Jagat Singh Vs. State of Maharashtra and Others - Court Judgment

Excerpt:
constitution of india, 1950 - article 226 - writ - freedom fighters - grant of pension - petitioner participated in army mutiny in 1946 against british rule - pension granted by giving 'benefit of doubt' - whether the petitioner entitled for the pension from the date of application or w.e.f. the date of sanction i.e. 16.1.98? discussed.;it is no doubt true that in the aforesaid decisions the supreme court held that if the grant of the pension is by giving benefit of doubt, the rule in mukundlal bhandari's case will not be attracted and the claimant will be entitled to pension at the most from the date of the order of the court. but the question is whether this case can be said to be a case of that type. in the instant case it was specifically held by the division bench that the mutiny of indian signal corps had an ultimate aim for the liberation of the country. it was held that the petitioner's case is squarely covered by the scheme for the freedom fighters pension. therefore it is not open for the central government to contend that only benefit of doubt was given to the petitioner. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - ' 9. in the light ot the above decision of the supreme court in mukundlal bhandari's case, the petitioner is clearly entitled to the grant of pension from the date of the application.ordera.p. shah, j.1. the petitioner had joined indian signal corps jabalpur as a signal man on 19th september, 1941. he participated in mutiny that was directed against the british rule. he was tried under section 27(1)(a) and (b) of the army actin april, 1946. he was found guilty under section 27(1)(a) of the army act and was sentenced to suffer two years rigorous imprisonment under order dated 1st june, 1946. he was also dismissed from service. pursuant to the order of conviction, the petitioner was detained in central jail, jabalpur on 30th june, 1946, where he remained till september, 1947. the petitioner was awarded tamra patra on 15th august, 1972 for rendering contribution to the freedom struggle.2. on 3rd august, 1972, the petitioner made an application to the secretary, ministry of home affairs, government of india, new delhi, for grant of pension admissible for freedom fighters. during the pendency of the application the central government introduced a new scheme of grant for freedom fighters and their families from central revenue on account of silver jubilee year of independence. the petitioner therefore made an application in the prescribed form along with the documents in support of his case on 30th march, 1974. the application was rejected by the central government by order dated 2nd april, 1975 on the ground that the petitioner's case is not covered by the scheme. the same stand was maintained by the central government in dealing with the subsequent representations made by the petitioner for grant of freedom fighters pension.3. the petitioner challenged the rejection of his application by filing writ petition no. 234 of 1997. the writ petition was heard by the division bench comprising of desai and parkar, jj., on 26th august, 1997. the main question before the division bench was whether the participation of the petitioner in the mutiny of indian signal corps falls within the scheme framed by the central government. on examination of the pension scheme it was noticed by the division bench that apart from the main stream of the liberation struggle, the movements and mutinies which were directed against the british (french, in the case of pondicherry and portuguese, in the case of goa) with freedom of the country as its ultimate goal, are also treated as a part of national freedom struggle for the purpose of grant of pension, unless any movement is specifically decided as not equivalent for the grant of sanman pension. the division bench held that the mutiny of indian signal corps had an ultimate aim for the liberation of the country and, therefore, the petitioner is entitled to the pension as per the scheme of the central government. accordingly, the respondents were directed to decide and release the pension of the petitioner admissible under the rules within a period of three months.4. pursuant to the order of the division bench, the central government has granted the pension to the petitioner with effect from the date of sanction i.e. 16th january, 1998.5. mr. ketkar, learned counsel appearing for the petitioner strenuously contended that the petitioner is entitled to the freedom fighters pension from the date of the application. he urged that the central government committed an error in fixing the pension from the date of sanction. in support of his contention mr. ketkar placed reliance on the decisions of the supreme court in dull chand v. union of lndia, . surja v. union of india, : (1991)4scc366 , and mukundlal bhandari v. union of india, : 1990crilj2148 . on the other hand mr. vyas, the learned counsel appearing for the respondents contended that participants of the mutiny in the indian signal corps at jabalpur in 1946 cannot be treated as freedom fighters for the purpose of grant of pension. however having regard to the award of tamra patra to the petitioner, special occasion of the golden jubilee of india's independence and old age of the petitioner, a lenient view was taken and samman pension was granted giving the petitioner a benefit of doubt. according to mr. vyas since the pension was granted by giving benefit of doubt, the petitioner is not entitled to the pension from the date of the application. he relied upon the decisions of the supreme court in government of india v. k. v. swaminathan, : (1997)10scc190 and union of india v. ganesh chandradotai, : (1997)10scc289 .6. the short question which falls for our consideration is whether petitioner is entitled to claim the pension from the date of the application i.e. 30th march, 1974. in dull chand v. union of india where the prayer for the pension was made by the petitioners, the union of india did not file a counter. on the other hand, a statement was made on their behalf that on documents being produced in support of the claim there would be no objection to granting the pension. the facts reveal that one of the petitioners in that writ petition was granted pension by the government with effect from 1st august, 1980 during the pendency of the petition. in these circumstances, the supreme court directed that 41 of the petitioners should be granted pension from august 1, 1980 although they had made their applications beyond the date which was prescribed for making application.7. in surja v. union of india, the main question before the supreme court was whether the petitioners had suffered the minimum sentence of six month imprisonment on account of their participation in the arya samaj movement in the late 1930 in the erstwhile nizam state of hyderabad. while interpreting the qualifying condition of six month's imprisonment it was held that if a prisoner was sentenced to imprisonment for six months or more and if the period of actual imprisonment was reduced not on account of his claiming any remission, he should be deemed to have fulfilled the qualifying period of imprisonment for six months. in the circumstances, the claim of the petitioners was accepted and they were directed to be paid pension with effect from august 1, 1980.8. in mukundlal bhandari v. union of india, the question as to whether the pension can be granted with the retrospective effect again fell for consideration before the supreme court. the supreme court rejected the argument that notwithstanding the date of the application the claimant should be given the benefit of pension with effect from earlier date. however, the supreme court in terms held that the claimant would be entitled to the grant of pension from the date of the application even if the application is not accompanied with necessary proof. in paragraph 8 of the decision, the supreme court observed as follows :'8. 'coming now to the last contention advanced on behalf of the government, viz., that the benefit of the scheme should be extended only from the date the claimant produces the required proof of his eligibility to the pension, we are of the view that this contention can be accepted only partially. there have been cases, as in the present case, where some of the claimants had made their applicants but either without the necessary documentary proof or with insufficient proof. it is unreasonable to expect that the freedom fighters and their dependents, would be readily in possession of the required documents. in the very nature of things, such documents have to be secured either from the jail records or from persons who have been named in the scheme to certify the eligibility. thus the claimants have to rely upon third parties. the records are also quite old. they are bound to take their own time to be available. it is, therefore, unrealistic to expect that the claimants would be in a position to produce documents within a fixed time-limit. what is necessary in matter of such claims is to ascertain the factum of the eligibility. the point of time when it is ascertained, is unimportant, the prescription of a rigid time-limit for the proof of the entitlement in the very nature of things is demanding to the object of the scheme. we are, therefore, of the view that neither the date of the application nor the date on which the re-of the benefit under the scheme. hence, once the application is made, even if it is unaccompanied by the requisite eligibility data, the date on which it is made should be accepted as the date of the preferment of the claim whatever the date on which the proof of eligibility is furnished.'9. in the light ot the above decision of the supreme court in mukundlal bhandari's case, the petitioner is clearly entitled to the grant of pension from the date of the application. but mr. vyas contends that the pension was granted to the petitioner by giving benefit of doubt and as such is entitled to only from the date of the sanction of the order. in this connection, mr. vyas has placed reliance upon the decision of the supreme court in the case of k.v. swaminathan and ganesh chandradotai (supra). it is no doubt true that in the aforesaid decision the supreme court held that if the grant of the pension is by giving benefit of doubt, the rule in mukundlal bhandari's case will not be attracted and the claimant will be entitled to pension at the most from the date of the order of the court. but the question is whether this case can be said to be a case of that type. in the instant case it was specifically held by the division bench that the mutiny of indian signal corps had an ultimate aim for the liberation of the country. it was held that the petitioner's case is squarely covered by the scheme for the freedom fighters pension. therefore it is not open for the central government to contend that only benefit of doubt was given to the petitioner.10. in these circumstances petitioner is entitled to the freedom fighters pension from the date of the application. accordingly we direct the respondents to grant and sanction to the petitioner the freedom fighters pension from the date of the application i.e. 30th march, 1974. the central government is directed to pay the arrears within three months from today. petition is accordingly disposed of. certified copy to be issued forthwith.11. petition accordingly disposed

Judgment:
ORDER

A.P. Shah, J.

