S.C.R.

SUPREME COUR'r REPOR1'8 809

19~8 modified and plaintiff will be entitled to damages in the sum of Rs. 93,000 on the 3,000 Indian Iron shares.

The decree given to the plaintiff in respect of Rs. 6, 762-8-0 is set aside over and above the decree for Rs. 9,100 in his favour set aside by the High Court.

In the calculation of future interest tbe plaintiff will not be allowed interest from 9th March, 1943, to 12th September, 1944. In the result tbe decree given to the plaintiff in the sum of Rs. 61, 787 is reduced to Rs. 42,17 5.

He will get interest at six per cent. per annum from 5th April, 1937, until pttyment or realization except for a period of one year and six months.

Plaintiff will get proportionate costs throughout.

Trojan ct Co.

Appeal allowed in part.

Agent for the appellant: Ganpat Rai.

Agent for the respondent: M. S. K. Sastri.

MUSH'rAK HUSSEIN

v. 'rHE S'fATE OF BOMBAY. [MEHR CHAND MAHAJAN, VIVIAN BOSE and

JAGANNADHA DAS JJ.]

Criminal trial-Charge to jury-Mis-direction-Powers of appellate Court-Power of appellate Court to go into the whole ease to determine whether there has been failure of justice-Practice- Appellate Court-Summary 1ejection of appeal-D1'ty to state reasons in arguahle cases.

In his charge to the jury the Judge told them that the oase before them was a jig saw puzzle with some missing links and directed them to use their ingenuity to piece them together by finding out the probabilities and seeing whether they could successfully solve the puzzle. Held, this was misdirection in that it invited the jury to exercise its ingenuity by having resort, if necessary, to speculative reasoning.

Where a jury has been mis-directed and bas based its verdict on assumptions and conjectures the Supreme Court may order a retrial or remit the case to the High Court with a direction that it should consider the merits of the case in the light of the decision of the Supreme Court and eay whether there has been a

Ltd. v.

Rm.N. N.

Nagappa Chettiar.

Mahajan J.

l9~3

March BO.

1968 failure of justice as a result of the mis-directions, or it may examine the merits of the case and decide for itself whether there MushtakHumin has been a failure of justice in the case.

 v.

In deciding whether there has in fact been a failure of justice Th• Stat• of in consequence of a mis-direction, the Court is entitled to take the Bombay. whole case into consideration.

Abdul Rahman v. Empel'or (A.LR. 1946 Lah. 82) referred to.

Though in cases which prima Jacie raise no arguable issue the High Court may dismiss an appeal summarily.without giving any reasons, it is desirable that in arguable cases the High Court should in its summary rejection order give some indication of the views of the High Court on the points raised.

CRIMINAL APPELLATE

JURISDICTION: Criminal Appeal No. 96 of 1952. Appeal by special leave granted by the Supreme Court on the 14th February. 1952, from the Order dated the 17th September, 1951, of the High Court of Judicature at Bombay (Bavdekar and Chainani JJ.) in Criminal Appeal No. 1026 of 1951 arising out of Judgment and Order dated the 28th July, 1951, of the Court of the Third Additional Sessions Judge of Poona in Sessions Case No. 78 of 1951.

A. S. R. Chari and J. B. Dadachanji for the appellant.

C. K. Daphtary, Solicitor-General for India, (Porus A. Mehta, with him) for the respondent.

1953. March 30. The Judgment of the Court was delivered by

MAHAJAN J.-The appellant on 28th July, 1951, was convicted on a charge under section 366, Indian Penal Code, for having kidnapped. at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourne and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of five.

The jury returned a verdict of guilty by a majority of three to two.

The Sessions Judge came to the conclusion that the verdict was not perverse. He therefore accepted it.

The appellant preferred an appeal to the High Court

but this, was summarily dismissed.

This appeal is be- 1953 fore us by special leave.

M ht kH us a ussein The prosecution case was that on the 12th Decemv. ber, 1949, the appellant who was a music teacher The State of went to the house of S, hilavat[ and on the pretext Bombay. that there was a girl waiting in his house and that he llfahajan J. wanted to compare the voice of Shilavati with the voice of the girl took her to his house, and with the

assistance of one Iqbal Putlabai (accused~) kidnapped her.

Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant.

To prove the case against the appellant the prosecution examined in all sixteen witnesses. Ont of these four were eye-witnesses, viz., Pra.hlad, Jamunabai, Namdeo and Shilavati.

Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister-in-law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to compare her voice with that of one Prabba who was waiting in bis house and thereafter Sbilavati had not come back, that on getting this information she along with her brothers and sister-in-law went to the house of the appellant and questioned him as to why Shilavati was not sent back, whereupon tbs appellant replied that be bad sent her by bus.

As Sbilav&ti did not return home, she went to the police and lodged a complaint. Ananda, uncle of the girl, deposed to the same effect.

Prahlad, brother of Shilavati, a boy of school-going age, deposed that be saw Sbilavati going

witbtbe appellant while he was playing outside the school. N amdeo, who is a bricklayer, stated that on the 12th December while he was returning after completing his work at about 3-30 p. m. be saw Shilavati going with the appellant.

On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that she was pregnant.

Shilavati was examined as P. IV. 10 and she llepose'd

J05

1958 that the accused came to her house at about 3-30

h -:-H . p.m. aud told her that there was a singing party at Jfug tan; usssin . . v.

Kirkee and that she should. accompany him there,

The state of that she went with him on the promise that the Bombay. appellant would seud her back before her mother returned home, that while at the appellant's house she .l!ahajan J. was asked to smell cer.tain scents and she felt giddy and could not speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion.

She further said tha-t on enquiry from one Kassam she was told that the appellant had left her there.

On th.e 12th December at about 11-40 p. m.

Yamunaba.i went to Padamji Gate police station and lodged a complaint there. In the comp la int it was stated that Shilavati ha.d quarrelled with one Shanta.- bai and had left the house and since then she had not returned. The police ware asked to find out her whereabouts.

On the 13t.h she sent a complaint to the Pollce Iuspector, A Division, Poona. Therein she made the allegation that the appellant used to come to her huse for coaching Shilavati in harmonium, that she learnt that he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavati's whereabouts he had given evasive answers. The police head-constable who was on duty on receipt of this complaint examined Yamunabai. He read out the application to her and recorded her statement which reads thue :-

"My daughter Shilavati age about 13/14 has left my house at 4 p. m. I made search for my daughter at the house of my paternal aunt, but I could not find her there.

M. H. Gyani (appel!ant) used to come to my house for coaching up my daughter in singing. I do not know whether he has taken away my daughter nor have I seen him taking her away. I have mentioned his name in my application through mistake.

My daughter has gone out of my house to some other place.

A search should therefore be made for her . .. .... I again state that. my daughter left tb!; l house

S.d.R.

SUPREME ootJR'r REPORTS 813

after quarreU.iug with my mother Harnahai. This is woa given in writing."

Mushta.k Hussetn In July, 1950, Yamunabai sent an application to v. the Collector of Poona. In this application she id Th• Stat• 01 that she had appointed the appellant as a. music , Bombay. master for her daughter, that on Monday the 12th Mahajan J.

December, 1949, at about 6 p. m. the appellant and his friend Badsha had induced and kidnapped her to au unknown plac~. She asserted therein that she was sure that nobody but both M. H. Gyani and Badsha had kidnapped her daughter.

In the witness box Yamuna Bai, as already stated, gave a different story and Shilavati herself did not fully support the version of her mother.

On the 14th Marnh, 1950, a letter, Exhibit 4-G, was sent by Shilavati to her mother.

The relevant part of this letter is in these terms:-

"Since last so many days, I have left the house and I have not sent any letter to you and you must also be worrying as to where I have gone. I am at

Bombay and qu\te well too. Do not worry a.bout me, I had gone to the river at Bamburda, and there some one forced me and brought me to Bombay and. he was prepared to ma.rry with me. He was an ordinary and old fellow.

J did not like it and he was going to convert me to Mahomedanism.

I felt very sorry for this and I was very much sad.

He beat me twice or thrice. Te whom shall I express my sorrow?

But there was a boy staying there whom I told all the facts and told him to save me anyhow.

He promised to save me.

There were two days remaining for my marriage.

Till then, he arranged for my stay and also for dinner, and one day before the marriage, previous night be took me out from that place.

There were many police complaints against him, and be, at the cost of his life, saved me.

I married him in order to return his obligations.

Now I am very happy.

I am not in need of anything now. He is au ordiu:try boy.

He works in a press, and be is a worker.

He is from us and his name is Baburao Ronde and next

814 SUPREME COURT REPOllTS [i953j

19os time we will send a photograph of botb of us.

Do ' - not worry about me. I am very happy. N amaskar to .1-lu•htak liussein l d l d . d v al el er y persons an ash1rwa as to youngsters.

The stte of N amaskar to grandmother Harnabai. Convey namas-

Bombay. kars to Anand mama, Vithal mama, Ram mama,

Shankar, Prah lad, Laxman, Hirabai, J amnabai, Mahajan J. Yamunabai, J a1bai, and to master."

Shilavati is admittedly a talented Harijan girl who used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration. The letter written by her from Bombay speaks for itself and it 'vas on receipt of this letter and further corespondence to which it is not necessary to refer tl:at the police got clue of her whereabouts and ware able to restore her tG her mother Yamunabai.

