BALRAJ IWANNA & ORS.

MOTi RAM

April 22, 1971

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.] 8

Indian Penal Code (Act 45 of 1860), s. 499-Necessity of complainant stating -actual words used by accused-When arises.

Codt of Criminal Procedure (Act 5 of 1898), ss. 202 and 203-lurisdictiOJI of magistrate holding preliminary enqrary-Scope of.

Practice and Procedure-Applicability of exceptions to s. 499 to a case -If may be considered at the preliminary stage.

The respondent filed a complaint against the appellants under s. 500 l.P.C. alleging that they made certain defamatory allegations against him.

According to him the appellants passed a resolution suspending him from municipal service, that in the course of the discussion relating to the pas sing of the resolution, all the appellants made wild and baseless allegations involving moral turpitude against the respondent, and after passing the resolution the appellants with the ulterior motive of maligning the respon D dent, gave publicity to the resolution in the local newspapers with large cir ailation. A report containing the allegations which was sent by tho Secre tary of the Corporation to the Commissioner was given in evidence.

The Magistrate dismissed the complaint under s. 203, Cr. P.C. on two grounds, namely, (1) there was no evidence on record as to which of the appollailts made which allegations against the respondent, and in the absence of such an important ingredient no prima facie case against any of the appellants could be said to have been made out, and (2) the resolu tion passed by. the Standing Committee and the discussion proceding it were covered by the exceptions to s. 499, I.P.C. The sessions Judge dis-·· missed the revision of the complainant summarily.

Tho High Court set aside the order of the Magistrate and directed further inquiry on the grounds that: (!) it could not be said that there was no evidence as to which member of the Standing Committee made al

legations against the respondent, as the evidence implicated all the members of the Standing Committee including the appellants in the charge of male ing the defamatory allegations contained in the report and (2) the appellants were not protected by the Exceptions to •· 499.

In appeal to this Court,

HELD: (!) While it is desirable that the actual words •lated to have been used by the accused which are alleged to be defamatory should be reproduced by the complainant, in cases where the words spoken are too many or the statements are too long, it will be the height of technicality to insist that tho actual words and the entire statements should be reproduced verbatim. The object of having the actual words before the court is to enible it to consider whether tho words are defamatory. That purpoao .,.; n be served if the complainant is able to reproduce in his complaint or evidence, in a substantial measure, the words of imputation alleged to have been uttered. From the point of view of the accused also it is

SUPREME COURT REPORTS [1971] SUPP. s.c.lt.

necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations they have to meet. But a complaint cannot be thrown out on the mere ground that the actual words spoken had not been stated in the complaint. It is only if the case of a complainant is that each of the accused made different statemei; rts that it would be necessary for the complainant to specify the

actual words spoken by each of the accused.

[4578-F]

In the present case, on the averments made in the complaint which refel'.8 to various matters referred to in the report, the complainant bad furnished in a substantial measure the words of imputation, whlch according to him were defamatory. When the case of the complainant' was. that all the appellants made the statements referred to in the report. and he was prepared to go to trial on that footing, the question of the complainant stating the words alleged to have been used by the individ11al accused did not arise. [457G-H; 458B]

English decisions dealing with libel, held not applicable on all fours.

[457A8]

Sarai Chandra Das & Anr. v. State, A.I.R. 1952 Orissa 351, Krishnarao v. Firm Radhakisan Ramsahai & Anr., [1956] I.LR. Nag. 236, Emperor v. Col. Bholanath, 51 I.LR. 1929 All. 313, K. S. Namjtmdaiah v.

Setti Chikka Thippanna, (1952] Cr. L J. Mysore 1633 and Dhruba Charan Khandal v. Dinabandhu Patri, A.I.R. 1966 Orissa 15, referred to.

(2) Under ss. 202 and 203 Cr. P.C. the Magistrate has to see whether a prima facie case is made out against the accused on the materials and evidence placed before him by the complainant and not whether the evidence is sufficient to warrant a conviction. [4520-H ; 453A-8]

In the present case, the approach of the Magistrate was fallacious in the face of the allegations by the respondent that all the appellants made the statements referred to in the report. [458F]

Chandra Deo Singh v. Prokash Chandra Bose, [1964] 1 S.C. R. 639, followed.

(3) It was also unnecessary for the High Court to consider the applicability of the Exceptions to s. 499 I.P.C., at this stage. All the oefencethat may be available to the appellants will have to be gone into during the trial of the complaint. (4598-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 14 of 1971.

Appeal by special leave from the judgment and order dated August 26, 1970 of the Delhi High Court in Criminal Revision No. 138 of 1968.

C. K. Daphtary and B. P. Moheshwari, for the appellants.

The respondent appeared in person.

The Judgment of the Court was delivered by

Vaidialingam, J.-This appeal, by special leave, is directed a2ainst the judgment and order dated August 26, 1970 of the Delhi High Court in Criminal Revision No. 138 of 1968 dismissing under

B. KHANNA v. MOTill.AM (Vaidia/ingam, J.)

Section 203 Cr. P. C. the complaint filed by the respondent under Section 500 I. P. C.

The respondent Moti Ram filed a complaint in the court of the Sub-Divisional Magistrate, Delhi against the seven appellants under section 500 I. P C. alleging that they made certain allegations against him which were defamatory in character and had also passed a resolution placing the respondent under suspension.

The complaint filed by the respondent is a fairly lengthy one and refers to various matters.

But the relevant facts which could be gathered from the same appear to be as follows :

The respondent during December, 1964 was serving as a.

Liaison Officer, Municipal Corporation, Delhi.

The appellants were among the members of the Standing Committee of the Corporation at that time.

The first appellant Balraj Khanna was bitterly inimical towards the respondent and was bent upon causing harm

to him.

He wielded considerable influence over the members of the Standing Committee.· At his instance a requisition was given by the members of the Standing Committee to its Chairman to summon a meeting of the Committee to enable them to move a resolution for the immediate suspension of the respondent from his office.

Aro:irdingly a meeting of the Standing Commjttee was held on December 10, 1964.

The said meeting was attended. not only by the Commissioner and other officers of the Corporation, but also by the press reporters.

In that meeting the appellants made very serious allegat;!ons of a defamatory nature against the respondent and passed unanimously a resolution placing him under immediate suspension.

The allegations made against the respondent and the fact of his suspension from office were given wide publicity, with the result that it brought down the respondent in the estimation of his friends causing harm to his reputation.

P. W. 3, who was the Secretary of the Corporation, and who attended the meeting of the Standing Committee on December 10, 1964 sent a report the next day Ex. P. w. 3/B to the Commissioner regarding the allegations stated to have been made against the respondent by the appellants.

The allegations referred to in P. W. 3/B are as follows :

"l. Since its inception in 1958 the Corporation has executed a very heavy programme of works for improving the sanitation of the Corporation and provide other civic amenities, but no publicity was given to these activities and the public has remained more or Jess in the dark.

On the other hand the Corporation is adversely criticised even for minor omissions and commissions. The L. 0. has, thus not performed the duties which are required of the post he has been holding and has been deficient in the performance of his duties.

2!1-1 S.C. Inc!ia/71

SUPREMB COIJ!t T lla~ORTS [1971] SUPP. s.c.I\.

i. 'J1k: L. 0. is not working in harmony with the representatives of the Pr_ess who attend the Corporation office o over the meetings of the Corporation and its Committee, so much so that these repres11Rtatives have desired that he be not required to come to their rooms in the Corporation office.

3. Instead of applying himself seriously to his official work he indulges in estranging one member from the other, one officer for the other and one political party for the other.

He has even been trying to sow seeds of estrangement between the Mysore and the Commissioners.

4. In the days when he was Chief Reporter to the Hindustan Times, he resorted to undesirable means to achieve bis desired ends. ·

5. His association with some of the non Official Presidents of the erstwhile Delhi Municipal Committee has bro11ght nothing but slur to their good names.

6. He is known for indulging in acts of moral t11rpitude and for seducing unsuspecting girls and women."

In the complaint it is further stated that in October, 1964, all the seven appellants entered into a conspiracy to defame the respondent and remove him from the municipal service and passed a resolution on December 10, 1964 placing him under suspension.

