HOMELY INDUSTRIES

THE SALES TAX OFFICER, SECTOR V, KANPUR

March 24, 1976

[H. R. KHANNA AND P. K. GOSWAMI, JJ.]

U.P. Sales Tax Act-Secs. 1C(3)-8(1)(2)-Liability of heirs and legal representatives of a deceased assessee-Whether service of a notice condition precedent, to recovery proceedings.

Rashidul Hasan was a dealer registered under the U.P. Sales Tax Act.

During the lifetime of Rashidul Hasan, the Sales Tax Officer sept a notice to him asking him to appear and to produce all ooks of account, csh mem?s, bills, receipts, bank pass books, statement of income and expenditure which he may desire to produce.

He died in December, 1968 leaving behind three adult sons.

At the time of his death assessment proceedings relating to the assessment years 196()-61 and 1961-62 were pending before the Sales T.:X Officer.

After the death of Rasbidul Hasan. the business was continued by his sons by forming a partnership. His legal representatives obtained a number of adjournments in order to make an effective representation. After granting 6 adjournments the 7th Application for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made in April,

1969. The Sales Tax Officer thereafter initiated recovery proceedings in pursuance of the assessment orders and the demand was soueht to be realised from the sons of the deceased by coercive measure.

Section 7C(3) of the Act provides that where a person havini: furnished a return dies and the assessing authority may determine the turnover of such person and assess the tax payable by him on the basis of such determination and, for this purpose may by notice require from the legal representative of the deceased person any accounts. documents or other evidence which he might under the provisions of this Act require from the deceased person.

Section 8 ( 1 ) provides that the tax assessed under the Act shall be paid Within such time not being less than 15 days from the date of service of the notice of assess ment. It further provides that in default of such payment the same may be recovered as arrears of land revenue. The appellant filed two Writ Petition~

before the High Court of Allahabad challenging the orders and recovery certificates issued under 'Section 8 of the Act. The High Court rejected the app1ie31tion.

On appeal by certificate under Article 133 (!)(a) of the Constitution, tho appellant contended :

(1) The assessment orders are invalid as they are made against a dead person, and that no notice as required by section 7C(3) was served on the legal representative to produce accounts, documents and other evidence.

(2) A proper and valid notice which is a condition precedent for fixing liability under section 8 has not been served on the legal representatives and therefore the recovery proceedings were illegal.

HELD : (1) The notice was already served on the deceased when he was alive. It was not necessary to serve the notice on legal representatives again under Sec. 7C(3). The legal representatives would have been entitled to a notice to produce documents and evidence if the deceased had not earlier been served with a similar notice during his life time. The orders of assessment cannot, therefore, he held to be invalid on account of non:.service of notice for production of documents Upon the legal representatives in this case.

Besides the legal representatives were aware of the proceedings and toOk several adjournments and if they did not choose to produce any further evidence it was entirely their fattlt. [865 E, G, 866 A-BJ

\ I

• I

(2) It is clear that before a certificate proceeding can be instituted under 'Section 8 a notice of demand is condition precedent. There can be no recovery without service of a demand notice.

It is admitted that such notice has not heen served on the legal representatives.

That being the position, the recovery proceedings are not maintainable in law and are invalid and the same along with ' <:ertificateg are liable to be quashed. [867 C-D]

Sahu Rajeshwar Nath v. IncomeTax Officer l.C. Ward Meerut, 72 I.T.R. 617 S.C. distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1176-77 of 1971.

From the Judgment and order dated the 17th March, 1970 of the Allahabad Court in Civil Misc. Writ Nos. 2681-82 of 1968.

S. C. Manchanda. !. D. Jain, Ujjal Singh and Miss Kawaljit Migla11i for the Appellant.

G. N. Dikshit and 0. P. Rana for the Respondent.

The Judgment of the Court was delivered by

GOSWAMI, J.-These are two appeals on certificates by the High Court of Allahabad from the judgments and orders of March 17, 1970.

The facts may briefly be stated :

D The appellant Homely Industries is registered under the Uttar Pradesh Sales Tax Act (briefly the Act). Its sole proprietor was one Rashidul Hasan.

He died on December 10, 1968, leaving behind three adult sons, namely, Syed Mohd. Ibrahim, Syed Mohd. Ismail and

Syed Mohd. l!ias.

The business was carried on by Rashidul Hasan under the name and style of Homely Industries.

At the time oi his death the assessment proceedings relating to the assessment years 1960- E 61 and 1961-62 were pending before the Sales Tax Officer on remand from the Assistant Commissioner (Judicial), Sales Tax, in pursuance of his order dated October 26, 1966.

It is said that after the death of Rashidul Hasan the business was continued by the sons by forming a partnership and Nazir Husain continued as the munim and also appeared before the Sales Tax Officer in the pending proceedings.

On December 19, 1968, Syed Mohd. Ibrahim, as legal heir and partner, sent an application through Nazir Husain informing the Sales Tax Officer, Kanpur, in connection with the two assessment proceedings that bis father had expired oh December 10, 1968 and that it was not possible for them to proceed with the case on that day.

It appears that the Sales Tax Officer during the life time of Rashidut Hasan had addressed a notice to Homely Industries calling upon it to appear in person or through pleader, or authorised representative on November 29, 1968, and to produce all books of accounts, cash memos, bills, receipts, bank pass-books, statement of income and expenditure and other documents which it may desire to produce in connection with the assessment. This notice was served on November 20, 1968, on the son of the proprietor of Homely Industries.

It appears that a number of adjournments were taken after the death of Hashidul Hasan, sometimes on the application of the munim

and once even on the application of the son, Syed Mohd. Ismail, to enable the assessee to make an effective representation. While as many as six. adjournments were granted on the application of Nazir Husain and once of the son of the deceased between 19-12-1968 and 26-4-1969, on the last date a further application by Nazir Husain for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made on April 28, 1969.

The Sa;]es Tax Officer initiated recovery proceedings in pursuance of the assessment orders and the demand was sought to be realised from the sons of the deceased proprietor by coercive measures. That led to two writ applications before the High Court of Allahabad challenging the assessment orders and the recovery certificates issued under section 8 of the Act.

The High Court rejected the applications and granted certificates un.der Article 133(1)(a) of the Constitution.

It is contended by Mr. Manchanda on behalf of the appellant that the assessment orders are invalid as they were made against a de,.ad person.

Secondly, he submits that a proper and valid service of a demand notice is a condition precedent for fixing liability on the person from whom the lax is sought to be recovered and in this case there was no service of notice on the heirs and legal representatives prior to the attempt of recovery through a coercive process.