The statute law in India in certain circumstances permits an appeal against a jury's verdict and authorizes the appellate court to substitue its own verdict on its own consideration of the evidence. It has conferred on the appellate court extensive powers of overruling or .modifying the verdict of a jury in the interests of due administration of justice confident that the appellate judges who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. Section 423 in sub-section (2), Criminal Procedure Code, snates as follows:-

"Nothing herein contained shall authorize the court to alter or re.-erse the verd\ct of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the judge or to a misunderstanding on the part of the jury of the law as laid down by him."

Section 537 in sub clause (d) provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appea.I on a.ccount of any misdirection in any charge to the jury

unless such error, omission, irregularity or misdirec- 1963 ti on has in fact occasioned a failure of justice. Unless - . h f · bl' h d h h M"sh!akHumin t ere ore it 1s esta 1s e m a case t at t ere has v. been a serious misdirection by the judge in charging The stot• of the jury which has occasioned a failure of justice and Bombay. has misled the jury in giving its verdict, the verdict of the jury cannot be set aside.

The learned counsel Jfahajan 1• for the appellant contended that the judge in his charge to the jury misdirected it in several important particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was said that he failed to warn the jury that it would he unsafe for it to act on the stateme'Ilt of Shilavati without her statement being corroborated by other evidence in material particulars.

The judge, according to the learned counsel, should have told the jury that though in law it was open to them if in the circumstances of this case they thought fit te do, to act on the uncorroborated trestimony of Shilavati but that ordinarily it was not safe to do so without that statement being corroborated in material particulars. This omission on the part of the judge, it was urged, amounted in law to a grave misdirection and the jury in all likelihood without such a warning arrived at its verdict on the basis of the uncQrrobora ted evidence of the girl. That part of the charge in which reference was made by the judge to Shilavati's evidence wherein she had said that she was told by Kassam Khan that the appellant had left her there was criticized on the ground that the jury had been direted to act on inadmissible evidence.· 'l'hen it was contended that it was a serious misdirection to direct the jury that it had to solve the jigsaw puzzle that had arisen in the case by using their own ingenuity and by piecing together the various pieces of the puzzle.

The last misdirection relied upon concerned the following part of the charge:-

"After weighing the probabilities of the case, the evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the

SUP.REME COURT REPORTS [1953]

wsh accused must not have committed the offence, then in th at -- case you have to return a verdict of not guilty." Jltishta.k H us.f.ei.n.

In our judgment, it is not necessary to pronounce The State af on all the points urged by the learned counsel, because

liloonbay. we are of the opinion that the judge clearly mis-

Mahajan J. directed the jury when he askeg it to solve the problem that had arisen 'by exercising its ingenuity and by resorting, if necessary, to speculative reasoning.

In other words, the judge gave the jury a carte blanche to come to its conclusion on the basis of its own conjectures, if necessary. Not only that. He told the jury to bold the accused not guilty in case it found it improbable that he must not have committed the offence.

These propositions placed before the jury are repugnant to all notions of criminal jurisprudence and they must necessarily have affected its mind in arriving at the conclusion. This is how the cha.rge on this point reads:- , " So you will find, gentlemen, that there are as inany as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one. I would like also to bring to your notice the letter writ- . ten at the instance of Shil11vati from Bombay.

That letter is Exhibit 4-G.

Sbilavati in her examination before the court does not admit that this letter was written at her instance. However, she has admitted before the police that this letter was written at her instance, and this was brought out in her cross-examination. In bhis letter she had stated that she had gone on that day to Bamburda river and there she was forcibly kidnapped by sGme man who was a.bout to marry her.

That man was an old man and she did not approve that marriage.

Fortunately, this Konde came to her rescue and took her to. Bombay and married her. 'l'hat is her statement.

Now, gentlemen,, this is a jigsaw puzzle kept before you.

In jigsaw puzzles aU the pieces are lapt before us and we have to use our ingenuity and piece them together. Some

S.C.R.

SUPREME COURT REPOR'fS 817

links are missing in this case.

However, as rightly sub-

19M mitted by the learned Assistant Public Prosecutor,· in - . h Z t . h th b b 'l 'i. ,!' h Mushtak Hussein sue cases you iave o weig e pro a i i .ies OJ t e case v. and there/ ore you have to find out from the material be- Th• St.t• of fore us whether you can solve this jigsaw puzzle.

Now Bombay. these points are before you that there was a quarrel with Shantabai.

The chit was alleged to have been MahajanJ. sent by accused No. 1, and then the girl went to Bamburda river and there she was kidnapped by somebody.

Now, gentlemen, yon have to consider whether it is or it is not possible that the girl Shilavati might have received some chit probably from the accused No. l. 'fhis chit was seen by Shantahai who exposed to Harnabai the grandmother of bhe

girl.

The witness Harnabai is an old woman and probably she was put out and she might have taken her to task, and she might have even gone to the length of stating that she should go out of the house.

Here is a young girl having hot blood, and it is or is it not probable that the girl in desperation had gone to Bambnrda, and she mentions the river, and gentlemen, you can find that there is a confluence of the rivers Mula and Mutha ; why did she go to the river ? Whether it is probable that she wanted to commit suicide. Yon will find, gentlemen, that near that confluence there is a mosque and in the evidence it has come out that the girl was found at the but at Sion with an old Mahommedan named Kassam Khan and bis keep.

You have to consider whether it is probable that this Kassam Khan and bis keep induced the girl to go with them to Bombay and whether Kassam Khan wanted to marry her there.

You have to find out whether it is probable that this chivalrous man Konde re'cued her from the old man Kassam Khan who was about to marry her and got himself married to the girl. 'rhe fact remains that the girl was found with Konde in Bombay ultimately. It is in evidence of the girl herself that she found herself in a hut at Sion and Kassam Khan and his keep were keeping a watch over her ........................ So, gentlemen, you will ha1e to find out all the probabilities @f the oase and

1953 see whether you can successfully solve this pitzzle kept ,, 7 -k H . before us by the prosecution." ruU.! ita usssin v.

Had the charge to the jury stopped with the sen- The State of ience, "So you will find, gentlemeu, that there are as

Bombay. many as six versious before this, court and therefore you have to consider all these versions and probabili- Mahafan J. ties of the case, to find out whether the improved version now before the court is a correct one", n6 exception could possibly have been taken to it.

When the learned judge, however, proceeded to direct the jury to piece together the various pieces of the jigsaw puzzle by use of their ingenuity be clearly misdirected them inasmuch as he told them that they could in solving the problem draw upon their own imagination and exercise their ingenuity in the matter without reference to the evidence th:i.t had been placed by the prosecution on the record.

Not only that, the learned judge himself indulged in speculation and placed a number of conjectures before the jury for its consideration. The learned judge surmised that the girl might well have gone to the river for committing suicide and asked the jury to consider this surmise as well. It was further surmised that a chit from the accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the grandmother, who in all likelihood took her to task and told her to get out of the house and thereupon the hotblooded Shilavati went to the river to commit suicide. There is no evidence whatsoever on the record about the actual receipt of that chit, of Shantabai seeing it and exposing this fact to Harnabai and of Harnabai threatening Sbilavati. All these considerations mentioned to the jury were the results of the judge's fertile imagination and were bound to mislead it into the belief that they could indulge in like conjectures and surmises in their effort to solve the puzzle. 'l'he direction to tbe jury that it was to solve the jigsaw puzzle by use of its ingenuity does not find place in an isolated passage of the charge, bot runs through it .. While winding up the learned judge again reiterateq it and sid ;-

"As I ha.ve already told you, you have to piece 1958 tfiogdether all the pieces of the jigsaw puz?.le and try to Musht•k-; u,,, in

n out what story appears to you to be probable; v. whether the girl was drugged at all, or whether as Th• state of stated by her in her letter she went to a river at Bombay.

Bambnrda and there she met this Kassam Khan and his keep and along with them she went to Bombay of Maha, ian 1• her own accord."

In the concluding part of the charge the learued judge said:-

"After weighing the probabilities of the case, evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have co1nmitted the offence, then in that base you have to return a verdict of not guilty."

It is not possible to say that these words were likely to give a correct lead to the jury in reaching its concl11sion.

All that the jury should have been told was that after weighing the probitbilities of the case and the eYidence on the record, as prudent men they should answer "whether the prosecution had made out the charge against the accused." We are satisfied that as a result of these misdirections the jury in all likelihood gave a divided verdict of guilty by three to two not on evidence but on the basis of assumptions and conjectures.

In this situation, the question for consideration is what proeednre should be followed by this court for undoing the mischief that has happened and which would be most conducive to the ends of justice.

The simplest course open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should consider the merits of the case in the light of our decision and say whether there has been a failure of justice as a result of these misdirections. Lastly, it is open to 11s to examine the merits of the case a.nd

lDO

1958 decide for ourselves whether there has beeu a failure - of justice in the case and an innocent man has been Mu•hlak Huasein . t d v. con vic , e .

Th• State of

Bo1nbay.

Mahajan J,

It is now well settled that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the court is entitled to t'.tke the whole case into consideration. [Vide Abdul Rahim

v. Emperor(1)]. The words "in fact" in section537(d), Criminal Procedure Code, emphasize the view that the court is entitled to go iuto the evidence itself in order to determine whether there has been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt the third course, because at this moment of time it is most conducive to the ends of justice. It seems plain to us that on the material on this record no reasonable body of persons could possibly have arrived at the conclusion ; hat the appellant kidnapped Shilavati as alleged by the prosecution. We have taken upon ourselves the responsibility of deciding this case without the valuable opinion of the High Court because we feel satisfied that any other course would cause unnecessary harassment to the appellant.