It is further stated that apart from the seven appellants, three other members of the Standing Committee were also parties to this resolution.

In particular, it is alleged in the complaint that in the course of discussion relating to the passing of the resolution, all the seven appellants made wild and baseless allegations involving moral turpitude against the respondent.

After passing the resolution the appellants with the ulterior motive of maligning the respondent and lowering him in the estimation of the public, gave publicity to the resolution in the local newspapers with large circulation.

The allegations stated to have been made by the appellants are those referred to in Ex. P. W. 3 /B. The respondent alleged that the appellants knowingly and maliciously made false and defamatory allegations against him and prayed for taking action against them.

Before the Magistrate the respondent and five other witnesses were examined under Section 202, Cr. P. C. and after consideration of the evidence, the Magistrate dismissed the complaint under Section 203, Cr. P. C.

The dismissal of the complaint by the Magistrate is rested on two grounds, namely, (l) there is no evidence on record as to which of the appellants made which allegation against the respondent Q.lld in tile absen~ of Slll:h an important ingredient, no prima facie ~ ll!ly of the appellants

B. KHANNA v. MOTi RAM (Vaidlalingam, J.)

can be said to have been made out, and (2) the resolution passed by the Standing Committee and the discussion preceding it are covered by the Exceptions to Section 499 I. P. C. and hence the appellants were well within their rights in passing a resolution recommending suspension of the respondent.

The Additional Sessions Judge, Delhi, dismissed the revision of the respondent summarily stating that the material on record was not sufficient to justify any direction being given to the trial Magistrate to make further inquiry into the complaint.

The Sessions Judge has further stated that the evidence produced by the respondent is too , general to make out a case to summon any one of the appellants.·

The High Court, after a reference to the material evidence on record, as well as the allegations stated to have been made by the appellants, has held that the approach made by the Magistrate for dismissing the complaint was erroneous.

In the view of the High Court the evidence on record goes to show that the case of the respondent is that all the members of the Standing Committee including the appellants had made the allegations against the respondent, which had been reproduced by the Municipal Secretary in Ex. P. W. 3/B.

On this reasoning the High Court held that it cannot be said that there is no evidence as to which member of the Standing Committee made the allegation against the respondent.

According to the High Court the evidence as it stands implicates all the members of the Standing Committee including the appellants herein ih the charge of making the defamatory allegations against the respondent.

The High Court has further held that if at a later stage when witnesses are examined, it is found that only some of the appellants made the allegations and also what those allegations are, it will be open to the trial Magistrate to discharge such of the accused against whom there is no evidence of having made any defamatory allegation.

The High Court is also of the view that the reasoning of the Magistrate that the appellants are protected by the Exceptions to Section 499 I. P. C. is also not correct.

Ultimately, the High Court set aside the order of the Magistrate dismissing the complaint under Section 203 Cr.

P. C. and directed further inquiry to be made into the complaint by the Chief Judicial Magistrate. Delhi or by any Magistrate subordinate to him, and to dispose of the same in accordance with law.

Mr. C. K. Daphtary. learned counsel for the appellants, contended that in cases of defemation it is essential that the actual words used should be set out in the complaint and a reproduction of the gist or substance of the words used is not enough.

He further contended that a general allegation that the appellants and other members of the Standing Committee made defamatory statements referred to in Ex. P. W. 3/B is not a sufficient compliance

SUPllEMll COURT llEPOllTS [1971] SUPP. s.c.R.

with the requirement of law to enable the Magistrate to take 'further action.

On the other hand, according to the learned counsel. the complainant must specifically aver which particular allegation was made by which of the accused, in which case alone the indiviual aused will have an opportunity of effectively meeting the

putations alleged to have been made by him.

In this connec- !10n Mr. Daphtary referred us to certain English decisions governmg the law of Libel and he also invited our attention to certain decisions of the High Courts.

On the other hand, the respondent, who appeared in person, has urged that at this stage the Court is concerned only with the question whether he has prima facie made out a case for his complaint being inquired into by the Magistrate and not whether he will be able to obtain a conviction of all or any of the appellants. That

stage~ he pointed out, will arise only during the course of the trial.

He urged that in his complaint he has made a categorical statement that all the appellants have made the statements referred to in Ex. P. W. 3iB. As to whether the statements have been properly recorded by the Municipal Secretary, is again a matter which will arise only during the course of the trial.

According to him the allegation made by him in the complaint regarding the statements said to have been made by the appellants is sufficient for further action being taken by the Criminal Court. He further contended that the statements alleged to have been made by the appellants have been substantially reproduced in Ex. P. W. 3 /B and it has been placed before the Court in the complaint and that is a sufficient compliance with the requirement of Jaw.

He pleaded that the principles laid down by the English Courts regarding the law of Libel are not applicable when considering a case of defamation under the Indian Penal Code.

He has also referred us to certain decisions in support of his contentions.

Before we refer to the decisions cited by Mr. Daphtary and the respondent on merits, it is necessary to clear the ground by appreciating the nature of the jurisdiction exercised by the Magistrate under Sections 202 and 203 Cr. P. C.

In Chnndra Deo Singh v. Prokash Chandra Bose and another ('), it has been held by this Court that the object of the provisions of Section 202 Cr.

P. C. is to enable the Magistrate to form an opinion as to whether process should be issued or not.

At that stage what the Magistrate has to see is whether there is evidence in support of the allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction.

It has been further pointed out that the function of the Magistrate holding the preliminary inquiry is only to be satisfied that a prima facie case is made out against

(I} [1!164) l S.C.R. 639

B. KHANNA •• MOTi RA)! (Vaidialingam, J.) 453

the accused on the materials placed before him by the complainant.

Where a prima fade case has been made out, even though much can be said on both sides, the committing Magistrate is bound to commit the accused for trial and the accused does not come into the picture at all till the process is issued.

The question arises whether in an action for defamation under Section 500 I. P. C., it is necessary that the actual statements containing the words alleged tc have been used by the accused must be before the court or whether it is enough that the statements alleged to have been made are substantially reproduced in the complaint.

The further question is whether the complaint in this case is defective in the sense that the actual statements alleged to have been made by the individual accused have not been stated in the complaint.

We will now refer to the decisions cited by Mr. Daphtary.

He has referred us; in the first instance, to the passage in Halsbury's Laws of England, Third Edition, Volume 24, page 90 para 161 that for the statement complained of as being a libel or slander to be construed or interpreted, it is essential that the actual words and not merely their substance should be set forth verbatim in the statement of claim or indictment. Again he has referred us to another passage in the same volume as follows :

"As it is necessary in actions for libel or slander to set forth the actual words complained of in the statement of claim with proper innuendoes, so also it is necessary to do so in an indictment where words are of the essence of the offence." (Page 135 para. 249).

In Charles Bhedlaugh and Annie Besant v. The Queer (') the Court of Appeal was dealing with an indictment for publishing an obscene book.

Bramwell, L. J., observes as follows :

"In some instances, words are the subject-matter of an indictment; and it follows from this principle, which I have mentioned that wherever the offence consists of words written or spoken, those words must be stated in the indictment ; if they are not, it will be defective upon demurrer, in arrest of judgment or upon writ of error ..... ........ In like manner, there can be no doubt that in an indictment for defamtory libel it was necessary to set out the words complained of, so that the Court might judge whether they were or could amount to a libel ............. it is manifest that where words constitute the offence, they must be stated in the indictment.

(I) 3 Q.B.D. 607

454 .. IUPRl!ME COORT Ri!l'QRTS [1971] SUPP. s.c.R.

, E

I!'

In. The Capital , and Counties Bank Limited v. George Henty and sons (') Lord Blackburn in dealing with an action for libel states as follows :-

"The words themselves must have been set out in the declaration or indictment, in order that the Court might be able to judge whether' they were a libel or not. And Uris still remains the law."

In Collins v. Janes (,, Lord Denning quoted with approval the observations of Lord Coleridge, C. J. in Harris v. Waree (') as follows:

"In libel and slander everything may turn on the form of words, and in olden days plantiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them ....... In libel and slander the very words complained of are the facts on which the action is grounded.

It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends."

