'942

GULABCHAND BAPALAL MODI

MUNICIPAL CORPORATION OF AHMEDABAD CITY

March 4, 1971

[J. M. SHELAT AND c. A. VAIDIALINGAM, JJ.]

Bombay Provincial , Municipal Corporation Act, 59 of 1949, J. 129 of Act whether bad for excessive delegation and absence of 'guidelines- Rule 10 of Taxation Rules whether mandatory .or directory-Maintenanc• of ward-wise assessment books whether essential-Tax levied on basis of .one assessment book for whole Municipal area whether invalid-Effect of '"' 13, 15 and 19 under the Act, on tlie interpretation of r. 10.

The appellant was owner of immovable property situate within the limits of the municipal corporation, Ahmedabad City.

Under the power reserved to it by s. 127 of the Act the Corporation served on the appellant as also on the other rate payers, bills and demand notices for payment of property tax in respect of the assessment year 1962-63. These were challenged by the appellant and also certain other rate payers in writ petitions before the High Court. The High Court inter alia held (i) that s. 129 -0! the Act did not suffer from the vice of excessive delegation by reason of the fact that no maximum rate of tax was laid down; (ii) that it was permissible under r. 10 to maintain only one assesment book and the levy could not be held invalid on the ground that ward-wise assessment books as .cor.templated by r'r. 13, 15 and 19 were n-0t maintained.

In appeal to this Court by certificate,

HELD : The High Court rightly held that the charging sections of E the Act were not without guidelines.

The assessment and levy of the property taxes have to be in conformity with .. the Act and the rules.

These rules contain inter alia Taxation Rules which are part c~ the Act.

Section 454, no doubt, empowers the corporation to amend, alter and add to those rules but such power is made under s. 455 subject to sanction of the State Government.

Under s. 456 the State Government can at any time require the Corporation to make rules under s. 454 in 1respect of any purpose or matter specified in s. 457 which includes item "Municipal F Taxes-The assessment and recovery of Municipal Taxes." Although the Act did not during the relevant period prescribe the maximum rate at which the property taxes could be raised, the ultimate control for raising them was with the councillors responsible to the people.

It \\as difficult therefore to sustain the plea that the power to levy the property tax was so unbridled as to make it possible for the Corporation to levy it in an arbitrary manner or extent. [951 G 852 Bl G The proposition that \vhen a provision requiring sanction of the Gov .. ernment to the maximum rate fixed bv the Corporation is absent. the rest of the factors which exist in the Aci lose their efficacy and cease to be guidelines cannot be accepted.

Further. if the Corporation has the flexibility of power given to it in fixi~!_! .the rates. the State Leg_islature .ca!! at any moment withdraw that flex1b1htv by fixmg the maximum hm1t up to which the Corporation can tax.

Indeed the State Legislature had done so by s. 4 of the Gujarat Act. 8 of ! 968. In view of the decisions H of this Court it is not possible to agree with the contention that the Act conferred on the Corporation such arbitran: and uncontrolled power as to render such conferment an excessive delegation. (954 F-G]

BAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 943

Corporation of Calcutta v. Liberty Cinema, [1965] 2 S.C.R. 477, Municipal Corporation of the Cill"! of Ahmedanwd v. Zaveri Keshavla/, 6 Guj.

L.R. 701, Wesern India Theatres Ltd. v. Municipal Corporation of the City of Poona, (1959] Supp. 2 S.C.R. 71, Pandit Banarsi Das Bhanot v.

Madhya Pradesh, (1959] S.C.R. 427 and Devi Das

Municipal Corporation of Delhi v. Bir/a Mills, [1968) 3 S.C.R. 251 followed.

(2) The tax levied on the basis of ooe assessment book was not invalid, Rule 10 differs from s. 157 of the Bombay Municipal Corporation Act, 1888, in that, whereas, it gives an option to the Commissioner either to maintain one assessment book for the entire city or separate assessment books, Sec. 157 gave no .such option and provided only for ward assessment-book which collectively constituted, as in r. 10(2), "the assessment

book".

The legislature deliberately made a departure from s. 157 by leaving it to the discretion of the Commissioner either to maintain one book or several books ward-wise. Such a departure was presumably made because the Act was to apply not to one city only, as did the Bombay Act of 1888, but to an unknown. number of cities where Municipal Corporations might in future be. set Up, each having different conditions from the other. and not being certain wpether one assessment book or separate ward assessment books would be suitable for each of them. [955 G; 956 Al D

The contention that r. 10 should be construed as mandatory ignores

(1) the permissive language of the rule and (2) the deliberate departure made by the legislature from s. 1'57 of the Bomba)' Corporation Act, 1888.

If it intended that assessment-books for each ward shoud be kept, there was no necessity for it to depart from the language of s. 157 of that Act.

The fact that it made such depacture is a sure indication that it did not.

Unless compelled by the context and content of the other rules, there would be no justification not to give to r. JO the plain meaning of its language, particularly in view of the fact that the Act intended to apply not to one but to an indefinite number of cities, each differing in conditions from the other, a factor which, as aforesaid, led the legislature to make a departure from the said s. 157. [958 H959 BJ

CerJain anomalies would arise from the High Court's interpretation that rr. 13, IS and 19 would not apply in the case of one assessment book.

Rule 19 was intended to enable the Corporation to proceed . to makt' demands so soon as entries were made as provided by cl. (e) of r. 9 and the Commissioner had given thereafter his authentication that there existed no valid objection to the rateable values entered under the said.

cl. (e). Since the object of r. 19 was to make the entry as to the amount of tax conclusive evidence so as to enable the Commissioner to issue the bills, the legislature could not have intended to apply the rule only whe11 ward assessment-books were kept and not when one assessment-book wa~ maintained, especially when in r. 10 it had deliberately given discretion to the Commissioner to maintain either one assessment-book or several ward assessment books. Further if r. 19 were to be so construed, rr. 13, and 15 also would have on the same reasoning to be likewise construed.

H That would mean that the notice to enable the rate payers to take inspection under r. 13 and the notice under r. 15 fixing the date on or before which complaints against rateable value can be made, would have to be given only where ward assessment books are kept and not where one 16-LtlOOSupCI/71

assessment book is kept. It goes without saying that the right to inspect provided under r. 13 and the right to file a complaint under r. 15 are vital matters. That being so it is hardly conceivable that the legislature intended these rules to apply only where the Commissioner kept ward assessment-books. Since r. 10 has to be construed as permissive and not mandatory, and the construction adopted by the High Court in regard to rr. 13, 15 and 19 is bound to create anomalies, the conclusion must be that it was through inadvertence that the old language used in ss. 157 to 168 of the Bombay Corpdration Act was. allowed to be retained wihut carrying out the change of language necessitated as a result of r. 10 g1vmg discretion to the Commissioner either to maintain one book or several books ward-wise. In the result the assessment book in question must be held to be valid and no objection as to the validity of the bills and demand notices can be raised on the ground that only one assessment book and not wardwise books were kept. [959 C-960 El

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1090 of 1967.

Appeal from the judgment and decree dated May 5, 1966 of the Gujarat High Court in S.C.A. No. 877 of 1962.

B. R. L. Iyengar, N. J. Modi, P. C. Bhartari and K. N .. Desai for the appellant.

I. N. Shroff, fot respondent No. 1.

K. L. Hatlzi and S. P. Nayar, for respondent No. 2.

The Judgment of the Court was delivered by

Shelat, J. This appeal, by certificate, arises out of one of the seventy Special Civil applications filed in the High Court of Gujarat by several rate payers challenging the validity of the assessment of property tax made by the respondent-Corporation under the Bombay Provincial Municipal Corporations Act, LIX of 1949 (hereinafter referred to as e Act).

The appellant is the owner of an immovable property situate within the limits of the Corporation.

Until March 31, 1961, two kinds of taxes were being levied on buildings and lands situ!!_te within the Corporation's municipal limits : ( 1) the general tax levied by thel Corporation under the Act, and (2)

the urban immovable property tax levied under the Bombay G Finance Act, 1932 by the State Government, but collected on its behalf by the Corporation. At the request of the Corporation made in 1960, an arrangement was arrived at between the Government and the Corporation whereunder the Government agreed not to levy the U.I.P. tax provided the Corporation increased the rate at which it was till then levying the property taX. Accordingly, in January 1961 the Corporation passed a resolution in- H creasing the rate of the property tax with efft from April 1, 1961 under the powelr reserved to it by s. 127 of the Act. In

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BAPALAL v. MUNrc. CORP. AHMEDABAD (Shelat, /.) 945

pursuance of the said resolution and in accordance with the raised percentage of the geral tax the Corporation served qn the appellant, as also on the other rate payers, bills and demand notices.

In this appeal we are concerned with the bills and notices in respect of the assessment year 1962-63.

The appellant, as also certain other rate payers, challenged the said bills and notices in their said writ petitiQDS mainly on the grounds ( 1) that the Corp'oration had no authority to amend the rates with the object of including the said U.I.P. tax in the general tax so far levied by the Government undell' a different statute and givCT! up by it under the said arrangement; (2) that the said bills and notices were illegal as the assessment-book kept by the Corporation was not in accordance with the rules made under the Act and was not authenticated by the Commissioner as required thereunder; (3) that ss. 99, 123 and 129(c) of the Act were unconstitutional in that they suffered from thel vice of excessive delegation in so far as they did not fix the maximum rate at which the Corporation could levy the property tax, and ( 4) that the said sections were also violative of Art. 19(l)(f) and Art. 31 as the tax was confiscatory in character.

By its judgment dated May 5, 1966, the High Court first disposed of fifty two out of the said seventy writ petitions rejecting the contentions raised therein.

Thereafter the judgment under review separately disposed of the remaining 18 petitions, including that of the appellant, as, besides the points raised in the said 52 writ petitions, these 18 writ petitions raised some additional points.

The High Court in this judgment did not deal afresh the points already disposed of by it in the larger group of writ petitions and based its judgment in respect of them on its earlier judgment dated May 5, 1966.

