Union of India Vs. Prafulla Kumar
Samal & ANR  INSC 222 (6 November 1978)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1979 AIR 366 1979 SCR (2) 229 1979
SCC (3) 4
CITATOR INFO :
RF 1986 SC2045 (45) RF 1990 SC1962 (6)
Code of Criminal Procedure, 1973, S.
227-order of discharge by a Special Judge, scope and ambit.
The second respondent, a Land Acquisition
officer, allegedly, by abusing his official position, concealed the fact that
the land which was the subject matter of acquisition was really Khasmahal land
belonging to the Government and having made it appear that the first respondent
was the undisputed owner of the same, aided and abetted him in getting a huge
sum of money as compensation.
The charge-sheet was submitted before the
Special Judge, and the prosecution requested him to frame a charge against the
respondents under ss. 5(2) and 5(1)(d) of the Prevention of Corruption Act read
with s. 120B IPC. The Special Judge, Puri went through the charge-sheet,
statements made by the witnesses before the police and other documents, and
coming to the conclusion that there was no sufficient ground for framing a
charge against the respondents, discharged them under s. 227 Cr.P.C. ,1973,
after giving cogent reasons for passing the order of discharge. In revision the
High Court upheld the Special Judge's order of discharge.
Dismissing the appeal by special leave, the
HELD: 1. The considerations governing the
interpretation of s. 227 of Cr. P.C. apply mutatis mutandis to the proceedings
under the Prevention of Corruption Act, after the charge-sheet is submitted
before the Special Judge. At the stage of s. 227, the Judge has merely to sift
the evidence in order to find out whether or not, there is sufficient ground
for proceeding against the accused. The sufficiency of ground would take within
its fold, the nature of the evidence recorded`by the police, or the documents
produced before the court, which exfacie disclose that there are suspicious
circumstances against the accused so as to frame a charge against him. [231E,
233A-B] State of Bihar v. Ramesh Singh,  I SCR 257; K. P, Raghavan &
Anr. v. M. H. Abbas and Anr.. AIR 1967 SC 740;
Almohan Das & Ors. v. State of West
Bengal,  2 SCR 520; applied.
2. What has been acquired is merely the
Raiyyati or the lessee's interest, and as the proprietary interest vests in the
Government itself, there is no question of either acquiring or claiming
compensation for the interest of the Government. [239B] Collector of Bombay v.
Nusserwanji Rattanji Mistri & Ors., AIR 1955 SC 298; and The Special Land
Acquisition officer, Hosanagar v. K. S. Ramachandra Rao & Ors., AIR 1972 SC
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 194 of 1977.
(Appeal from the Judgment and order dated
30-8-76 of the Orissa High Court in Criminal Revision No. 88/76).
Soli J. Sorabjee, Addl. Sol. Gen. and E. C.
Agarwala and Girish Chandra for the appellant.
Gobinda Mukhoty and N. R. Chowdhary for the
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal is directed against the judgment dated 30th August,
1976 of the High Court of Orissa by which the High Court has upheld the order
of the Special Judge, Puri discharging respondents No. 1 and 2.
The facts of the case lie within a narrow
compass and centre round an alleged conspiracy said to have been entered into
between respondents No. 1 and 2 in order to commit offences under sections 5(2)
and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the
Act) read with section 120-B I.P.C. The main charge against the respondents was
that between 19-2-1972 to 30-3-1972 the respondent entered into an agreement
For the purpose of obtaining pecuniary advantage for respondent No. 1 P. K. Samal
and in pursuance of the said conspiracy the second respondent Debi Prasad Jena,
who was the Land Acquisition officer aided and abetted the first respondent in
getting a huge sum of money for a land acquired by the Government which in fact
belonged to the Government itself and respondent No. 1 was a skew thereof. It
is averred in the chargesheet that respondent No. 1 by abusing his official
position concealed the fact that the land which was the subject matter of
acquisition and was situated in Cuttack Cantonment was really Khasmahal land
belonging to the Government and having made it appear that he was the
undisputed owner of the same, got a compensation of Rs. 4,18,642.55. The
charge-sheet contains a number of circumstances from which the inference of the
conspiracy is sought to be drawn by the police. After the charge-sheet was
submitted before the Special Judge, the prosecution ousted him to frame a
charge against the respondents. The Special Judge, Puri after having gone
through the charge-sheet and statements made by the witnesses before the police
as also other documents came to the conclusion that there was no sufficient
ground for framing a charge against the respondents and he accordingly
discharged them under section 227 of the Code of Criminal Procedure, 1973
hereinafter called the Code). The Special Judge has given cogent reasons 231
for passing the order of discharge. The appellant went up to the High Court in
revision against the order of the Special Judge refusing to frame the charge,
but the High Court dismissed the revision petition filed by the appellant and
maintained the order of discharge passed by the Special Judge. Thereafter the appellant
moved this Court by are application for special leave which having been granted
to the appellant, the appeal is now set for hearing before us.