It is clear by a reference to the above English Law. that is an action for libel it is essential that the words themselves must be set out in the indictment and that requirement is insisted to enable the Court to judge whether those words published in writing amount to libel or not

Mr. Daphtary referred us to certain decisions dealing with the nature of proof reguired in a prosecution for sedition under Section 124A I. P. C. 1 But we do not think it necessary to refer to those decisions as we are not at this stage concerned with the proof of the statements attributed to the appellants and whfoh. according to the respondent, are defamatory.

Mr. Daphtary also referred us to the decisions in Sarai Chandra Das and another v. The State (') and Krisl111arao "· Firm Radhakisan Ramsahai and another ('). In the Orissa High Court decision two accused were being tried for an offence under Section 500 I. P. C.

It is m> doubt stated in: the said decision that in a trial for defan\atil'>ll it is essential that the words alleged

(I) 7 Appeal Cases 741

(2) [195'1 2 AlUngland Reports 145

(3) [1879] 4 C.P.D. 125 (4). A.tit. 1952 Ot!Ssa 351

(5) 1956 1.i..R. Nagpur 236

B. KHANNA v. MOTi RAM (Vaidialingam, J.)

. to be defamatory in character should be precisely set out and the accused should be individually given notice of what he is charged with, as the words so set out will constitute the foundation for defamation.

It is further laid down that it is also essential that the words in question should be proved.

A perusal of this decision will show that two accused were being prosecuted for defamation.

In the complaitit in that case it was stated that both the acused were alle$ed to have made _certain statments. .However. m the sworn. statement the complamant had given a shghtly different version.

In his evidence before the court the complainant attributed to the different accused different statements. It was, under those circumstances, that the court laid down the proposition referred to earlier.

Understood in that context, it is clear that according to the High Court when different statements are attributed to different accused, the statements alleged to have been made by each of the accused must be set out as the individual accused must have noticed as to what is specifically alleged against him.

In the second case, the Nagpur High Court dealing with a claim for damages for defamation observed as follows :

"We may point out that in a suit for damages for defamation the law requires that the plaint ought to allege the publication of the dafamtory statement, set out the actual wotds used and also state that they were published or spoken to some named individuals and specify the time and place when and where they were published."

On the other hand, the respondent has invited our attention to the decisions reported in Emperor v. Col. Bho/anath (1), K. S.

Namjundalah v .. Sett/ Chikka Tippanna (') and Dhruba Charan Khandal v. Dlnabandhu Patri (').

In the first decision of the Allahabad High Court, Mukherji, J. observed :

"While I am not prepared to lay down, as a universal proposition, that in no case where the actual wotds used have not been ptoved a conviction for defamation by wcrd of mouth cannot be maintained, it must be conceded that in the majatity of cases it should be so. Defamation is define(! as follows :-"-"Whoever by words ..... . makes or pUbllshes any imputation concern.ing any person intended to harm, or knowing or haYi.ilg reason to

(I) SI I.L.R. 1929 All. 313 (2) 1952 Criminal Law Journal Mysore 1633

(3) A.1.R. 1966 OflSSa 15.

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

believe that such imputation will hann, the reputation ..... is said ......... to defame that person". When the question arises as to whether the words used were intended to harm or had the effect of harming the reputation, the court must be put in possession not only of the words used, but also of the context in which they were used ... " King J., the other learned Judge of the bench observes :

"I may here remark that in my opinion it is unnecessary to prove the exact words used by the accused, for the purpose of supporting a conviction for oral defamation. It is sufficient to prove the purport or substance of the defamatory imputations.

No honest witness would profess to remember the exact words used by a person who has been speaking for even 15 minutes.

At the most he may remember some striking phrase or expression. But a witnesse's failure to recalf the exact words used or the exact context in which they were spoken is immaterial, provided that he can give a sufficiently clear account of the purport of the defamatory remarks.

Although the learned counsel for the appellant argued that no conviction could be sustained unless the exact words were proved, he was unable to quote any authority for his proposition, and I am not prepared to accept it.

English rulings on the English Law of libel seem beside the point when the task before us is to apply the provisions of section 499 of the Indian Penal Code to a case of alleged defamation by spoken words."

In the second case the Mysore High Court has laid down that it is sufficient for the purpose of Sections 499 and 500 I. P. C. that if witnesses are agreed in a substantial measure on the words of imputation uttered as it is bardly possible or necessary to reproduce every word or expression used.

In the fast decision, the Orissa High Court has laid down that for the purpose of an offence under Section 500 I. P. C. it is enough if the witnesses are agreed in a substantial measure on the words of imputation uttered, for it is not possible even for a most honest witness to reproduce every such word or expression. This decision has also distinguished the earlier decision in Sarat Chandra Das and another v. The State (1) on the ground that the observations contained in that judgment that the precise words uttered against the complainant should find a place in the charge were made in the context of the court dealing with two accused, each of whom was alleged to have made different statements.

(I) A. I. R. 19S2 Orissa JS!

B. KHANNA V. llOTIRAM (Vaidlalingam, J.)

After a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the-actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499 I. P. C. It will be highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief.

But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim.

The object of having, if possible, the actual words or the statements before the court is to enable it to consider whether those words or the statements are defamatory in nature.

That purpose or object will be. served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose.

Therefore it is to his interest to get a proper adjudication from the court that as far as possible the words spoken or the statements actually made and which he alleges to be defamatory are before the court.

But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint.

From the point of view of accused also it is necessary that the matters 11lleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet.

In this case we have already referred to Ex. P. W. 3 I B. which, according to the complainant, contains the statements made by the appellants durin_g the discussion of the resolution leading to his suspension on December 11. 1964. The High Court, in this connection, has averted to the evidence of P. Ws. I, 3 and

4 on this aspect. As to how far the evidence of those witnesses G is to be accepted, is a matter which will arise only during the trial .of the complaint From the averments made in the complaint, which refers to various matters referred to in Ex. P. W. 3 I B, we are of the opinion, that the. c0mplainant has furnished in a substantial mea5ure the words of imputation, which, according to him, are defamatory .. Therefore, the contention of Mr. Daphtary that H the cO!llplaint is defective jnasn:iuch as it does not contain the actual words aneged to have been spoken by the appellants has to be rejected.

SUPREME COURT REPORTS (1971] SUPP. s.c.R.

The further question is whether the complaint is defective for the reason that the actual statements alleged to have been made by the individual accused have not been stated therein.

So far as this aspect is concerned, if the case of the complainant is that each of the appellants made different statements or spoke different words, which are 'defamatory, then it is absolutely necessary that the complaint must specify the words spoken or the statements made by each of the appellants.

But that is not the allegation in the complaint.

We have already referred to the fact that it is specifically stated in the complaint that during the course of the discussion of the resolution, all the seven appellants made a wild and baseless allegation against the complainant involving moral turpitude.

According to him those statements are contained in Ex. P. W. 3 / B. The evidentiary value of Ex. P. W. 31 B does not arise for consideration at this stage.

The further question whether the complainant will be able to prove his allegation that all the seven appellants made all or any of the statements contin ed in Ex. P. W. 3/B, is again a matter which does not arise for consideration at this stage.

We are only concerned to find out what are the allegations made by the respondent in his complaint against the appellants. When the case of the complainant is that the seven appellants made the statements eferred to in Ex.

P. W. 3/B and he is prepared to go to trial on that footing, the question of the complainant being made to state the statements alleged to have been made by the individual accused does not at all arise.

Such a situation will arisi: only when the case of the complainant is that different statements were made by cfifferent accused, who are before the court.

The Magistrate dismissed the complaint on the ground that there is no evidence on record as to which of the appellant made which allegation against the respondent and in the absence of such an important ingredient, no prima facie case against any of the appellants can be said to have been made out. . This, in our opinion, is a fallacious approach made by the Magistrate in the face of the allegation made by the respondent •that all the seven appellants made the statements referred to in Ex. P. W. 3/B. In our opinion, the High Court has made a correct approach when it held that the evidence, as it stands implicates all the members of the Standing Committee, including the appellants in the charge of making the statements alleged to be defamatory and contained in Ex. P. W. 3 / B.

We are in entire agreement with the reason ing of the High Court on this aspect.