With regard to the first submission, the learned counsel draws our attention to section 7C of the Act which reads as follows :-

"7-C( l). Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person; to the extent to which the estate is capable of meeting the charge, the tax assessed as payable by such person, or any penalty which would have been payable by him under this Act, if he had not died.

(2)

(3)

Where a person dies before the service upon him of the notice, if any, issued in pursuance of section 7, his executor, administrator or other legal representative shall, on the serving of the notice aforesaid, comply therewith and the Assessing Authority may proceed to assess the turnover of the deceased person as if such executor, administrator or other lega~ representative were the assessee.

Where a person dies without having furnished a return which he has been required to furnish under the provisions of section 7 or having furnished a return which the Assessing Authority has reason to believe to be incorrect or incomplete, the Assessing Authority may determine the turnover of such person and assess the tax payable by him on the basis of such determination, and for this purpose may, by notice, require from the executor, administrator or other legal representative of the deceased person any accounts, documents, or other

evidence which he might nnder the provisions of this A Act have required from the deceased person''.

(4) & (5) x x x x x x

Relying upon section 7C(3), it is submitted that no notice as required under that sub-section was served on the legal heirs and representatives to produce accounts, documents and other evidence for the purpose of determination of the turnover and asessment of tax.

Counsel submits that after death of the father no assessment order could be passed without notice under section 7C(3) upon the heirs and legal representatives of the deceased assessee.

It is true that the Sales Tax Officer did not accept the returns submitted by the dealer. It was, therefore, incumbent under the proviso to section 7(3) of the Act to give a reasonable opportunity to the C dealer for the purpose of proving the correctness and completeness of the returns already submitted. If the returns were accepted as correct there was no necessity for giving any opportunity to the dealer as the case will then be governed by section 7 (2) of the Act. Mr. Manchanda, therefore, submits that under section 7C(3) read with the proviso to section 7(3) it was obligatory on the part of the Sales Tax Officer to give a reasonable opportunity to the legal representatives to produce D the documents and accounts before completion of the assessment. Admittedly no notice under section 7C(3) had been served on the legal representatives.

It is, therefore, submitted that the orders of assessment are invalid.

Although the submission on the first blush is attractive it does not bear a close scrutiny. This is a case where the assessee had submitted E the returns and since the Sales Tax Officer was not prepared to accept the returns as correct and complete, he served a notice on the sole proprietor of the assessee, when he was alive, to produce documents and books of accounts under the proviso to section 7(3). We have already referred to the said notice which was served on the son of the proprietor on November 20, 1968, calling upon the dealer to produce the accounts on November 29, 1968. It was, therefore, an obli- F gation on the part of the dealer to produce documents, books of accounts and other evidence to prove before the Sales Tax Officer that the returns were correct. This being the factual position about service of notice on the deceased while he was alive, there was no legal entitlement to any further notice to the dealer even if the sole proprietor were alive.

Under section 7C(3) the Sales Tax Officer may by notice require G from the legal representative of the deceased such accounts, documents or other evidence as "he might under the provisions of the Act have required from the deceased person''. The Sales Tax Officer had already demanded by notice from the deceased while he was alive production of documents and the books of accounts.

Hence no valid objection can be taken under section 7C(3) that a further notice for production of documents and accounts should have been served on the legal repre- H sentatives.

The legal representatives would have been entitled to a notice to produce documents and evidence if the deceased had not earlier been s1erved with a similar notice during his life time. Section 7C(3)

. .E

does not entitle the legal representatives to any notice which the deceased, if alive, would not have been entitled to under the provisions. of the Act. Since there was no obligation under the Act for service of a second notice on the dealer, if he were alive, the legal representatives were not entitled to a notice as claimed under section 7C( 3) of the Act.

The orders of assessment cannot, therefore, be held to be invalid on account of non-service of notice for production of documents upon the legal representatives in this case. Besides, we find that the legal representatives were aware of the proceedings and took several adjournments and if they did not choose to produce any further evidence it was entirely their fault and they cannot blame the Officer when the request for adjournment was not granted after so many requests had already been acceded to.

We, however, express no opinion on the merits of their claim.

Mr. Dikshit appearing on behalf of the respondent strenuously contends that the word "may" in section 7C(3) makes it optional for the Sales Tax Officer to give or not to give notice to the legal represenlal. tive for production of documents after death of an assessee.

We are unable to accede to this submission.

The scheme of the relevant provisions of the Act is as follows :-

Omitting the non-essentials for the purpose of this case, under subsection ( 1) of section 7 a return is required to be submitted by a dealer showing his turnover. Under sub-section (2) of section 7, if the Sales Tax Officer is satisfied that the return submitted by a dealer is correct and complete he shall assess the tax on the basis of that return. Under sub-section ( 3) of section 7 read with the proviso, if, according to the Officer, the return submitted by a dealer is incorrect or incomplete, he shall make, what i9 called, a best judgment assessment after making such enquiry as he considers necessary but must, under the proviso thereto, give a reasonable opportunity to the dealer to prove the correctness and completeness of the return submitted by him.

So far as material for the purpose of this case, section 7C(3), properly construed, provides, inter alia, that if a person dies after furnishing a return and his return, which was submitted, is not accepted by the Officer as correct or complete, the obligation to give a reasonable opportunity to prove the correctness and completeness of the return under section 7 ( 3) read with the proviso cannot be given a go-by if the person who submitted the return dies without a notice having been given for such an opportunity.

The word "may" in section 7C(3) does not clothe the Sales Tax Officer with arbitrary power of assessment without notice to the legal representative to produce evidence or documents which, if the dealer were alive, he would have been entitled to do under section 7(3) read with the proviso. The submission of Mr. Dikshit is, therefore, devoid of substance.

In the view we have taken that no fresh notice to the legal represen- H tatives was called for prior to the passing of the assessment orders irr this case, we are not called upon to decide whether the legal representatives had waived their right to notice as urged in the alternative by Mr. Dikshit.

We may now deal with the second submission of Mr. Manchanda A that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under section 8 of the Act. That section reads as under :-

"8 ( 1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from B the date of service of the notice of assessment, as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall become recoverable in accordance with sub-section (2).

(2) Any tax or other dues payable to the State Government under this Act shall be recoverable as arrears of land revenue".

It is clear that before a certificate proceeding can be instituted under sub-section (2) of section 8 a notice of demand under sub-section (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same D along with the certificates are liable to be quashed.

Mr. Dikshit has drawn our attention to a decision of this Court in Sahu Rajeshwar Nath v. Income-tax Officer, C-Ward, Meerut, and

Anolher(l) and submitted that this decision is an authority for the proposition that no notice on the legal representative is required under the law prior to the institution of recovery proceedings by certificate.