The short point which arises for
determination in this case is the scope and ambit of an order of discharge to
be passed by a Special Judge under section 227 of the Code. The appeal does not
raise any new question of law and there have been several authorities of the
High Courtís as also of this Court on the various aspects and grounds on which
an accused person can be discharged, but as section 227 of the Code is a new
section and at the time when the application for special leave was filed, there
was no direct decision of this Court on the interpretation of section 227 of
the Code, the matter was thought fit to be given due consideration by this
We might, state, to begin with, that so far
as the present case (offences committed under the Prevention of Corruption Act)
is concerned it is regulated by the procedure laid down by the Criminal Law
Amendment Act under which the police has to submit, charge-sheet directly to
the Special Judge and the question of commitment to the Court of Session does
not arise, but the Sessions Judge has nevertheless to follow the procedure
prescribed for trial of sessions cases and the consideration governing the
interpretation of section 227 of the Code apply mutatis mutandis to these
proceedings after the charge-sheet is submitted before the Special Judge.
Before interpreting and analysing the
provisions of section 227 of the Code so far as pure sessions trials are
concerned, two important facts may be mentioned. In the first place, the Code
has introduced substantial and far reaching changes in the Code of 1898 as
amended in 1955 in order to cut out delays and simplify the procedure, has
dispersed with the procedure for commitment enquiries referred to m section 206
to 213 of the Code, of 1898 and has made commitment more or less a legal
formality. Under the previous Code of 1898 the Magistrate was enjoined to take
evidence of the prosecution witnesses after giving opportunity to the accused
to cross-examine the witnesses 2nd was then required to hear the parties and to
commit the acceded to the Court of Session unless he chose to act under section
209 and found that there was no sufficient ground for committing the accused
person for trial. Under the Code the Committing Magistrate has been authorised
to peruse the evidence and the documents produced by the 232 police and commit
the case straightaway to the Sessions Court if the case is one which is
exclusively triable by the Sessions Court. Thus, it would appear that the
legislature while dispensing with the procedure for commitment enquiry under
the Code of 1898 has conferred a dual responsibility on the Trial Judge who has
first to examine the case on the basis of the statement of witnesses recorded
by the police and the documents filed with a view to find out whether a prima
facie case for trial has been made out and then if such a case is made out to
proceed to try the same. In our view the legislature has adopted this course in
order to avoid frivolous prosecutions and prevent the accused from being tried
of an offence on materials which do not furnish a reasonable probability of
conviction. In the instant case, as the offences alleged to have been committed
by the respondents fall within the provisions of the Act, the Special Judge has
been substituted for the Sessions Judge, the procedure of the Sessions Court
having been applied fully to the trial of such cases. Thus, it is manifest that
the accused has not only one opportunity and that too before the Sessions Judge
for showing that no case for trial had been made out. This was obviously done
to expedite the disposal of the criminal cases.