Before concluding the discussion, it is to be stated that the trial Magistrate has given an additional reason for dismissing the complaint. That reason is that the resolution passed by the Standing Committee on December I J, 1964 and the discussion preced

ing it by the members of the Standing Committee including the

B. KHANNA v. MOTi R;.M (Vaidialingam, J.) 459

appellants is covered by tbe Exceptions to Section 499 I. P. C.

A Unfortunately, the High Court also has touched upon this aspect and made certain observations.

In our opinion, tbe question of the application of the Exceptions to Section 499 I. P. C. does not arise at this stage. Rejection of the complaint by the Magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for tbe High Court to have considered this aspect B and differed from the trial Magistrate.

It is needless to state tbat the question of applicability of the Exceptions to Section 499 I. P. C. as well as all other defences that may be available to the appellants will have to be gone into during the trial of the complaint.

To conclude we are satisfied that tbe High Court's order C setting aside tbe order of tbe Magistrate dismissing the complaint under Section 203 Cr. P. C. and directing further inquiry to be made in the complaint of tbe respondent is correct.

The appeal fails and is dismissed.

V.P.S.

Appeal dismissed.

BALRAJ IWANNA & ORS

MOTi RAM

A. N. RAY, JJ.

Indian Penal Code

s. 499

ss. 202 and 203

s. 499

s. 500

s. 203

s. 499

I.P.C

ss. 202 and 203

[1964] 1 S.C. R. 639

s. 499

I.P.C

Section 203

Section 500

section 500

Section 202

Section 203

Section 499

Section 499

Section 203

Indian Penal Code

Sections 202 and 203

Section 202

Section 500

Section 124A

Section 500

section 499

Indian Penal Code

Sections 499 and 500

Section 500

Section 499

Section 499

Section 499

Section 499

Section 203


4-60

UNION OF INDIA & ANR.

B. N. ANANTI PADMANABIAB ETC.

April 22, 1971.

B rs. M. SIKRI, c. ]., c. A. VAIDIAI!INGAM AND A. N. RAY, ]'J.J

Code of Crimmal Procedure, 1898, s. 4]!).-Difference of opinion bet• ween two judges of High Court-Reference to third 'judge-Third judRe can deal with whole case and entertain new plea.

Prevention of Corruption Act, 1947, s. SA and Code of Criminal Procedure, s. 12-Jurisdiction of Magistrate under s. SA does not extend to whole of India-Magistrate can exercise jurisdiction under s. SA. throughout district in which he holds charge but not outside district.

The appellants were charged with offences under s. 5(2) & 5(1) (c) and S(l) (d) of the Prevention of Corruption Act, 1947 as well as under ss. 467 and 471 of the Indian Penal Code by the Special Judge, Gauhati. The appellants filed revision petitions in the High Court of Assam & Nagaland.

On difference of opinion arising between the two Judges of the Division Bench reference was made to a third Judge under s. 429 of the Code of Criminal Procedure.

Before the third Judge a new plea was advanced on behalf of the appellants, namely that tho Magistrate at Delhi had no jurisdiction to accord sanction to an Inspector of the Delhi Special Police Establishment to investigate the case .in Assam. The third Judge held that an order of a Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the District where the crime was committed no other Magistrate outside the jurisdiction could make an order for investigation. In the result the proceedings before the Special Judge were quashed. In appeal by certificate to this Court,

HELD: (i) The contention that the third learned Judae could only deal with the difference between the two learned Judges and not with the whole case could not be accepted. The language of s. 429 of the Code of Criminal Procedure is explicit that the case with tho opinion of the Judges comprising the court of appeal shall be laid before another Judae of the same court. The other noticeable feature in s. 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge. Further more, the appeal is from the order of the third learned Judge as it must be by reason of the divided opinion of the Bench. [4630]

Hethuba & Ors. v. State of Gujarat, Cr. A. No. 100/67 dl 13-3-1970, followed.

(ii) Section 12 of the Code of Criminal Procedure empowers the State Government to appoint besides the District Magistrate, Magistrtes of the first, second or third class in any district and tho State Government may from time to time define local areas within which such Magistrate may exercise all or any of the powers with which they may be invested under the Code. Section 12(2) of the Code of Criminal Procedure enacts that except as otherwise provided the jurisdiction and powers of such Magistrates shall extend throuahout such district It therefore follows that the Maaistrates of the first class of a district have powers within defined local areas within tho district and their jurisdiction and powers may in certain

UNION V. B. N •. ANANTI (Ray, J.) 461

cases extend throughout such district The Magistrate at Delhi can in A certain cases exercise jurisdiction and power throughout the district where he is appointed. [464EG]

It will not be in consonance with the jurisdiction and structure of courts of Magistrates to allow an order of investigation to be made by a Magistrate of Delhi for investigatiQri of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try. The real import of s. SA of the Prevention B of Corruption Act is that investigation is to be done by Police Officers of a certain rank to ensure protection agaj.nst frivolous, prosecution, and it is only with the order of Presidency Magistrate or a Magistrate of the fi.-st class that Police Officers below the ran~ mentioned in the section are al lowed to investigate. It is therefore appropriate that Magistiates in Presi

dency towns or District will. order investigation of cases within their respective jurisdiction. The effect of s. SA of the Prevention of Corruption C Act, is that it is a special Act which confers power on Presidency Magistrates throughout the Presidency town and Magistrates of the first class through out the District when they exercise powers under the Code of Criminal Procedure. Therefore in cases governed by s. SA of the Prevention of Corruption Act, Magistrates of the first class will exercise jurisdiction throughout the district irrespective of defined areas of their jurisdiction within the district by reason of s. 12(2) of the Code of Criminal Procedure.

[46SAE) D

In the present appeals, the order of investigation made by the Magis.

Irate at Delhi for investigatidn of cases in the State of Assam was not a valid and competent order within the powers of the Magistrate at Delhi.

The orders of investigation were therefore rightly quashed by the High Court [46SE-F]

CRIMINAL APPELLATE JURISDICilON : Criminal Appeals Nos.

E 158 to 160 of 1970.

Appeals"from the judgment and order dated March 31, 1969 of the Assam and Nagaland High Court in Criminal Revision Applications Nos. 53, 62 and 71 of 1968.

D. Mookherjee, Avtar Singh and R. N. Sachthey, for the F appellants (in both the appeals).

Gobind Das and Lily Thomas, for respondent (in Cr. A. No. 158/1970).

1. P. Mitter and Sukumar Ghose, for respondent (in Cr. A.

G No. 159/1970).

A. S. R. Chari, Naunit Lal and Swaranjit Sodhi, for respondent (in Cr. A. No. 160 of 1970).

The Judgment of the Court was delivered by:

Ray, J~These three appeals are by certificate from the judgment and order dated 31 March. 1969 of the High Court of Assam and Nagaland.

SUPREME COURT REPDRTS [1971] SUPP. s.c.R.

These three appeals arise out of special cases No. 16 and l 6A uf 1964 pending in the court of the Special Judge. Gauhati In Special Case No. 16 of 1964 Major J. S. Prosad, B. N. Ananthapadamanabhiah and Motiur Rahman were charged under section

120B of the Indian Penal Code read with sections 5(2), 5(1) (c) and 50 )(d) of the Prevention of Corruption Act, 1947 and section 467 I 471 of the Indian Penal Code. In Special Case No. 16A of 1964 charges were framed against S. Chatterjee and Motiur Rehman under section 120B of the Indian Penal Code read with sections 5(2), 5(1)(c) and 5(l)(d) of the Prevention of Corruption Act and sections 467 and 471 of the Indian Penal Code.

The appellants filed three separate criminal revision petitions in the High Court.

Four contentions were advanced before the High Court.

First, that the Special Judge at Gauhati had no jurisdiction to try offences investigated by the Delhi Special Police Establishment as the Delhi Special Establishment Act was not extended to NEFA. Secondly, that under section 6 of the Delhi Special Police Establishment Act, the Delhi Special Police Establishment cannot investigate in a case in any area which is not a Union territory or a railway area without the consent of the Government of the State. lt was contended that the consent of the Government of Assam was not taken.

Thirdly, the investigation was carried out by an Inspector of Police under section 5(2) of the Prevention of Corruption Act under an order of a Magistrate of the First-class at Delhi, but the Magistrate did not apply his mind to the matter and mechanically gave the permission.

