PALANIAPPA GOUNDER

STATE OF TAMIL NADU & ORS.

March 4, 1977

(Y. V. CHANDRACHUD AND P. K. GOSWAMI, JJ.]

 . Cbmpensation to persons injured out of a1nount reali'sed by sentence of fine-Propriety of inzposition of heary {i1re, while sentencing-Guidelines to the Courts for imposing sentence of fine-Section 357 of the Code of Criminal Procedure (Act 11 o/ 1974), 1973. ·

The appellant was convicted by the Sessions Judge. Salem for an offeiice under s. 302 I.P.C. and was sentenced to death. The lligh Court motlified che sentence of death to one of life imprisonment. However, exercising its Powers under s. 367(4) of the Criminal Procedure Code, 1973, the High Court imposed a fine of Rs. 20,000/- under s. 357(1)(c) of the Code.

Special Leave \\'as granted, by the court, limiting it into the question of propriety of the fine imposed by the High Court. ·

Allowing the appeal in part and reducing the fine the Court, HELD: ·(i) A saving provision which saves· the inherent powers of the court cannot over-ride an express provision contained in the Statute which saves that power. That did not however affect the power of the High Court to deal with the application merely because the application was wrongly described as having been made under a wrong section. In the instant case, the High Court correctly passed an order of compensation not under s. 482 but under s. 357(1)(c) of the Code and the application filed in the High Covrt

\Vas maintainable at the instance of the son and daughter of the deceased.

[133 H, 135 F-G]

(ii) Under s. 302 l.P.C. not only a sentence of imprisonment for life but e\"en a sentence of death can legitim:itely be combined with a sentence of fine.

For the offence of murder; the court do havc the pov, rer to impose the sentence of fine.

[136 B-C]

(iii) Legitimacy is nOt to be confused \Vith propriety and the , fact that the court rossesscs a certain power does not mean that it must exercise it. Though there 1s power to combine a sentence of death with a sentence of fine that power is to be sparingly exercised because the sentence of death is an extreme .penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. [136 C-E]

(iv) The first concern of the court, after recording an order of conviction. ought to be to determine the proper sentence to pass. The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine. must not be unduly excessive. In fact, the primary object of impOsing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realised which can happen only when the fine is not unduly excessive, having regard to all the circumstances of the case, including the means of the offender. [137 D-F]

(v) Since by s. 357(1)(c) of the code of 1973 and its precursor s. 545(1)

(bb) of the code of 1898 compensation can only come out of fine, it is always necessary to consider in the first instance \\'hether the sentence of fine fa at all called for, particularly when the offender is sentenced to death or life imprisonment. If so, the fine must not be execessive, having regard to all the circumstances of the case Hke motivation of the offence, the pecuniary JZain likelv to have been made by the offender by committing the offence and his means to pay the fine.

The High Court in the instant case in.stead of applying its mind to these factors, considered only what compensation the heirs ought to receive. There is no warrant for the assumption made by the High Court as regardsthe retention of .. abilities .in fact" or as regards the

"extent of I05S 'to the dependants." (137 A-C, 138 A-CJ

S1ate v. Pandurang Shinde, A.LR. (1956] Born 711, 714 referred to.

Adamji Umar Dalal v. The State of Bombay, (1952] S.C.R. 172, applied.

(vi) ln view of the fact that the appellant was under the sentence of death since it'i imposition by the Sessions Court and its reduction to life iniprisonment by the High Court since a sentence of life imprisonment ha~ been imposed on the appellant that being the only other sentence permissible under the l:nv, the fine of Rs. 20,000 is unduly excessive and a sun1 of Rs. 3000/ - \\oU!d meet the ends of justice.

[138 C-DJ B

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 190 of 1976. (Appeal by Special Leave from the Judgment and Order 15-7-1975 of the Madras High Court in Criminal Appeal No. 75.

Vineet Kumar and M. Mudgal, for the appellant.

A. V. Rangam and Miss A. Subhashni, for respondent No. 1

K. Jayaram and K. Ram Kumar, for respondents Nos. 2-4.

The Judgment of the Court was delivered by

dated 162(

CHANDRACHUD, J.

The appellant, Palaniappa Gounder, was convicted by the learned Principal Sessions Judge, Salem, under s. 302 of the Penal Code and was sentenced to death on the charge that on August 23, 1974 he had committed the murder of one Sengoda Goundar.

Two appellant's son and daughter-in-law were convicted by the learned Judge for abetting the murder and were sentenced to life imprisonment.