Secondly, it would appear that under section
209 of the Code of 1898 the question of discharge was to be considered by a
Magistrate. This power has now been entrusted to a senior Judge, namely, the
Sessions Judge who is to conduct the trial himself and who has to decide before
commencing the trial as to whether or not charges should be framed in a
particular case against the respondents The discretion, therefore, is to be
exercised by a senior and more experienced Judge so as to exclude any abuse of
power. In this view of the matter, it is manifest that if the Sessions Judge
exercises his discretion in discharging the accused for reasons recorded by
him, his discretion should not normally be disturbed by the High Court or by
Section 227 of the Code runs thus:- "If,
upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution
in this behalf, the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the accused and record his
reasons for so doing." The words 'not sufficient ground for proceeding
against the accused' clearly show that the Judge is not a mere post office to
frame the charge at the behest of the prosecution, but has to exercise his
judicial mind to the facts of the case in order to determine whether a case for
trial 233 has been made out by the prosecution. In assessing this fact, it is
not A necessary for the court to enter into the pros and cons of the matter or
into a weighing and balancing of evidence and probabilities which is really his
function after the trial starts. At the stage of section 227, the Judge has
merely to sift the evidence in order to find out whether or not there is
sufficient ground for proceeding against the accused. The sufficiency of ground
would take within its fold the nature of the evidence recorded by the police or
the documents produced before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to frame a charge against
The scope of section 227 of the Code was
considered by a recent decision of this Court in the case of State of Bihar v.
Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows:-
"Strong suspicion against the accused, if the matter remains in the region
of suspicion, cannot take the place of proof of his guilt at the conclusion of
the trial. But at the initial stage if there is a strong suspicion which leads
the Court to think that there is ground for presuming that the accused has
committed an offence then it is not open to the Court to say that there is no
sufficient ground for proceeding against the accused. The presumption of the
guilt of the accused which is to be drawn at the initial stage is not in the
sense of the law governing the trial of criminal cases in France where the
accused is presumed to be guilty unless the contrary is proved.
But it is only for the purpose of deciding
prima facie whether the Court should proceed with the trial or not.
If the evidence which the Prosecutor pro
poses to adduce to prove the guilt of the accused even if fully accepted before
it is challenged in cross-examination or rebut ted by the defence evidence; if
any, cannot show that the accused committed the offence then there will be no
sufficient ground for proceeding with the trial".
This Court has thus held that whereas strong
suspicion may not take the place of the proof at the trial stage, yet it may be
sufficient for the satisfaction of the Sessions Judge in order to frame a
charge against the accused. Even under the Code of 1898 this Court has held
that a committing Magistrate had ample powers to weigh the evidence for the
limited purpose of finding out whether or not a case of commitment to the
Sessions Judge has been made out.
(1) 1 S.C.R. 287.
16-817 SCI/78 234 In the case of K. P. Raghavan
and Anr. v. M. H. Abbas and Anr.(1) this Court observed as follows:- "No
doubt a Magistrate enquiring into a case under S. 209, Cr. P.C. is not to act
as a mere Post office and has to come to a conclusion whether the case before
him is fit for 8 commitment of the accused to the Court of Session".
To the same effect is the later decision of
this Court in the case of Almohan Das and ors. v. State of West Bengal(2) where
Shah, J. speaking for the Court observed as follows:- "A Magistrate
holding an enquiry is not intended to act merely as a recording machine. He is
entitled to sift and weigh the materials on record, but only for seeing whether
there is sufficient evidence for commitment; and not whether there is
sufficient evidence for conviction. If there is no prima facie evidence or the
evidence is totally unworthy of credit;
it is the duty to discharge the accused: if
there is some evidence on which a conviction may reasonably be based, he must
commit the case".
In the aforesaid case this Court was considering
the scope and ambit of section 209 of the Code of 1898.
Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the
question of framing the charges under section 227 of the Code has the undoubted
power to sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the
Court disclose grave suspicion against the accused which has not been properly
explained the Court will be, fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case
would naturally depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however if two views are
equally possible and the Judge is satisfied that the evidence produced before
him while (1) A.I.R. 1967 S.C. 740.
(2)  2 S.C.R. 520.
235 giving rise to some suspicion but not
grave suspicion against the accused, he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under
section 227 of the Code the Judge which under the present Code is a senior and
experienced Judge cannot act merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not mean that
the Judge should make a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
We shall now apply the principles enunciated
above to the present case in order to find out whether or not the courts below
were legally justified in discharging the respondents.