Fourthly, no sanction was taken under section 196A of the Code of Criminal Procedure before cognisance was taken by the court.

The Dfvision Bench consisting of C. J. and Goswami, J. unanimously rejected the first two contentions but were divided in their opinion as to whether the Magistrate applied his mind to allow the investigation by an Inspector of Police and whether sanction under section 196A of the Code of Criminal Procedure was necessary.

The matter was thereafter placed before the third learned Judge Sen, J. Before the third learned Judge another contention was advanced as to whether the Magistrate at Delhi had jurisdiction to accord sanction to an Inspector of Police of the Delhi Special Police Establishment to investigate the case in Assam.

The third learned Judge held that an order of a Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the district where the crime was committed no other Magistrate outside the jurisdiction could make an order for investigation. The third learned Judge also held that the Magistrate at Delhi did not apply his mind to allow the Inspector of Police to do the investigation.

In the result, the proceedings before the Special Judge were quashed.

UNION V. B. N. ANANTI (, Ray, J.) 463

A question arose as to whether a new contention as to the A competency of the Magistrate at Delhi to sanction investigation could have been raised before the third learned Judge when it had not been raised before the Division Bench.

Counsel for the respondents contended that under section 429 of the Code of Criminal Procedure the case was to be laid before the third learned Judge and the third learned Judge was empowered to deal with B the entire case and the judgment and order would follow the opinion of the third learned Judge.

This question came up for consideration in the recent unroported decision in Hethubha & Ors. v. The State of Gujarat ('). It was contended in that case on behalf of the appellants that the third learned Judge could only deal with the differences between C the two learned Judges and not with the whole case. This Court

held that the third learned Judge could deal with the whole case.

The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Co•irt of Appeal shall be laid before another Judge of the same Court. The other noticeable feature in section 429 of the D Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.

l:'urthermore, the appeal is from the order of the third learned Judge as it must be by reason of the divided opinion of the Bench.

The more important question in the present appeals is whether the Magistrate at Delhi was competent to authorise the investigation of the case.

The relevant provision is to be found in section SA of the Prevention of Corruption Act, 1947 as it stood prior to its amendment in 1964 and is as follows :- "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no Police Officer below the rank-

(a) in the presidency towns of Ma.dras and Ca 1cutta, of an Assistant Commissioner of Police ;

(b) in the presidency town of Bombay of a Superintendent of Police ; and

(c) elsewhere, of a Deputy Supmutendent of Police,

shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub section (2) of this Act, without the order of the Presidency Magistrate or a Magistate of the first class. as the case may be, or make any arrest therefor without a warrant".

(I) Cr. A.No. 100ofl967 dt. 13-3-1970.

SUPREME COURT REPORTS

[1971] SUPP. S.C.R.

The words "Presidency Magistrate or a Magistrate of the First Class, as the case may be" were construed by counsel for the the appellants to mean that except in the case of Presidency Magistrate it could be any first class Magistrate of any area inasmuch as there was no !imitation with regard to any area of terri torial jurisdiction by a Magistrate of the first class under section SA of the Prevention of Corruption Act, 1947.

Reliance was placed by counsel for the appellants on section S of the Code of Criminal Procedure that the investigation under section S(2) of the Code of Criminal Procedure could be according to the provisions of the Code of Criminal Procedure but subject to any enactment regulating the manner or place of investigation.

It was said that section SA of the Prevention of Corruption Act was a special Act regulating the manner of investigation and therefore the Code of Criminal Procedure would not apply to that extent.

Presidency Magistrate under sections 6 and 18 of the Code of Criminal Procedure are for each of the Presidency towns.

A Presidency Magistrate exercises jurisdiction within the presidency towns for which he is appointed and within the limits of the port of such town.

Magistrates of the first clilss are dealt with under sections 6, 10, 11, 12 and 13 of the Code of Criminal Procedure and their powers of sentence are dealt with by section 32 of the Code of Criminal Procedure. Section 6 speaks of magistrates of the first class, Magistrates of the second class and magistrates of the third class. Section 10 of the Code of Criminal Procedure speaks' of district magistrate in every district outside the presidency town. Section 12 of the Code of Criminal Procedure empowers the State Government to appoint besides the District Magistrate, Magistrates of the first, second or third class in any district and fhe State Government may from time to time define local areas within wbich such Magistrates may exercise all or any of the powers with which they may be invested under the Code. Section 12(2) of the Code of Criminal Procedure enacts that except as otherwise provided the jurisdiction and powers of such Magistrates sb, all t; xtend throughout such district. It therefore follows that the Magistrates of the first class of a district have powers within defined local areas within the district and their jurisdiction and powers may in certain cases extend throughout such district.

The Magistrate at Delhi can in certain cases exercise jurisdiction and power throughout the district where he is appointed. '

The words "Presidency Magistrate or a Magistrate of the first class, as the case may" in section SA of the Prevention of Corruption Act indicate that a Presidency Magistrate refers to the Presidency town where he exercises jurisdiction and similarly a Magistrate of the first class refers to a Magistrate of the first class of a district exercising power in that district.

A Magistrate does not exercise jurisdiction throughout the length and breadth of India for

UNION V. B. N. ANANTl (Ray, J.) 465

purposes of Code of Criminal Procedure or of Prevention of Corruption Act.

The Code of Criminal Procedure defines the territorial jurisdiction of Magistrates.

It will not be in consonance with the jurisdiction and structure of Courts of Magistrate to allow

an order of investigation to be made by a Magistrate of Delhi for investigation of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try.

The real import of section SA of the Prevention of Corruption Act is that investigation is to be done by Police Officers of a certain rank to ensure protection against frivolous prosecution and it is only with the order of Presidency Magistrate or a Magistrate of the first class that Police Officers below the rank mentioned in the section are allowed to investigate.

It is therefore appropriate that Magistrates in Presidency towns or District C will order investigation of cases within their respective jurisdiction.

The effect of section SA of the Prevention of Corruption Act is that it is a special Act which confers powers on Presidency Magistrates exercisable throughout the Presidency town and Magistrates of the first class throughout the District where they 1:xercise powers under the Code of Criminal Procedure.

Ordina- 1rily, Magistrates. of the first class may have defined areas within the meaning of section 12(1) of the Code of Criminal Procedure but in cases governed by .section SA of the Prevention of Corruption Act, Magistrates of the first class will exercise jurisdiction throughout the district irrespective of defined areas of their juris diction within that district by reason of section 12(2) of the Code o! Criminal Procedure. In the present appeals, the order of investigation made by the Magistrate at Delhi for investigation of cases in the State of Assam was not a valid and competent order within. the powers of the Magistrate at Delhi. These orders of investigation are therefore rightly quashed by the High Court.

The contention on behalf of the appellarrts that the order of the Magistrate allowing the Inspector of Police to investigate was proper and that he applied his mind is not required to be gone into in the present appeals in view of the decision that the Magistrate at Delhi was not competent to authorise the investigation.

It is also not necessary to express any opinion on the other contention as to whether sanction under section I 96A of the Code of Criminal Procedure was necessary before the courts could take cognizance of the matter.

We are of opinion that the order of the Magistrate at Delhi is not a valid and proper order and therefore the investigation was bad.

We need not express any opinion as to whether there should be a fresh investigation. For these reasons, the appeals fail and are dismissed.

G.C.

30-1 S.C. lndia/71 Appeals dismissed.