In that case this Court was considering the libility of a partner of an unregistered firm which was the assessee and a notice under section 29 of the Income-tax Act, 1922, had been served on the unregistered firm and all the tax assessed against the firm was sought to be recovered from the partner in proceedings under section 46(2) of the Income-tax Act It was contended on behalf of the partner that a fresh notice of demand upon the partner was necessary under the law and in its absence the recovery proceedings were invalid.

This Court repelled th.e contention holding that although the unregistered firm was the assessee the partner was liable under section 25 of the Partnership Act and since the appellant, therein, conceded that he was a partner of that firm during the accounting year, no separate notice under section 29 of the Income-- tax Act upon the partner was necessary. It was further held that the notice contemplated under section 29 of the Income-tax Act, 1922, was to the assessee or to any other person liable and "any other person liable under section 29" meant "liable under the Income-tax Act" and not under any other law such as the Partnership Act.

That was a case where no question arose about the liability of the appellant therein under the provisions of the Income-tax Act such as section 24B of the Income-tax Act, 1922, which is almost identical H with section 7C(l) of the Act and that becaus.e of that under section

(I) 72 !TR 617. (JOC)

A 29 of the Income-tax Act a notice of demand was obligatory as a condition precedent to the institution of certificate proceedings for recovery of the dues as arrears of land revenue. The aforesaid decision of this Court in Sahu Rajeshwar Nath's case (supra) is, therefore, of no assist- ' ance to the learned counsel.

In the result the judgments of the High Court are affirmed but the B orders with regard to the recovery proceedings, which are invalid, are set aside. The appeals are partly allowed. There will be, however, no order as to costs.

We should observe that we express no opinion about the appeals which are said to be pending before the Assistant Commissioner (Judicial) , Sales Tax.

P.H.P.

Appeals partly allowed.

' -+

HOMELY INDUSTRIES

THE SALES TAX OFFICER, SECTOR V, KANPUR

March 24, 1976

H. R. KHANNA

P. K. GOSWAMI, JJ.

Sales Tax Act

Sales Tax Act

Rashidul Hasan

Rasbidul Hasan

Section 7C(3)

Section 8

Section 8

Article 133

section 7C(3)

section 8

Sec. 7C(3)

Section 8

CIVIL APPELLATE JURISDICTION

S. C. Manchanda

. D. Jain

Ujjal Singh

Kawaljit Migla11i

G. N. Dikshit

0. P. Rana

GOSWAMI

High Court of Allahabad

Homely Industries

Syed Mohd. Ibrahim

Syed Mohd. Ismail

Syed Mohd. l!ias

Homely Industries

October 26, 1966

Nazir Husain

December 19, 1968

Kanpur

December 10, 1968

Rashidut Hasan

November 29, 1968

November 20, 1968

Hashidul Hasan

April 28, 1969

section 8

Article 133(1)(a)

Manchanda

section 7C

section 7

section 7

section 7C(3)

section 7C(3)

section 7(3)

section 7

section 7C(3)

section 7(3)

section 7C(3)

section 7(3)

section 7C(3)

section 7C(3)

Section 7C(3)

section 7C( 3)

Dikshit

section 7C(3)

section 7

section 7

section 7

section 7C(3)

section 7

section 7C(3)

section 7(3)

Manchanda A

section 8

section 8

section 29

Income-tax Act, 1922

section 46(2)

Income-tax Act

section 25

section 29

section 29

Income-tax Act, 1922

section 29

Income-tax Act

Income-tax Act

section 24B

Income-tax Act, 1922

section 7C(l)

Income-tax Act

Sahu Rajeshwar Nath


• )

BHAGW AN DASS

STATE OF U.P. AND ORS.

March 24, 1976

[Y. V. CHANDRACHUD, V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.J

Mines and Minerals (Regulation and Development) Act 61, 1957 S. 3(e) r/w Rule 2(7) of the Uttar Pradesh Mines Minerals (Concession) Rules. 196' and Rule 6(a) (i) and 6(a)(ii) of the U.P. Zamindari Abolition and Land Reforms Act I of 1951-Scope of-Riparian owners do not have any title or

right over the "sand, graviel,, bajris etc.'' carried and depositid on their landi due to the fiuvial action of the river, superior to that of the State, the rightful owners-Minerals need not be subterranean.

Practice-Art. 136 of the Constitution-Arguments not advanced in cdurts below, will 1101 be accedt•d to in this C Court.

The Mining and Minerals Departments of the State of U.P. have been selling by auction from 1965 onwards as "minor minerals" the deposits left on the surface of the appellant's lands, of the sand, gravel, bajris etc. due to the :fluvial action of the receding floods of the Jamuna river. In 1970, the appellants objected to the proposed auction laying claim to the deposits, contending that since he is a riparian owner of the lands or is otherwise entitled to an unrestricted user of the lands, he would be entitled to appropriate the deposits, D to the exclusion of others. Since his objection was not accepted, the appellant challenged the order by a writ petition under Article 226 in the Allahabarl High court which was dismissed foUowing its earlier decision in ''Sultan and Anr. v. State of U.P. (Civil Misc. Writ No. 826817! dated 28-!'-73) to the effect that the sand, gravel, boulders, bajris etc. deposited on lands abutting on rivers, as a result of fluvial action of a river vest in the State Government".

The appeal to the Division Bench was also dismissed.

Dismissing the appeal by certificate, the Court E HELD : (i) The contention that some ot the lands being still zamindari lands, the right to mines and minerals which the zamindars originally had did not cease and, therefore, the Government had no right to the mines and minerals on such lands. cannot be acceded to, since no such argument whatsoever was made in the High Court either before the single iudge or before the Division Bench, though there was an averment to that effect in the Writ petition.

The co'ntention in regard to a part of the property raises at best a dispute between the Zamindari and the Government which the appellant has no right to raise.

F It is for the zamindars, if so advised, to take an appropriate proceeding for recognition of their claims as against the Government. The appellant cannot be heard to say in a Writ Petition filed for the assertion of his own im.Iivkhhll rights that the action of the Government is calculated to prejudice somebody else's rights and should therefore be struck down [871 G.H, 872 A-CJ

(2) The deposits in the nature of ordinary sand other than sand used for prescribed purposes, gravel, building stores and bajri squarely fall within the provision of s. 3 ( e) of the Mines and Minerals (Regulation and Development l Act 67 of 1957 and the rules 2(5). 2(7) and 3 of the Uttar Pradesh Minor Mineral (Concession) Rules. 1963 and are. therefore. 'minor minerals'. In equity, prior to the point of time when the flood waters of the river carried the sand and gravel to private lands, the title thereto was vested in the state Governm:nt. . The riyers, the river beds and the sand, bairis and building stones lytng in the rtver water are of state ownership. Nature carries these deposits to lands abutting on rivers and what the Act and Rules orovide for is to enable the Government to reclaim what is lost without anv fault of it"l own. The sand and gravel deposits left by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State.