The three accused filed an appeal in the High Court of Madras which upheld the appellant's conviction under s. 302 but reduced the sentence from death to imprisonment of life.

However, while reducing the substantive sentence the High Court imposed a fine of Rs. 20,000/- on the appe:Jant and directed that out of the fine, if realised, a sum of Rs. 15,000/- should be paid to the son and daughters of the decea5ed under s. 357(1) (e) of the Criminal Procedure Code. 2 of 1974. The other two accused were acquitted by the High Court. We are not concerned in this appeal with the legality of the appellant's conviction or with the acquittal of his daughter and son-in-law. The special leave granted by this Court is limited to the question of the propriety of the fine imposed by the High Court.

The reason and occa5ion for imposing the sentence of fine was that an application was filed before the High Court under s. 482 of the Criminal Procedure Code by a son and two daughters of the dccea5ed praymg that the appellant, his son and daughter-in-law be asked to pay to them, as heirs of the deceased, compensation in the sum of Rs. 40,0001for the death of their father.

Section 482 of the Code under which the heirs of the deceased

fild .the application for compensation corresponds to s. 561-A of the Cnmral Procedure Code of 1898. It saves the inherent powers of the Htgh Court to make such orders as may be necessary to give ffect

to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

A provision

A which saves the inherent powers of a Court cannot over-ride any express . provision containc<l in the statute which saves that power.

This is put in another form by saying that if there is an express provision in a statute governing a particular .subject matter there is no scope for •

invoking or exercising the inherent powers of the Court because the Court ought. to apply the provisions of the statute which are made advisedly to govern the particular subject matter.

From this it will B be clear that the application made by the heirs of the deceased for compensation could not have been made under s. 482 since S 357 expressly confers power on the court to pass an order for payment of compensation in the circumstances mentioned therein.

That did not, however, affect the power of the High Court to deal with the application because though the application was wrongly described a.o having been made under s. 482 the High Court could deal with it as if it were C made under s. 357 of the Code.

That in fact is what the High Court proceeded to do, for it passed the order of compensation not under s. 482 but under s. 357(l)(c) of the Code.

Section 357 of the Code of Criminal Procedure, 2 of 1974, reads thus :

"357. Order to pay compe11sa1io11.

(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied :-

(a) in defraying the expenses properly incurred in the prosecution;

( b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c)

(d)

when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who arc, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reasons to believe the same to be stolen, .in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to A appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, of an appeal be presented, before the decision of the appeal.

( 3) When a Court imposes a sentence, of which fine does not form a Part, the Court may, \Vhen passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

( 4) An onicr under this section may also be made by an Appellate Court or by the High Court or Court of Sessions

when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section."

Clauses (a), (b) and (d) of s. 357(1) need not be considered firstly because the High Court has passed the order of compensation under cl. ( c) and secondly because those clauses have no application.

No order having been passed by the High Court for defraying the expenses incmred in the prosecution cl. (a) does not come for consideration.

Clause (b) has no application to cases in which the heirs of a person whose death has been caused apply for compensation because that clause deals with the payment of compensation to the very person to whom any loss or injury has been caused as a result of the offence committed against him or his property and when compensation is recoverable by such person in a Civil Court.

Clause ( d) deals with a different Class of cases altogether and need not detain us.

Clause (c) of s. 357(1) under which the High Court has passed the order for compensation enables the Court to direct that the whole or any part of the fine recovered may be applied in paying compensation to the persons who are under the Fatal Accidents Act, 1855 entitled to recover damages from the person sentenced for the loss resulting to them from the death of the person whose heirs, as described in the Act nf 1855, they claim to be.

Since under the Act of 1855, persons who may be compensated are the wife, husband, parent (including grand-parents) and child (including grand-children and step-children), the application filed in the High Court was maintainable at the instance of the son and daughters of the deceased.

It cannot however be overlooked that the order for compensation can be passed under s. 357(l)(c) only when "a Court imposes a

'ntence of fine or a sentence (including a sentence of death) of which fine forms a part".

We are concerned in this appeal to examine primarily the legality and propriety of the sentence of fine imposed by the High Court because upon that would depend the efficacy and indeed the very existence of the order for payment of compensation to the heirs of the deceased.

The compensation, as

10-240SCI 177

provided in the section, has to come out of the fine. Therefore, if on a proper application of the principles of sentencing, the fine imposed by the High Court is found to be excessive and has therefore to be reduced, the order regarding the payment of compensation must suffer a corresponding variation.