In its judgment, dated the May 5, 1966, the High Court elaborately examined the scheme and the objects of the Act and the rules and came to the following conclusions :

( 1) that the Corporation need not maintain separate assessment-book for each of the wards and could legally maintain one assessment-book covering all the wards;

( 2) that the authentication provided for by r. 19 of the said rules in Ch. Vill to Sch. A of the Act was not mandatory;

( 3) that the liability to pay the tax arose. when entry under r. 9 ( e) was made in the assessment-book; and ·

946 SUpREME COURT REPORTS [1971 ]3 s.c.R. \ •.

(4) thats. 129(c) read with ss. 99 and 127 did not A 1.

suffer from the vice of excessive delegation as the legislature had provided in the Act both its policy and principles guiding the Corporation in levying the said tax.

The High Court also negatived the contention that s; 129 ( c) by B giving power to tax without laying down the maximum rate was violative of Art. 19(l)(f) :; md/or Art. 31 or Art. 14.

Th~ High

ourt also rejected the additional contentions raised in the peti- !Ions left over from the e; arlier batch of 52 petitions and dismissed > all of them. The correctness of the views expressed by-the High Court in this judgment, as also in its earlier judgment by the comc bined effect of. which altogether 70 writ petitions were negatived, ' is challenged in this appeal.

We need not go into all the diverse contentions raised before the High Court as counsel for the appellant raised before us the following three questions only :

(1) that while making the assessment the procedure contemplated by ss. 127, 129 ( c) of the Act and

rr. 9 to 20 of the Taxation Rules was not complied with inasmuch as no ward assessment-books were maintained, and consequently, the entries therein were not authenticated as required by r. 19; E ~

(2) that s. 129 suffers from the vice of excessive delegation of legislative power inasmuch. as the Act fails to provide either the maximum rate leviable by the Corporation or the guidelines for levying the tax;

(3) that in any view of the matter, in the circums- F .... _:· tances in which the resolution raising the rate was passed, it did not impose the enhanced rate on the property of the appellant as the same was not, prior•to April 1961, subjected to the U.1.P. tax.

G Later, Mr. Jyengar gave up the third contention. We are, therefore, left with his.contentions (1) and (2) only for determination.

Broadly stated, the facts regarding the assessment-book and its authentication are as follows : Each year the Commissioner either prepared or continued the assessment-book required to be main- H tained by him under the Taxation Rules.

Each year he went , ii>· through the procedure for authentication of the assessment-book purporting to do so under r. 19 of the Taxation Rules.

After

FAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 947

the assessment-book was authenticated, as aforesaid, and a certificate was issued by him that no valid objection had been received in respect of the rateable values entered in the assessment-book as required by cl. ( e) of r. 9 of the said rules, the Corporation issued bills and demand notices requiring the owners or occupiers of the properties to pay the said tax. The Act and the rules provide for objections to the rateable values entered in the assessment-book under Cl. (b) of r. 9, which objections would be heard and decided by the Commissioner. There are provisions in the Act, such as ss. 406, 410 and 411, for appeals to the Judge, Small Causes Court, both against the rateable value fixed under the Taxation Rules as also against the amount of tax demanded in the bills.

As aforesaid, the High Court dismissed the contention as to the constitutionality of s. 129(c) basing its decision mainly on the authority of the Corporation of Calcutta v. Liberty Cinema,(1) wherein the validity of s. 548(2) of the Calcutta Municipal Act, authorising the Corporation to levy a fee (held by this Court to be a tax) for every licence and pennission at such ratP, as may be fixed from time to time by the Corporation, but which did not lay down the maximum rate, was challenged.

The .High Court in particular relied on the observations in that decision ( 1) that fixation of the rate was not an essential legislative function and could be delegated, and (2) that the provisions in the Act, which limited the power to levy taxes to the extent of the statu, tory needs of the Corporation, furnished sufficient control. and gUidance. Reliance was also placed on the following observation relating to the absence of maximum rate :

"It is said that the delegation of power to fix rates of taxes authorised for meeting the needs of the delegate to be valid, must provide the maximum rate that can be F fixed, or lay down rules indicating that maximum. We are unable to see how the specification of the maximum rate supplies any guidance as to how the amount of the tax, which no doubt has to be below the maximum, is to be fixed.

Provision for such maximum only sets out a limit of the rate to be imposed and a limit is only a limit G and not a guidance."

Besides deriving support from this judgment, the High Court examined various provisions of the Act and reached the conclusion that under the Act, as under the Calcutta Act, the tax, which the Corporation could collect, would have to be for the purposes of the Act only and that fact, together with certain other controls H embodied in the Act, furnished sufficient guidance preventing the \ vice of arbitrariness or excessive delegation.

(1) [1965]2 S.C.R. 477.

Before the High Court, the contention also was that for each of the relevant years there was no valid assessment-book on the basis of which the property tax could be levied. The argument was that the Taxation Rules required the Commissioner to prepare ward assessn; ent-book for each of the wards and not one assessment-book for the whole of the municipal-limits, that that being so, the assessment made on the properties was not in accordance with the rules prescribed for that purpose and was therefore in bre.ach of Art. 265 of the Constitutior ands. 127(2) of the Act which lays down that the taxes shaJIJ. b~ assessed and levied in accordance with the provisions of the Act and the rules. The High Court, on a reading of the rules, found : (1) that r. 10 gave discretion to the Commissioner to prepare either one assessmentbook or ward assessment-books, and (2) that the rules used both the expressions, namely, 'assessment-book' and 'ward assessment books', the latter expression being used only in rr. 13(1), 15(1) and 19(1) and (2). According to the High Court, the contention as to the validity of the assessment-book and the construction of the rules suggested on .behalf of the appellant were not correct.

The object of r. 9, accordin J to the High Court, was to provide for the preparation and maintenance of the assessment-book wherein would be entered the amount of property tax against each of the buildings and lands set out thern. The rule provided that the Commissioner shall first make entries under els. (a) to ( d) of the rule. An entry under cl. ( e), as its language plainly shows, is to be made after :

(1) the rates of property tax are fixed, (2) the period fixed for receipt of complaints against the rateable values has expired, and ( 3) after such complaints, if any, are disposed of by the Commissioner. An entry under cl. ( e) having to be made only after the events in (1 ), (2) and (3) above stated have happened, r. 9 takes in, by using the expression "as hereinafter provided", the public notice provided by rr. 13 and 15.

According to the High Court, the liability to pay the property tax arises as soon as entry under cl. .( e) of r. 9 is made in the assessment-book in the manner therein provided and is not dependent on authentication and certification provided in r. 19 in respect of ward 'asessment-books. Authentication and certification in such ward assessment-books provides a rule of evidence in the sense that the entries therein become conclusive evidence as regards the amount of tax therein S(lt out against each property and is not an event on the happening of which the liability to pay arises. Such liability arises as soon as entry under cl. ( e) of r. 9 is made.

• The High Court distinguished its earlier decision in t_he Municipal Corporation of the City of Ahmedabad v. Zaver1 Keshav la/(') by pointing out that that decision was under the Bombay

(I) 6 Guj. L.R. 701.

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I '

13APALAL v. MUNIC. CORP. AHMEDA13AD (She/at, J.) 949

Municipal Boroughs Acts, 1925 which had a scheme and provisions different from the present Act and the rules thereunder made. That decision had laid down that the liability of the rate payer would arise only after authentication of the assessmentbook.

For distinguishing that decision the High. Court, firstly, relied on r. 30 of the Taxation Rules which provides that property tax shall accrue due on the 1st of April of each official ye.ar; and secondly, on the ground that the Boroughs Act and the rules thereunder did not have a rule corresponding to r. 9(e) which when read with r. 30, shows that the liability to pay the amout of tax arises on entry under cl. ( e) of that rule being made. According to the High Court, r. 19, which provides for authentication applies only to ward assent.-books and i; iot to a single assessment-book, that such authentication has noth.mg .to do with the accrual of liability and is a mere rule of ey1ence which is not available to the Corporation where the Comm1Ss1oner does not prepare ward assessment-books and keeps only one assessment-book. The High Court in this connection observed :

"If a single assessment-book is prepared, then the amount of tax entered in the assessme, nt-book will not be the conclusive evidence. In an appeal, it would be open to a rate payer to challenge the amount on any legal ground, possibly including the challenge to the rateable value of the property in respect of the fact that that had not been done before by him."

On this interpretation, the High Court dismissed the entire batch of the sid '.0 writ petitions including that of the appellant. Though the earler 1udgme_nt is not m;1.der review in this appeal, we have set out its conclusions as the Judgment under review followed the earlier judgment, delivered by the same learned Judges and rejected the onclusion~ raised by the appellant. In effect, therefore, both the Judgments are under challenge to the extent that they decided questions raised in this appeal.

Sec. ~27(1) lays don that "for the purposes of this Act" the taxes which the Corporation has compulsorily to levy are property taxes and a tax on vehicles, boats and animals. The second sub-

ection. uthorises the Corporation to levy the taxes set out therein m addition to the aforesaid two taxes. Sec. 129 deals with property taxes.

Cl. ( c) thereof provides that property taxes shall comprise inter alia of a general tax of not less than 12% of the rateable value of buildings and lands. We may note that the Gujarat State Legislature, by Act 8 of 1968 has recently amended

cl. ( c) by inserting therein the maximum' rate of 30% so that the question as to the absence of maximmn rate is releant only

for t)le assessment years prior to the amendment. The Legislature itself has framed elaborate rules contained in Sch. A to the Act of which _the Taxation Rules in Ch. VIII thereof are part and which under s. 453 form part of the Act. Besides the said rules, ss. 454 and 455 authorise the Corporation to add to, amend, alter

or rescind those rules subject to their being not inconsistent with the provisions of the Act, sanction of the State Government and to the condition of their being made after previous publication.

The other relevant provisions of the Act are ss. 63 to 66 which lay down the obligatory functions which the Corporation must perform and certain discretionary functions which it can perform.