Respondent No. 1 was a Joint Secretary in the
Ministry of Information and Broadcasting from April, 1966 to January, 1969.
Later he worked as Joint Secretary in the Ministry of Foreign Trade till
12-11-1971. Thereafter, respondent No. 1 was working as Joint Secretary,
Ministry of Education and Social Welfare. The second respondent worked as Land
Acquisition officer in the Collectorate, Orissa from February 1972 to 18th August,
In the year 1969 the All-India Radio
authorities were desirous of having a piece of land for construction of
quarters for their staff posted at Cuttack. In this connection, the said
authorities approached respondent No. 1 who had a land along with structure in
the Cantonment at Cuttack. As the All-India Radio authorities found this land
suitable, they approached respondent No. 1 through his mother for selling the
land to them by private negotiation.
As this did not materialise, the All-India Radio
authorities moved the Collector of Cuttack to assess the price of the land and
get it acquired. Accordingly, the Tehsildar of the area directed the Revenue
officer, Cuttack; to fix the valuation of the land of respondent No. 1. The
Revenue officer reported back that the land belonged to respondent No. 1 and
was his private land and its value would be fixed at Rs. 3000 per guntha. It is
common ground that the land in question was situated in Cuttack Cantonment and
was a Khasmahal land which was first leased out to one Mr. Boument as far back
as 1-9-1943 for a period of 30 years. The lease was given for building
purposes. In 1954. Mrs. Boument who inherited the property after her husband's
death transferred the 236 land to respondent No. 1 with the consent of the
Khasmahal authorities. When respondent No. 1 came to know that the land in
question was required by the All-India Radio authorities, he wrote a letter to
Mr. . S. Gill on 28th October, 1970 suggesting that the land- may be acquired
but price fixed by mutual consent. It may be pertinent to mention here that in
this, letter a copy of which being Ex. D-4 (12) is to be found at page 86 of
the paper-book, respondent No. 1 never concealed the fact that the land really
belonged to the Government. In this connection, respondent No. 1 wrote thus:-
"I have represented to you against the revenue authorities quoting a
higher price for similar Government land more adversely situated and a lower
price for my land despite its better strategic location".
We have mentioned this fact because this
forms the very pivot of the case of the appellant in order to assail the
judgment of the courts below. A perusal of this letter clearly shows that
respondent No. 1 made no attempt to conceal that the land in question was, a
Government land which was leased out to his vendor. A copy of the original
agreement which also has been filed shows that under the terms of the lease,
the same is entitled to be renewed automatically at the option of the lessee
and unless the lessee violates the conditions of the lease, there is no
possibility of the lease being resumed. As it is, the lease had been continuing
from the year 1943 and there was no possibility or its not being renewed on
1-9-1973 when the period expired. In these circumstances, therefore, it cannot
be said that the letter written by respondent No. 1 referred to above was an
evidence of a criminal intention on the part of respondent No. 1 to grab the
huge compensation by practising fraud on the Government. Respondent No. 1 a high
officer of the Government and was a lessee of the Government, a fact which he
never concealed and if he was able to get a good customer for purchasing his
land or acquiring the same, there was no harm In writing to the concerned
authority to fix the proper valuation and take the land. There, was no question
of any concealment or malpractice committed by respondent No. 1.
Apart from this, the contention of the
appellant that the fact that the land being Khasmahal land belonging to the
Government was deliberately suppressed by the respondents is completely
falsified by the circumstances discussed hereinafter:
The land in question was situated in a
Cantonment area and it is not disputed that all lands in the Cantonment area
were Khasmahal Lands belonging to the Government.
237 The High Court in this connection has
observed as follows:
"Government authorities admit that the
land in question was known to be Khasmahal land from the very inception. This
must lead to an inference that the authorities knew that the interest of the
opposite party No. 1 in the land was that of a lessee and the State Government
was the proprietor".