The fluvial action of the river carries them to riparian lands but such shifting cannot erase the title of the rightful owner. [872 H, 873 A, c to G] ·

A Sultan and Anr. v. The State of U.P. (Civil Misc. Writ Petition No. 8268/

71 decided on 28-9-73) [approved]; Halsbury's Laws of England 3rd Edn. Yul, 39 p. 559 para 775 [quoted with approval].

(3) In the instant case, the minor minerals while wider the the river water "'-, tbelonged to the State and the Statute answers the question whether the natural action of the flooding river destroys the title of, the state.

The 1951 Act has vested the z.amindaris right to mines and minerals in the State Government, rendering it of secondary relevance whether prior to flood caused migration, the ownership of the minerals wasi vested in the State. [874 C-D]

Norn1an S. Wear v. State of Kansas 62 Law Ecln. 214 @ 219; Halshury's Laws of England 3rd Edn. Vol. 39 para 801 (page 568); Blewett v. 'Trigonning

(1835) 3 Adolphus and Ellis' Reports 554 (distinguished).

( 4) It is wrong to assume that mines and minerals must always be sub soil and that there can be no minerals on the surface of the earth.

The definition of mining operations and rhinor millerals in section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the 'Rules of 1963, states that mineral• need not be subterranean and that mining operations cover every operation undertaken for the purpose of "winning" any minor minerals.

Winning does not !mply a hazardous or perilous activity.

The words simply mean 'extracting a mineral' and is used generally to indicate any activity by which minerals is t' secured. E.xtracating in turn meansi drawig out or obtaining. [874 E-F] - [In view of the specific concessions in the counter affidavit by the Government the Court expressed its full confidence that in cases where it becomes heces.sary to fix the corntion under rule 67 the State would have regard to all relevant factors parhcularly the length of deprivation entailed by the conduct of mining operation.] [875 A.C]

Ovit APPELLATE JURISDICTION : Civil Appeal No. 1044 of 1975.

From the Judgment and Omer dated 20--9-1974 of the Allahabad High Court in Special Appeal No. 145 of. 1974.

J. P. Goyal and Shree Pal Singh for the appellant.

G. N. Dikshit and 0. P. Rana for the respondents.

The Judgment of the Court was delivered by CHANDRACHUD, J.-Certain .Jands situated in Usmanpur and Dariyabad in the district of Allahabad are in the possession of the appellant, some as a Bhumidhar, some as a Sirdar and some as a hereditary tenant.

The lands abut on the Jamuna river and are submerged by the river water when the river is in flood. When the flood recedes large quantities of sand, gravel, boulders and bajris are deposited on the surface of the lands. The appellant lays claim to the deposits left behind by the fluvial action of the river contending that since he is the owner of the lands or is otherwise entitled to an unrestricted user of the lands, he would be entitled to appropriate the deposits to the exclusion of all others.

The Mines and Minerals Department, Government of Uttar Pradesh, took steps in about 1970 to sell by auction the right to remove the sand, gravel and bajris deposited on the appellant's lands. On October 13,

1970 the appellant made an application to the Officer in-charge, Mines, Allahabad, objecting to the proposed auction on the ground that the Government had no right to deal with his property in a manner detrimental to his title. On February 18, 1971 the Department of Mines passed an order directing the disposal of the deposits by an auction-sale.

In October 1971 the appe11ant filed a writ petition under article 226 of the Costitution in the Allahabad High Court asking that the aforesaid order of the State Government be quashed and that the State

I /

Government be restrained from bringing the fiuvial deposits to sale by auction or otherwise. On behalf of the respondents, the Naib Tehsildar (Mines) Allahabad, filed a counter-affidavit stating that the appellant had no right of any kind to utilise the deposits left by the flood waters on his land, that the State Government had sold the deposits by auction from 1965 to 1969 to which the appellant had raised no objection, that the deposits of sand, gravel, bajris etc. were 'minor minerals' to which the title vested in the State Government and that the only right of the appellant was to receive damages which the State Government always awarded under rule 67 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963.

The writ petition came up for hearing before a learned Single Judge who dismissed it by his judgment dated April 2, 197 4, following a previous decision of the Allahabad High Court in Sultan and A nr. v.

State of U.P. (Civil Misc. Writ No. 8268 of 1971 decided on 28th September, 1973). The appellant filed an appeal before a Division Bench of the High Court which was dismissed on September 20, 1974.

The Division Bench merely followed the decision in Sultan's case which hag taken the view that sand, gravel, boulders, bajris etc. deposited on lands abutting on rivers, as a resu, lt of fiuvial action of a river vest in the State Government. The High Court has, however, granted a certificate of fitness to the appellant to appeal to this Court.

Under section 4 of the U.P, Zamindari Abolition and Land Reforms Act, 1of1951, all estates situated in U, P. vested in the State Government free from all encumbrances, with effect from the date specified by the Government in a notification issued for that purpose, Section 6 of the Act of 1951 deals with the consequences of such vesting and provides that on the publication of a notification under section 4, all rights, title and interest of all the intermediaries shall cease and be vested in the State of U.P,, free from all encumbrances. Clause (a) of section 6 which brings about this result consists of two sub-clauses :

(i) and (ii), Under section 6(a) (i), "all rights, title and interest of all the intermediaries in every estate" ceased and became vested in the State of U, P,, while under section 6(a) (ii), "all rights, title and interest of aU intermediaries in all sub-soil in such estates including rights, if any, in mines and minerals" ceased and became vested in the State of U , P, These provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile Zamindars possessed, stood extinguished and became vested in the State Government.

The appellant's writ petition contains an averment that two out of the four plots of land which were the subject-matter of the writ petition G were in his possession under Zamindars whose Zamindari rights were not yet abolished, as the 1951 Act was not extended to the areas in which those lands were situated, Mr. Goel appearing on behalf of the appellant repeated the same contention and argued that in respect of those lands to which the Act of 1951 did not apply, the Zamindar's right to mines and minerals remained unaffected, and therefore the Government had no right to the deposits Ieft on those lands by the R waters of the recedin¥ river, even on the assumption that the deposits were 'minor minerals'.

We cannot accede to this contention for the

simple reason that though the writ petition contained an verment. in terms of the contention no argument whatsoever was made m the High Court, either before the single Judge or before the Division Bench, that some of the lands being still Zamindari lands the right to mines , and minerals which the Zamr, idars originally had did not cease and therefore the Government had no right to the mines and minerals on such lands.