There can be no doubt that for the offence of murder Courts have the power to impose a sentence of fine under s. 302 of the Penal Code.

That section provides that whoever commits murder shall be punished with death, or imprisonment for life, and "shall also be liable to fine''.

That is why section 357 (!) of the Code speaks of "a sentence (including a sentence of death) of which fine forms a part.'' That is only an instance of the practical application of s. 302 under which not only a sentence of imprisonment for life but even a sentence of death can legitimately be combined with a sentence of fine.

But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. Though, therefore, the High Court had, the

power to impose on the appellant a sentence of fine alongwith the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,0001is justified in the circumstances of the case.

Economic offences are generally visited with heavy fines because an offender who has enriched himself unconscionably or unjnstifiably by violating economic laws fan be assumed legitimately to J'OSsess the means to pay that fine.

I-le must disgorge his ill-gotten wealth.

But quite different considerations would, in the generality ol cases, apply to matters of the present kind.

Thought there is power to combine a sentence of death with a sentence of fine that power in sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose.

In fact the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine.

We cannot, of course, go so far as to express approval of the unqualified view

taken in some of the cases that a sentence of fine for an offence of murder is wholly "inapposite" (See, for example, State v. Pandurang Shinde('), but before imposing the sentence of fine, particnlarly a heavy fine, alongwith the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called fat" and if so, what is a proper or adequate fine to impose in the circumstances of the case. As observed by this Court in Adam Ji Umar Dalal v.

The State of Bombay,(') determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided. by a variety of considerations but the court must always bear in mmd the necessity of maintaining a proportion between the offence and the penalty proposed fo~ it.

Speaking for .th~ Court Mahajan J. observed in that case that : "m imposmg a fme it 1s nec0ssary to have as mnch regard to the pecuniary circumstances of the accused persons as to the

(1) A.LR. [19561 Born 711, 714.

(2) [1952] S.C.R. 172.

character and magnitude of the offence, and where a substantial term of imprisomnent is inflicted, an excessive fine should not accompany it except in exceptional cases" (p. 177).

Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,3001to Rs 4,000/- on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine.

The High Court imposed in the instant case a fine of Rs. 20,000/- on the ground that "the deceased was aged about 48 years am! was actively supervising the cultivation of the family lands and would have Jived for another 15 to 20 years with his abilities in tact, and the Jo,; s to the dependents, viz., the son and daughters would be about Rs.

20,000/-".

Except for the bald and bare statements contaiJ!ed in the petition for compensation filed by the heirs of the deceased, there is no warrant for the assumption made by the High Court as regards the retention of "abilities in tact" or as regards the extent of "loss to the dependents".

It appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased r, nd then imposed by way of fine an amount which was higher than the c.1111pensation because the compensation has to come out of the amount of fine.

Apart from the fact that even the compensation was not fixed on any reliable data, the High Court, with respect, put the c:art before the horse in leaving the propriety of fine to depend upon the amount of compensation.

The first concern of the Court, after recording an order of conviction, ought to be to determine the proper sentence to pass.

The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly excessive.- In fact, the primary object of imposing a fine is not to ensure that the offender will undergo the sentcn<:e in default of poyment of fine but to see that the fine is realized, which can

happen only when the fine is not unduly excessive having regard to all the circumstances of the case, including the means of the offender.

Sect:on 357 (I) ( c) of the new Code corresponds to s.545 (I) (bb) of the Code of 1898 which was introduced by s. 110 of Amending Act 26 of 1955.

The statement of objects and reasons of that Act shows that the Joint Committee took the view that, in suitable cases, the person who causes death should compensate the heirs and dependents of the deceased for the loss resulting from the death.

The Joint Committee was in full agreement with the view that in a case where death has resulte<l from homicide, the Court should award compensation to the he'rs of the deceased because that would result

"in settling the claim once for all by doing away with the need for a further claim in a civil Court, needless worry and expense to both sides of the party".

The views of the Joint Committee incorporated in the Statement of Objects and Reasons to the Amending Act of 1955 arc undoubtedly entitled to consideration but those views only reflect

that there should reside in the criminal Court the power in aoprooriate cases to pass an order of compensation in favour of the he'rs cf the

deceased.

It cannot, however, be overlooked that since by s. 357

(1) (c) of the new Code and its precursor, s. 545(1) (bb) of the old Code, compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of fine is at all called for, particularly when the offender is sentenced to death or life imprisonment.