With great respect we are however constrained to

observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them.

In cases which prima facie raise no argun:ble issue that course is, of course, justified, but this court would appreciate it if in arguable cases the ummary rejection order gives some indication of the views of the High Court on the points raised.

Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion.

(r) A.LR. 1046 P.C. 8>,

The learne'd Solicitor-General contended that this ma was not a fit case where the court was justified in go- M ht-;;:; . ing behind the verdict of the jury and in deciding the u• av. u"""

case in accordance with its own view of the evidence.

The Bt•t• of It was argued that the charge to the jury had to be Bombay. taken as a whole, that though some slight exception might be taken to certain passages in the charge the M•h•i•• J. learned judge had placed the case of both sides fairly before the jury and that not only did the learned judge place fairly the case of both sides before the jury, he indicated his opinion on the evidence strongly against the prosecution and that being so, the accused could not be allowed to say bat the charge which was strongly in bis favour and against the prosecution was defective iu law.

It was said that it was open to the jury to accept the statement of the mother of the girl as well as the statement of the girl in spite of the different conflicting versions mentioned in the charge and that the jury having done so, the matter stood concluded.

As already observed, charge to the jury canuot be said to be a fair charge if it tells the jury to approach the decision of the matter from a wrong angle, a.nd directs it to reach its decision by exercise of its own ingenuity and by having recourse to conjectures and speculative reasoning.

This ccmtention of the learned Solicitor- General therefore cannot be seriously considered.

That the verdict of the jury was erroneous in that it could not be the verdict of any body of reasonable men in the circumstances of this case is fully established by the facts and circumstances on the record.

What Yamunabai deposed in court has been set out in the earlier part of this judgment. Her case now is that when she returned home on the 12th December, 1949, at about 6-30 p.m., she found that Shilavati was not in the house, she made enquiries from Jamna and Hira, she was told that accused 1 came and told them that there was a girl in his house and her voice was to qe compared with SbilaYati's voic.e and took her

822 SUPREME COURT REPOR'l'S [l 953 J

i9M away on that pretext. Prahlad, P. W. 4," deposed that - .. when his mother returned home at 6 p.m. he told her MushtakHusmn h Sh'] t' h db b h' . h v. t at 1 ava 1 a een .seen y nn mt e company

Th• stat• of of accused l. Jamnaba1, P.W. 5, stated that the .c-

Bombay. cused came to the house at 3 p.m. and on the pretext that one girl had come to his honse for singing he Mahlij•n J. took Shilrtvati and that when Yamunabai returned she informed her of what had happened.

Ananda, P.\V. 6, repeated the sam@ story.

This story stands completely demolished by the different complaints that Yamunabai made to the police. 'l'here i.q no satisfactory explanation whatsoever why when she made her first report to the police at 11-40 p.m. she did not tell the police that she had been told by her son, by Jamuna and by Namdev that the girl had been taken away by the appellant and that be had told them that she had been sent back in a bus.

Not only this, after she had sent a written complaint on the 13th December to the Police Inspector, Poona, suspecting the appellant of having kidnapped her daughter, she made a statement to the head-constable, withdrawing that allegation in most unambignons terms and stated that the girl had left the house after quarrelling with Harnabai. In the first report to the police she had said that the girl had left after quarrelling with one Shantabai.

These statements made by her could not be said to be the result of mere figments of her brain.

She must have made them on some basis. They give the lie direct to her present version. \Vhen later on she sent an application to the Collector accusing the appellant and Badsha of having kidnapped her daughter .she asserted that they had taken her away to an unknown place at o p. m., though the occurrence in the earlier complaints was alleged to have taken place at about 3-30 p. m. The Jetter of 1'1th March, 1950, written at the instance of Shilavati to Yamunabai falsifies all the Yersions given by her and clearly suggests that the girl left the house of her own accord.

Ih this letter she sent her regards to the appellant. If he bad kidnapped her, that expression of respect would

S.C.R.

SUPREME COUHT REPORTS 823

not have found place in that letter at all.

Another 1153 version was mentioned in the evidence as to how the -;: occurrence took place. It was stated that the girl Jlu•hta vussoin received a chit from the appellant and on the basis The stat• of of this chit a quarrel ensued and the girl left the Bombay. house.

Un this state of the record it is quite evident that the version now given by Yarnunabai to court Mahaja,. •1• or by Shilavati after she had come under the influ- • ence of her mother cannot be accepted.

It seems that the appellant because he was a music master and had been giving lessons to the girl a few months before her disappearance has been convicted on a charge under section 366, Indian Penal Code, not on the basis of evidence but on the basis of surmises and conjectures. 'l'he learned Solicitor- General referred us to the statement of the bricklayer and of the boy Prahlad.

A mere reading of their statements shows that these are not true and have been procured to fill in gaps in the prosecution case.

Harnabai was not produced as a witness in the case and the learned judge in his charge to the jury was ri'ght when he observed that a number of links were missing in the prosecution case and they could only be filled in on the basis of conjectures.

Both Yamunabai and l'rahlad studiously avoided stating that the girl took part in dramas or that she danced in public places.

T'hey bried to make out that Shilavati was an unsophisticated girl having no knowledge of the world and that she never danced in public places or she never acted in public dramas.

There is ample material on the record consisting of her photos in the advertisements as well as in the statements made to the police which establishes that she acted in various dramas for which she was paid at the rate of Rs. 5 for each performance and that she gave dance performances and she was intending to make singing and dancing as

her profession. 'l'he very fact that the brother and the mother were at pains to create a false impression on the court by deposing falsely was itself sufficient to show that no reliance coulcl be placed on theii;

ma testimony.

We are therefore firmly o.f the opinion -- . that there has been a grave failure of jmtice in this M1l8htakHu'36'n d h JI h b v case an t e appe ant, an mnocent man, as een

Th• siate of convicted of a serious offonce on a verdict of the jury

Bomba~. arrived at in all likelihood on the basis of conjectures a.nd th:i.t that verdict was the consequence of the Mahajan J, misdirection given to the jury by the judge.

For the reasons given above we allow this appeal, set aside the verdict of the jury, and acquit the appellant of the offence with which he was charged.

Appeal allowed.

Agent for the appellant: V. P. K. Nambiyar.

Agent for the res poll.dent: G. H. Rajadhyakshet.

9th March, 1943

12th September, 1944

5th April, 1937

Ganpat Rai

M. S. K. Sastri

MUSH'rAK HUSSEIN

rHE S'fATE OF BOMBAY

MEHR CHAND MAHAJAN

VIVIAN BOSE

Supreme Court

Mahajan

MushtakHumin

Bavdekar

Chainani

A. S. R. Chari

J. B. Dadachanji

C. K. Daphtary

Porus A. Mehta

MAHAJAN

section 366

Indian Penal Code

Shilavati

12th Decemv. ber, 1949

S, hilavat

Bombay

llfahajan

Iqbal Putlabai

Babu Konde

Pra.hlad

Jamunabai

Namdeo

Shilavati

Yamunabai

Jamunabai

Prabba

Sbilavati

Sbilav&ti

Ananda

Prahlad

N amdeo

Shilavati

Sion

Kassam

Yamunaba.i

Shanta.- bai

Poona

Yamunabai

M. H. Gyani

Harnahai

Mushta.k Hussetn

Collector of Poona

Badsha

M. H. Gyani

Yamuna Bai

14th Marnh, 1950

Bamburda

Baburao Ronde

Anand mama

Vithal mama

Shankar

Laxman

Hirabai

Mahajan J. Yamunabai

India

Section 423

Criminal Procedure Code

Section 537

Jfahajan

Kassam Khan

Sbilavati

Shantabai

MahajanJ.

Shantahai

Harnabai

Harnabai

Bambnrda

Konde

Maha

Criminal Procedure Code

article 136

12th December, 1949

Jamna

Hira

SbilaYati

Shilrtvati

Ananda

Jamuna

Namdev

1'1th March, 1950

Jlu•hta vussoin

Yarnunabai

Mahaja

section 366

Indian Penal Code

Prahlad

l'rahlad

V. P. K. Nambiyar

G. H. Rajadhyakshet


S.C.R.

SUPREME COURT REPORTS

THE REKRARIA COTTON MILLS LTD. v.

THE STATE OF BOMBAY.

[MEHR CHAND MAHAJAN, VrVIAN BosE and

JAGANNADHA DAS JJ.]

Essential Supplies Act (XXIV of 1946), ss. 7, 9--Notification requiring manufacturers to submit tru, e and accurate information-- "Delivery", meaning of-Possession of del credere (JJJent-Whether

possession uf seller-Delivery to such (JJJent, effect of-Penal statutes -Liberal constrnction.

A Government Notification issued under the Essential Supplies Act, 1946, required every manufacturer to submit "true and accurate information relating to his undertakings'' and a note on the printed form stated that "by 'delivered' or 'delivery' is meant physical deli very of cloth in bales and pieces but not cloth which, though paid for, is still in the physical possession of the seller."