The argument was that thought s. 127 (1) lays down that property taxes can be levied by the Corporation only for the purposes of the Act, that is to say, for and in respect of the functions which the Corporation must and can catry out, the Act being silent as tothe. I, Ilaximum rate upto which the Corperi!tion can levy, it gives unbridled and arbitrary power to levy the property tax as much and to any extent it may desire. Mr. Iyengar pointed out that amongst the discretionary functions which the Corporation can undertake under s. 66 there are such things as swiming pools, public parks, gardens, recreation grounds, construction, of dwellings for municipal officers and servants, libraries, museums etc. for undertaking which the Corporation can spend huge amounts and impose extravagant and burdensome rate of tax. According to the argument, there are no guidelines or controls in the Act which can place any limits to the spending by the Corporation on such discretionary objects, and therefore, the rate payers are exposed to being taxed in an arbitrary and uncontrolled fashion.

The question thus is whether the Act contains any policy or guidelines or control over the taxing power of the Corporaon without' which the delegation of power to tax would be excessive, arbitrary and violative of Art. 14.

The Act, as its preamble and the Jong title show, was passed for establishment of municipal corporations in the city of Ahmedabad and Poona and cer\ain other cities for ensuring better municipal government. It was apparently modelled after the Bombay Municipal Corporation Act, 1888. The Act does not lay down any maximum rnte in s. 127 probably because its operation was not confined to any particular city in which the municipal corporation would be se.t up. The Legislature, while passing it, could not envisage in which particular cities such corporations would be set up. Nor could it envisage what their financial needs would be; nor which of the discretionary functions,. under s. 66, such corporations would feel they must undertake. Such needs being variable and incapable of uniform specification, the Legislature might have felt it inexpedient to restrict the fiscal powers of the c'orporations to be established in furture.

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DAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 95 t

The point for consideration is whether the absence of a provision laying down the maximum rate is by itself sufficient to render the delegation of the power excessive. As already stated, s. 127 (1) expressly provides that taxes can be leyied only for the purposes of the Act. They cannot thus be raised for any function other than the one provided by the Act. Sec. 82 requires all monies received by the Corporation under the Act to be credited to the Municipal Fund held by the Corporation in trust for the purposes of the Act. By reason of s. 86, no payment can be made out of the Municipal Fund unless it is covered by the current budget grant.

Furthermore, s. 88 lays down that the moneys credited in the Municipal Fund shall be applied in payment of sums, charges and .costs necessary for carrying the Act into effect, or payment directed or sanctioned by or under the Act. Sec. 89 restricts expenditure by the Corporation within the city except when provided by the Act or by a resolution by not less tlj.an half the total number of councillors. Under s. 95, the Commissioner is required annually to lay before the Standing Committee estimates of income and expenditure, and under s. 96. the Standing Committee has to wepare budget .estimate 'A' "having regard to all the requirements of this Act." The budget estimate then has to be laid before and passed by the Corporation. Similar provisions are made in ss. 97 and 98 for budget estimate 'B' prepared by the Transport Manager. It is after all this has been done that the Corporation under s. 99 determines, on or before the 20th of February of each year, the rates at which property taxes under s. 127 (1), but subject to the limitations and conditions laid down in Ch. XI, are 'to be levied for the neitt ensuing offiCial year,

Under s. 100, the Corporation either sends back the budget esti mates 'A' or 'B' for further consideration, or ats them with such alterations as it deems expedient. The conditions and limi tations subject to which the Corporation can fix, under s. 99, the rates at which the property taxes ae to be levied are those pro vided ins. 127(3) and (4), i.e., they can be assessed and levied in accordance with the provisions of the Act and the rules. These provisions clearly show that the ultimate control, both for raising the taxes and incurring expenditure, lies with the councillors chosen by and responsible to the people.

As aforesaid, the assessment and levy of the property taxes have to be in conformity with the Act and the rules. These rules contain inter alia Taxation Rules, which are part of the Act. Sec. 454, no doubt, empowers the Corporation to amend, alter and add to these rules, but such power is made under s. 455 subject to the sanction of the State Government. . Under s. 456, the State Government can at any time req11ire the Corporation to make rules under s. 454 in re5pect of any purpose or matter specified in s. 457, which includes item "(7) Municipal Taxes.-(a) The assess

ment and recovery of municipal taxes". Thus, although the Act does not prescribe the maximum rate at which the property taxes can be raised, the ultimate control for raising them is with the councillors responsible to the people. It is difficult, therefore, to sustain the plea that the powr to levy the property tax is so unbridled as to make it possible for the corporation to levy it in an arbitrary manner or extent.

In all statutes dealing with local administration municipal authorities have inevitably to be delegated the power of taxation.

Such power is a necessary adjunct to a system of local self-government. Whether such delegation is excessive and amounts to abdication of an essential legislative function has to be considered from the scheme, the objects, and the provisions of the statute in question.

In The Western India Theatres Ltd. v. Municipal Corporation of the City of Poona(') this Court spelt out the policy in the expression "for the purposes of this Act'', an expression also used ins. 127. In Pandit Banarsi Das Bhanot v. Madhya Pradesh(2i,

delegation of power to the executive to determine the details relating to the working of taxation laws~ such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like, was held not to be unconstitutional on the' principle that so long as the legislature retains or has the power of withdrawing or altering the power to tax delegated to a subordinate authority such delegation would be held neither an abdication nor excessive, In Liberty Cinema case(') the majority view was that the power to fix the rate of a tax was not of the essence of the legislative power and that such a power could be delegated even to a non-legislative body.

But the decision laid down that when such a power is delegated, the legislature must provide guidance for such fixation.

The majority held that where rates hav;: not been specified in the statute, the power to fix the rates as might be necessary to meet the needs of the delegate itself affords guidance.

The minority view differed from the majority view, in that, according to it, the power to fix the rate of tax was an essential legislative function.

But, even according to that view, such a power can be delegated provided the delegate is afforded guidance by the legislative laying down the policy and principles in the Act, It, however, disagre::d with the majority view that the raising of tax co-extensive with the needs of the delegate in implementing the purposes of the Act can afford such guidance.

The Liberty Cinema case(') came for consideration in Devi Das v. Punjab(') w)lere Subba Rao, C.J., speaking for the Court,

said:

(ll [1959] Supo. 2 S.C.R.71.

(2) [1959[ S.C.R.427.

A !

BAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 953

A "If this decision [Libert)! Cinema case(1)] is an authority for the positfon that the Legislature can delegate its power to a statutory authority to levy taxes and fix rates in regard thereto, it is equally an authority for the position that the said statute to be valid must give a guidance to the said authority for fixing the said B rates .... ".

Though he did not agree as a general principle that guidance .can always be spelt out from the limitation to fix the rate by the extent of needs of and the expenses required by the delegate to discharge its statu'IOry functions, the Couft did not disapprove Liberty

Cinema case ( 1) but confined the principle laid down there to the provisions of the C11lcutt11 Munlc1pal A.ct in which the majoritr. hlld found the requisite 1uldeline1. No sueh 1uidance was 11val •

Able In the Sll!H T11x 111ltulll before the Dench deeldln1 D1vl Dall ense(1), The po1ltlon which emer11ed from the. lleeldam1 10 f11r, therefore, w111 that the power to tlx ntes e1m be dele1ated If the statute doing so eontalns a polley or prinelples £urn!Jhln1 1uldance to the aelegate in exercising such power.

In the Municipal Corporation of Delhi v, Bir/a Mllls( 8), the question as to the limits of delegation of taxing power once more arose. The Delhi Municipal Corporation Act, 1957, like the present Act, entrusted to the Delhi Corporation two kinds of functions, compulsory anq optional. In relation to the former, the Act specified the maximum rate of tax the Corporation could raise, but not so in the case of tax relating to or for implementing the optional functions. The controversy was whether the Act contained provisions furnishing guidance to the Corporation in the exercise of the power to tax. After an analysis of the provisions of the Act, Wanchoo, C.J., pointed out the {9llowing factors which furnished sufficient guidance preventing the delegation becoming invalid-:

(1) that the delegation was to an elected body responsible to the people, including those who pay taxes and to whom the councillors have every four years to turn to for being elected;

(2) that the limits of taxation were to be found in the purposes of the Act for the implementation of which alone taxes could be raised and though this fator was not conclusive, it was nonetheless relevant and must be taken into account with other relevant factors;

(3) tht the impugned s. 150 itself contained a provision . which reqmred that ftie maximum rate fixed by the- Corporation should have the approval of the Govern ment;

(3) 1968(3) S.C.R.251.

(2) [ 1967] 3 S. C.R. 577.

(4) that the Act contained provisions which required A adoption of budget estimates by the Corporation annually; and

(5) that there was a check by the courts of law where the power of taxation is used unreasonably or in non-< compliance or breach of the provisions and objeets of the Act.

Referring to Devi Das's case('), he pointed out that (1) that case did not disapprove Liberty Cinema case( 2 ) was concerned with a sales rax statute and not with a statute dealing with bodies with limited purposes, such as local self governing bodies. At page 268 of the report, he observed : c

"There is in our opinion a clear distinction between delegation of fixing the rate of tax like sales tax to the State Government and delegation of fixing rates of certain taxes for purposes of local taxation. The needs of the State are unlimited ... The result of making delegation of a tax like sales tax to the State Government means D a power to fix the tax without any limit even if the needs and purposes of the State are to be taken into account."

Thus, the majority view in this decision, which is binding on us, shows that. the mere fact that an Act delegating taxmg power refrains from providing a maximum rate does not by itself render E the delegation invalid.

From the provisions of the present Act, cited earlier, it will be seen that though factor (3) of t]le factors rlied on by W ai1.s; hoo, C.J., is absent in s. 127, the rest are present. It is impossible-to say that when a provision requiring sanction of the Government to the maximum rate fixed by the Corporation is absent, the rest F of the factors which exis~ in the Act loose their efficacy and cease to be guidelines. Furthermore, if the Corporation were to misuse the flexibility of the power given to it in fixing the rates, the State legislature can at any momen~ withdraw that flexibility by fixing the maximum limit up to which the Corporation can tax. Indeed, the State Legislature has now done so by s. 4 of Gujarat Act, 8 G of 1968. In view of the decisions cited above it is not possible for us to agree with counsel's contention that the Act confers on the Corporation such arbitrary and uncontrolled power as to render such conferment an excessive delegation.