If so, the fine must not be excessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine.

The High Court, instead of applying its mind to these factors, considered only what compensation the heirs of the deceased ought to receive.

And that question it decided on inadequate data.

In view of the fact that the appellant was under the sentence of death since its imposition by the Sessions Court and its reduction to life imprisonment by the High Court and since a sentence of life imprisonment has been imposed on the appellant, that being the only other sentence permissible under the law, the fine of Rs. 20,000 imposed by the High Court seems to us unduly excessive.

In the circumstances we reduce it to a sum of Rs. 3,0001and direct that the fine or so much of it as is recovered shall be paid to the son and daughters of the deceased who had filed the petition in that behalf in the High Court.

S.R.

Appeal allowed in purl.

PALANIAPPA GOUNDER

STATE OF TAMIL NADU & ORS

March 4, 1977

Y. V. CHANDRACHUD

P. K. GOSWAMI, JJ.

Section 357

Code of Criminal Procedure

s. 302

I.P.C

s. 367(4)

Criminal Procedure Code, 1973

s. 357(1)(c)

s. 482

s. 357(1)(c)

s. 302

s. 357(1)(c)

s. 545(1)

Madras High Court

Vineet Kumar

M. Mudgal

A. V. Rangam

A. Subhashni

K. Jayaram

K. Ram Kumar

CHANDRACHUD

Palaniappa Gounder

s. 302

Penal Code

Sengoda Goundar

High Court of Madras

s. 302

s. 357(1)

s. 482

Section 482

s. 561

s. 482

S 357

s. 482

s. 357

s. 482

s. 357(l)(c)

Section 357

Code of Criminal Procedure

Fatal Accidents Act, 1855

s. 357(1)

s. 357(1)

Fatal Accidents Act, 1855

s. 357(l)(c)

s. 302

Penal Code

section 357

s. 302

Mahajan

s. 110

s. 357

s. 545(1)


STATE OF RAJASTHAN v.

RAMDEEN & OTHERS

March 4, 1977

[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHJNGHAL, JJJ

Code of .. Crilninal Procedure, 1973, s. 378(1) and (3)-}Vhether two sep'!rate pellltons are 11cressary 1111der sub-section ( 1) and (3), or a co1nposl/e 111e111ora11dun1 of t p:1cal can contain prayer for leave to appall.

The State filed an application under s. 378(3) of the Cr.P.C., 1973, for leave to appeal against the acquittal of the respondents, of the charges under s. 302 and 3021149 I.P.C., by the Trial Court. The application, although n1ade under s. 378 (3) contained all the requisites for a memorandum of

apeal. The High Court granted the appellant leave to the appeal, but disrn1ssed the appeal filed thereafter, on the ground that it had not been hied

ithin ninety days of the date. of judgment appealed from, and was therefore lime-barred under Art. 114(a) of the Limitation Act, 1963.

Allov.'ing the appeal by special leave the Court,

HELD ( 1) The High Court has not laid down any rules in the matter of application for leave t6 appeal by the State. The matter will have to be decided in ternlS of s. 378(1) and (3) of thi Code of Criminal Procedure,

1973. An appeal can be filed by the State within ninety days from the date of the order of acquittal, and a prayer may be included in that appeal for entertaining the appeal under sub-section (3) of section 378 Cr.P.C. 1'he appeal may otherwise become time-barred if the High Court takes more than ninety days for disposal of the application for leave, and refuses to exercise its jurisdiction to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right.

[141 C-HJ

(2) The fact that the appellrint's application mentioned section 378(3) is not decisive of the true character of the application which to all intents anti purposes \Vas a memorandum of appeal.

[142 C-D]

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 343 of 1976.

(Appeal by Special Leave from the Judgment and Order dated F 27-1-1975 of the Rajasthan High Court in D.B.

Crl. Appeal No. 575/74)

S. M. Jain, !. Makwana and D. Shandari, for the appellant.

Doongar Singh and S. K. Gambhir, for the respondents.

The Judgment of the Court was delivered by G

GoswAMI, J. The respondents were tried by the Sessions Judge, Merta (Rajasthan) for offences under sections 302, 302/149 and some other minor sections of the Indian Penal Code.

Respondent Goparam was acquitted of all the charges.

The other respondents also were acquitted of the charges under sections 302 and 3021149, IPC.

Respondent Sangram was convicted under section 304 Part II, IPC.