The High Court has further observed that a
number of witnesses who were examined by the police had stated that it was
common Knowledge that all khasmahal lands in the Cantonment area in Cuttack
were Government lands Relying on the statement of Mr. T. C. Vijayasekharan,
Collector, Cuttack, the High Court observed as follows:- "Shri
Vijayasekharan who has admittedly played an important role in the land
acquisition proceeding has said that it is a matter of common knowledge that
all khasmahal lands in Cantonment area at Cuttack are Government lands. He has
further categorically stated that Shri P. M. Samantray did not put undue
pressure of any kind".
Furthermore, it would appear that Mr. B. C.
Mohanty, Land Acquisition officer submitted a report about the land in question
on 15th February, 1971 in which he had clearly mentioned that the land in
question was Government land and that respondent No. 1 was a Pattidar in
respect of the land as shown in the record. Thus, one of the important premises
on the basis of which the charge was sought to be framed has rightly been found
by the High Court not to exist at all.
The records of the Government showed the
nature of the land.
Respondent No. 1 at no time represented to
the All-India Radio authorities or the Government that the land was his private
one and the records of the Government clearly went to show that the land was a
Government land. In these circumstances, therefore, it cannot be said that
respondent No. 1 acted illegally in agreeing to the land being acquired by the
Another important circumstance relied on by
the appellant was the great rapidity with which the land acquisition
proceedings started and ended clearly shows that the respondents had joined
hands to get the lands acquired and the compensation paid to respondent No. 1.
In this connection, reliance was placed on the fact that the copies of the
records of rights were prepared on 30th March, 1972 in which the land was no
doubt shown as having been owned by the State. Bhujarat report was also
prepared on the same date. Respondent No. 1 presented his copy of the deed of
transfer also on the same date and respondent No. 2 made the award for Rs.
4,18,642.55 also on the same 238 date. The entire amount was disbursed also on
the same date and possession also was handed over on the same date. Prima
facie, it would appear that the Officer acted in great hurry perhaps at the instance
of respondent No. 1. These circumstances are clearly explainable and cannot be
said to exclude every reasonable hypothesis but the guilt of respondent No. 1.
Admittedly, the All-India Radio authorities were in a great hurry to get the
land acquired and take possession of the same. As respondent No. 1 was a high
officer of the I.A.S. cadre there may have been a natural anxiety on the part
of the small officers posted in the district of Cuttack to oblige respondent
No. 1 by completing the proceedings as early as possible and meeting the needs
of the All-India Radio.
It would, however, appear that once notices
under section 9(1) and 10(1) of the Land Acquisition Act were issued and the
objection filed by the appellant was withdrawn, because there was no one else
in the field, there was no impediment in the way of acquiring the land and
taking possession from respondent No. 1. In fact, it would appear as pointed
out by the High Court that as far back as 22nd February 1972 the Land
Acquisition officer who was a person other than the second respondent had sent
a letter to the Government with the counter signature of the Collector for
sanctioning the estimate of acquisition of 2 acres of land belonging to
respondent No. 1. Later, however, the area of the land was reduced from 2 acres
to 1.764 acres and revised estimates as desired by the Revenue department were
sent on 7-3-1972. This estimate amounted to Rs. 4,18,642 55 and was sent
through the A.D.M's letter on 8-3-1972. The Home Department by their letter
dated 11-3-1972 sanctioned the aforesaid estimate. Thereafter, the Government
indicated to the Collector that an award might be passed for acquiring 1.764
acres of land. These facts apart from negativing the allegations of criminal
conduct against the respondents demonstrably prove the untruth of the
circumstance relied upon in the charge-sheet, namely, that unless the
respondent No. 1 and 2 acted in concert and conspiracy with each other,
respondent No. 1 could not have known the exact figure of the compensation to
be awarded to him. In this connection, reliance was placed on a letter written
by respondent No. 1 to the Vigilance officer, L. S. Darbari on 15th March, 1972
where he had mentioned that as Karta of the H.U.F. he would be getting a
compensation of Rs. 4,18,642.55 which is to be paid to him on the 10th March,
1972 and it was argued that unless the two respondents were in league with each
other how could respondent No. 1 get these details. We are, however, unable to
agree with this contention.