That brings us to the contention regarding the validity of the ., . assessment-book maintained by the Commissioner for the assess- H ment year in question.

• •

BAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, /.) 955

A Rules 9 to 21 of the Taxation Rules are headed "Assessment- Book". A comparison of these rules with ss. 156 to 168 of the Bombay Municiilal Corporation Act, 1888 at once shows that they are, with the exception of r. 10, taken almost verbatim from those sections. Rule 9 requires the Commissioner to keep a book to be called the "Assessment-Book" in which the following matters have B to be ntered, viz.,

(a) a list of buildings and lands,

(b) the rateable value of each o{ them,

(c) the names of persons primarily liable for the payment of the property taxes, if any, leviable on each such building or land,

(d) the reasons for non-liability, if any .of them is not liable to be assessed to the general tax, and

(e) "when the rates of the property-taxes to be levied for the year have been duly fixed by the Corporation and the period fixed by publi£. notice, as hereinafter provided, or the receipt of complaints against the amount of rateable value entered in any portion of the assessment-book has expired, and in the case of any such entry which is complained against, when such complaint has been disposed of in accordance with the provisions hereinafter contained, the amount at which each building or land entered in such portion of the assessment-book is assessed to each of the property taxes, if any, liable thereon."

The rule contain Qther clauses, but we are not at present concerned with them.

Rule 10(1) provides that the assessment-book may, if the Commissioner thinks fit, be made in separate books called "ward assessment-books", one for each of the wards into which the city is for the time being divided for purposes of the elections. Cl. (2) of the rule says that the ward assessment-books and the respective parts, jf any, shall collectively constitute the assessment-book. Rule 10 differs from s. 157 of the Bombay Municipal Corporation Act, in that, whereas it gives an option l!O the Commissioner either to maintain one assessment-book for the entire city or separate ward assessment-books, s. 157 gives no such option and provides only . for ward assessment-books which collectively constitute, as in r.

10(2), "the assessment-book". The Legislature, thus, deliberately made a departure from s. 157 by leaving.it to the discretion of the Commissioner either to maintain one book or several books wardwise.

Such a departure was presumably made because the Act

was to apply not to one city only, as did the Bombay Act of 1888, A but to an unknown number of cities where municipal corporation might in future be set up, each having different conditions from the other and not being certain whether one assessmenli-book or separate ward assessment-books would be suitable for each of them.

Rules 11 and 12 deal with treatment of properties let to two or more persons in separate occupancies and the procedure where

the name of the person primarily liable for property taxes cannot be ascertained. Rule 12, it will be noticed, mentions only the assessment-book and not ward assessment-books.

Rule 13 provides that when entries required by els. (a), (b), (c) and (d) of C rule II have been completed "In any ward 1menmentbook, thfo Convnlnloner shall 11lw public notice therllOf and of the place where the ward llHHMmentbook, or a ei>py of It, m11y be lnspeeted." Rule 14 provides for lnstlon 11nd tllkln1 extr11cu by An

owner or occupier of premises entered In "the 1meumentbook" from any portion of "tlie said book'' which relates to the ~11ld pre mises. Rule 1 S ruires th1f Com11o1issioner "at tha time and in the manner prescribed m r. 13" to give noti~ of a day not being less than 1 S days from the publication of such notice, on or before which complaints against the amount of any rateable value entered

"iii. the ward assessment-book" will be received in his office. Cl.

(2) of that rule requires the CO!l'missioner to give a special written notice to the owner or occupier of premises which have for the first time been entered "in the assessment-book" as liable to proc perty taxes or in which the rateable value of any premises has been increased. Rule 16 provides for the manner of filing complaints referred to in r. 15 against the rateable value "entered in the assessment-book'', and r. 17 provides that complaints received under r. 16 shall be registered in a book kept for that purpose as also for notice to ea<;.h complainant of the time and place when and whereat his complaint would o_e investigated. Rule 18 provides for the hearing of the complain~ and cl. (3) thereof lays down that when a complaint is disposed of, its result shall be noted in the said book of complaints and the necessary amendment shall be made in accordance with such result "in the assessment-book".

Rule 19, which has been the subject matter of controversy both in the High Court and before us, yrovides that when ~.:ill such complaints, if any, have been disposed of and the entries required by cl. (e) of r. 9 have been completed in the ward assessment-book, the said book shall be authenticated by the Commissioner, who shall certify, under his signature, that except in the cases, if any, in which amendments have been made as shown therein, no valid objection has been made to the rateable. values entered in the said book". Cl. (2) provides that "the said ward assessment-book 5ub-

BAPALAL v. MUN!C. CORP. AHMEDABAD (She/at, J.) 957

A ject to such alterations as may thereafter be made therein under the provisions of r. 20 shall be accepted as conclusive evidence of the amount of each property-true leviable on each building and land in the ward in the official year to which the book-relates." Rule 20 empowers the Commissioner to amend the assessment-book even after it has been authenticated in certain. cases and subject to the B conditions set out therein. Lastly, r. 21 provides that it is not necessary to prepare a new assessment-book every official year and permits the Commissioner to adopt the entries in the last preceding year's book as the entries for each new year. This, he can do, for four successive years.

From the scheme of rules 9 to 21, it is clear t'hat the Commissioner first enters in the assessment-book prescribed by r. 9 the particulars set out in els. (a) to (d) of that rule. Having done this, he proceeds to enter in the assessment-book the amount at which each building or land is assessed. He can do this under cl. (e) naturally after (i) the rates of property truces are fixed by the Corporation, (ii) the period fixed by J2!1blic notice under r. 13 and for the receipt of complaints under r. 15 against rateable values entered tinder cl. (b) has expired, and (iii) after such complaints, if any, have been disposed of.

On a plain meaning of the language in r. I 0 the Commissioher has th\) option to maintain either one assessment-book or ward assessment-books separately for each ward. But even if he were to do so, such ward assessment-books would collectively constitute "the assessment-book".

As earlier stated, giving of such an option under r. 10 was a clear departure by the Legislature from s. 157 of the Bombay Act, 1888. Since these rules have been taken almost verbatim from that Act, the departure has to be regarded as deliberate and for the reason that the Legislature could not forseeiit the time of enacting the Act as to the cities in.which municipal corporations would be set up and the conditions prevailing at such time in those cities.

The difficulty, however, arises because rr. 13, 15 and 19, whih provide for a notice for inspection, for filing complaints

against rateable values entered under cl. (b) of r. 9 and for authentication and certification, use the expression "ward assessmentbook". It is from this fact that the contention was raised that though r. 10 is couched in permissive language, it m11st be construed as mandatory requiring the Commissioner to maintain ward assessment-books.

Therore, the Commissioner having maintained only one assessment-book for the whole city, it is not a valid book. on the basis of which the levy of the property fax can be

sused. The argumet was that the right of inspection, the right of taking extracts, the nght to file complain~ and the duty to give

public notice un<!er rr. 13 and 15 and a speial notice under cl.

(2) of r. 15, as also the duty to authenticate and certify under r. 19, are all matters vital to botlh the rate payers, as also.the Corporation, and that it was in respect of these vital matters that rr. 13, 15 and 19 speak of ward assessment-books. Therefore, if the Legislature, which framd these rules, had c.onremplated one assessment-book instead of separat_e assessment-books for each of the wards, the language of these rules would not have been what it is.

The language of these rules, therefore, show that r. 10 must be construed to mean tlhat the Commissioner has to maintain ward assessmentbooks and it is when such books are maintained that the Corporation can validly levy the tax on the basis of such books.

Confronted with this difficulty, the High Court constlrued the rules to mean that r. 10 was discf'etionary and not mandatory, but

that rr. 13, 15 and 19 apply only when ward assessment-books are kept, and that when they are read together, they show that the scheme was that where ward assessment-books are prepared the Legislature intended to invest each of such books with a finality D and did not intend that the question as tlo rateable value or the amount of tax should remain hanging fire until all the ward assessment-books were prepared. As regards r. 19, the High Court held that "if a single assessment-book is prepared, then the amount of tax entered in the assessment-book will not be conclusive evidence".

Such a conclusion means that r. 19, as also rr. 13 and 15 would apply only to ward assessment-books, and therefore, there would be no authentication and certification where one assessmentbook is kept and entries in such a single assessment-book would not be conclusive evidence as regards the quantum of tax enred in it under cl. (e) of r. 9. But once it is held that r. 10 is discretionary and the Commissioner can maintain one assessment-book or several ward assessment-books, as the High Court has done, it is hardly possible that the legislature which gave such an option could have intended that r. 19 shoJ!ld apply only to ward assessment•books and not where one assessment-book is kept and deprive the Corporation of the benefit of entries in it being treated as conclusive evidence.

It is true that a genuine difficulty arises in construing these rules as a result of the use of tbs expression "ward assessment-book" in rr. 13, 15 and 19, and the use of the expression "assessment-book"

in the rest of the rules. At the same time acceptance of the appellant'~ contention or the inllerpretation by the High Court would H create difficulties. The contention that r. 10 should be. construed as mandatory ignores (1) the permissive language of the rule, and

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BAPALAL \', MUN!C. CORP. AHMEDABAD (She/at, J.) 959

(2) the deliberate departure made by the Legislature from s. 157 of the Bombay Corporation Act. If it intended that assessmentbooks for each ward should be kept, there was no necessity for it to depart from the language of s. 157 of that Act. The fact that it made such a departure is a sure indication that it did not. Unless compelled by the context and the content of the other rules, there B would be no justification not to give to r. I 0 the plain meaning of its language, particularly in view of the fact that the Act is intended to apply not to one but to an indefinite number of cinies, each differing in conditions from the other, a factor which, as aforesaid, led the Legislature to make a departure from the said s. 157.

But a far more serious difficulty would arise if the conclusion C reached by the High Court were to be accepted. If r. 19 were to be interpreted as applying to ward assessment-books, and not where one assessment-book is kept, rr. 13 and J 5 must also on the same reasoning be construed in the same way.