Apart from this the contention urged by Mr. Goel in regard to a part of the property involved in the writ petition, raises at best a dispute between the Zami•, idar •and the Government which the appellant has no right to ra'ise. If the title to the mines and minerals in respect of lands to which the Act of 1951 is not extended vests in the Zamindars and not in the Government, the Zamindars may, if so advised, take a\1 appropriate proceeding for recognition of their claims as against the Government.

The appellant cannot be heard to say in a writ petition filed for the assertion of .his own individual rights that the action of the Government is calculated to prejudice somebody else's rights and should therefore be struck down. The •appeal must therefore be disposed of on the basis that the rights of the erstwhile 't' Zamindars over the la\1ds in dispute stood extinguished under the Act of 1951 and that those rights are vested in the State Government under section 6 of that Act.

We are concerned in this, appeal with tl)e interpretation of the relevant provisions of the Mines and Minerals (Regulation "l!ad Development) Act, 67 of 1957 and the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. We will refer to them respectively as the Act of 1957 and the Rnles of 1963. Section 3(e) of the Act of 1957 defines (minor mineral" to mean "buildi11g stones, gravel, ordinary clay, ordinary sand other than sand nsed for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral". Sectida 15 confers power on the State Government to make rules for regulating the grant of quarry leases, or other mineral concessions in respect of minor minerals and for purposes connected therewith.

The Government of Uttar Pradesh framed Rules of 1963 ra exercJSe of the power conferred upon it by section 15 of the Act of 1957. Rule 2(5) defines "Mining operations" as meanil)g any operations under- , taken for the purpose of winning a'ny minor mineral. Rule 2 (7) defines "minor minerals" substantially in the same terms as section 3(e) of the Act of 1957. By Rule 3, no person can within the State undertake any miEing operation of any minor mineral except under and in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules.

These provsions of the Act of 1957 and the Rules of 1963 are clear and explicit, admitting of no doubt or difficulty. If the deposits left by th_e recedt1g waters of the river are of the description, mention- ed in section 3 ( e) of the Act or Rule 2 (7) of the Rules, Rule 3 must come into full play with the result that no mining operation in respect /Of the deposits can be undertaken except under and in accordance with

the terms and conditions of a lease or permit gra1.1ted by the Government under the Rules of 1963. We are concerned in this appeal with deposits in the nature of ordinary sand other than sand used for presy

cribed purposes, gravel, building stones and bajris. These fall squarely

1 within the above-quoted provisions of the Act of 1957 and the Rules of 1963 and are therefore minor minerals.

Accordingly, the appellant cannot undertake any mining operation, even on the lands now belongillg to him for the purpose of winning these minor minerals except under a lease or permit granted by the State Government. The right of the former Zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar he was entitled to mines and minerals.

With the abolition of Zamindari by the 1951 AC't, that right has passed on not to the appellant but to the State Government.

The appellant's writ petition filed to restrain the Sratc Government from auctioning the right to undertake mining operations must therefore fail.

Evidently, the appellant finds it difficult to reconcile himself with t position that what nature and good fortune have bounteously left on his lands should be permitted to be taken away by the Government which has not a vestige of title to the lands. The answer to this difficulty is two-fold. In the first place the deposits, by a definition contained in a competent legislation, are 'minor minerals' and it is of no relevance that the Act of 1957 and the Rules of 1963 bring within their compass even those deposits which, are left behind by the fluvial action of rivers.

If that is the policy and the iiatendment of law, it is unprofitable t@ explore whether the statute could not have been more generous or less grudging to riparian owners. Secondly, and that bears on equity, prior to the point of time when the flood waters of the river carried the sand and gravel to priviite lands, the title thereto was vested in the State Government.

The rivers, the river beds rrad the sand, bajris and building stones lying in the river water are of State ownership. Nature carries those deposits to lands abutting on rivers and whiit the Act and the Rules provide for is to enable the Government to reclaim what it lost without any fault of its own. Halsbury's Laws of England (3rd Ed., Vol. 39, p. 559, paragraph 775) says that "The soil of the seoashore, and of the bed of estuaries and arms of the sea and of tidal rivers, so far as the tide ebbs and flows, is prima facie vested of common right in the Crown, unless it has passed to a subject by grant or possessory title." Paragraph 768 (p. 556) says that the' Crown is also "entitled to the mines and minerals under the soil of the seas" within certain limits. The sand gravel deposited by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State.

The fluvial action of the river carries them to ripanian lands but such shifting cannot erase the title of the rightful owner.

The judgment of Jnstice Holmes in Norman S. Wear v. State of Kansas('), turned on another point and involved different considerations altogether but the basis of that decision is instructive : The fact that sand in the bed of a river is migratory and liable to be shifted does not change its character so as to entitle the public to remove the sa>;1d as against the State, which owns the bed of the stream.

(1) 62 Law Ed. 214 at 219.

In the High Court, reliance appears to have been placed by the appellant on a passage in Halsbury's Laws of England, 3rd Ed., Vol. 39, paragraph 801 (p. 568) where it is stated that gravel, stones and " I sand, even when washed up by the seas on the foreshore are part of the freehold and belong to the owner of the foreshore who may deal with them as he pleases. This passage is based upon the decisim in Blewett v.

Tregonning (1835) 3 Adolphus and Ellis' Reports 554, where the defend•an't was a rank trespasser who pleaded a custom entitling him to take the sand blown by the wind on to a land situated on the foreshore.

The Court negatived the pica of custom both on the groui,1d that it was not established and on the ground that if the custom were to receive a legal recognition it would place the whole soil at the mercy of any person claiming under the so-called custom. Besides, there is no parallel between that case and our case because here, the 'minor minerals' while under the river water belonged to the State and the sttute answers the question whether the natural action of the 1 floodlag river destroys the title of the State. Secondly, the 1951 Act + has vested the Zamindar's right to mines and minerals in the State Government rendering it of secondary relevance whether prior to flood. caused migration, the ownership of the minerals was vested in the State.

Only one more argumerrt made o'a behalf of the appellant requires to be noticed. It was urged that the S'and and gravel are deposited on the surface of the land a.nd not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a mining operation. It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on ""· the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of mining operations and minor minerals in section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the Rules of 1963 shows that minerals need 'not be subterranean and that mining operations cover every operation undertaken for the purpose of "winning" any minor mineral. "Wlnning" does not imply a hazardous or perilous activity.

The word simply means "extracting a mineral" and is used generally to indicate any activity by which a mineral is secured. "Extracting", in turn, means drawlag

out or obtaining. A tooth is 'extracted' as much as it fruit juice and as much as a mineral. Only, that the effort wries from tooth to tooth, from fruit to fruit and from mineral to mineral.