The appellant Mills were manufacture"s of cloth and D.K. & Co. were their sole del credere selling agents who guaranteed payment to the appellant of the price of all sales made and, on the other side, guaranteed delivery <<l.J;.b.e purchasers with whom they dealt direct. One D.:11. informed1'!1o \fills as the agent of an up-country quota-holder that be had been authorised by the latter to take delivery of 13 bales and on this account paid Rs. 14,000 to D.K. & Co.

D.K. & Co. wrote to the Mills that they bad received payment.

The ;\fills despatched the goods to D.M. but meanwhile the quotaholder had changed his agent and D.M. refused to take delivery.

The Mills credited the money which had been received from D.M. to D.K. & Co. and advised D. K. & Co. to keep the goods in a certain godown till the question of delivery was settled. In a return submitted under the Essential Supplies Act, 1946, these 13 bales ivere shown as "delivered" to D. K. & Co.

The appellants were prosecuted and convicted on the ground that physical deli very was not given to D.K. & Co. and ohe return was not therefore true and accurate : Held, that, as the goods had left the Mill premises, the price had been paid and the property in them bad passed and as they were in a godown under the control of D. K. & Co., D. K. & Co. were in the circumstances, the persons to whom the goods were actually delivered and the conviction was illegal.

A del creclere agent is an agent of the seller only np to a -point.

Beyond that he is either a principal or an agent of the buyer.

In a penal statute it is the duty of the Court to interpret words of ambiguous meaning in a broad an<l liberal sense.

March 30

826 i'il~PREME COURT REPORTS [1953]

CRBHNAI,

APPELLATE

, JURISDICTION: Criminal

Th r /.,'e J.:a ri'r1 Gofton .11il!s Ltd.

Appeal No. 61 of 1952. ' Appeal by special leave granted by the Supreme Court on the 10th September, 1951, from the Judgment and Order dated the .5th March, 1951, of the High Court of .Judicature a.t Bombay (Chagla C.J. and Bhagwati J.) in Criminal Appeal No. 394 of 1950 arising out of the Judgment and OrrlPr dated the 29th May, 1950, of the Court of the Presidency Magistrate, Second Court, Mazagaon, Bombay, in Cases Nos. 630/P and li35 /P of 1949.

The State of

Bombay.

111. P. Amin (R . .!. Kolah, with him) for appellants Nos. l, 2 and 4 ...

A. K. Jluthuswmni for appellant No. 3.

C. K. Daphtary, Solicitor-General for India (Porus A. ]V[ ehta, with him) for the respondent.

1953. March 30. The Judgment of the Court was delivered by ,, BosE J.-The appellants have been convicted under sections 7 and 9 of the Essential Supplies Act (No.

XXIV of 1946) on two counts. The first appellant is a registered joint stock company, the Seksaria Mills Ltd. It was fined Rs. 10,000 on each of the two counts, that is to say, a total fine of Rs. 20,000, and this was upheld in appeal. The second appellant is the Director of the Mills. He was sentenced to two months' rigorous imprisonment and to a fine of Rs. 2,00,000 on each count. In appeal the sentence of imprisonment was set aside and the fine reduced to Rs. 10,000 on each count.

The third appellant is the General Manager of the Mills.

He was sentenced to a fine of Rs. 2,000 on each count. This has been upheld. The fourth appellant is the Sales Manager of the Mills. He was sentenced to four months' rigorous imprisonment and a fine of Rs. 1,00,000 on each count. In appeal the sentence of imprisonment was upheld but the fine was reduced to Rs. 10,000 on each count. The substantive sentences are to run concurrently.

1953 A Goverqment of India Notification dated 2nd February, 1946, required every manufacturer to b 't "t d f t' 1 t' t h' The !:iekMria su m1 . rue, an accurate ill orma :10!1 re a mg o is Cotton Mill, Ltd. undertakmgs ' to the Textile Commrns10ner C.S.T. Secv. tion at Bombay. In compliance with this Order the The State of first appellant submitted a return, signed by the third Bontbay. appellant, on 10th March, 1947. This return is Exhibit A-1. It showed that 13 bales of cloth (20 half bales and 3 full bales) were delivered to Messrs. Dwarkadas Khetan & Company of Bombay during the month of February, 1947, on behalf of the quotaholder Shroe Kishan & Company. Another return of the same date (Exhibit A-2), also relating to the month of February, 1947, showed that 6 bales were delivered to the same Dwarkadas Khetan & Company on behalf of another quota-holder Beharilal Hairathi.

A note on the back of each printed form states --

" By ' delivered ' or ' delivery ' is meant physical delivery of cloth in bales or in pieces but not cloth which though paid for is still in the physical possession of the seller."

The offence charged is that this information is not true and accurate. The case for tho prosecution is that the bales remained in the physical possession of the first appellant at all material times and were not physically delivered to Messrs. Dwarkadas Khetan & Company.

Before us the learned i'.lolicitor-General added that even if there was physical delivery to Dwarkadas Khetan that did not comply with the requirements of the form because the form requires information regarding physical delivery to the quota-holder or his agent and as Dwarkadas Khetan was not the agent of the quota-holder, the .statement is inaccurate and misleading.

The learned Presidency Magistrate who tried the case, and also the High Court on appeal, hold that the proRecution have established their cas0 and so have convicted and upheld the convietions respectively.

BoscJ.

1963 The business procedure of the first. appellant is explained by Dwarkadas Khetan. His firm, Dwark11- The S eksaria d JTh

& C h fi ]] ' 0 ,,.11 Ltd as '- etan ompany, are t e rst a ppe ant s ottonJ.ui 11 " , v. sole sellmg agents.

They are del credere agents

1'hc Stntcof and guarantee payment to the first appellant of all

Bombay. saks made and, on the other side, guarantee delivery

BoseJ. to the purchisers with whou1 they deal direct.

It is necessary at this stage to understand that because of various orders and rules made under the Essential Supplies Act the first appellant could only sell to specified quota-holders and only up to the limits of their quotas. The two quota-holders which concern us are Shree Kishan & Company and Beharilal Bairathi.

The first appellant's selling procedure is this.

When goods are ready for sale, it sends Dwarkadas Khetan & Company in duplicate a, " ready sale note ". These notes contain particulars about the bales and the persons to whom they are to be delivered. Upon receipt of this Dwarkadas & Company contact the quotaholders or their agents.

The next step is for the quota-holder to pay Dwarkadas & Company the price of the goods specified in the "ready sale note". Upon receipt of the money, one of the two notes is handed over to the quota-holder or his agent and he is given a receipt for the money paid. At the same time Dwarkada.s & Company send the first appellant an "advice slip " telling it that the money has been received and asking it to prepare a delivery order. The first appella.nt then debits Dwarkadas & Company with the price and not the purchaser. For payment it looks to Dwarkadas & Company.

Upon receipt of this advice slip the first appellant's office prepares tho delivery order and delivers the goods to the party concerned. The person receiving the goods then signs the deli very order in token of receipt and the signed order is sent to Dwaikadas & Company who, after making the necessary entries in their books, return the order to the Mills office.

It will be seen that the first appellant has no direct dealings with the purchaser. It acts through Dwarkadas & Company in every case.

S.C.R.

SUPREiE CODHT REPOHTS

1953 It will now b, e necessary to trace the history of the two consignments relating to the 13 bales and the 6 bales separately. We will deal with the 13 bales first.

The 8eksariu ('otton .1..ltills Ltd.

The quota-holder in respect of the 13 bales was Shree Kishan & Company. This firm was an up-country firm and so it was necessary for it to appoint a local agent in Bombay for making payments and receiving delivery. There was some confusion about the agent so appointed ; at first one Dharsi Moolji was appointed and then P. C. Vora. The letter informing the first appellant that Dharsi Moolji bad been appointed is not on record but we were told at the Bar that it is not disputed that the letter is dated 7th February, 194 7. In any case, Dharsi Moolji wrote to the first appellant on 20th February, 1947, saying that he had been authorised to take delivery of the January quota on behalf of Messrs. Shree Kishan & Company and on 21st February, 1947, he paid Dwarkadas Khetan & Company a sum of Rs. 14,000 for this quota. A receipt and an entry in Dwarkadas' books evidence the payment.

The same day Dwarkadas Khetan wrote to the first appellant telling it that his firm had received payment in advance from Shree Kishan & ('ompany and that the 13 bales should be sent to "our godown ", Whether the "our " refers to Dwarkadas' godown or to a godown jointly shared between Dwarkadas and the first appellant is not clear. The learned High Court Judges hold that the godown belonged to the first appellant, but that, in our opinion, is not very material for reasons we shall give later.

On receipt of this "advice slip" the first appellant prepared what it has called a " ready sale note " on the same day, 21st February, 1947, authorising the purchaser to take delivery within a week. Dharsi Moolji was named as the Commission Agent. (The man now entered is Prataprai Chunilal, that is, P. C. Vora,

but the original name was Dharsi l\foolji. The change was made for reasons which will presently appear).

The State of

Boil/bay.

Bo8eJ.

830 SVPitEM.E COURT REPORTS [1953]

19JJ In pursuance of all this, the first appellant despatched the 13 bales on 28th February, 1947, and sent them The Seharia t Dh u l" B t th h"l th t Cotton Mills Ltd. o ars1 lvJ.OO JI. u m e meanw 1 e o er even s v. had taken place.

One P. C. Vora wrote to the first The State of appellant on 17th February, 1947, and said that he

Bombay. had been authorised to take possession of these 13 bales.