The Legislature could not have intended that the entry under cl. (e) of r. 9, as regards the quantum of property tax leviable on each building and land, D would become conclusive evidence only where ward assessmentbooks are kept and not where one assessment-book is kept. Cl. (e) of r. 9 requires the Commissioner to enter in the assessment-book the amount at which each building is assessed to each of the property taxes. The object of authentication under r. 19 is to make such entry conclusive evidence of the amount being leviable on E each such building and land for the particular official year. It is the amount of tax eniered under cl. (e) of r. 9 to which is given the attribute of conclusive evidence., so hat the Corporation can thenceforth proceed to issue bills for those amounts and serve demand notices. The rate payers cannot object to such bills and notices on the ground that the amount's therein set out are not correct by reason of some error or such similar reason. Rule 19 F confers conclusiveness only to that extent and not to the rateable value or the tax fixed or charged, as both are subject o an appeal under s. 406. Rule 19, therefore, was intended to enable the Corporation to proceed to make demands so soon as entries are made as provided by cl. (e) of r. 9 and the Commissioner has given thereafter his authentication that there exists no valid objection G to the rateable value entered under the said cl. (e) . Since the objeet of r. 19 is to make the entry as to the amount of !lax conclusive evidence so as to enable the Commissioner to issue the bills, the Legislature could not have intended to apply the rule only when ward assessment-books are kept and not when one assessmentbook is maintained, especially when in r. 10 it has deliberately H given discretion to the Commissioner to maintain either one assessment-book or several ward assessment-books.

We are in agreement with the High Court that the liability to pay the tax arises under r. 30 and r. 9(e) and is not dependant on 17-LllOOSupCI/71

authentication, which, as aforesaid, is intended for a limited purpose. But that does not mean that the provision as to authentication applies only when ward assessment-books are kept, or that r. 19 does not apply where one assessment-book is prepared. If r. 19 were to be so-construed, rr. 13 and 15 also would have on the same reasoning to be-likewise construed. That would mean that the notice to enable the ate payers to take inspection under r. 13 and the notice under r. 15 fixing the date on cir before which complaints against rateable Value can be made, would have to be given only where ward assessment-books are kept and not where one assessment-book is kept. It goes without saying that the right to inspect provided under r. 13 and the right to file a complaint under r. 15 are vital matters.

That being so, it is hardly conceiveable that the Legislature intended these rules to apply only where the Commissioner keeps ward assessment-books.

Since, for the reasons given earlier, r. 10 has to be construed as permissive and not mandatory, and the construction adopted by the High Court in rega, rd to rr. 13, 15 and 19 is bound to create anomalies pointed out above, the conclusion we must reach is that it was through inadve_11ence that the old language used in ss. 157 to 168 of the Bombay Corporation Act was allowed to be retained without carrying out the change of language necesitated as a result of r. I 0 giving discretion to the Commissioner either to maintain one book or several books wardwise.

The result, therefore, is that the assessment-book in question must be held to be valid and no objection as to the validity of the bills and demand notices can be raised on the ground that only one assessment-book and 11ot wardwise books are kept. The appellant, thus, does not succeed on either of the two contentions raised on his behalf. The appeal fails and is di§missed with costs.

G.C.

Appeal dismissed.

' > '

942

GULABCHAND BAPALAL MODI

MUNICIPAL CORPORATION OF AHMEDABAD CITY

March 4, 1971

M. SHELAT

Municipal Corporation Act

Ahmedabad City

s. 127

s. 129

Section 454

s. 455

s. 456

s. 454

s. 457

s. 4

[1965] 2 S.C.R. 477

[1968) 3 S.C.R. 251

s. 157

Bombay Municipal Corporation Act, 1888

Sec. 157

s. 157

s. 1

Corporation Act, 1888

s. 157

s. 157

ss. 157 to 168

B. R. L. Iyengar

N. J. Modi

P. C. Bhartari

K. N .. Desai

I. N. Shroff

K. L. Hatlzi

S. P. Nayar

Shelat

High Court of Gujarat

March 31, 1961

Bombay G Finance Act, 1932

s. 127

ss. 99, 123 and 129(c)

Art. 19(l)(f)

Art. 31

May 5, 1966

ss. 99 and 127

Art. 19(l)(f)

Art. 31

Art. 14

ss. 127, 129

s. 129

Jyengar

ss. 406, 410 and 411

s. 129(c)

s. 548(2)

Art. 265

Municipal Boroughs Act

Sec. 129

Gujarat State Legislature

s. 453

ss. 454 and 455

ss. 63 to 66

s. 127

Iyengar

s. 66

Art. 14

Ahmedabad

Poona

s. 127

s. 66

s. 127

Sec. 82

s. 86

s. 88

Sec. 89

s. 95

s. 96

ss. 97 and 98

s. 99

20th of February of

s. 127

s. 100

s. 99

Sec. 454

s. 455

s. 456

s. 454

s. 457

Subba Rao

Delhi Municipal Corporation Act, 1957

Delhi Corporation

Wanchoo

s. 150

1967] 3 S. C.R. 577

Devi Das

hoo

s. 127

s. 4

ss. 156 to 168

Bombay Municiilal Corporation Act, 1888

s. 157

s. 157

s. 157

s. 157

Bombay Act, 1888

Therore

MUN!C. CORP. AHMEDABAD

construed as mandatory ignores (1) the permissive language of the rule, and

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BAPALAL \', MUN!C. CORP.

s. 157

s. 157

s. 157

s. 406

ss. 157 to 168


' '

PRIYA BALA GHOSH

SURESH CHANDRA GHOSH

March 4, 1971

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)

Penal Code (Act 45 of 1860), s. 494-Proof of second marriap, e-- ,4.dn1ission of second marriage-Relevancy.

The appellant filed a complaint against her husb, and the respondent, stating that he took a second wife during the subsistence of the appellant's marriage and that the respondent was therefore guilty of an offence under s. 494 I.P.C. The trial coun convicted the respondent.

In appeal, the Sessions Court found, that in relation to the second marriage, there was no evidence of the performance of Homo and Saptapadi, which were essential rites to be performed for solemnisation of a marriage accdrding to the law prevailing among the parties; and the respondent was acquitted.

In the High Court, in order to prove the second marriage, the appellant sought to rely upon a statement made by the respondent in answer to an earlier complaint unde+ s. 494 I.P.C., filed by the appellant, wherein the respondent had admitted that he had married a second wife because of the misconduct of the appellant.

The High Court, however, held that the statement could not be relied upon for proving that the essential ceremonie..,, had been performed and confirmed the acquittal of the respondent.

In appeal to this Court,

HELD : (I ) The prosecution has to prove that the alleged second marriage, was a valid marriage, duly performed in accordance with the essential religious rites applicable according to the law and custom of the parties. (967 BJ

(2) The statement in the earlier proceedings in relation to the com plaint under s. 494 I.P.C., could not be relied upon because : (a) though strictly it was not a confessicn nevertheless, if acted upon it would tend to incriminate the respondent (who was in the position of an accused) and therefore he was entitled to be given an opponunity of offering his expla11ation, if any, in respect of su.ch incriminating statement; (b) such opportunity was not given to the respondent and it was not put to him when he was examined under s. 342 Cr.P.C., and ( c) such an admission cannot in law be treated~ as evidence of the second marriage having taken place in a bigamy case. [969 D-HJ

(J) In the present case, both the Sessions Judge and the High Court have found that there was no evidence that Homo and Saptapadi, which are essential rites for a marriage according to law governing the parties, had been performed when the respondent is said to have married a second wife, and hence. the respondent was not guilty. [964 C; 970 BC]

Bhaurao Shankar Lokhande v. State of Maharashtra, (1965] 2 S.C.R. 837 and Kanwal Ram v. Himacha/ Pradesh Admn. [U66] I S.C.R. 539, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

A 275 of 1968.

Appeal by special leave from the judgment and order dated January 19, 1968 of the Calcutta High Court in Criminal Appeal No. 393 of 1966.

S. C. Majumdar and R. K. Jain, for the appellant. ·

The respondent did not appear.

The Judgment of the Court was delivered by

Vaiilialingam, J.

In this appeal, by special leave, the appellant challenges the judgment and order of the Calcutta High Court dated January 19, 1968 in Criminal Appeal No. 393 of 1966.

The appellant filed a complaint dated April 11, 1963 against the respondent, her husband, in the Court of the Magistrate, !st Class, Alipurduar, alleging that he has committed an offence under s. 494 of the Indian Penal Code.

Briefly her case was as follows:

The respondent had married the appellant in or about 1948 according to Hindu rites and both of them had lived as husband and wife together. But some time before the date of the complaint the respondent began to ill treat her, with the result that she had to reside with her motlier and brother. The respondent illegally married one Sandhya Rani as his second wife on May 31, 1962 and they have been living together as husband and wife.

As the second marriage has taken place during the subsistenee of the appellant's marriage with the respondent, the second marriage is invalid in law aµd the respondent is guilty of an offence under s. 494 of the Indian Penal Code.

The respondent pleaded not guilty of the offence alleged against him. He further pleaded that he has never married the appellant and that the entire prosecution case is false.

The trial Magistrate after considering the evidence adduced both regarding the marriage between the appellant and the respondent as well as the allt:ged second marriage betwet; n the respondent and Sandhya Rani, held that the marriage of the appellant with the Jespondent was established. Notwithstanding the scantiness of the evidence regarding the second marriage, the Trial Magistrate, however, found that the respondent had admitted the second marriage in his objections filed to a claim made by the appellant for maintenance under s. 488 of the Code of Crimi- ,

:ORIYA KALA I'. s. c. GHOSH ( Vaidialingam, /.) 983

nal Procedure. ln this view the Magistrate held that there cannot be any doubt that the respondent has marned Sandhya Rani whlle hts lirst wite, the appellant, was still alive. The Magistrate further 'held that as the marriage with the appell:yit was subsisting, the second marriage is void under s. 17 of the Hindu Marnages Act, 1955 (Act 2.) of 1955), (heremafter to be referred as the Act) and, therefore, the respondent was guilty of the offence under s. 494 of the Indian Penal Code. The respondent was sentenced for the said offence to undergo rigorous imprisonment for one year and also to pay a fine of Rs. :500/- and in default to suffer rigorous imprisonment for a further period of three months. A further direction was given that half the fine, if realised, was to be paid to the complaint, the appellant.