We would like before closing to invite especial attention to Rule 67 of the Rules of 1963 under which a "persda having a right in any capacity in the land covered by a mining lease or mining permit .... shall be entitled to get compensation" from the holder of a mining lease or mining permit of such land for the use of the surface, which may be agreed upon between the parties. In case of a'ay dispute. the amount of compensation has to be determined by the District Officer whose order assumes finality.

The counter-affidavit filed by the State Government in the High Court concedes expressly, as it ought, that considering the fact that the person entitled to the use of a land may

be preveiated from using it by reason of a mining lease or permit, Rule A 67 provides for the payment of compensation to him for such depriva-

' 1 tion.

When the right to conduct a mining operation is auctioned by

. 1

the Government the person who is otherwise entitled to the user of the land, say for agricultural purposes, is deprived of its user and the object of Rule 67 is to ensure that he should be col!lpented adequately for the deprivatida of such user. We have no doubt that in cases where it becomes necessary for the District Officer to fix the B compensation under Rule 67, he would be having due regard to all relevant factors, particularly the length of deprivation entailed by the conduct of mining operations.

For these reasons, we confirm the judgment of the High Court and dismiss the appeal with costs. c

1 S.R.

Appeal dismissed .

BHAGW AN DASS

STATE OF U.P. AND ORS

March 24, 1976

Y. V. CHANDRACHUD

N. L. UNTWALIA, JJ

S. 3(e)

Art. 136

Article 226

Allahabarl High court

s. 3

Regulation and Development l Act

Adolphus

section 3(d)

Ovit APPELLATE JURISDICTION

J. P. Goyal

Shree Pal Singh

G. N. Dikshit

0. P. Rana

CHANDRACHUD

Allahabad

October 13,

1970

February 18, 1971

article 226

Allahabad High Court

April 2, 197 4

28th September, 1973

September 20, 1974

Sultan

section 4

Section 6

section 4

section 6

section 6(a)

section 6(a)

Goel

section 6

Section 3(e)

Central Government

Government of Uttar Pradesh

section 15

section 3(e)

section 3

Sratc Government

England

Jnstice Holmes

Ellis

section 3(d)


RAMASWAMI AYYANGAR AND ORS.

STATE OF TAMIL NADU

March 24, 1976

[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J.

Indian Penal Code, S. 34, essence of-Applicationof S. 34, whether physicai presence and actual participation necessary in offences involving physical vidlenc, e.

Previous enmity between the appellant Ramaswami Ayyangar and the deceased Kaliapen1rnal resulted in ah occurrence, in which Kaliaperumal got seriously injured and died in the hospital.

Various charges were framed against the six accused, including those of murder and rioting. The Trial Judge acquitted three of the accused persons, convicted two under S. 302 I.P.C. and one under s. 324.

Cross-appeals were preferred in the High Court; one by the three accused against their convictions, and another by the State, against the acquittals. The High Court convicted all the six accused of the offence of rioting, A-2 to A-6 under S. 302 read with S. 34. A-I under Ss. 302/149 and 3021109, and A-2 under S. 324.

It was contended before this Court that. on the facts of the case, the High Court was not justified in interlering with the acquittal of A-1.

A-5 and A-6, and that A-2 who did not physically _participate in the fatal beating of the deceased, could not be held vicariously liable for the acts of others, and that S. 34 was not applicable to him.

Partly allowing the appeals, the Court

" I

HELD : ( 1) In the case of an offence involving physical violence. it is essential for the application of S. 34 that the person who inStigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the com- mission of which is the aim of the joint c:r.irninal \"eDture. [881 C-D]

(2) The "act" spoken of in S. 34 includes a series of act9 as a single act.

It follows that the words "when a criminal act is done by several persons" in S. 34, may be construed to mean "when criminal acts are done by several persons". The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise.

Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation ih the 'criminal act'. [881 A-B & D]

(3) The essence of S. 34 is simultaneous consensus of the minds of persons participating in the 'criminal action' to bring about a particular result. Such sonsensus can be developed at the spot and thereby intended by all of them .. [881 D-E]

CRIMINAL APPELLATE JURISDICTION : Criminar Appeal No. 251 of 1972 and 243 of 1973.

Appeals by Special Leave from the Judgment and order dated 22-9-72 of the Madras High Court in Criminal Appeal No. 369 /72 and 976/71.

Debaratea Mookerjee, M. S. K. Sastri and M. S. Narasimhan for the Appellants.

A. V. Rangam and Miss A. Subhashni, for the Respondents.

' •

The Judgment of the Court was delivered by

UNTWAL!A, J. Criminal Appeal No. 251 of 1972 has been filed under section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Crimlllal Appeal No. 243 of 1973 is by special leave.

In all there are six appellants. lt would be convenient to refer to them with reference to their accused number given in the judgment of the Sessions Court.

They are as follows :

Accused No. I (A-1)-Ramaswami Ayyangar.

Accused No. 2 (A-2)-Vattappan . . Accused No. 3 (A-3)-Kaipillai alias Karuppayyan.

Accused No. 4 (A-4)-Raman.

Accused No. 5 (A-5)-Katbayyan.

Accused No. 6 (A-6)-Kulandaiyan.

1 The occurrence giving rise to these two appeals took place on Monday the 21st April, 1971 at about 4.00 p.m. at Sivan Koil tank in village Thadulhalkondapuram. In the said occurrence was seriously injured one Kaliaperumal who later died in the Hospital at about 9.00 p.m. the same evening.

Another person injured in the occur- D rencc was also named Kaliaperumal, P.W. 1.

The prosecution case is that deceased Kaliaperumal was living with his matcrnal uncle Pichai Konar, P.W. 7 since infancy.

A-1 is the Karnam of the village and A-6 is the Government vetti. A-2 and A-3 are brothers, A-4, A-5 and A-6 are also inter-se brothers. A-2 to A-6 worked under A-1.

There was enmity between P.W. 7 and the deceased on the one hand and A-1 on the other on account of several causes.

E The facts showing the enmity between them are stated in the judgments of the courts below and are not necessary to be detailed here.

Two days prior to the occurrence Marimuthu, P.W. 10 was driving some cattle, 4 or 5 of them went astray and entered into the Gingilli Hai (field) belonging to A-1.

A-l's men scolded P.W. 10 and the deceased who was informed about the incident by the former at a tea shop.

P.W. 1 was also present there.

Deceased Kal!apcrumal F passed on the information to P.W. 7.

Ramalingam, P.W. 4 brother of the deceased was taking his bath in the Sivan Kail tank.