H Respondent Dayalram was convicted under section 324 IPC.

Respondents Budharam and Ramdeen were convicted under section 323 ll>C.

. A Being aggrieved by the judgment of the Sessions Judge, the State

of Rajasthan preferred an appeal against acquittal of the major charges under section 378 of the Code of Criminal Procedure, 1973.

The Sessions Judge delivered the judgment on March 30, 197 4 and the Code of Criminal Procedure, 1973, came into force from April 1, 197 4- The appeal was, therefore, preferred under the new Code.

It appears that the State of Rajasthan preferred a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, on June 27, 1974, which was within the period of limitation prescribed under article 114 (b) of the Limitation Act,

1963. Article 114(a) of the Limitation Act, 1963, provides for a period of limitation for appeal from an order of acquittal under sub- C section (1) or sub-section (2) of section 417 of the Code of Criminal Procedure, 1898 (hereinafter to be described as the Old Code).

The Limitation Act being an act of the year 1963, does not naturally refer to section 378 of the Code of Criminal Procedure Code, 1973.

Section 3 78 of the Code of Criminal Procedure, 1973, is equivalent to section 41 7 of the Old Code with an important difference in case of appeal against acquittal by the State.

Under the Old Code there D was no provis\on for taking leave of the High Court by the State for presentation of an appeal to the High Court against an original or appellate order of acquittal.

There was, however, provision for obtaining special leave to appeal under section 417 (3) of the Old Code against an order of acquittal in any case instituted upon complaint.

With some changes about limitation, with which we are not concerned, provision for special leave to appeal in any case instituted E upon complaint has been retained in the new Code.

Unlike in the Old Code, section 378(3) provides that no appeal under sub-section

(1) or sub-section (2) thereof shall be entertained except with the leave of the High Court. Such a provision for obtaining leave of the High Court by the State was absent in the Old Code.

Since the State filed an appeal against acquittal in this case soon after the coming into force of the new Code, the State of Rajasthan preferred an application describing it as a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, with a prayer "to accept this petition to file an appeal in the present case ...... " Although the application was described as one under section 387(3) of the Code of Criminal Procedure, all the facts and other requisites for a memorandum of appeal, including the grounds on which the appeal was founded, were given in as great a detail as was necessary.

The High Court after hearing the State granted leave to appeal on August 16, 1974.

The State thereafter filed again a petition of appeal on September 10, 1974.

This date is clearl) beyond the period of ninety days prescribed under article 114(c) of the Limitation Act, 1963. The High Court dismissed the appeal on January 27, 1975 as time-barred.

In view of section 8 of the General Clauses Act, 1897, it is not disputed before us that article 114(a) is aoolicable in this case. The respondents, however, submit that the petition of appeal should have

RAJASTHAN v. RAMDEEN (Goswami, J.) . 141

been presented within ninety days of the judgment of the Sessions A Judge which was on March 30, 1974.

Since that was not done and there was not even an application for condonation of delay, the High Court had no alternative then to dismiss the appeal as time-barred.

The respondents further add that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining leave of the High Court. It was, therefore, incumbent upon the appellant to have preferred the petition of appeal within ninety days as pres- B cribed under the law.

The High Court also while refusing leave to appeal to the Supreme Court observed in its order that "the practice of this court is that separate memo of appeal has to be filed in all matters relating to the grant of leave to appeal under section 378, Cr. p. C.".

It is difficult to appreciate the reference to practice, by the High C Court, so far as appeals by State are concerned when the new Code of Criminal Procedure, for the first time, provided for obtaining leave to appeal by the State only from April 1, 1974.

It is admitted that there are no rules laid down by the High Court in the matter of application for leave to appeal by the State.

It is, therefore, not possible to decide the matter relying upon the so-called practice soon after the provision has been introduced.

The matter will, therefore, have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973. Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal.

Sub-section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court.

Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal.

It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal.

If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue.

The right conferred by section 378 (1), Cr.P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen !hat the High Court may refuse to exercise its discretion to condone the delay.

The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right.

Besides, under article 114 of the Limitation Act, in an appeal from an order of acquittal by the State, the period of limitation is

ninety days from the date of the order appealed from; whereas in an appeal from an order of acquittal, in any case instituted upon co:nplaint, the period is thirty days from the date of the grant of special leave.

Thus there is a clear distinction between the two types of appeals with regard to terminus a quo under article 114.

It is, therefore, not necessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquittal at the instance of the State.

Thus appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under subsection (3) of section 378, Cr. P.C. If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dismissed.