Bose J, \Vhat had happened in the meanwhile was that the quota-holder Shree Kishan & Company had changed its local agent. Accordingly, when the goods reached Dharsi l\ioolji he refused to take delivery. The selling agent Dwarkadas th\)reupon telephoned the first appellant. He explained that he h.ad actually received the money for the bales from Dharsi l\ioolji a, nd had not received anything from P. C. Vora and so could not deliver the goods to the latter and equally could not accept money from P. C. Vora until the matter had been straightened out with Dharsi Moolji. The first appellant thereupon told Dwarkadas to keep the goods in the Dady Seth godown. On the same day, apparently before all this occmred, the first appellant credited Dwarkadas Khetan with the monev he had received from Dharsi Moolji on accomt of the 13 bales, less Dwarkadas' commission. In other words, this adjustment in the accounts was the equivalent of payment for the 13 bales by Dwarkadas Khetan to the first appellant on account of the purchaser Shree Kislmn & Company. It will be remembered that Dwarkadas Khetan & Company were the sole soiling agents and they alone were responsible to the l\fills for orders which were placed through them.

The muddle between Dharsi .iVIoolji and P. C. Vora was cleared up between 3rd l\farch, 1947, and 14th March, 1947.

On 3rd March, 1947, Dwarkadas Khetan returned the Rs. 14-,000 which Dharsi Moolji had paid and on 14th l\farch, 1947, alccpted the money from P. C. Yorn. The alteration in the "ready sale note" of 21st February, 1947, was presumably made because of these facts.

Four davs later, Dwarkadas Khetan delivered the goods to P. C. Vora. (There was no need to make any alterations in the first

1953 appellant's account books because Dwarkadas was responsible for the price whatever happened between him and Dharsi and alw because in any event the Go~~:, s:i~;;; rd. goods were sold to Shree Kishan: the only query at that v. time was who was his agent to accept delivery for him). 'l'he State of The return with which we are concerned was made on 10th March, 1947. It will be seen from the above that the position at that date was as follows: ( l) the selling agent had informed the first appellant that he had effected a sale, (2) the selling agent had paid the first appellant for the goods, (3) specific bales had been set aside and appropriated to the sale and consequently the property in the goods had passed,

(4) the goods had actually left the Mills' premises, and (5) they were in the Dady Seth godown under the control of Dwarkadas Khetan.

vVe say the goods were under the control of Dwarkadas Khetan for three reasons~ ( 1) as shown above, the property in the goods had passed and so the first

applant no longer had title to them, (2) Dwarkadas says that until he received the money for them from

P. C. Vora he would have refused to deliver them, (3) being a del credere agent he would have been within his rights (a) to refuse delivery to anybody till he was paid and (li) to deliver them despite anything the first appellant might say once he received his money; also because Dwarkadas' Mehtaji says-

"If the goods are not accepted by the merchants or their agents, the same arc sent to ns and we keep them in the godown."

Bearing these facts in mind, we will now examine the offending document. It is a printed form.

The heading is- -

"Manufacturer's Returns showing details of delivery to quota-holders or others of civil cloth."

Then there is a note as follows :

"IMPORTANT :-This form should be completed in accordance with the instructions printed overleaf ................. giving full details relating to the previo11& month."

Bambay.

]Jose J.

1.9.;., Under that is the following-

The Seksarin "~11 stocks pledged/hypothcated.b:;: mar:ufactu- Cotton Mills Ltd. rers with banks or others shall be mcluded m this state-

"· ment."

The State f The only column in the printed form which could be Bombay. related to this is column 3 headed" Full name and ad-

Bo" J. dress of person to whom delivered." On the back there i\re the following instructions:-

" II. The word ' others ' in the heading of the form includes artificers who are privileged to purehase cloth under General Permission No. TCS 42 /1, dated 10th August, 1944, and any person to whom deliveries are made under any other General or Special Permission or Order of the Textile Commissioner. The name of artificers or any other persons shall be mentioned in column 3 and B, gainst their names, number and date of General or 8pecial Permission shall be mentioned in column 2. - III. By 'delivered' or 'delivery' is meilnt physical delivery of cloth in bales or in pieces but not cloth which, though paid for, is still in the physical possession of the seller. "

The form was filled in as follows : In the column headed "Full name and address of quota-holder" the name of Shree Kishan & Company is entered. In the column headed " Full name and address of person to whom delivered " the name of Dwarkadils Khetan & Company is entered. The question we have to decide is whether these two entries are inaccurate.

Dealing first with the learned Solicitor-General's argument regarding the construction of the words used in the form, we are of opinion that it cannot be accepted. The second clause of the portion marked "Important" towards the head of the form states that all stocks pledged or hypothecated with banks or others must also be included, and Instruction No. II on the back directs that the names of "any other person" must be entered in column 3 and that the number and date of the General or Special Permission must be set out in column 2. Whether this means that goods

1953 cannot be pledged without permission or that only goods allotted to quota-holders can be pledged we do t k b h . . . l h h The Scksaria no n.ow, ut w atever 1t means, it is c ear t at t eoottonMills Ltd. entry m column 3 is not intended to be confined to v. quota-holders or their agents but means what it says, The State of namely the person to whom physical delivery of the Bombay. goods has been made whoever he may be.

Bo8e .!.

The only question therefore is whether there was physical delivery to Dwarkadas Khetan. In one sense, there can be no doubt about that. The goods left the Mills' premises, the property in them had passed and when Dharsi Moolji refused to receive them they were handed over to Dwarkadas Khetan and not taken back to the Mills.

Dwarkadas Khetan asked the Mills what he should do with them, and in the end he placed them in the Dady Seth godown. In any ordinary understanding of the term it would be clear that the goods had been phy:1ictdly delivered to Dwarkadas Khetan. But the learned High Court Judges do not appear to have concerned themselves with the question of actual physical possession because they say:-

"It would not be true to say, and the record amply bears it out, that this godown belonged to Dwarkadas Khetan.

Even if Dwarkadas Khetan had control over the godown, the control was exercised on behalf of and as the agent of the Mills."

Therefore, the test of the sort of possession which they had in mind was not the control over the goods.

But that has always been regarded as one of the tests of physical or de facto possession.

Lancelot Hall distinguishing between possession in law and possession in fact says that "possession in the popular sense denotes a state of fact of exclusive physical

control".

See his treatise on Possessory Liens in English Law, page 2. See also Pollock and Wright in their Essay on Possession in the Common Law, page 119. Drawing the same distinction they sy that "physical possession" may be generally described by stating that

JO~

SUPHENIE COURT REPORTS [1953]

J9.jS "when a person is in such a relation to a thing

Tl -;:;- . that, so far as rogardB the thing, he can assume, exer- " """""a l I r I d 00110,, Mills Ltd. cise or resume rnanua cont!'o OJ 1, t al p.easure, an so

v. far as regards other persons, the thing is under the prone State r tection of his personal presence, or in or on a house or Bombay. land occitpied by him, or in some receptacle belonging to him and under his control." Bosf J.

This would seem exactly to meet the case of Dwarkadas Khetan.

Possession is an ambiguous term. The law books divide its concept into two broad categories, (i) physical possession or possession in fact and (2) legal possession which need not coincide with possession in fact.

The offending form with which we are concerned draws the same broad line. But even on the factual side of the border niceties creep in and so the possession of a servant is called custody rather than possession.

But what of an agent? If a man lives abroad over a period of years and leaves his house and furniture in charge of an agent who has the keys of the house and immediate access to and physical control over the furniture, it would be difficult to say that the agent was not in physical possession. It is true the legal possession would continue to reside in the owner but the actual physical possession would surely be that of the agent.

And so with a del credere agent, because such a person is the agent of the seller only up to a point. Beyond that he is either a principal or an agent of the buyer.

This distinction was discussed by one of us in the Xagpur High Comt in Kalyandi K uwa1; ji v. Tirlcaram Sheolal(1) and was accepted by the Madras High Court in Kandula Radhakrishna Rao v. The Province of M a.dras(').

But we need not go into all this.

Here is an Order which is to affect the business of hundreds of persons, many of whom are small petty merchants and traders, the sort of men who would not have lawyers constantly at their elbow ;· and even if they did, the more learned their advisers were in the law the more puzzled

(1) A.LR. 1938 Nag. 254.

(2) (1952) I Al.L.J, 494.

~ I

s.c.R.

Sl'.PREME COURT REPORTS 835

they would pe as to what advice to give, for it is not 1953. till one is learned in the law that wbtleties of thought . and bewilderment arise at the meaning of plain English The Seksaria d h. h d" f Jl' GottonMillsLtd. wor s w 1c any or mary man o average mte 1gence, not versed in the law, would have no difficulty in The s~te of understanding. In a penal statute of this kind it is our Bomhay. duty to interpret words of ambiguous meaning in a broad and liberal sense so that they will not become Bose J. traps for honest, unlei1rned (in the law) and unwary men. lf there is honest and snbstantial compliance with an array of puzzling directions, that should be enough even if on some hypercritical view of the law other ingenious meanings can be devised. In our opinion, Dwarkadas Khetan could, in the circumstances given above, be described, without any straining of language, as the person to whom the goods were actually delivered. It follows the conviction on this count cannot stand.

We would like to add that in any event, even if ultra technical notions regarding the concept of possession were to be incorporated into the case, it would be wrong to say that there had been anything beyond a technical and unintentional breach of the law.