Kaliaperumal (deceased) also came there saying something against the Karnam.

He also started bathing at the north-western corner of the tank.

According to the prosecution case, A-1 came there followed by A-2 to A-6. A-2 had a cross-stop (an instrument used in Survey and measurement, perhaps the correct name of tho instrument is cross-staff). A-3 and A-4 were each armed with an Aruval. A-5 had a stick and A-6 was carrying a stick with a spear attached to it.

According to the evidence in Court, A-1 told the other accused "Not content to with grazing (his) cattle in my gingilly field, he is also abusing me.

Cut him, whatever be the expenses, I will look after that." Thereupon A-4 asked the deceased Kaliaperumal "Why are you abusing the 'Iyer' ?" Saying something Kaliaperumal ascended the bank.

A-3 and A-4 assaulted him on his bead with Aruvals.

P.W, 1 ran to &eparate them when A-2 assaulted him on

725 SCI/76

A his head with the cross-stop. P. W. 1 attempted to run. Thereupon it is said A-6 obstructed him from running with the help of the stick

wi, h spear head.

A-4 agam cut on ..n~ neau ur 1'.aiwp.:rumal

(deceased) with his Aruval. A-2 beat on P.W's head with the crossstvp , uur or Jive times.

J'.W. 1 fell down unconscious. P.W. 7 and others took the injured to the Government Dispensary Kodavasal.

Dr, Kadha Singh, Civil Assistant Surgeon,

P.W. 15 exaniined Kal1apcrumal aeceasect at 4.55 p.m. and. 1~.:>ued a Wound Ccruuca.Le.

B Smee his condition was senous he was sent to the Government Hospital, Kumbakonam. P. W. 15 exammed the injuries 01 P.W. 1 at 5.20 p.m. and found as many as nine injuries on his person. As already stated Kaliaperumal died at about 9.00 p.m. Dr. N. Jayaraj, P. W. 18 performed the autopsy over the dead body.

As many as '14 injuries were found.

The injuries given on the head with Aruval according to the opinions of the Doctors 'were sufficient in the ordinary C course of nature to cause his death.

Various charges were framed against the six accused including that of rioting under section 14 7 !PC against A-1 and

A-5 and section 148 against A-2, A-3, A-4 and A-6. A-1 was further charged under sections 302/149 and sections 302/ 109. A-2 to A-6 were charged under section 302. An extra charge under section 324 was levelled D against A-2 for causing simple hurt to P.W. 1 with the cross-stop, an instrument which had sharp edges.

A-6 was also charged under section 341 of the Penal Code for preventing P. W; 1 from escapmg.

The accused denied their complicity in the occurrence and pleaded not guilty.

A-1 took . a plea of alibi also and asserted that he had gone to Madras in connection with some marriage negotiations. Two days after the date of occurrence. he was arrested at Kumbakonam E Railway Station when he alighted from the train on his return from Madras.

The Trial Judge acquitted A-1., A-5 and A-6 of all the charges. He convicted A-3 and A-4 under section 302 of the Penal . Code and awarded a sentence of life imprisonment to each of them. , They were acquitted of the charge under section 148. A-2 was convicted only under section 324 with a sentence of 4 months' rigorou,; imprisonment_ iind acquitted of all other charges. ' F

 . A~2, A-3 and A-4 preferred an appeal in the Madras High Court against their conviction and the sentences imposed upon them by the Trial Court. State preferred an appeal against the acquittals of A-1, A-5 and A-6 as also against the acquittal of A-2 of the charge under section 302. It, however, did not prefer any appeal against the acquittal of A-2, A-3 and A-4 of the charge under section 148 of the Penal Code.

Yet it is surprising to find that the High Court has convicted all the six accused fat the offences of rioting. A-I and A-5 under section 147 with two years' rigorous imprisonment and A-2, .A-3, A-4 and A-6 under section 148 with 3 years' rigorous imprison-.' ment.

Conviction of A-3 and A-4 for the offence of murder under section 302 has been maintained with the aid of section 34. High Court has also convicted A-2, A-5 and A-6 under sections 302/34 and awarded each of them life imprisoninent.

A-1 has been convicted by the High Court under sections 302/149 and 302/109 with sentence

-.,(-- -

RAMASWAJ\ffv. TAMIL NADU (Untwalia, I.) 879 /

of life imprisonment under each. Conviction of A-2 under section 324 has been ma1mamed. Hence these two appeals.

- That there was enmity and bad blood between A-1 and P. W. 7 is not open to any doubt. An occurrence did take place on the date, time anu place a, given by the prosecullon. The manner of occurrence in so far as it relates to the attack on the deceased is concerned by A-2 and A-3 has also been proved to the hilt.

The factum of assault by A-2 on P.W. 1 also does not admit of any doubL But the High Court does not seem to be justified in reversing the order of acquittal recorded by the Trial Court in favour of A-1, A-5 and A-6.

It was claimed by the prosecution that apart from P.W. 1 there were four more eye witnesses to the occurrence namely Govindaswami, P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5, and Ka!Japcrumal, P.W. 6. P. Ws 3 and 4 are brothers of the deceased.

P.W. 5 is the brother-in-law of P.W. 3. Ext. P-1 is the statement of P.W. 1 before the police on the basis of which the First Information Report was drawn up.

On reading this statement as also the evidence oi P.W. I in Court, the Trial Judge rightly came to the . conclusion that P.Ws. 3, 4, 5 and 6 arrived at the scene of occurrence after it had taken place. None of them had witnessed it. It considered the evidence ot each w1tnesS, viz. P.Ws. 3 to 6, individually and did not rely upon it. In our judgment, the High Court was not right as against the explicit statement and evidence of P.W. 1 in treatmg P.Ws. 3 to 6 as eye witnesses to the occurrence. It is significant to note that although P.Ws. 3 and 4 were the brothers of the deceased Kaliaperumal but none of them made any attempt to save him !c "' the attack of the assailants. Had they been present at the occurrence surely they would have _tried to save their brother, as was done by

P.W. 1.

We are, therefore, left with the evidence of P.W. 1 alone.

Since he was injured in the same occurrence, undoubtedly, his ocular version of the incident is of great value to the prosecution.

The plea of alibi set up by A-1 has not been substantiated at all.

The Trial Judge was not right in doubting the prosecution case merely because A-1 had applied for leave on the 18th April-3 days before the occurrence. There was no evidence to show that he was at Madras on the date of occurrence.

According to the Investigating Agency, A-1 was arrested not on the Railway platform but near the Railway level crossing of Kumbakonam Railway Station.