We are, therefore, clearly of opinion that the application for leave to appeal, which was made by the State in this case, is equivalent to a memorandum of appeal under section 373(1) read with sub-section (3) of that section of the Code of Criminal Procedure, 1973.

The fact that the application mentioned section 378(3), is not decisive of the true character of the application which to all intents and purposes was a memorandum of appeal.

There was, therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay in this case.

The petition of appeal was filed within time and the High Court committed an error of law in dismissing the same as time-barred.

In the result the appeal is allowed.

The order of the High Court is set aside. The petition of appeal of June 27, 1974, shall be restored to the file of the High Court and treated as a memorandum of appeal under section 378(1) of the Code of Criminal Procedure, 1973, and, since leave had already been granted by the High Court, the appeal will be disposed of in accordance with law.

M.R.

Appeal allowed.

STATE OF RAJASTHAN

RAMDEEN & OTHERS

March 4, 1977

Y. V. CHANDRACHUD

P. K. GOSWAMI

s. 378(1)

s. 378(3)

Cr.P.C

s. 302 and 3021149

I.P.C

s. 378

Art. 114(a)

Limitation Act, 1963

s. 378(1)

Code of Criminal Procedure

section 378

Cr.P.C

section 378

Cr.P.C

section 378(3)

S. M. Jain

. Makwana

D. Shandari

Doongar Singh

S. K. Gambhir

G

GoswAMI

sections 302, 302

Indian Penal Code

Goparam

sections 302 and 3021149

IPC

Sangram

section 304

IPC

Dayalram

section 324

IPC

Budharam

Ramdeen

section 323

State

of Rajasthan

section 378

Code of Criminal Procedure, 1973

March 30, 197 4

Code of Criminal Procedure, 1973

April 1, 197

State of Rajasthan

section 378(3)

Code of Criminal Procedure, 1973

June 27, 1974

article 114

Limitation Act

Article 114(a)

Limitation Act, 1963

section 417

Code of Criminal Procedure, 1898

Limitation Act

section 378

Code of Criminal Procedure Code, 1973

Section 3

Code of Criminal Procedure, 1973

section 41

section 417

Unlike in the Old Code

section 378(3)

section 378(3)

Code of Criminal Procedure, 1973

section 387(3)

Code of Criminal Procedure

August 16, 1974

September 10, 1974

article 114(c)

Limitation Act, 1963

January 27, 1975

section 8

General Clauses Act, 1897

article 114(a)

March 30, 1974

Rajasthan High Court

Supreme Court

section 378

Code of Criminal Procedure

April 1, 1974

section 378(1)

Code of Criminal Procedure, 1973

Section 378(1)

section 378

Cr.P.C

section 378

Cr.P.C

article 114

Limitation Act

article 114

section 378

section 373(1)

Code of Criminal Procedure, 1973

section 378(3)

section 378(1)

Code of Criminal Procedure, 1973


ASHOK KUMAR

STATE (DELHI ADMINISTRATION)

March 7, 1977

[P. K. GOSWAMI AND P. S. KAILASAM, JJ.]

Code of Cri1ninal Procedttrc,-S. 288-Scope of-Evide11ce of recortled in commiuing court-./f could be transferred to Session 5ubstantire evidence.

witnesses Co1irts-If

The appellant \Vas convicted under s. 302/ 34, Indian Penal Code and

enlenced. Statements of two witnesses recorded in the commilting ourt

were transferred to the record' during trial under s. 288 Cr. P.C. and the trial court treated the evidence of these witnesses as substantive evidence. The lligh Court accepted the testimony of the \Vitnesses before the comn1itting C Cowt.

In appeal it was contended that the statements of \Vitnesses in the comn1itting court transferred under s. 288 \Vere inadmissible in evidence and should not be acted upon, since no specific portion of their contradictory ta1en1ents hdd been put to ther11 in cross-examination.

Disn1issing the appeal, D HELD : There is no legal inflrn1ity about the transfer of deposition of the witnesses to the record of the Sessions Court under S: 288 Cr. P.C.

It \\'as a legitimate use of discretion by the Sessions Judge.

Evidenru recorded iil the committing court is substantive evidence in this case and is adn1issible. [147 E-El

Section 288 Cr. P .C. which provides for transfer of evidence n:col"ded in the committing court under certain circumstances is subject inter alia to the E provisions of s. 145 of the Evidence Act.