The facts are truly and accurately given according to the popular and natural meaning of the words used; nothing was hidden. The goods did reach the quotaholder in the end, or rather his proper agent, and we cannot see what anyone could stand to gain in an unauthorised way over the very natural mistake which occurred owing to what seems to have been a time-lag in the consequences of a change of agency. So, even if there was a technical breach of the law, it was not one which called for the severe strictures which are to be found in the trial court's judgment and certainly not for the savage sentences which the learned Magistrate imposed. In the High Court also we feel a nominal fine would have met the ends of justice even on the view the learned , Judges took of the law.

The charge on the second count relating to the 6 bales is a similar one and the fauts follow the same pattern. They have been detailed in the High C:ourfs

836 SUPREME COURT HEi'ORTS [i953]

1953 judgment, so it is not necessary to do m9re than out-

'l'I s k . line them here.

The quota-holder here is Beharilal 0ou:: .:ii~:'l:d. Bairathi. In this case also, Dharsi Moolji paid Dwarkav. das Khetan for the goods and the Mills sent the bales

'I!lw•Stato of to Dharsi Moolji for delivery in the same truck as the Bombay. 13 bales.

Dharsi Moolji refused to accept these bales

Bose J.

April 10

also, so they were deposited in the Dady Seth godown along with the other thirteen. Dwarkadas Khetan & Company has been entered as the person to whom delivery was made. For the reasons given above, we hold that this was a true and accurate return.

The appeal is allowed. The conviction and sentence in each of the four cases is set aside. The fines, if paid, will be refunded.

Appeal allowed.

Agent for appellants Nos. 1, 2 & 4: Rajirider Narain.

Agent for appellant No. 3: Ganpat Rai.

Agent for the respondent: G. H. Rajadhyaksha.

BASIR-UL-HUQ AND O'fHERS

THE STATE OF WEST BENGAL.

NUR-UL-HUDA v.

THE STATE OF 'WEST BENGAL.

[MEHR CHAND MAHAJAN, VIVIAN BosE and

JAGANNADHA DAS JJ.]

Criminal Procedure Gode, 1898, ss. 190, 195-Indian Penal Gode, 1860, ss. 182, 297, 500-Report to police all'9ing X had killed his 11iother-Trespass ivith police on cremation ground-Report fo11nd false-Oornplaint by X for trespass and defrin.ation-Maintainability-Jurisdiction to take counizance of ofjence-Whether barred by s. 195, Criminal Procedure Gode.

THE REKRARIA COTTON MILLS LTD

THE STATE OF BOMBAY

MEHR CHAND MAHAJAN

VrVIAN BosE

Essential Supplies Act

ss. 7, 9

D.K. & Co.

D.M.

D. K. & Co.

Chagla C.J.

Bhagwati

State of

Bombay

P. Amin

R . .!. Kolah

A. K. Jluthuswmni

C. K. Daphtary

A. ]V[ ehta

sections 7 and 9

Seksaria Mills Ltd.

2nd February, 1946

Cotton Mill, Ltd.

Bombay

10th March, 1947

Dwarkadas Khetan & Company of Bombay

Shroe Kishan & Company

Beharilal Hairathi

Dwarkadas Khetan & Company

Dwarkadas Khetan

Shree Kishan & Company

Beharilal Bairathi

Dwarkadas & Company

Dwarkada.s & Company

Dwaikadas & Company

8eksariu ('otton .1..ltills Ltd.

Dharsi Moolji

P. C. Vora

20th February, 1947

21st February, 1947

Dwarkadas

Shree Kishan

Prataprai Chunilal

Dharsi l\foolji

State of

Boil

17th February, 1947

Bose

Dharsi

Shree Kislmn & Company

Dharsi .iVIoolji and

3rd l\farch, 1947

14th March, 1947

3rd March, 1947

14th l\farch, 1947

P. C. Yorn

Dharsi

Dwarkadas' Mehtaji

Jose

State

Dwarkadils Khetan & Company

Pollock

Wright

Bosf

Xagpur High Comt

Madras High Court

Dwarkav. das Khetan

Rajirider Narain

Ganpat Rai

G. H. Rajadhyaksha

BASIR-UL-HUQ

STATE OF WEST BENGAL

NUR-UL-HUDA

STATE OF 'WEST BENGAL

VIVIAN BosE

ss. 190, 195

ss. 182, 297, 500

s. 195


836 SUPREME COURT HEi'ORTS [i953]

1953 judgment, so it is not necessary to do m9re than out-

'l'I s k . line them here.

The quota-holder here is Beharilal 0ou:: .:ii~:'l:d. Bairathi. In this case also, Dharsi Moolji paid Dwarkav. das Khetan for the goods and the Mills sent the bales

'I!lw•Stato of to Dharsi Moolji for delivery in the same truck as the Bombay. 13 bales.

Dharsi Moolji refused to accept these bales

Bose J.

April 10

also, so they were deposited in the Dady Seth godown along with the other thirteen. Dwarkadas Khetan & Company has been entered as the person to whom delivery was made. For the reasons given above, we hold that this was a true and accurate return.

The appeal is allowed. The conviction and sentence in each of the four cases is set aside. The fines, if paid, will be refunded.

Appeal allowed.

Agent for appellants Nos. 1, 2 & 4: Rajirider Narain.

Agent for appellant No. 3: Ganpat Rai.

Agent for the respondent: G. H. Rajadhyaksha.

BASIR-UL-HUQ AND O'fHERS

THE STATE OF WEST BENGAL.

NUR-UL-HUDA v.

THE STATE OF 'WEST BENGAL.

[MEHR CHAND MAHAJAN, VIVIAN BosE and

JAGANNADHA DAS JJ.]

Criminal Procedure Gode, 1898, ss. 190, 195-Indian Penal Gode, 1860, ss. 182, 297, 500-Report to police all'9ing X had killed his 11iother-Trespass ivith police on cremation ground-Report fo11nd false-Oornplaint by X for trespass and defrin.ation-Maintainability-Jurisdiction to take counizance of ofjence-Whether barred by s. 195, Criminal Procedure Gode.

s.c.R.

SUPREME COURT REPOR'l'S 837

1953 The accused fo<lged information at a police station that X had ]Jeaten and throttled his mother to death and when the funeral pyre was in flames he entered the cremation ground \Vith the Busir-uJ.Huq police. The dead body \Vas examined and the complaint was fonnrl and Others to be false.

On the complaint of X, the accused was charged with v. offences under section 297, Indian Penal Code (trespass to wound The State of religious feelings) and section 500, Indian Penal Code (defamation).

West Bengal It was contended that, as the complaint disclosed offences under sections 182 and 211, Indian Penal Code, the Court could not take cognizance of the case except on a complaint by the proper authority under section 195, Crimin.I Procedure Code:

lield, (i) that the facts which constituted the offence under section 297 were distinct from those which constituted an offence under section 182, as the act of trespass was alleged to have been committed after the making of the false report, so section 195 was no bar to the trial of the charge under section 297.

(ii) As regards the charge under section 500, where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a pri vale individual, the latter is not debarred by the provisions of section 195, Criminal Procedure Code, from seeking redress for the offence committed against him.

Satish Chandra Chakravarti v. Ram Dayal De (24 C.W.N. 982); Hori Ram Singh v. The Crown [1939] E'.C.R. 139 referred to.

Section 195 cannot however be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code.

CRIMINAL APPELLATE JumsmcrroN: Criminal Appeals Nos. 26 and 27 of 1952. Appeals under Article i34 (1) (c) of the Constitution of India from the Order dated 4th February, 1952, of the Calcutta High Court

(CIIAKRAVARTTI and SINHA JJ.) in Criminal Revision Nos. 102 and 103 of 1952.

S.C. Das Gupta and A.K. Dutt for the appellants.

B. Sen for the respondent.

Arun Kwmar Datta for the complainant.

1953.

April 10. The Judgment of the Court was delivered by IliAHAJA::-1 J.

-------- --. -------- -- ---- -- -

illIAJAN J.-These two appeals aris{l.in the following ' circumstances: One Mokshadamoyec Dassi, Bair-ul-lluiz

andO!hm mother ofDhirendra Nath Bera, died some time in the v. -eveniiig of the 3rd September, 1049. At the moment TheStateoL __ ofher death Dhircndra Nath \rns not present at the West Benal - house. On his return at about 8-30 p.m. he along .

with some other persons took the dead body to the Mahaja-nJ. cremation grourid. It appears that Nurul Huda, the appellant in Criminal Appeal No. 27 of 1952, had lodged information at the police station to the effect that Dhirendra Nath had beaten and throttled his mother to death. \Vhen the funeral pyre was .in flames, Nurul Huda along with the appellants in Criminal Appeal No. 26 of 1952 and accompanied by the sub-inspector of police arrived at the cremation ground.

The appellants pointed out the dead body and told the sub-inspector that ' the complainant had killed his mother by throttling her and that there were marks of injury on the body which they could show to the subinspector if he caused the body to be brought down from the pyre. At their suggestion the fire was extinguished and the dead body was taken down from the pyre in spite of the protests from the complainant. On an examination of the dead body it was found that there were no marks of injury on it and the appellants were unable to point out any such marks. The body was however sent for post-mortem examination which was held on 5th September, 1049, but no injury was found on the person of the deceased. The sub-inspector after investigation reached the conclusion that a false complaint had been made against Dhirendra Nath,

On the 24th September, 1049, Dhirendra Nath filed a petition of complaint in the Court of the Sub-Divisional Officer of Uluberia in the district of Howrah against the appellants in both the cases and one Sanwaral Huq. It was alleged in the complaint that the - information given by Numl Huda to the police was false, that Nurul Huda and the other appellants had - - made imputations mala fide out of enmity against him with the intention of harming his reputation and that to wound his religious feelings they had trespassed on

S.C.R.