But the Trial Court was right in saying that the only part attributed to A-1 was the order giving for assault. In the statement Ext. P-1 the only words of order attributed to A-1 are "to cut" .. In court there was great embellishment and improvement in the evidence. of P.W, 1 when he put several sentences in the mouth of A-1 at the time of the alleged order-giving. As already stated, A-1 was the Karnam of the village and even if he was at the back of the assault on the deceased. it does not stand to reason that he. himself would go to the place of occurrence merely for giving the order for assault.

The order, if any, must have been given to the assailants in secret by A-1. . He must not have come to the place of occurrence merely for this purpose. We

are, therefore, of the view that although the High Court in its judgment purported to keep in front the well-settled principles of law to jusmy an mterlercnce by it with the order of acqumal, ll did commit \, 1 a mistaKe in the applications of those pnnc1ples.

Conviction of A-1 by the High Court unoer any count is not justified.

So do we find in the case of A-5 and A-6 that they had not taken any part in the occurrence at all.

The alleged obstruction given by A-6 to P.W. 1 when he wanted to run was not be!Jevable and has. not been believed by the Trial Court. The reasons given by the Trial Court for their acquittal were not such as to justity an interference by the High Court. The view taken by the Trial Court was reasonably possible to be taken.

Coming to the case of A-2 we find that he did assault P.W. 1 with the cross-staff marked Ext. MO-I. This cross-staff, as alleged, has been recovered from the house of A-1. The Trial Court, rightly, , did not believe the story of its recovery from his house.

But surely + A-2 had used the cross-staff for assaulting P.W. I. A serious question for consideration is whether his conviction under section 302 with the aid of section 34 is justified or not.

In this connection we find the statement of P.W. 1 in Ext. P-1 to the following effect:

"Raman too with the aruval in his hitnd dealt a cut at the front portion of his head. I ran there to prevent it.

At that time Vattappan with the string fixed wood he was having in his hand beat on my head."

In the Sessions Court also he deposed :

"Thereupon, Accused No. 3 immediately cut on the head of Kaliyaperumal in the front portion with the aruval he was having in his hand. I ran to separate them. Immediately Accused No. 2 beat on my head with M.O. 1 ......... .

Then accused number 2 beat on my head with M.O. 1, 4 or 5 times.

I fell down unconscious.

After some time, President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there.

From the evidence of P.W. 1 corroborated as it is from his statement in Ext. P-1 it is clear that P.W. 1 wanted to save Kaliyaperumalthe deceased, from the murderous attack by A-3 and A-4.

A-2 was standing as a guard and did not allow P.W. 1 to protect the deceased.

A-2 went to the length of assaulting P.W. I and making him fall down unconscious.

It is contended that A-2 cannot be held vicariously liable with the aid of s. 34 for the act of A-3 and A-4, for two reasons : Firstly, he did not physically participate in the fatal beating administered by A-3 and A-4 to the deceased and thus the "criminal act" of murder was not done by all these three accused within the contemplation of s. 34, the act committed by A-2 in regard to the beating of P.W. 1 being a different and separate act of A-2.

Secondly, it has not been shown that the act of A-2 in beating P.W. 1 was committed in

furtherance of the common intention of all the three, pursuant to a A pre-arranged plan.

) The contention is fallacious and cannot be accepted.

Section 34 is to be read along with the preceding s. 33 which makes it clear that the "act" spoken of in s. 34 includes a series of acts as a single act.

It follows that the words "when a criminal act is done by several persons" in s. 34, may be construed to mean "when criminal acts are done by several persons".

The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design.

Such a person also commits an "act" as much as his co-participants actually committing the planned crime.

In the i case of an offence involving physical violence, however, it is essential for the application of s. 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.

Such presence of those who in one way or the other facilitate the execution of the common, design, is itself tantamount to actual participation in the 'criminal act'. The essence of s. 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result.

Such consensus can be developed at the spot and thereby intended by all of them.

In the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to the relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased. Under these circumstances we think the High Court was justified in convicting A-2 for the offence of murder of Kaliyaperumal with the aid of section 34 of the Penal Code.

There was absolutely no difficulty in maintaining the convictions of A-3 and A-4 for the murder of Kaliyaperuma1 with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body.

In the case of A-2 also it is quite legitimate to hold that he had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliyaperumal.

The conviction of none of the accused for the offence of rioting can be maintained either in law or, on facts.

In the view which we have expressed above that the High Court was not justified in reversing the acquittals of A-1, A-5 and A-6, there were only 3 left in the party of the assailnts. Moreover the State did not file any appeal, as

A stated already, against the acquittal of A-2, A-3 and. A-4 under section 148 of the Penal Code.

That being so, they could not be convicted for having formed an unlawful assembly for any criminal " 1 common object.

None could be convicted, therefore, under sections

147 or 148.

Section 149 could not be pressed into service against any.

In the result we allow both the appeals in part, restore the order of acquittal recorded in favour of A-1 viz., Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each.

We also maintain the conviction of A-2 under section 324 Indian ' Penal Code with the concurrent sentence of 4 months' rigorous im- + prisonment under the said count.

M.R.

Appeals partly allowed.

.."'

RAMASWAMI AYYANGAR AND ORS

STATE OF TAMIL NADU

March 24, 1976

R. S. SARKARIA

N. L. UNTWALIA, JJ

Indian Penal Code

S. 34

S. 34

Kaliaperumal

S. 302

I.P.C

s. 324

S. 302

S. 34

Ss. 302

S. 324

S. 34

S. 34

S. 34

S. 34

S. 34

Madras High Court

Debaratea Mookerjee

M. S. K. Sastri

M. S. Narasimhan

A. V. Rangam

A. Subhashni

UNTWAL!A

section 2

21st April, 1971

Thadulhalkondapuram

Kaliaperumal

Pichai Konar

Marimuthu

Kal!apcrumal

Ramalingam

Kadha Singh

Government Hospital, Kumbakonam

N. Jayaraj

Aruval

section 14

section 148

sections 302

sections 302

section 302

section 324

section 341

Penal Code

Madras

section 302

section 148

section 324

section 302

section 148

Penal Code

section 147

section 148

section 302

section 34

sections 302

sections 302

section 324

Govindaswami

Rajagopal

Ka!Japcrumal

section 302

section 34

Raman

Vattappan

Kaliyaperumal

Rajagopal

Mani alias Rajagopal

Ramalingam

Govindaswami

Kaliyaperumalthe

s. 34

s. 34

Section 34

s. 33

s. 34

s. 34

s. 34

s. 34

Section 34

section 34

Penal Code

section 34

section 148

Penal Code

sections

147

Section 149

Kathayyan

Kulandaiyan

sections 14

Penal Code

Vattappan

Kaipillai alias Karuppayyan

Raman

section 302

section 324

Penal Code