On appeal by the respondent, the learned Sessions Judge, Jalpaiguri, by his judgment dated April 30, 1966 held that the evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed either in the case of the marriage claimed to have taken place between the appellant D and the respondent or in respect of the alleged second marriage with Sandhya Rani.

In this view the learned Sessions Judge set aside the order of the magistrate convicting the respondent and sentencing him as mentioned above. The respondent was acquitted of the offence under s. 494 I.P.C.

On appeal by the appellant, the Calcutta High Court, however, differed from the finding of the learnetl Sessions Judge regarding the invalidity of the marriage between the appellant and the respondent. On the other hand, the High Court held that the evidence establishes that a valid marriage, according to Hindu law, by which the parties were governed, has taken place betwen the appellant and the respondent: But regarding the second marriage, the High Court agreed with the finding of the learned Sessions Judge that the esential ceremonies to constitute a valid marriage have not been proved to have taken place. In this view the High Court confirmed the order of acquittal passed in favour of the respondent and dismissed the apJlellant's appeal.

. Mr. S. C. Majumdar, learned ceunsel for the appellant, has raised two contentions before us : ( 1) that the view of the High Court that the essential ceremonies to constitute a valid marriage have not been proved to have taken place regarding the second marriage of the respondent with Sandhya Rani, is erroneous and contrary to the evidence adduced in the case! and (2) In any event in view of the specific admission made by the respondeni in Ex. 2 about the second marriage and having ilue regard to the other surrounding circumstances, it must be held that the resp:mdent i~ guilty of the offence under s. 494 l.P.C. The respondent

964 SUPREfy!E COURT REPORTS ' [1971]3 S:c.R.

has not appeared before us and we have to proceed on the basis.

A t

of the fuiding of the learned Sessions Judge, accepted by the High Court, that the appellant was married to the respondent arid that the marriage was subsisti~ on the date of the alleged second marriage.

Both the contentions of the learned counsel for the appellant B can be dealt with together. It ha& been poi.rited oufby the learned Sessions Judge that ooth sides ; igreed t!lift according to the law • prevalent amongst the parties Hom/J and Saptapadi were essential rites to be performed to constitute a valid marriage. Both sides > also agreed before the Court that there was no specific eVidence as to the performance of Saptapadi and Homo in the case of the c alleged marriage of the respondent with Sandhya Rani.

Tl).ere.. fore, the main question that has to be considered is whether the performance of the above ceremonies .and rites have to be e.stablished by evidence specifically before the respondent could be convicted under s. 494 I.P.C.

The findings of the High Court are that the Priest, P.W. 6, who claims to have officiated at the D marriage of the respondent and Sandhya Rani has given evidence to the effect that the marriage was solemnised accordiri:g to Hindu rites.

He bas not said anything more than. this.

The other evidence adduced' bas not been considered to be of any use in this regard. The further finding of the High Court is that no evidence was adduced that the Homo and Saptapadi were performed in the case of the marriage between Sandhya Rani and the respondent F. and that it bas also not been proved thattbere wa5 any custom prevalent I amongst the parties that those essential ceremonies .are not necessary for the purpose of solemnization of the marriage.

According to Mr. Majuindar, when once the priest has given evidence to the effect that the marriage between the respondent .F and Sandhya Rani has been performed, it follows that. an the • essential ceremonies that are necessary to constitute a valid marriage must be presumed to Ji.ave been performed. In any event, when there is evidence, t!J show that the marriage as a fact has taken place, the presumption is that it has taken place according to Jaw.

In this connection oM'r. Majumdar referred us to various G English decisions w!Jere on the basis of certain evideuce regarding the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to law.

In our opinion, it is unnecessary to refer to J those cases cited by the learned counsel as the position is coneluded against the appellant by the decisions of this Court on H both points. Sei; tion 5 of the Act Jays down conditions for a ..

Hindu marriage.

It will be seen that one of the conditions is that referred to. iii clause ( i), namely, that neither of the parties

l'RlYA BALA v. s. c. Gl~OSH (Vaidia/ingam, J.) 965

i A has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage iS as follows :

"Section ?-Ceremonies fOr a Hindu marriage.

(I) A Hindu marriage may bi; sqlemnized in accordance with the customary rites ii!Jd ceremonies of B either party thereto.

(2) Where such rites and ceremofiies include the Saptapadi (that is, the taking of sevn steps by the bridegroom and the bride jointly before the sacred fire), the marriage \JP.comes a complete c and binding when the sventh step is taken."

We have ponited out that in the case before us both sides were agreed that according to the law prevalent amongst them Hom" and Saptc.padi were essential rites to be porformed for solemnization of the marriage and .there is no specific evidence regarding the performance of these essential rites.

The parties have also D not proved that they are governed by any custom under which these essential ceremonies need not be performed.

Section 11 of the Act deals with void marriages. One of the conditions, if contravened, which makes a marriage solemnized after the commencement of the Act, null and void is il any party thereto have a spouse living at the time pf the marriage.

E Section 17 relating to punishment of bigamy is as follows :

"Section 17 Punishment of bigamy :

Any marriage ben two Hindlis solemnized after the commencement of i£ Act is void if at the date of

}' such marriage either party had a husband or wife living: and the provisions of sections 494 and 495 of the lndian Penal Code shall apply accordingly."

 Again in. the ase before us there is no contr\)v.ersy that the second marriage ts stated to have taken place 'after the C!>lllmencement of the Act during the subsistance of the first marriage.

G If the second marriage has taken place, it will be void under the circumstances and s. 494 of the Indian Penal Code will be attracted. Section 494 of the Indian Penal Code is as follows :

"Section 494-Marrying again during lifetime of husband or wife-

H Whoever, having a husband or wife living, marries "

in any case in. which such marriage is void by reason of its taking place durinl( the life of such husband or wife shall be punished with imprisonment of either descrip:

9 ti Ii

SUPREME COURT REPORTS pn!JJ s.c.R

tion for a term which may extend to seven years, and shall also be liable to fine."

In Bhaurao Shankar Lokhande and ano1her v. State of Maharashtra and another,(') the question arose whether in a prosecution for bigamy under s. 494 I.P.C. it was necessary to establish that the second marriage had been duly perfonned in accordance with the essential religious rites applicable to the form of marriage gone through. The first appellant therein .had been convicted for an offence under s. 494 I.P.C. for going through a.marriage which was void by reason of its taking place during the life time of the previous wife.

The said appellant contended that it was necessary for the prosecution to establish that the alleged second marriage had been duly performed in accordance with the essential religious rites. The State, on the other hand, contended that for the commission of the offence under s. 494 l.P.C. it was not necessary that the second marriage should be a valid one and a person going through any form of marri~ during the life time of the first wife would be .guilty of the offence.

This Court rejected the contention of the State and observed as follows :

"Prima facie the expression 'whoever ..... marries' must mean 'whoever .... marries validly' or whover ..... marries and whose marriage is a valid one.' If the marriage is not a valid one, according to the law applicable to the parties. no question of its being void by reason of its taking place dµring the life time of the husband or wife of the person marrying arises. If the marriage_ is not a valid marriage, it is no marria)?e in the eye of law." Again in interpreti11g the word "solemnize" in s. 17 of the

Act, it was stated : }' "The word 'solemnize' means in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the. Shorter Oxford Dictionary.

It follows, therefore, that unless the marriage . is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solem- G nized'. It is therefore essential for the ourpose of s. 17 of the Act, that the marri'lge to which s. 494 J.P.C._

applies on account of the provisions of the Act. should have been celebrated with oioner ceremonies and in due form.

Merely going through certain ceremonies th the intention that the oartie~ be taken to be murned.

H will not make them ceremonie' nre•cribed bv law or approved by any established custom."

(!) [1965) 2 S.C.R. 8~7.

PRIYA BALA v. s. c. GHOSH (Vaidiallngam, I.) 967

From the above quotations it is cl~ that if the al.leged second marriage is not a valid one accordmg to. law pphcable to !he parties, it will not be void by reason of its taking plae dunpg the life of the husband or the wife of the person marrytnj! so as to attract s. 494 I.P.C. Again in order to hold that the .. second marriage has been solemnized so. as to attract s. 17 of the Act, it is essential that the second mamage should have been celebrated with proper ceremonies and in due form. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the. essential ceremonies for a valid marriage have been performed.

After referring to .the P!'S&age in Mull~'s Hindu Law 12th Bdn. at page ~15 dealmg with the essential ceremonies ihich have to be performed for a valid marriage, this Court, on the . .evidence held that the prosecution hac:J neither established that the essential ceremonies had been performed nor that the performance of the essential cermonis had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been perfrmed in accordance with the requirement of s. 7 of the Act. The effect of the decision, in oµr opinion, is that the prosecution has to prove that the alleged second marriage had &en dlJ}y performed in accordance with the essential reli¢ous rites a, oplicable to the form of marriage gone through by the parties and that the said marriage must be a valid one according to law " applicable to the parties.

· Tn Kanwal Ram and others v.

The Himacha/ Pradesh Admn.(1) this Court reiterated the principles laid down is the . earlier decision referred to above that in a prosecution far bigamy the second marriage has to be proved as a fact and it inust also be proved that the necessary ceremonies had been perfOrmed.

Another prOPOSition laid down bv this decision, which answers the second contention of the learned counsel for the appellant, is that admission of marriage bv an accused is no evidence of marriage for the nuroose of provinir an offence of bie:amv or adulterv. On the evidence it was held in the said decision that the witnesses have not nroved that the essential ceremonies had been uerformed.

It was contended that an admission made by the accused ree:ardine: the second marrial!'e is conclusive of the fact of a second marriae:e havin!! taken nlace and that without anv other evidence

a conviction could be based on such admission.