60

UNION OF INDIA & ANR

B. N. ANANTI PADMANABIAB ETC

B rs. M. SIKRI

A. N. RAY

Code of Crimmal Procedure, 1898

s. 4

Prevention of Corruption Act, 1947

Code of Criminal Procedure

s. 12

s. 5(2) & 5(1)

Prevention of Corruption Act, 1947

ss. 467 and 471

Indian Penal Code

s. 429

Code of Criminal Procedure

s. 429

Code of Criminal Procedure

s. 429

Code of Criminal Procedure

Section 12

Code of Criminal Procedure

Section 12(2)

Code of Criminal Procedure

Code of Criminal Procedure

SA of the Prevention of Corruption Act

s. 12(2)

Code of Criminal Procedure

section

120B

Indian Penal Code

sections 5(2), 5(1)

Prevention of Corruption Act, 1947

section 467

Indian Penal Code

section 120B

Indian Penal Code

sections 5(2), 5(1)(c) and 5(l)(d)

Prevention of Corruption Act

sections 467 and 471

Indian Penal Code

section 6

Delhi Special Police Establishment Act

section 5(2)

Prevention of Corruption Act

section 196A

Code of Criminal Procedure

section 196A

Code of Criminal Procedure

section 429

Code of Criminal Procedure

section 429

Code of Criminal Procedure

section 429

Code of Criminal Procedure

Code of Criminal Procedure, 1898

section 161

section 165

section 165A

Indian Penal Code

Code of Criminal Procedure

Code of Criminal Procedure

Prevention of Corruption Act

Code of Criminal Procedure

sections 6 and 18

Code of Criminal Procedure

sections 6, 10, 11, 12 and 13

Code of Criminal Procedure

section 32

Code of Criminal Procedure

Section 6

Section 10

Code of Criminal Procedure

Section 12

Code of Criminal Procedure

Section 12(2)

Code of Criminal Procedure

SA of the Prevention of Corruption Act

Code of Criminal Procedure

Prevention of Corruption Act

Prevention of Corruption Act

Code of Criminal Procedure

section 12(1)

Code of Criminal Procedure

SA of the Prevention of Corruption Act

section 12(2)

Code of Criminal Procedure


DWARKA NATH & ANR. v.

MUNICIPAL CORPORATION OF DELHI

April 23, 1971 B [S. M. Snoo, c. J., c. A. VAJDIALINGAM AND A. N. RAY, JJ.)

The Prevention of Food Adulteration Act (37 of 1954), s. 23(1) (c), (d), (/)and (g), and Rules made thereunder r. 32(b) and (e}-If within ruJe.making power.

The appellants were carrying on business in ghee. On the h1bels of the tins of ghee the name of the business premises of the appellants and the postal division were given but the number of premises and the l1Jcality where the premises was situate were not given.

On the ground that the label did not conform to the packing and labeUing rules as required under r. 32(b) and (e) of the rules made under s. 23(1) of the Prevention of Food Adulteration Act, 1954, the appellants were prosecuted and were convict ed, and a token fine of Re. 1 was imposed on them. The judgment of the High Court emphasised upon the violation of r. 32(e).

Rule 32(e) provides that every label should specify the batch .number or code number either in Hindi or English null)ericals or alphabets or in combination, and r. 32(b) requires the name and address 'of the manufacturer or importer or vendor or pl\cker to be -given on every label. The first proviso to r. 32 excludes the operation of els. (a) to (e) of the said rule in respect of food packages weighing not more than 60 grams.

On the question whether sub-rr. 32(b) and (e) were within the rule making power under s. 23(1) els. (c), (d), (f), and (g).

HELD: (I) The sub-rules could not have been made under cl. (c).

That clause deals with provisions for imposing rig9rous control over pro~ duction, distribution and sale of any article or class of articles of food notified by the Central Government in the Official Gazette. But no such notification regarding ghee had been issued by the Central Government.

[4748}

(2) Clause (f) relates to prohibiting the sale or defining' the conditions of sale of any substance injurious to health when used as food. This clause also has no application because ghee is not a substance injurious to health when used as food. [474C]

(3) Clause (g) will have no application because one of the essential requirements therein is that the rules made under it should be related to the interest of public health. Any rule made under this clause must be of universal application because it is in the interest of public health. The requirement regarding compliance with any such rule cannot depend upon the quantity of food packed in any container. Therefore, the fact that food packages not weighing more than 60 grams are excluded under the proviso to the rule is an indication that r. 32 is not framed under s. 23(1)

(Ill of the Act. [4740-F]

(4) The object of a rule framed under s. 23(1) (d) must be with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article. The giving of the

DWARKA NATH I'. MUNIC. CGlU'. \'Vaitiialingom, J.)

batch number or code number alone without giving any .further particulars such as the date of manufacture of the article and the period within which the said article has to be used or consumed and the quantity of the article in the container will not prevent the public or a purchaser from being -Oeceived or misled as to the character, quality or quantity of the article.

[4740-H ; 47SAB]

In the present case there was no obligation to specify on the label the date of packing and manufacture of the article of food or the period within which the article of food has to be U8Cd or consumed.

Jn the .absence of any such obligation there is no rational or even a remote

connection between the batch Or code number artificially given by a packer and the public or purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article contained in a sealed tin. [47SC-EJ

Therefore r. 32(e) is beyond the rule making power even under s. 23

(1) (d} of the Act. Since r. 32(e) is invalid the appellants could not have been convicted for its violation. [475E-F1

(S} But r. 32(b) is within the rule making power under s. 23(1) (dl, because, it is well known that in many cases in business the name and address of a manufacturer or importer or vendor or packer has become

ossociated with the character quality or quantity of the article. [4768)

In the present case, there is a substantial compliance with the rule by 1be appellants, but according to the requirement of the rule, some mo1e particu.Jars will have to be given, namely, the number of the premises and the locality or the area where the premises was situate. There was thus a technical breach of r. 32(b).

[4768-D]

[But since there was no indication from the juda; ments of the lov.--er E courts that the appellant would have been convicted for such a technical breach if there was no charge under r. 32(e) also, the appellants were acquitted.] [476E-F] •

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 264 of 1968.

Appeal by special leave from the judgment and order dated November 7, 1967 of the Delhi High Court in Criminal Revision No. 371-D of 1965.

S. C. Manchanda, M. L. Aggarwal and N. K. Agarwala, for the appellants.

B. P. Maheshwari, for the respondent

V. A. Sayid Muhammad and S. P. Nayar, for the Union of India

The Judgment of the Court was delivered by

Vaidlalingam, J.~The short question that arises for consideration' in this appeal by the accused, by special leave, is whether Rule 32(b) and (e) of the Prevention of Food Adulteration Rules,

SUPREME COURT REPORTS

[1971] SUPP. S.C.R ..

1955 (hereinafter to be referred as the Rules) is ultra vires as being beyond the rule making power under s. 23 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as the Act).

As the Rules have been framed by the Central Government, notice had been issued by this Court to the Attorney General.

The first appellant is a partner of the second appellant Mis.

Mohan Ghee Laboratories carrying on business in Pure Deshi Ghee, in Gurdwara Road, New Delhi-5.

On December 29, 1962 at about 12. 50 p. m. five Food Inspectors of the respondent visited the Laboratories of the appellants at Gurdwara Road, and all of them purchased ghee from different containers on payment of price.

After going through the necessary formalities as required by the Act and the Rules, the samples of ghee purchased by the Food Inspectors were sent to the Public Analysts for Delhi Municipal Corporation for analysis.

The Public Analyst tested rhe sample on January 3, 1963 and reported that all the five samples taken by the five Food Inspectors and sent to him conformed to standard.

It is also to be noted that on December 29, 1962, the Food Inspectors had also seized the labelled tins from which samples of ghee had been taken.

On August 31, 1963, the respondent filed five complaints in the Court of the Magistrate, !st Class, Delhi against the appellants under Section 7 I 16 of the Act read with Rule 32(b) and (e) of the Rules.

As all the complaints are on the same pattern, we will just refer to one of those complaints, filed on the basis of the report ohhe Food Inspector Lekh Raj Bhutt.

The averments are that the said Food Inspector on December 29, 1962 at about 12.55 p. m. took a sample of pure ghee from the appellants from one of the sealed tins of pure ghee exhibited for sale at the sale counter after due observance of the Rules.

One sealed bottle was given to the appellants at the spot.

The labelled tin of pure ghee from which the sample was taken was also seized by the Food Inspector in the presence of witnesses and the said tin is produced as an exhibit.

The complaint further proceeds to state that the sample of pure ghee taken from the appellants conformed to the standard of pure ghee.

According to the report of the Public Analysts, the sealed tin of pure ghee from which the sample was taken had a label, but it did not conform to the packing and labelling Rules under the Act inasmuch as the name and business address of the manufacturer or packer or vendor and batch or Code numbers had not been specified on the label as required under Rule 32(b) and

(e) of the Rules; and that the appellants are guilty for non-obscrance of the Labelling Rules.