Sl'PREME COl'RT REPORTS 839

the cremation ground and mused the <len, d body to be biken nut hy making false impubtions.

The appellants were tried befOTe Shri R. Ray Choudhury, :Vfagistrate 1st class, 1Tluberia, on charges under sections 297 and 500, Indian Penal Code.

The charges framed against them were in these terms :---

"( 1) That you on or about the 17th day of Bhn, dra, 1:356 B.S. at Pamhila, P. S. Shyampur, with the intention of wounding the religious feelings of P. W. 1,

Dhirendra Xt1th Bera, the comp]n, inant, committed trespass upou the cremation ground where the funeral rites of the mother of the complainant were being performed and thereby committed an offence punishable under section 297, Indian Penal Code, and within my cognizance ;

(2) That you on or abqut the 1 ith day of Bhaclra, 1356 B. S. at Panshila, P. S. Shyampur, defamed P. vV. 1, Dhirendrn Nath Bera, the complainant, by making imputation to the effect that he had killed his mother intending to harm, or knowing or having reason to believe that such imputation would harm the reputation of the complainant and thereby committed an offence punishable under section 500, Indian Penal Code, and within my cognizance."

'None of these charges relates to the falsity of the report made to the police or contains facts or allegations which disclose an offence under section 182, Indian Penal Code. The charge under section 297, Indian Penal Code, was a distinct one and concerned an act of the accused committed after the giving of the report. The charge under section 500 related to defamatory and libellous allegations contained in the report itself.

It was e011tended on behalf of the defence that 1\urul Huda had lodged information with the police under a bona fide beliefcrcated in his mind on the statement of one Asiram Bibi and that none of the accused persons had entered the cremation ground as alleged by the complainant,

Buir-ulHuq

ond- Others

Th1-; State of lVest Bengal.

AlahajffnJ.

840 'suPREME COURT REPORTS [1953]

1953 The magistrate held the charges proved against all the appellants and convicted each of them under sec- Basir-ul-Huq and Others tions 297 and 500, Indian Penal Code. Each of the

v. appellants was awarded three months' rigorous im-

The State of prisonment on the charge under section 297 and each West Bengal of them was sentenced to a fine of Rs. 100 on the

Mahajan .r. charge under section 500.

The appellants went up in appeal to the Sessions Judge of Howrah who by his order dated 31st July, 1950, set aside the convictions and sentences and acquitted them. He held that on the facts stated in the complaint the only offence that could be said to have been committed by the appellants was one under section 182 or section 211, Indian Penal Code, and that a court was not competent to take cognizance of those offences except on a complaint by a proper authority under the provisions of section 195, Criminal Procedure Code.

Against the acquittal order an application in revision wa.s preferred to the High Court. This petition came up for hearing before a Bench of the High Court (K. C. Das Gupta and P. N. Mookerjee JJ.).

The learned judges reached the conclusion that on the facts alleged in the petition of complaint distinct offences under sections 182, 297 and 500, Indian Penal Code, had been disclosed. They however referred for the decision of the Full Bench the following question:-

"If the facts alleged in a petition of complaint, or in an information received by the magistrate, on which a magistrate can ordinarily take cognizance of an offence under section 190, Criminal Procedure Code, disclose an offence of which cognizance cannot be taken by the magistrate because of the special provisions of section 195, or 196, or 196-A, or 197, or 199, Criminal Procedure Code, is the magistrate also de).iarred because of this from taking cognizance of other offences disclosed by the facts alleged, which are not in ny way affected by the provisions of section 195, or 196, or 196-A or 197 or 199, Criminal Procedure Code."

The Full Bench answered the question referred in the negative. In respect of the conviction under

section 297, Ipdian Penal Code, the learned Judges said that there was nothing in sections 195 to 199, Criminal Procedure Code, which could in any way bar the prosecution of the appellants under that section, as it could in no way be said that it arose out of the facts which would constitute an offence under section 182, or section 211, Indian Penal Code.

On the other hand, it arose from an entirely different set of facts, namely, the trespass by the opposite parties in the burial ground and the removal of the corpse from the lighted funeral pyre.

With regard to the offence under section 500, it was observed that though the prosecution for defamation was based on the false information given to a public officer, that circumstance, however, was no bar for the prosecution of the appellants under that section.

In the result the application in revision was allowed, the order of acquittal was set asidr and the sessions judge was directed to re-hear the appeal on the merits.

After remand the appeal was heard on the merits and was dismissed.

The convictions and sentences passed by the magistrate were confirmed. Against the order of the sessions judge the appellants went up in revision to the High Court but these applications were summarily dismissed. The appellants thereupon applied to the High Court for a certificate under article 134

(1) (c) of the Constitution for leave to appeal to this Court. In the application the order of the Full Bench dated 22nd June, 1951, was challenged. This application was opposed on behalf of the complainant on the ground that the interim order of the Full Bench not having been appealed against could not be challenged at that stage. Thus two substantial questions were argued in the leave application, namely,

1. whether it was open to the accused to question the correctness of the Full Bench decision, it not having been appealed from when it was passed, and,

2. whether the point decided by the Full Bench in itself was of sufficient importance to justify the granting of a certificate under article 134(1 )( c). 109

Basi"'Ul-Huq

and Othe1's

The State of TV est Bengal,

MahajanJ~

195.J

Ra8i1-ul.Huq

and OtllerR

The State of JV est Benaal.

Ma.hajanJ,

As the judgment of the Full Bench di4 not terminate the proceedings but merely directed the appeal to be reheard, it was held that the petitioners could not appeal from it at that time and it was open to them to raise the point at this stage.

The second question was considered of sufficient importance to justify the grant of leave and leave was accordingly granted.

The learned counsel for the respondent raised a preliminrory objection in order to canvass the first question mentioned above, while the learned counsel for the appellants canvassed the question of the correctness of the decision of the Full Bench on its merits.

He contended that the magistrate had no jurisdiction to take cognizance of the complaint under section 500 and section 297, Indian Penal Code, as the facts disclosed constituted an offence under section 182 which offence could not be tried except on a complaint by a public servant.

Section 195, Criminal Procedure Code, on which the qnestion raised is grounded, provides, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188, Indian Penal Code, except on the complaint in writing of the pnblic servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing oft he pnblic servant concerned no prosecution for an offence under section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are eommitted, the magistrate is debarred from taking cognizance in respe';; t cf those offences as well.

The allegations made in a complaint may have a double aspect, that is, on the one hand these may corrntitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitnte the offence of defamation or some other distinct offence.

The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made.

It was however argued that if on the same facts an

S.C.lt.

SCPREME COURT REPORTS 843

offence of whi.ch no cognizance can be taken under the provisions of section HJ.5 is disclosed and the same facts disclose another offence as well which is outside the purview of the section and prosecution for that other offence is taken cognizance of without the requirements of section 195 having been fulfilled, then the provisions of that section would become nugatory and if such a course was permitted those provisions will stand defeated. It was further said that it is not permissible for the prosecution to ignore the provisimrn of this section

by describing the offence as being punishable under some other section of the Penal Code.

In our judgment, tlw contention raised by the learned counsel for the appellants is without any substance so far as the present case is concerned. The charge for the offence under section 297, Indian Penal Code, could in no circumstance, as pointed out by the High Court, be described as falling within the purview of section 195, Criminal Procedure Code. The act of trespass was alleged to have been eommitted subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on tlrn evidence concern the conduct of the appellants during the post-report period.

In these circumstances, no serious contention could be raised that the provisions of section 195 would stand defeated by the magistrate having taken cognizance of the offence under that section.

As regards the charge under section .500, Indian Penal Code, it seems fairly clear both on principle and authority that where the allegations made in >1 false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him.

Section 499, Indian Penal Code, which mentions the ingredients of the offence of defamation gives within defined limits immunity to persons making depositions in court, but it is now well settled that that immunity is a qualified one and is not absolute as it is in English law.

Under section 198,

BaR£r-ul-Hur;

and Othe1s

v. 'l'!te State of H' t?.st Bengal.

}dahajan J.

Busir-ul-Huq and Otherfl

The State of lV est Bengal.

Mahajan J.

844 SUPREME cou:R'r HEPORTS [1953]

Criminal Procedure Code, a complaint in, respect of an offence under section 499, Indian Penal Code, can onlv be initiated at the instance of the person defamed, i!1 like manner as cognizance for an offence under section 182 cannot be taken except at the complaint of the public servant concerned. In view of these provisions there does not seem in principle any warrant for the proposition that a complaint under section 499 in such a situation cannot be taken cognizance of unless two persons join in making it, i.e., it can only be considered if both the public servant and the person defamed join in making it, otherwise the person defamed is without any redress.

The statute has prescribed distinct procedure for the making of the complaints under these two provisions of the Indian Penal Code and when the prescribed procedure has been followed, the court is bound to take cognizance of the offenoo complained of.

The decided cases fully support this view and our attention has not been drawn to any case which ha.s taken a contrary view as regards offences under section 500, Indian Penal Code.