This Court rejected the said contention statine: :

" .......... it is clear that in law such admission _is not evidence c; if the fact of the second marria!!e-havinl?

1. r!Qi; i 1 ~.r.R. <~Q

taken place. In a bigamy case, the second marriage as A a fact, that is to say, the ceremonies constituting it must be proved : Empress v. Pitambur Singh (1), l!.fr]press v.

Ka~/11(2), Archbold Criminal Pleading "Evidence a11d Practice (35th ed.) Art. 3796. In Kallu's case and in Morrie< v. Mil/er~ 8 ) it has been held 'that admi;; ion of marriage by the accused is not evidence of it for the B purpose of proving marriage in an adultery or bigamy case . ..... " The dedsion in R. V. Robinson(') was relied on in the above decision on behalf of the prosecution in support of the proposition that it was not necessary to prove that all the ceremonies required for the particular form of marriage had been .observed.

C After a consideration of the facts in the English decision, quoted above, this Court has expressed the view that the said decision does not support the said proposition enunciated on behalf of the prosecution.

We are only adverting to this fact, because the English decision was again referred to us by Mr. Majumdar; and it is not necessary for us to refer to the same over again excepting D to say that the said decision does not advance the case of the appellant.

As poinied out earlier, this Court in Kanwal Ram's c<1se has laid down that an admission is not evidence of the fact that the second marriage has taken place after the ceremonies constifuting the same have been gone through.

As the High Court has dealt with the question regarding the admissibility of°llmnission contained in Ex. 2, we will briefly refer to the nature of the admission that was sought to be relied on against the respondent by the complainant. But we make it clear that the discussion regarding this aspect is oilly to deal with the contention advanced on behalf of the appellant and to reject the same.

The trial Magistrate whose decision was iri fav<>ur of -tile appellant has himself expressed the view that the evidence on, the side of the aopeilant

regl!rdimr the alleged secorid marria!!:e is very scanty. But that court held that the respondent has admitted the second marriage in Ex. 4, which was ari objection filed by the respondent in an anplication filed by the aopellant for, maintenance under s. 488 Cr. P.C. We have )(one throu!!:h the said objection oetition. The resoondent has alleged various acts of misconduct against the appellant and he has merely_stated that he was coinoe!led to marrv

again.- But no other narticulars have heen given in the said objection oetition. We are of the view that no admission of the second marria!!:e by the reoondent with Sandbva Rarii can be culled out from Ex. 4. Jn.fact the trial court has based.its firding

I. m~01 t. L. R. 5 C•l.566.

3. 4 Jlurr. 2057: 98 E.R. 73.

2. [18~2) I.LIU All. 233.

4. [193811 All. E.R. JOI.

PRJYA BALA v. s. c. GHOS~ (Vaidialingam, 1'.) 9.69

regarding the second marriage alrilost exclusively on what it considered to be an admission contained in Ex. 4. As there is no such admission, the finding of the magistrate was clearly erroneous.

Before the High Court, however, we find thJt the appellant did not place any reliance on Ex. 4. On the other hand she relied on an. admission stated to have been contained in Ex. 2.

The appellant filed a complaint under>.· 494 1.P.C. against the respondent on an earlier occasion on the ground that the latter had contracted a second marriage with Sandhya Rani.

That complaint was, however, withdrawn as the particular court had no jurisdiction.

In that proceeding the appellant wanted the said Sandhya Rani to be summoned as a witness.

To that application, the respondent filed an objection Ex. 2 wherein no doubt, he has admitted that Sandhya Rani is his wife and that he married her because of the misconduct of the appellant. The High Court , considered the question whether this statement of the respondent in Ex. 2 that he has married Sandhya Rani can be treated as an admission of the fact of the second marriage. The High Court was of the viw that the statement contained in Ex. 2 would really be a confession statement and.declined to act on the same for two rea'sOn.s : firstly, that the statement, in Ex. 2 had not been put to the respondent when he was examined under s. 342 Cr. P.C. so as to give him an opportunity to explain the statements contained therein; secondly, that even if the statement contained in Ex. 2 can be taken intq account by themselves they will not be proof of the fact that all the essential ceremonies necessary for a marriage have been performed.

In our view the reasons given by the High Court are substantially correct. Though strictly the statements contained in Ex. 2 may not be a confession, nevertheless, these statements, if acted upon, tend to incriminate he respo'iident.

The resoondent being in the oosition of an accused was entitled to be given an oooortunity of offering his explanation, if any. in respect of the incriminating statement contained in Ex. 2.

Such an ?PPOrtunitv has not been admittedly given tp the respondent.

H1~ statement in Ex. 2 has not been put to his when he was examined under s. 34'2 Cr. P.(;'.

Further as pointed out by this Court in Kawai Ram's case the admission in Ex. 2 cannot in law be treated as evidence of the second marriae having takn place. in an adultery or begamy case: r:d that m such cases 1t must be proved by the prosecution that the second marriaee as a fact has taken place after the performance of the essntial ceremonies.

Mr. Majumdar relied on the decision of this Court in Bharat Singh and another vs. Bhagirathi(1) to the effect thiit the admis-

1. [1966] I S.C.R. 606. . ... - .

sions made by a party are substantive evidence by themselves in view of ss. 17 and 21 of the Indian Evidence Act, and that if those admissions have been duly proved they can be relied on irrespective of the fact whether the party making them appear in the witness box or not or irrespective of the fact whether such a party had or had not been confronted with those admissions.

We do not think that the said decision in any way supports the appellant with regard to prosecution for bigamy under s. 494 I.P.C.

To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homo and Saptapadi are the essential riles-for a

mariage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. No reliance can be placed on the admissions stated to be contained in Ex. 2.

For all the above reasons the contentions of Mr. Majumdar have to be rejected.

The appeal fails and is dismissed.

V.P.S.

Appeal dismissed.

PRIYA BALA GHOSH

SURESH CHANDRA GHOSH

March 4, 1971

A. N. RAY, JJ.

Penal Code

s. 494

s. 494

I.P.C

Homo

Saptapadi

s. 494

I.P.C

s. 494

I.P.C

s. 342

Cr.P.C

(1965] 2 S.C.R. 837

S. C. Majumdar

R. K. Jain

Vaiilialingam

s. 494

Indian Penal Code

Sandhya Rani

May 31, 1962

s. 494

Indian Penal Code

s. 488

s. 17

Hindu Marnages Act, 1955

s. 494

Indian Penal Code

Sessions Judge, Jalpaiguri

April 30, 1966

s. 494

I.P.C

Calcutta High Court

s. 494

s. 494

I.P.C

Sandhya Rani

Majuindar

Majumdar

Section 7

Section 11

Section 17

Section 17

sections 494 and 495

Penal Code

s. 494

Indian Penal Code

Section 494

Indian Penal Code

Section 494

s. 494

I.P.C

s. 494

I.P.C

s. 494

s. 17

s. 17

s. 494

[1965) 2 S.C.R. 8

s. 494

I.P.C

s. 17

s. 7

Art. 3796

Kallu

Kanwal Ram

s. 488

Sandbva Rarii

s. 342

s. 34

Kawai Ram

ss. 17 and 21

Indian Evidence Act

s. 494

I.P.C


PRITAM SINGH

STATE OF HARYANi\

March 15, 1971

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)

Police Act, 1861, s. 42-Period of lilnitation for prosecution.

Supre1ne' Court-Appeal-New point-Can be permitecl to be urged if n; ises pure question of law aml does not require investigation buo facts.

The appellant was a constable in the police force of Haryana State.

At the relevant time he was pocted to do duty at the police lines, Kamal.

It was reported by the Lines Officer that he was. not present at the roll call on the evening of November 25. 1963. The Judicial Magistrate gave him a notice in January J 966 asking him to explain why he should not be held guilty under s. 29 of the Police Act 1891 being absent on the aforesaid date.

The appellant explained that he was mentally upset on account of the.death of two near relatives and was himself ill. The Magis trate held that the ilPPellant was technically guilty, even though his case required sympathetic consideration.

In this view he sentenced the appel lant to pay a fine of Rs. 51 • pnd in default to undergo simple imprison ment for seven days.

Appeals before the Sessions Judge and the High Court failed.

In appeal to this Court by special leave it was contended on behalf of the appellant, that since more than three months, had inter vened between the commission of the alleged offence and the commence-. mcnt of .the prosecutioni the trial was time-barred by limitation under s. 42 of the Police Act. This point was raised in this Court fdr the first time but had been stated in the statement of propositions of law to be advanced before the Court. and a copy of the same had been supplied to the counsel for the State.

Allowing the appeal,

HELD : (i) The question of limitation being purely one of law requiring no fresh investigation into facts. the appellant could he per milled to raise it for the first time in this Court. [973 HJ

(ii) The appellant's prosecution was initiated against him for some thing done under the provisions of the Act. namely non-compliance with the requirement to be on duty as required under the Police Act. There fore under s. 42 of the Act the prosecution should have been commenced against the appellant within three months of the commission of the act complained of.

The act complained of was alleged to have been committed on November 25. 1963.

Even treating the notice issued by the judicial magistrate as amountingto commencement of prosecution, it took place oniy on January 10, 1966, long after the expiry of three months from the date of the commission of the offence.

Therefore the prosectl tion commenced against the appellant was barred by limitation under s. 42 of the Act. [974 DEl

Maulud Ahmad v. Stllte of Utrar Prade.•h. [19611 Supp. '! S.C.R. 38, H distinguished.

CRIMINAL APPELLATE JuRJSD!CT!ON: Criminal Appeal No. 240 of 1968.

Appeal by special leave from the judgment and order dated February 8, I 968 of the Punjab and Haryana High Court in Criminal Revision No. 237 of 1967.

S. Lakshminarasu. for the appellant-

B. D. Sharma and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Vaidialingam, J.

In this appeal, by special leave, the appellant accused challenges the judgm_ent and order dated February 8, 1968, of the Punjab & Haryana High Court in Crim ind Revision No. 237 of 1967, confirming the conviction and sentence passed against him for an offence under s. 29 of the Police Act, 1861 (hereinafter to be referred as the Act).