1. The petitioner had joined Indian Signal Corps Jabalpur as a Signal Man on 19th September, 1941. He participated in mutiny that was directed against the British Rule. He was tried under section 27(1)(a) and (b) of the Army Actin April, 1946. He was found guilty under section 27(1)(a) of the Army Act and was sentenced to suffer two years rigorous imprisonment under order dated 1st June, 1946. He was also dismissed from service. Pursuant to the order of conviction, the petitioner was detained in Central Jail, Jabalpur on 30th June, 1946, where he remained till September, 1947. The petitioner was awarded Tamra Patra on 15th August, 1972 for rendering contribution to the freedom struggle.

2. On 3rd August, 1972, the petitioner made an application to the Secretary, Ministry of Home Affairs, Government of India, New Delhi, for grant of pension admissible for freedom fighters. During the pendency of the application the Central Government introduced a new scheme of grant for freedom fighters and their families from central revenue on account of Silver Jubilee year of Independence. The petitioner therefore made an application in the prescribed form along with the documents in support of his case on 30th March, 1974. The application was rejected by the Central Government by order dated 2nd April, 1975 on the ground that the petitioner's case is not covered by the scheme. The same stand was maintained by the Central Government in dealing with the subsequent representations made by the petitioner for grant of freedom fighters pension.

3. The petitioner challenged the rejection of his application by filing Writ Petition No. 234 of 1997. The writ petition was heard by the Division Bench comprising of Desai and Parkar, JJ., on 26th August, 1997. The main question before the Division Bench was whether the participation of the petitioner in the mutiny of Indian Signal Corps falls within the scheme framed by the Central Government. On examination of the pension scheme it was noticed by the Division Bench that apart from the main stream of the liberation struggle, the movements and mutinies which were directed against the British (French, in the case of Pondicherry and Portuguese, in the case of Goa) with freedom of the country as its ultimate goal, are also treated as a part of national freedom struggle for the purpose of grant of pension, unless any movement is specifically decided as not equivalent for the grant of Sanman pension. The Division Bench held that the mutiny of Indian Signal Corps had an ultimate aim for the liberation of the country and, therefore, the petitioner is entitled to the pension as per the scheme of the Central Government. Accordingly, the respondents were directed to decide and release the pension of the petitioner admissible under the Rules within a period of three months.

4. Pursuant to the order of the Division Bench, the Central Government has granted the pension to the petitioner with effect from the date of sanction i.e. 16th January, 1998.

5. Mr. Ketkar, learned Counsel appearing for the petitioner strenuously contended that the petitioner is entitled to the freedom fighters pension from the date of the application. He urged that the Central Government committed an error in fixing the pension from the date of sanction. In support of his contention Mr. Ketkar placed reliance on the decisions of the Supreme Court in Dull Chand v. Union of lndia, . Surja v. Union of India, : (1991)4SCC366 , and Mukundlal Bhandari v. Union of India, : 1990CriLJ2148 . On the other hand Mr. Vyas, the learned Counsel appearing for the respondents contended that participants of the mutiny in the Indian Signal Corps at Jabalpur in 1946 cannot be treated as freedom fighters for the purpose of grant of pension. However having regard to the award of Tamra Patra to the petitioner, special occasion of the Golden Jubilee of India's Independence and old age of the petitioner, a lenient view was taken and Samman pension was granted giving the petitioner a benefit of doubt. According to Mr. Vyas since the pension was granted by giving benefit of doubt, the petitioner is not entitled to the pension from the date of the application. He relied upon the decisions of the Supreme Court in Government of India v. K. V. Swaminathan, : (1997)10SCC190 and Union of India v. Ganesh Chandradotai, : (1997)10SCC289 .