In 8atis Chandra Chakravarti v. Ram Dayal De (1), five judges of the Calcutta High Court considered this question and held that where the maker of a single statement is guilty of two distinct offences, one under section 211, Indian Penal Code, which is an offence against public justice, and the other an offence under section 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. Tha.t they are distinct in character is patent from the fact that tho former is made non-compoundable, while the latter remains compoundable; in one for the the initiation of the proceedings the legislature requires the sanction of the court under section 195,

(I) (1920) 24 C.W.;,./, 982,

•..

8.C.H.

SUPREME COCRT REPORTS 845

Criminal Proce, dure Code, while in the other, l'ognizance can be taken of the offence on the complaint of the person defamed. It could not be denied that the accused could be tried of charges under sections 182 and 500, Indian Penal Code, separately on the same facts pro1-ided the public servant as well as the person defamed made complaints. If that is so, there is no reason why one cannot be tried independently of the other so long as the requirements of each are satisfied.

Harries C. J. while delivering the Full Bench decision in question examined all the earlier cases of the Calcutta High Court and observed that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proced in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of sections 195 to 199 of the Code of Criminal Procedure.

Sections 195 to 199 deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for the offences actually indicated. If it was the intention of the legislature to make sanctions or complaints in a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in these sections, the legislature could have said so but it did not.

R, ecently this matter was canvassed before a Full Bench of the Madras High Court and it was held that in such cases it was open to the party defamed to take proceedings under section 499, Indian Penal Code, without the court filing a complaint in accordance with the provisions laid down in section 195. There the question was whether the alleged defamer who had given false evidence in a court could be prosecuted under section 499, Indian Penal Code, without a complaint by the court before whom he gave evidence and the question was answered in the affirmative after an exhaustive review of the decided cases of the difl:erent High Courts in India. It was said that if the offence of

Rusir-ul-Huq

nnd Othe1s

v. 'l'he State of Tr est Bengal.

il1ahajan J,

.ha.jit-ul-Huq

a.nd Otlu; rs

v. '1.'he State of

TV est Bengal.

M aha)<1 n .] •

84(i SUPREME COGRi1 REPORtS I i953J

g1vmg false evidence in a judicial proceeding and defamation do not belong to the same genus but aro distinct and separate in their characteristics and ingredients, it was difficult to perceive any serious inhibition bv the Criminal Procedure Code for initiation and trial of one of these offences independently of mitcrim resort to fulfilling the conditions necessary tn rnnunence a prosecution for the other. These observations have apt application to tho present case. The ingredients of the offence under section 182 cannot be said to be the ingredients for the offence under section 500. Nor can it be said that the offence relating to giving false information relntes to the same group of offences as that of defamation.

Though, in our judgment, section l!J5 docs not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not i' whether the facts disclose prim.arily and essentially an offence for whieh a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging n person with an offence to which that section does not :1pply and then convieting him of an oftence to which it docs, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being 0110 punishable under some other section of the Indian Penal Code, though in tl'uth and substance the offence falis in the category of sections mentioned in section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of seetion 195 prosecution foi:,

such an offence cannot lie taken cognizance of by misdescribing it or by putting a wrong label on it.

Before concluding, reference may also be made to the decision of the Federal Court in Hori Ram Singh v.

The Grown('). The appellant in that case was charged

(1) (1939] F.C.R. 159.

with offences. under sections 409 and 4 77-A, Indian Penal Code. The offence un<ler section 477-A could not be taken cognizance of withff1t the previous consent of the Governor under section 2iO(l) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under section 409, Indian Penal Code.

The charge was that the accused dishonestly misapptopriated or converted to his own certain medicines entrusted to him in his official capa- C'ity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employe<l and in his possession. The proceedings under section 477-A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing on the merits as regards the charge under section 409, Indian Penal Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under section409 and the other an offence under section 477-A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under section 409.

Leave to appeal under artide 134 ( 1 ) ( c) of the Constitution was limited to the question of law referred to the }tu]] Bench in this case, and it was distinctly said in the order disposing of the leave petition that leave would not have been granted had the scope of the appeal been limited to the merits of the case. It was observed that having regard to the findings recorded by the fina, I court of fact, as also the evidence in the case the elements of both the offl•nces had been fullv established. The learned counsel for the appellants attempted to argue that on the facts found no

.1953

Bn&ir-ul-Huq

(//Id Othe1s

The State of TVest Bengal.

Jfahajan J.

19.53

Bn.sir-ul-Huq

and Others

The State of lV eNt Ben.gal.

. 11'1ohajan J.

19.53

April 14.

offence under section 297 could be said to have been made out. This point, in our opinion, "is not open at this stage, it having been held that all the ingredients of the offence had been established on the record.

Even otherwise there is no substance in the contention because the prosecution evidence is sufficient to hold the offence proved against all the appellants .

For the reasons given above we hold that there is no substance in these appeals and they are accordingly dismissed.

Appeals dismissed.

Agent for the appellants: Sukumar Ghose.

Agent for the respondent: P. K. Bose.

Agent for the complainant: 8. C. Bannerjee.

LAKSHMANA NADAR AND OTHERS

R. RAMIER.

[MEHR CHAND MAHAJAN and S. R. DAS JJ.]

Hindu law-Will--Beqiwst to wife for her lifetime and to daitghter absolutely after wife's lifetime-Estate taken by wife-

TVhether ordinary life estate or Hindn widow's estate-Danghter's estate-Whether vested-Death of daitghter be/ore widow, effect of

-Constrnction of Hindn will-Gnidina principles.

A Hindu Brahmin governed by the l'IIitakshara law made a \vill in \vhich he gave the following directions: "After my life. time, you, the aforesaid Rauganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alie.nation such as gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to 0, wife of iny late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testatol' his \vife entered into possession of his properties bnt Lefore the r1eath of his wifo, his daughter and all her children died: Held, (i) that on a proper constrndion of the will in the light of surrounding circumstances, the testator had conferred on bis

I I

Dharsi Moolji

Dwarkav. das Khetan

Bose J.

Dwarkadas Khetan & Company

Rajirider Narain

Ganpat Rai

G. H. Rajadhyaksha

THE STATE OF WEST BENGAL

MEHR CHAND MAHAJAN

ss. 190, 195

ss. 182, 297, 500

s. 195

S 837

section 297

Indian Penal Code

section 500

Indian Penal Code

sections 182 and 211

Indian Penal Code

section 195

section 297

section 182

section 195

section 297

section 500

section 195

Criminal Procedure Code

Section 195

Indian Penal Code

section 195

Criminal Procedure Code

Constitution of India

CIIAKRAVARTTI

SINHA

S.C. Das Gupta

A.K. Dutt

B. Sen

Arun Kwmar Datta

illIAJAN

Dhircndra Nath

At the moment TheStateoL  ofher death Dhircndra Nath \rns not present at the West Benal - house.

Nurul Huda

Dhirendra Nath

5th September, 1049

24th September, 1049

Uluberia

Howrah

Sanwaral Huq

Numl Huda

Nurul Huda

R. Ray Choudhury

sections 297 and 500

Indian Penal Code

P. S. Shyampur

Dhirendra Xt1th Bera

section 297

Indian Penal Code

Panshila

section 500

Indian Penal Code

section 182

Indian Penal Code

section 297

Indian Penal Code

section 500

Asiram Bibi

State of lVest Bengal

Basir-ul-Huq and Others

Indian Penal Code

section 297

section 500

Sessions Judge of Howrah

31st July, 1950

section 182

section 211

Indian Penal Code

section 195

Criminal Procedure Code

K. C. Das Gupta

P. N. Mookerjee

sections 182, 297 and 500

Indian Penal Code

section 190

Criminal Procedure Code

section 195

Criminal Procedure Code

section 195

Criminal Procedure Code

section 297

Ipdian Penal Code

sections 195 to 199

Criminal Procedure Code

section 182

section 211

Indian Penal Code

section 500

article 134

22nd June, 1951

article 134(1 )( c)

State of TV est Bengal

State of JV est Benaal

section 500

section 297

Indian Penal Code

section 182

Section 195

Criminal Procedure Code

sections 172 to 188

Indian Penal Code

section 182

section 195

Penal Code

section 297

Indian Penal Code

section 195

Criminal Procedure Code

section 195

Indian Penal Code

section 195

Section 499

Indian Penal Code

section 198

State of H' t?.st Bengal

dahajan

State of lV est Bengal

Mahajan

Criminal Procedure Code

section 499

Indian Penal Code

section 182

section 499

Indian Penal Code

section 500

Indian Penal Code

Calcutta High Court

section 211

Indian Penal Code

section 499

section 195

sections 182 and 500

Indian Penal Code

Harries

sections 195 to 199

Code of Criminal Procedure

Sections 195 to 199

Madras High Court

section 499

Indian Penal Code

section 195

section 499

Indian Penal Code

State of Tr est Bengal

il1ahajan J

State of

TV est Bengal

section 182

section 500

Indian Penal Code

section 195

Criminal Procedure Code

(1939] F.C.R. 159

sections 409 and 4

Indian Penal Code

section 477

section 2

section 409

Indian Penal Code

section 477

section 409

Indian Penal Code

section 477

section 409

State of TVest Bengal

Jfahajan

State of lV eNt Ben.gal.

section 297

Sukumar Ghose

P. K. Bose

C. Bannerjee

LAKSHMANA NADAR

R. RAMIER

S. R. DAS

Rauganayaki Ammal

Ramalakshmi Ammal

Ranganayaki Ammal