The respondent ultimately prayed that the appellants may be punished, according to law, for contr?.· vention of Rule 32(b) and (e) of the Rules.

DWARKA NATH v. MUNIC. CORP. ( Vaidialingam, J.)

Similarly, the charge framed in each of the five cases was also on the same pattern. The charge after referring to the substance

of the complaint and after referring to the fact that the sample of ghee taken from the shop of the appellants conformed to the standard alleged :

"But cor.iplete address, Batch or Code No. etc. were not written on the ghee tins seized by the Food Inspectors.

Therefore, you are to show-cause, why you should not be punished under section 7 / 16 PFA Act 1954, read with rule 32(b) and (e) of PFA Rules, 1955."

The appellants pleaded not guilty to the charge.

One of the Food Inspectors. Dina Nath has given evidence as P. W. !. We will only refer to that part of his evidence which has a bearing on the point for consideration before us.

In chief examination he has stated that when he examined the tin from which the sample of ghee had been taken, he found that the tin did not bear the batch number, the code number and that rhe address given therein was incomplete. In cross-examination he has stated that the address given on the label was Mohan Ghee Laboratories. New Delhi-5 and there was also a further writing "Pure Ghee".

He was not able to say whether the address referred to above and found on the tin was incomplete.

He has further stated that though he has been working as Food Inspector from about 1949, he does not remember if re had seen the premises number written on any packing. He has further stated that "Batch Number can start from any serial number.

I am saying about serial number by commonsense ......... Code No. and Baich number is the same."

We will refer to the question put to the first appellant when he was examined under section 342 and to his answer in respect of the labelling and packing.

"Q. There is an allegation against you that labelling and packing of the Ghee tins taken in possession, was defective, since they do not bear the complete address of your shop, Code number and Batch number. What have you to say?

A. It is incorrect.

Labelling and packing were in order, address was also correct.. ..... ".

The appellants had also examined some of their employees. We will refer to the material part of the evidence of D.W. 2. who was incharge of supervising the packing of the ghee. He has referred

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

to the fact that the address of the shop of the appellants is Mohan Ghee Laboratories, New Delhi-5 and that they receive letters, addressed as above.

He has further stated that the appellants purchase ghee from outsiders in small tins and utensils and then pack them in their premises.

In cross-examination he has stated that the premises of the appellants is situated in 37 Nai Wallau, Gurdwara Road, Karol Bagh.

The Trial Magistrate has rather elaborately gone into the question whether the samples of ghee seized from the appellants conform to the standard and criticises without any basis the evid ence of the defence witnesses on the ground that the appellants should not have printed on the label "Pure Ghee" when they could not have known the quality of gbee stored in the containers. This discussion is totally irrelevant because, even according to the respondent, the Pub11c Analysts had certified that the samples conformed to the standard and the appellants were not being tried for adulteration of ghee.

Regarding the requirement regarding the Batch number or Code number, the Magistrate after reference to Rule 32(e) holds that the provision is mandatory and the object of giving those particulars is to indicate the serial order in which the particular article of food was packed and thereby to indicate the period for which . it could remain fit for human consumption.

We are not able to appreciate wherefrom the Magistrate got all these indications, because the relevant Rule does not provide for giving any parti culars regarding the period for which the article of food could remain fit for human consumption.

Ultimately the Magistrate found the appellants guilty for contravening Rule 32(b) and (e) and sentenced them to pay a token fine of Re. 1 in each of the five cases.

The appellants challenged their conviction before the learned Additional Sessions Judge Delhi. The Sessions Judge, by his order dated October 18, 1965 agreed with the Trial Magistrate that the appellants are guilty of breach of Rule 32(b) and (e). However, the Sessions Judge was of the opinion that five separate com plaints and five separate convictions were not legal and therefore; be made a recommendation to the High Court that the conviction of the appellants is to be set aside in respect of four complaints and that it should be maintained only in one case.

According to the learned Sessions Judge, the appellants have not complied with the requirement of sub-rule (b) of Rule 32 as they have given on the label the address as "Mohan Ghee Laboratories, New Delhi-5." without giving the number of the premises and the locality where the premises is situate. Simularly, the learned Sessions Judge is of the view that the object of specification of Batch number and Code

DWARKA NATH v. MUNJC. CORP. (Vaidialir.gam. J.)

number is to track down all the samples of food stuff that were packed out of a particular lot if the authorities found the sample to be defective.

This will enable the authorities to at once withdraw from the market all the c0ntainers of a particular Batch number.

In this view the learned Session Judge held that the appellants have commftted breach of Rule 32(e).

The learned Chief Justice of the Delhi High Court, in the order under attack, has held that it is enough if the appellants are convicted in one case and accordingly the reference made by the Additional Sessions Judge in this regard was accepted. But on the main question as to whether Rule 32 (b) and (e) was within the rule making power under Section 23 of the Act, the learned Chief Justice has held that the said rule is intra vires and comes within the rule making power conferred under Section 23(1) (d).

According to the High Court the Batch number and Code number would serve to provide a re-assuring factor to the purchaser inasmuch as it would indicate to some extent the time when the commodity was manufactured or packed.

The High Court has further held that the display of Batch number or Code number would seem to be a relevant factor for assuring the public or the purchaser that they are getting from the market an article which is fresh enough to suit their purpose and requirement. Ultimately, the High Court confirmed the conviction of the appellants as well as the levy of fine of Re. 1 in one case for breach of Rule 32(b) and (el.

Mr. S. C. Manchanda. learned counsel for the appellants contended that Rule 32 (b) and (e) is beyond the rule making power conferred under Section 23 (1) (d) of the Act.

The learned counsel further pointed out that the reasons given by the High Court are not warranted by the provisions of either the Act or the Rules.

Dr. V. A. Syed Mohammad, appearing for the learned Attorney General, contended that the impugned rule could be sustained under clauses (c), (d) and (g) of Section 23( (]). In particular he supporteQ. in full \he reasons given by the High Court that the impugned rule is within the ambit of the rule making power under Section 23 (]) (d).

Mr. B. P. Maheshwari, learned counsel for the respondent, urged that apart from the clauses referred to on behalf of the

Attorne~-General, the rule could be sustained even under Section 230)(0.

In order to appreciate the contentions urged before us, it is necessary to refer to the material part of Section 23 as well as the relevant rules.

Section 23()) gives power to the Central Government t<' make rules.

We have already referred to the clauses

A on which reliance is placed on behalf of the Attorney-General and by the respondent, namely, clauses (c), (d) (f) and (g). Section 23 (!) with those clauses reads as follows :

"230) Power of the Central Government t3 make rules :

The Central Government may, after consultation with the B Committee and subject to the condition of previous publication, make rulesc

• • • • •

(c) laying down special provisions for imposing rigor ous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles.

(d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser bemg deceived or misled as to the character, quality or quantity of the article ;

• • • • •

(f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingradient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food ;

(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health."

The Rules have been framed by the Central Government in exercise of the powers conferred by sub-section (2) of Section 4 and sub-section (I) of Section 23 of the Act.

The Rules framed under sub-section (2) of Section 4 relate to the functions of the Central Food Laboratory and allied matters.

We are not concerned with those rules.

Part VII of the Rules relates to the "packing and labelling of foods".

Rule 32 relating to the "contents of the label" is in this part. Rule 32 with material clauses

DWARKA NATH •• MUNIC. CORP. (Vaidialingam, J.) 473

(b) and (e) and the first proviso as well as the Explanation reads A as follows :

"Rule 32 : Contents of the label-Unless otherwise provided in these rules there shall be specified on every label:-

• • • •

(b) the name and business address of the manufacturer or importer or vendor or packer,

• • • •

(e) a batch number or code number either in Hindi or English numericals or alphabets or in combination; Provided that in the case of food package weighing not more than 60 grams particulars including the statement under any clause need not be specified.

Explanation.-The term 'label' means a display of written, printed, perforated, stencilled, embossed or stamped matter upon the container, cover lid and/or crown cork of any food package."

Admittedly there is no definition of the expressions "Batch number" or "Code number" either in the Act or in the Rules.