The appellant was at the relevant period a constable having roll number 857.

He was originally recruited in 1950 to the police service in the composite Punjab State; and on the formation of the State of Haryana, he was aJlotted to Haryana.

The appellant was posted to do duty at the police lines, Karnal, before November 25, 1963.

It was reported by the Lines Officer on Npvembcr 25, 1963 that when roll-call was taken on the evening of that day at about 6.30 p.m., the appellant was found absent.

The report also refers to the absence of certiiin other police officers, with whom we are not concerned.

The judicial magistrate, Karna], issued what is stated to be a notice dated January 10, 1966 to the appellant, alleging that he was found absent from duty from the police lines at the time of roll-call on November 25, 1963.

He was asked to explain why he should not be held guilty under s. 29 of the Act.

The appellant stated that he would neither plead guilty nor would he admit that he remained absent from duty.

He has further stated that he was mentally upset in view of the sudden deaths of his mother and brother-in-law, and also due to his children being cut off from him.

He wound up his answer by saying that he was under medical treatment in the civil hospital, Kamal, and the doctor therein sent him to Patiala.

He was tried for an offence under s. 29 of the Act on the ground that he was absent from duty on November 25, 1963.

The judicial magistrate, by his order dated March 4, 1966, found the appellant guilty of the offence and sentenced him to pay a fine of Rs. 5/- and in default to undergo simple imprisonment for

seven days.

The learned magistrate considered the plea of the H accuSed regarding his having undergone treatment in the civil hos- J, pita!, as also the evidence of the doctor who has spoken to this fact. and held that the case of the accused requires a very sym-

PR!TAM I'. HARYANA ( Vaidia/ingam, ].) 973

pathetic consideration.

But .nevertheless the magistrate found that as the appellant was technically guilty of the offence under s. 29 of the Act, with which he was charged, he has to be punished Accordingly, he convicted him and imposed tbe fine, as stated above.

The appellant challenged his conviction and sentence before the learned Sessions Judge as well as the High Court, but was unsuccessful.

Though several contentions regarding the legality of the conviction have been taken by Mr. Lakshrt1i, narasu, learned counsel nominated to represent the appellant by the Legal Aid Society of the Supreme Court Bar Association, in the view that we take regarding the prosecution being barred by limitation under s. 42 of the Act, it becomes unnecessary to refer to those contentions and deal with them.

We have already referred to the fact that the allegations against the appellant related to his absence from duty on November 25. 1963, stated to be an offence under s. 29 of the Act.

The notice issued by the judicial magistrate was on January 10, 1966.

The contention that is taken by Mr. Lakshminarasu based on s. 42 of / the Act is that the prosecution against the appellant has been commenced beyond the period of three months, as provided in s. 42 of the Act, and therefore, the trial and other proceedings leading upto the cqnviction of the appellant are illegal and void.

The counsel pointed out that the act complained of was the appellant's absence from duty at the time of the roll-call on November 25, 1963.

The earliest step taken in this cqse for prosecuting the appellant was on January l 0, 1966 when tlie judicial magistrate issued the notice to the aP.pellant calling upon him to explain why he should not be held guilty under s. 29 of the Act. That notice was issued long after the expiry of three months from the date of the commission of the offence complained of.

In fact. Mr. Lakshminarsu argued that the date of. filing the complaint will be the date when prosecutiqn is commenced.

But he was willing to assume that the issue of the notice on January 10, 1966., is a step in the prosecution.

Even then he argued that the prosecution is barred under s. 42 of the Act.

It is no doubt true that this point has not been taken as such before 8jlly of the courts; but in the statement given on February 9, 1971 regarding the propositions of Jaw to be advanced before this Court, this contention has been specifically raised.

A copy of the said statement has been given to the counsel for State the same day. However, the point that is raised is a pure question of law, not involving any further investigation of facts.

We theref?re permitted counsel for the appellant to raise this legal contention.

The question theretore is wherher the prosecution initiaied A agains, me appeilant m this case is barred by hmitauon under s. 4L of the Acr.

The material part of s. 42, reievaint for the present purpose reads as follows :

"All . . . prosecutions against any person, which may be lawfully brought for anything oone or intended to oe done unoer the provisions of this Act, or under the general police powers hereby given shat! be commenced within three months after the act complained of shall have been committed, and not, otherwise, ..

From the section quoted above, it will be clear that the period of three months prescribed for commencing a prosecution under the said section is only with respect to prosecution of a person 1or something done or ii!ltended to be done by him under the provisions of the Police Act or under the general police powers given by the Act. lt is clear that the appellant's prosecution was initiated against him for something done under the provisions of the Act, namely, non-compliance with the requirement to be on duty as required under the Police Act.

Therefore, under s. 42 of 1the 'Act, the prosecution should have been commenced against the appellant within three months after the act complained of has been committed.

The act complained of was alleged to have been committed qn November 25, 1963.

EvP, n treating the notice issued by the judicial magistrate is amounting to commencement o.f prosecution, it took place only on January 10, 1966, long after the expiry of three months from the date of the commission of the offence.

Therefore, the prosecution commenced against tl1e appella, nt is barred by limitation under s. 42 of the Act.

In this case there is no controversy that the offence with which the appellant was charged was one under s. 29 of the Act and for the said offence he was tried and convicted.

Mr. B. D.

Sharma, learned sounsel for the respondent State, faced with this situation urged that in the notice issued by the judicial magistrate, Kania!, to the appellant on January 10, 1966, it was specifically stated that the appellant was absent not only on November 25, 1963, but that he also continued to be absent as before.

According to the learned counsel, this clearly means that evn on the date when 'the ni>tice was issued to the appellant, th.at is, on J:rntJa"y iO, 1966, the appellant was absent and was guilty of an offence under s. 29 of the Act and hence the prosecution has commenced within the period menti{)\l1ed in s. 42 of the Act.

We are not inclined to accept this contention.

A perusal of the order o" tl1e trial magistrate, the learned Sessions Judge and the Hih Court. dearly shows that the appellant was tried on the specifil d1arge of having absented himself from duty on November 25,

PRITAM v. HARYANA ( Vaidia/ingam, J.) 97~

1963.

The notice issued by the magistrate on January 0, 1966 also refers to the report of November 25, 1963 about the appellant's being absent on that evening at roll-call.

For his absence on November 25, 1963 he was called upon to show cause why he should not be held guilty under s. 29 of the Act.

Further it is also seen from the examination of the accused under s. 342. Cod11, of Criminal Procedure, ·hat a specific question was put 1IO him "It is in evidence against you that you were absent from the Police Lines Kamal on 2S-ll-63 and as such were marked absent at the time of Roll-call.

Wai do you say to it?"

We may also refer to the decision of this Court in Maulud allegation against the ap_pellant related to his absence on November 25, 1963 and it was the evidence in that regard that was put to the appellant for offering his explanation.

All the above facts clearly show that the appellant was tried and convicted for an offence under s. 29 of the Act in which case the prosecutioin for such an offence should have been done within the time laid down thereunder.

We may also refer to the decision of this Court in Maulud Ahmad v. State of Uttar Pradesh(') wherein it has been he!J

that if there is a prosecution of a police officer for an offence under s. 29 of the Act, such a prosecution should be one within the period of limitation mentiOillied in s. 42 of tl:e ct. In that case the appellant therein, a Head constable, was charged and tried, along with another person, for various offences under the Ip.dian

Penal Code, such as ss. 304A and 2181109.

The other accused was acquitted but the head CO!Ili>table was convicted under s. 218

I.P.C.

One of the contentions raised by the appellant before this Court was that as the prosecution was iaunched against him more than three months after the commission of the offence, it was barred by limitation under s. 42 of the Act.

This Court after a perusal of the scheme c.f ss. 36 and 42 of the Act rejected the cointention of the appellant.

This Court held that the head constable was prosecuted and convicted for offences not under the Act but under the Ind!an Penal Code.

To such prosecution, it was held that s. 42 did not apply.

On the other hil/fid, it was held that s. 42 of the Act applies to a prosecution against a person for an offence under s. 29 of the Act.

The conclusion arrived at by us that the prosecution in the case on hand is barred by s. 42 of the Act is also supported by the decision quoted above.

Tei conclude, it is clear that the proseution gainst the appellant has been commenced beyond the penod of three months imd as such it is barred by lirliitation under s. 42 of the Act. f{ence

<I) [J96J] Supp. 2 S.C.R. 38.

llPREME COURT REPORTS fl 97.J1 3 S.C.R.

the ordc,:1-, of the High Court and the two subordinate courts are set uside.

Iti consequence,·. the conviction of the appeilant as well a' the levy Of fine are also set aside.

The appeal is allowed and fine, if collected, shall be refunded. to the appellant.

G.C Appeal al/owed.

I IOOSupo C.l.(PJ 71-2500-2-6-72-GJPF.

PRITAM SINGH

STATE OF HARYANi

March 15, 1971

A. N. RAY, JJ.

Police Act, 1861

s. 42

Kamal

s. 29

Police Act 1891

s. 42

Police Act

Police Act

s. 42

November 25. 1963

January 10, 1966

s. 42

S. Lakshminarasu

B. D. Sharma

R. N. Sachthey

Vaidialingam

s. 29

Police Act, 1861

State of Haryana

Haryana

Karnal

November 25, 1963

Npvembcr 25, 1963

judicial magistrate, Karna

25, 1963

s. 29

Patiala

s. 29

March 4, 1966

s. 29

narasu

Supreme Court Bar Association

s. 42

s. 29

Lakshminarasu

s. 42

s. 42

January l 0, 1966

s. 29

Lakshminarsu

s. 42

February 9, 1971

s. 4L

s. 42

Police Act

Police Act

s. 42

s. 42

s. 29

B. D.

Sharma

Kania

s. 29

s. 42

s. 29

s. 342

s. 29

s. 29

s. 42

Penal Code

ss. 304A and 2181109

s. 218

I.P.C

s. 42

ss. 36 and 42

Penal Code

s. 42

s. 42

s. 29

s. 42

s. 42