Provisions of the latter a~;:tion have been substantially complied \Vith in this case.

[147 F]

in the instant case after dra\vinc; the attention of the witnesses to their contradictory statements recorded by the police, the statements recorded hy the committing fagistrate \Vere read out to the witnesses \Vho did not deny ro have n1ade then1 but' only explained that they had deposed in that n1anner under threat and prcsstFe from the police.

[147 D]

CRJ:\II>:AL APPELLATE JURiso1cnoN : Criminal Appeal No. 246 of 1976.

(Appeal by Special Leave from the Judgment and Order dated 5-12-1975 of the Delhi mgh Court in Criminal Appeal No. 1 ll of 1974 ).

R. L. Ko/; li and R. C. Kohli, for the appellant.

G. L. Sanghi and M. N. Shroff, for the respondent.

The Judgment of he Court was delivered by

GOSWAMI, J.-This appeal by special leave is directed against the judgment of the Delhi High Court confirming the conviction of the appellant under seetion 302 /34, Indian Penal Code and sentence of imprisonment for life. ' '

Ashok Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for an offence under section 302/34 IPC for causing the death of Rajindcr Kumar aged about 23 years.

Vijay Kumar was sent for trial under the Children Act, 1960, and is not, therefore, before us.

In June 1971 Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari. It is said that Saroj Kumari was recovered from the company of Rajinder Kumar at Ahmedabad and Rajinder Kumar was charged for offences under sections 366 and 376, Indian Penal Code, and the case was pending on the date of occurrence.

The prosecution case is that on May 22, 1973, Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H. C. Road and took a turn towards right leading to Mor Sarai when he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar.

He also saw that Ashok Kumar caught hold of the had of Rajinder Kumar while his younger brother stood behind him in front of the gate of Mor Sarai.

Having seen this he walked qu'ckly and when he was at a distance of four or fhe paces from them he heard Ashok Kumar and his brother, Vijay Kumar. telling Rajinder Kumar that they would avenge the kidnapping of thei•r sister no matter whether the court might punish him or not.

Hukam Chand then saw both the brothers taking out their knives.

Accused Ashok Kumar struck a blow on the left cheek of Rajinder Kumar.

Vijay Kumar struck one blow on Rajinder Kumar which was warded off by him as a result of which his right forearm was struck by the knife on the back of his palm.

Rajinder Kumar tried to run away but was pursued by the two brothers and was O\"erpowered.

They then gave several blows on the back of his 1raist, on left abdomen and on the right thigh.

As a result of these blows Rajinder Kumar fell down on the footpath on the side of the quarters of Mor Sarai.

Accused Ashok Kumar ran away towards the station along with his brother. Hukam Chand sent for a taxi and took Ra jinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the following injuries on his person:-

l. Stab wound 4" x 2" left inter scapular region with surrounding surgital emphysema.

2. Stab left lumber region 2" x 2".

3. Stab left thigh 'l!' x l".

4. Stab left cheek 'l!' x 2".

5. Stab left hand 4" x 1" on the dorsum.

Constable, Vijay Kumar, (PW 7) who was on duty at the Irwin Hospital informed the Police Station, Kotwali, about the admission of Rajinder Kumar in the Hospital.

Constable, Ram Saran (PW

ASHOK KUMAR v. STATE (DELHI ADMN.) (Goswami, J.) 145

14) made an entry in the daily diary about the report received from the Irwin Hospitai.

He sent a copy of this report to S. I. Dewan Singh (PW 20) who proceeded to the Ho.spital.

When PW 20 arrived Rajinder Kumar was not in a pos1hon to make a statement and he recorded the statement of Hukam Chand (Ex. PW 1 I A) at about 8.40 P.M. which is the first information report registered under section 307 /34 JPC.

According to the Doctor the punctured injury at the left intr scapular region was sufficient to cause his death ln the ordinary <:ourse of nature.

On the death of Rajinder Kumar at 11.35 P.M., the same night, the section under which the case was registered was altered to section 302 IPC and investigation proceeded accordingly.

Names of Ashok Kumar and Vijay Kumar appeared in the first information report, as the assailants.

The first information report also disclosed that there was another person. Mohar Singh (PW 2) with Hukam Chand. The accused, Ashok Kumar, was arrested on May 25, 1973. near Jat Dharamshala in Jamuna Bazar.

It is said that on the following day Ashok Kumar ma.de a statement before Inspector Sardar Singh, Station Houe Officer.