239 We have already mentioned that a fresh
estimate for 1.764 acres was prepared and the total compensation was Rs.
4,18,642.55 as only the Raiyyati or the lessee's interest was proposed to be
acquired and this letter was sent to the Government for sanction and the
estimate was sanctioned on 11-3-1972. It was contended that no notice was given
to the Khasmahal department, so that the Government could claim compensation of
the proprietary interest. It is obvious that what has been acquired in the
present case is merely the Raiyyati or the lessee's interest and as the
proprietary interest vests in the Government itself, there is no question of
either acquiring or claiming compensation for the interest of the Government.
In the case of Collector of Bombay v. Nusserwanji Rattanji Mistri & Ors.(1)
this Court observed as follows:- "If the Government has itself an interest
in the land, it has only to acquire the other interests outstanding therein, so
that it might be in a position to pass it on absolutely for public user.....................
When Government possesses an interest in land which is the subject of
acquisition under the Act, that interest is itself outside such acquisition,
because there can be no question of Government acquiring what is its own. An
investigation into the nature and value of that interest will no doubt be
necessary for determining the compensation payable for the interest outstanding
in the claimants, but that would not make it the subject of acquisition".
To the same effect is a later decision of
this Court in the case of The Special Land Acquisition Officer, Hosanagar v. K.
S. Ramachandra Rao & ors.(1) where this Court observed as follows:-
"Mr. M. Veerappa, the learned counsel for the State of Mysore, contends
that the Land Acquisition officer had not assessed the compensation payable for
the rights of the respondents in the land acquired ..
.......We have gone through the Award made by
the Land Acquisition officer. The Land Acquisition officer appears to have
valued the rights of the respondents in the lands acquired. Whether the
valuation made by him is correct or not cannot be gone into these
proceedings." As the appellant was naturally interested in finalising the
deal as quickly as possible, there could be no difficulty in finding out the
estimates which had been sanctioned a week before respondent No. 1 wrote the
letter to the Vigilance Department. This fact proves the bona-fide rather than
any wrongful conduct on the part of respondent No. 1 which may lead to an
adverse inference being drawn against him.
Finally, it was argued that what was acquired
by the Government was merely the lessee's interest, but the respondent No. 1
appears to have got compensation as the owner. This is factually incorrect. We
have already referred to the circumstances which clearly show that the
Government was fully aware that it was only the lessee's interest which was
being acquired and even the fresh estimate for Rs. 4,18,642. 55, which was sent
to the Government was shown as representing the Raiyyati interest. Mr. Agarwala
appearing for the respondents fairly conceded that having regard to the nature,
character and situation of the land, it could not be said that the amount of
compensation awarded did not represent the market value of the lessee's
interest of the land.
On the other hand, in the counter-affidavit
at page 87 of the paper book, it has been alleged that 16 sale-deeds executed
during the year 1970 and sale-deeds executed during the year 1971 pertaining to
the village in question were acquired at the rates varying from Rs. 42,165 to
750,000. The High Court has also pointed out that the records before the Trial
Judge show that the Collector Vijayasekharan had valued the land at the rate of
Rs. 1.70 lakhs per acre as far back 1: as 3-2-1970 and if two years later the
valuation was raised to Rs. 2 lakhs it cannot be said that the land was in any
Lastly, there does not appear to be any legal
evidence to show any; meeting of mind between respondentís No. 1 and 2 at any
time. Although the Collector at the time of the acquisition was a distant
relation of respondent No. 1 he had himself slashed down the rate of
compensation recommended by the Revenue officer from Rs. 2,10,000 to Rs. 2,00,000
and it was never suggested by the prosecution that the Collector was in any way
a party to the aforesaid conspiracy.
For these reasons, therefore, we find
ourselves in complete agreement with the view taken by the High Court that
there was no sufficient ground for trying the accused in the instant case.
Moreover, this Court could be most reluctant to interfere with concurrent
findings of the two courts in the absence of any special circumstances.
For the reasons given above, the judgment of
the High Court is affirmed and the appeal is dismissed.
M.R. Appeal dismissed.