each other at an auction is not  illegal
\nand  is not opposed to public policy. The same was  followed
\nin Ramalingiah v. Subbartami Reddi, A.I.R. 1951 Mad 390.  In
\nMohafazul  Robim  v.  Babulal, A.I.R. 1949  Nagpur  113\t the
\nNagpur High Court also held that persons agreeing not to bid
\nagainst each other is not opposed to public policy.\n<\/p>\n
     The Division Bench of Delhi High Court in Lachman Das &
\nOrs.  v. Hakim Sita Ram & Ors. A.I.R. 1975 Delhi 159 had  to
\nconsider  that an agreement entered into by the parties\t not
\nto  bid at the auction against each other is not opposed  to
\npublic\tpolicy,\t and  therefore,  it  is  not  avoid.  While
\nupholding  the\tagreement  it  was  also  held\tthat   where
\nagreements  are\t likely to prevent the property put  up\t for
\nsale  in not realising its fair\t value and to dump the\tsale
\nwould  certainly be against public good and,  therefore,  is
\nvoid being opposed to public policy. In Cheerulal Prakash  v
\nMadadeodas  maiyua  & Ors., [1959] (suppl.) 2 SCR  406\tthis
\ncourt  held  that though a wagering contract  was  void\t and
\nunenforceable  under  s. 30 of the ContractAct, it  was\t not
\nforbidden  by  law  and\t agreement  collateral\tto  such   a
\ncontract was not unlawful within the meaning of s. 23 of the
\nContract  Act. A partnership with the object of carrying  on
\nwagering  transaction  was not therefore, hit by s.  23.  In
\nMohomed\t Meerta\t v.  S.V.  Raghunadha  Gopalar,\t 27   Indian
\nAppeals,  17  the sale was impugned, on one of\tthe  grounds
\nthat the agreement was made for the benefit of the  Papanand
\nZamidar and
\n\t\t\t\t\t\t       892<\/span>
\nthe  appellant, intended to sell the property  back  to\t the
\nformer when he should be  in a position to repurchase it and
\nboth of them had combined to dissuade persons from  bidding,
\nand  did in fact dissuade  them. Thereby they purchased\t the
\nproperty for lesser price than the real value. The execution
\nwas set aside. On appeal, the High Court did not agree\twith
\nthe  finding that the appellant and the Jainilabdin and\t the
\nPapanand  Zamindar did combine to dissuade the persons\tfrom
\nbidding\t but  fount that the appellant played fraud  on\t the
\ncourt  by suppressing the contract as being a decree  holder
\nobtained  leave\t of   the  count and  bid  in  the  auction.
\nTherefore,  the\t sale was void on that\tground.\t On  further
\nappeal the judicial committee found that the ground on which
\nthe  High Court set aside the sale was not pleaded,  nor  an
\nopportunity given to the appellant. Therefore, for the first
\ntime  that ground cannot be taken before the High Court\t and
\nhaving\tdisagree with the executing court that there was  an
\nagreement to dissuade third party to participate in the bid,
\nthe  sale cannot be set aside on the new ground.  The  Privy
\nCouncil\t confirmed the sale. On those facts the ratio is  of
\nno  assistance to the appellant since there is no  agreement
\nbetween\t the appellant and the respondent to dissuade  third
\nparty to participate in the bid.\n<\/p>\n
     The ratio in Kayjay Industries (P) Ltd. v. Asnew  Drums
\n(P) Ltd. & Ors.<\/a> [1974] 3 SCR 678 is of no assistance to\t the
\nappellant.  Therein  the executing court,  on  the  previous
\noccasion, with a view to secure better price did not confirm
\nthe  sale,  the conduct of the second sale,  therefore,\t was
\nheld  not to be vitiated by any material  irregularity.\t The
\ngeneral principles of public policy discussed by this  Court
\nin  Central  Inland Water Transport Corpn. Ltd.\t &  Anr.  v.
\nBrojo  Nath  Ganguli & Anr.,<\/a> [1986] 2SCR 278 and one  of  us
\n(K.R.S.,  J.)  in  Delhi  Transport  Corporation  v.  D.T.C.
\nMazdoor\t Congerss  &  Ors.  A.I.R.<\/a> 1991 SC  190\t are  of  no
\nassistance  on the facts in this case. The public policy  is
\nnot  static. It is variable with the changing times and\t the
\nneeds  of the society. The March of law must match with\t the
\nfact situation. A contract tending to injure public interest
\nor public welfare or fraudulent to defeat the rights of\t the
\nthird parties are void under s. 23 of the Contract Act.\n<\/p>\n
     From the record it is clear that there were as many  as
\nsix bidders who participated in the auction, the upset price
\nwas  fixed at Rs. 1,000. The auction  was started  with\t the
\nbid  at Rs. 1,000 and ultimately at 20th knock\tthe  highest
\nbid  of\t the respondent was at Rs. 5,000.  Thus,  the  facts
\ndemonstrate   that the agreement between the  appellant\t and
\nthe  respondent was only a combination to participate at  an
\nauction of the
\n\t\t\t\t\t\t       893<\/span>
\nevacuee\t property. There is no intention either to peg\tdown
\nthe price or to defraud the Government to knock out the sale
\nat  a lower price. Thus, the object of the agreement is\t not
\nopposed\t to  public policy, and therefore, it  is  not\tvoid
\nunder s. 23 of the Contract Act.\n<\/p>\n
     Thus,  on the facts of this case we have no  hesitation
\nto   conclude  that  the  impugned  agreement  between\t the
\nappellant and the respondent is lawful Contract. The  Courts
\nbelow committed no error of law warranting interference. The
\nappeal\tis accordingly dismissed, but in  the  circumstances
\nwithout\t costs\tas we did not call upon\t the  respondent  to
\nargue the case.\n<\/p>\n
N.P.V.\t\t\t\t\tAppeal dismissed.\n\t\t\t\t\t\t       894<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India K.Nagamalleshwara Rao And Ors vs State Of Andhra Pradesh on 14 March, 1991 Equivalent citations: 1991 AIR 1075, 1991 SCR (1) 875 Author: V I Ramaswami Bench: Ramaswami, V. (J) Ii PETITIONER: K.NAGAMALLESHWARA RAO AND ORS. Vs. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT14\/03\/1991 BENCH: RAMASWAMI, V. (J) II BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-200658","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK.Nagamalleshwara Rao And Ors vs State Of Andhra Pradesh on 14 March, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-nagamalleshwara-rao-and-ors-vs-state-of-andhra-pradesh-on-14-march-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Nagamalleshwara Rao And Ors vs State Of Andhra Pradesh on 14 March, 1991 - 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