6. The short question which falls for our consideration is whether petitioner is entitled to claim the pension from the date of the application i.e. 30th March, 1974. In Dull Chand v. Union of India where the prayer for the pension was made by the petitioners, the Union of India did not file a counter. On the other hand, a statement was made on their behalf that on documents being produced in support of the claim there would be no objection to granting the pension. The facts reveal that one of the petitioners in that writ petition was granted pension by the Government with effect from 1st August, 1980 during the pendency of the petition. In these circumstances, the Supreme Court directed that 41 of the petitioners should be granted pension from August 1, 1980 although they had made their applications beyond the date which was prescribed for making application.

7. In Surja v. Union of India, the main question before the Supreme Court was whether the petitioners had suffered the minimum sentence of six month imprisonment on account of their participation in the Arya Samaj Movement in the late 1930 in the erstwhile Nizam State of Hyderabad. While interpreting the qualifying condition of six month's imprisonment it was held that if a prisoner was sentenced to imprisonment for six months or more and if the period of actual imprisonment was reduced not on account of his claiming any remission, he should be deemed to have fulfilled the qualifying period of imprisonment for six months. In the circumstances, the claim of the petitioners was accepted and they were directed to be paid pension with effect from August 1, 1980.

8. In Mukundlal Bhandari v. Union of India, the question as to whether the pension can be granted with the retrospective effect again fell for consideration before the Supreme Court. The Supreme Court rejected the argument that notwithstanding the date of the application the claimant should be given the benefit of pension with effect from earlier date. However, the Supreme Court in terms held that the claimant would be entitled to the grant of pension from the date of the application even if the application is not accompanied with necessary proof. In paragraph 8 of the decision, the Supreme Court observed as follows :

'8. 'Coming now to the last contention advanced on behalf of the Government, viz., that the benefit of the Scheme should be extended only from the date the claimant produces the required proof of his eligibility to the pension, we are of the view that this contention can be accepted only partially. There have been cases, as in the present case, where some of the claimants had made their applicants but either without the necessary documentary proof or with insufficient proof. It is unreasonable to expect that the freedom fighters and their dependents, would be readily in possession of the required documents. In the very nature of things, such documents have to be secured either from the jail records or from persons who have been named in the scheme to certify the eligibility. Thus the claimants have to rely upon third parties. The records are also quite old. They are bound to take their own time to be available. It is, therefore, unrealistic to expect that the claimants would be in a position to produce documents within a fixed time-limit. What is necessary in matter of such claims is to ascertain the factum of the eligibility. The point of time when it is ascertained, is unimportant, the prescription of a rigid time-limit for the proof of the entitlement in the very nature of things is demanding to the object of the scheme. We are, therefore, of the view that neither the date of the application nor the date on which the re-of the benefit under the scheme. Hence, once the application is made, even if it is unaccompanied by the requisite eligibility data, the date on which it is made should be accepted as the date of the preferment of the claim whatever the date on which the proof of eligibility is furnished.'

9. In the light ot the above decision of the Supreme Court in Mukundlal Bhandari's case, the petitioner is clearly entitled to the grant of pension from the date of the application. But Mr. Vyas contends that the pension was granted to the petitioner by giving benefit of doubt and as such is entitled to only from the date of the sanction of the order. In this connection, Mr. Vyas has placed reliance upon the decision of the Supreme Court in the case of K.V. Swaminathan and Ganesh Chandradotai (supra). It is no doubt true that in the aforesaid decision the Supreme Court held that if the grant of the pension is by giving benefit of doubt, the rule in Mukundlal Bhandari's case will not be attracted and the claimant will be entitled to pension at the most from the date of the order of the Court. But the question is whether this case can be said to be a case of that type. In the instant case it was specifically held by the Division Bench that the mutiny of Indian Signal Corps had an ultimate aim for the liberation of the country. It was held that the petitioner's case is squarely covered by the scheme for the freedom fighters pension. Therefore it is not open for the Central Government to contend that only benefit of doubt was given to the petitioner.

10. In these circumstances petitioner is entitled to the freedom fighters pension from the date of the application. Accordingly we direct the respondents to grant and sanction to the petitioner the freedom fighters pension from the date of the application i.e. 30th March, 1974. The Central Government is directed to pay the arrears within three months from today. Petition is accordingly disposed of. Certified copy to be issued forthwith.

11. Petition accordingly disposed