Nor has any affidavit been filed on behalf of the respondent or by the Attorney General of any expert whether these expressions have any technical meaning in the trade and if so what that is. "The material available on record is only the evidence of Dina Nath, one of the Food Inspectors, who has given evidence as P. W. 1 in one of the complaints.

We have already adverted to his evidence which is to the effect that Batch number can start from any serial number and that what he says about serial number is only by commonsense. Further, according to him Code number and Batch number is the same.

From this evidence it is clear that there is no specific meaning attached to these two expressions either in the Act or in the Rules and even the Food Inspectors are not very clear as to what those expressions mean.

He has also stated . that in the label on the container, the address of the appellants had been given as "Mohan Ghee Laboratories, New Delhi-5".

According to him the said address is incomplete because it does not give the d_etails about the d?or

number of the premises, as well as the locahty where the premises is situate. He has also stated that he does not remember to have seen the premises number on any packing.

We have now to see whether any of the clauses in Section 23 II) on which reliance is placed on behalf of the Attomey-Oeneral :and the respondent will sustain the provisions contained in Clauses

~UPRBMB COURT REPORTS [1971] SUPP. s.c.R.

(t., and (e) of Rule 32. We are not able to find anything in Clauses. (c), (f) and (g) of Section 23(1) of the Act, which will give power to the Central Government to frame rules requiring the name and business address of manufacturer or vendor being given ; or for Batch Number or Code number being given on the labels. Clause

(c) deals, with provisions for imposing rigorous control over pro-· duction, distribution and sale of any article or class of articles. of food notified by the Ce,,•ral Government in the Official Gazette.

No notification issued by the Central Government in this behalf regarding ghee has been brought to our notice and, therefore, . clause (c) does not apply.

Clause (f) relates to prohibiting the sale or defining the condi tions of sale of any substance injurious to health when used as food.

This clause has also no application, because it is not the case of the respondent that the article of food, with which we are concerned, namely, ghee, is a substance which is injurious to health when used as food.

Clause (g) again will have no application because one of the essential requirements, therein is that the rule should be related to the interest of public health. Any rule made under this clause, must be of universal application because it is in the interest of public health.

The requirement regarding compliance with any such rule, cannot depend upon the q.ilaqity or food packed in any container. That Clause (g) of Section 23(1) will stand eliminated is clearly seen by a reference to the first proviso to Rule 32.

The said proviso indicates that if the food package weighs not more than 60 grams, the particulars mentioned in clauses (a) to (e) of the Rule need not be specified.

If a requi'rement has to be in the interest of public health, as is mandatory under Clause (g). the very fact that the first proviso to Rule 32 excludes the operation of clauses (a) to (e) of the said rule in respect of food package weighing not more than 60 grams, is an indication that Rule 32 is not framed under Clause (g) of Section 23(1) of the Act.

From the above discussion it is clear that under Clauses (c), (f) and (g) of Section 23(1) of the Act, the rules contained in clauses (b) and (c) of Rule 32, could not be framed."

This leaves us for consideration the quesuon whether Rule 32 (b) and (e) fall within tlie ambit of rule making power under Clause (d) of Section 23(1).

We will first take up for consideration the v1'res of Clause (e) of Rult: 32.

There cannot be any controversy that the object of a rule framed under clause

(d) must be with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article.

We have already pointed out that in this case the label contained the words "pure ghee" and on analysis of the sample it has been found to conform to the standard. It is difficult for us to appreciate how the giving of the batch number or

DWARKA NATH v. MUN!C. CORP. (Vaidialingam, J.) 475

the code number alone without giving any further particulars such as date of manufacture of the article of food and the period within which the said article has to be utilised, used or consumed and the quantity of the article in a container, will prevent the public or the purchaser being deceived or misled as to the character, quality or quantity of the article.

No attempt has been made by the respondent to establish any relation between the giving of the batch number or the code number with the public or the purchaser being prevented from being deceived or misled in respect of the matters referred to in Clause (d).

We are not able to find any rational or even a remote connection between the batch or code nuniber artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.

There is no definition of the expression "batch number" or "code number" either in the Act or the Rules. It is also admitted that even assuming that the batch or .code number has to be given, there is no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food has to be utilised, used or consumed.

In the absence of any obligation to give the particuliirs mentioned by us above, the public or the purchaser will not be able to find out even the freshness of the contents of a container.

Therefore, it follows that merely gtving an artificial batch number or code number will not be of any use to the public or to the pu.chaser. . In view of all these circumstances we are of the opinion that rule 32(e) is beyond the rule making power even under Section 23 (1) ·(d) of the Act.

The appellants could not be convicted for any violation of Clause (e) of Rule 32 as the said provision, as pointed out above, is invalid.

We will now consider the question regarding the validity of Clause (b) of Rule 32.

That clause is also challenged as being beyond the rule making power under Section 23 (!) (d) of the Act.

Clause (b) of Rule 32 requires that the name and business address of the manufacturer, or importer, or vendor or packer be given on every label.

According to Mr. Manchanda, this clause has also no relation to the purpose for which the rules can be framed under Section 23 (!) (d) of the Act. According to Mr. Manchanda, mere giving of name and business address will not give any indication to the public or the purchaser regarding the character, quality or quantity of the article.

Even assuming that Clause (b) of .Rule 32 is valid, he pointed out, that in this case, his clients have complied with the requirement by stating on the label "Mohan Ghee Laboratories New Delhi-5." According to him there has been at any rare substantial compliance with .

SUPRBME COURT REPORTS [1971) SUPP. s.c.R.

the requirement of the rule and therefore his clients could not be convicted for any violation of this clause.

We are not inclined to accept the contention of Mr. Manchanda that Clause (b) of Rule 32 is beyond the rule making power of the Central Government under Section 23 (!) (d) of the Act. It is we11 known that in many cases in business the name and address of a manufacturer, or importer, or vendor or packer has become associated with the character, quality or quantity of the article and as such we are of the opinion that Clause (bJ of Rule 32 is a valid rule.

In this case, as pointed out by Mr. Manchanda there has been a substant.ial compliance with that rule by the appellants giving in the label the address as "Mohan Ghee Laboratories, New Delhi-5." But according to the requirement of the rule, some more particulars will have to be given. namely, the number of the premises and the locality or the area where the premises is situate.

This is the evidence adduced on behalf of the prosecution also.

Therefore, it can be said that there is a technical breach of Clause (b) of Rule 32 inasmuch as full particulars, referred to above, have not been given by the appellants in the label.

No doubt, the appellants have been convicted for breach of Clauses ib) and ie) of Rule 32 and a fine of Re. l has been imposed.

We have already held that Clause (e) of Rule 32 is invalid and the appellants cannot be convicted for non-compliance of the same.

Though there is a technical breach of Rule 32(b), there is no indication available from the judgments of the High Court and the subordinate courts that the appellants would have been convicted , for a technical breach of Rule 32(b) if there was no charge under Clause (e) of Rule 32 also. On the other hand, more prominence is given in the judgments to the violation of Rule 32 (e) and the inference is that the conviction is substantially for a violation of the said rule.

In the circumstances of this case, we are of the view. that the appellants could not be convicted for a technical breach of Rule 32(b) alone.

Therefore, the conviction of the appelbnts for offences, under Rule 32ibl and (e) as well as the fine imposed in the sum of Re. I for the said offence, are both set aside.

In the result, the appeal is accordingly allowed and the judgment and order of the Delhi High Court in Criminal Revision No. 371-D of !965 are set aside. The fine. if collected, will be refunded.

'V.P.S.

Appeal allowed.

DWARKA NATH & ANR

MUNICIPAL CORPORATION OF DELHI

A. N. RAY, JJ.

s. 23(1)

s. 23(1)

s. 23(1)

s. 23(1)

s. 23(1)

s. 23

s. 23(1)

s. 23

Section 7

section 7

PFA Act 1954

PFA Rules, 1955

section 342

Section 23

Section 23(1)

Section 23

Section 23( (])

Section 23

Section 230

Section 23

Section 23()

Section 23

Section 4

Section 23

Section 4

Part VII of the Rules

Section 23

Section 23(1)

Batch Number or Code

Section 23(1)

Section 23(1)

Section 23(1)

Section 23(1)

Section 23

Section 23

Section 23

Section 23