P. S. Kotwali. Delhi (PW 21) in pursuance of which on May 28. 1973, a blood stained knife (Ex. P-7) was recovered. Evi•dencc was also led by the prosecution to prove recovery of a shirt and pantaloons having stains of blood although these had already been washed from the person of the accused, Ashok Kumar, when he was arrested on May 25, 1973.

The serological report showed the origin of these stains as human blood. At the trial not only Hukam Chand gave evidence as an eye witness, but Mohar Singh (PW 2).

Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4) were also produced as eye witnesses.

While PW 1. Hukam Chand, continued to ell his mebncholy story. PWs 3 and 4 did not support the prosecution and were accordingly declared hostile.

It was shown in the course of their cross-examination that they had earlier during the investigation n1ade statements as eye witnesses to the occurrence.

The statements of PWs 3 and 4 which were recorded in the committing court were transferred to the record during the trial under section 288, Criminal Procedure Code.

In the committing court these witnesses. had stated that they had seen the accused assaulting the deceased with a k111fc.

P.W. 2. Mohar Singh. was not examined before the committing court

~ .

The acus'.:d denied the charge and stated that he was arrested by the poltce m Agra on May 24, 1973, and not on the following day t. Jat Dhaamshala as alleged by the prosecution.

After eammmg. the evidence of the defence witnesses as well as the station diary entries about the .deprture of the Head Constable. Manohar Lal and Constab.le Bal~r Singh, to outside districts the Sessions Judge held that It was not at all improbable" that the two policemen accompanfod by Jai Bhawan went to Agra and brought the

acused from there. The Sessions Judge also did not rely upon the disclosure stateent mad~ b~ the accused and also ignored the recovery of the kmfe as bemg m pursuance of that disclosure statement.

The Sessions Judge observed that it was very unusual in a murder case that recovery of the offending weapon was so belated.

The trial court convicted the accused on the testimony of Hukam Chand (PW I) and accepted the evidence of PWs 3 and 4 recorded in the committing court.

Referring to PWs 3 and 4, the trial court observed as follows :-

"I treat the evidence of PW 3 Rajinder Kumar Jain and PW 4 Puran as substantive evidence under section 288 Cr. P. C.

I find abundant corroboration thereof in the testimony of PW I Hukam Chand.

This evidence treated as substantive evidence under section 288 Cr. P. C. taken into consideration with the testimony of PW l Hukam Chand provides a complete picture by ocular evidence of what happened to the victim Rajinder Kumar on that fateful evening at the hands of Ashok accused and his brother Vijay.

I accept this part of the testimony".

With regard to the evidence of PW I the trial court observed as follows :-

"In the case before me Hukam Chand is a father of the deceased.

He admits the enmity on the part of the accused towards the deceased.

He mentioned the name of the accused in the FIR and gave complete sequence of events.

He did not lose any time.

He had no time to manufacture things so as to be incorporated in th.e report.

This is a strong circumstance in favour of the prosecution in this case".

The High Court, as stated earlier, confirmed the conviction by accepting the testimony of Hukam Chand as well as the statements made by PWs 3 and 4 before the committing court in wh;'Ch they had clearly supported the prosecution case.

Since the accused had opportunity to cross examine the PWs 3 and 4 in the committing court the fact that he had not actually cross-exam;•ned these witnesses is of no consequence.

Apart from that during the Sessions trial their explanation was that they had made the statements before the committing court under the the.eat of the police. This explanation had been rejected by both the courts.

Mr. Kohli submits that PWs 3 and 4 were not mentioned in the first information report although PW I mentioned, therein, at three places about the presence of Mohar Singh (PW 2) who was not even exam:•ned before the committing court.

Since PW 2 denied having seen the occurrence, his evidence is of no assistance and the fact that he was contradicted by his previous statement made before the police only dubs him as an nnreliable witness.

ASHOK KUMAR v. STATE (DELHI ;.DMN.) (Goswami, J.) 147

So far as PWs 3 and 4 are concerned, we do not see much force in the contention that their names were not mentioned in the first information report.

It is possible that even if they had seen the occmrence from some other point, PW 1 hastening away to the Hospital might not have noticed them.

Besides, when S. I. Diwan Singh (PW 20) went to the place of occurrence with PW 1 (Hukarii Chand) at about 9.45 P.M. the same night he found a large crowd there.

PW 20 stated that he recorded at that time the statements of Mohar

Singh (PW 2), Rajinder Kumar Jain (PW 3) and Puran s;•ngh

(PW 4).

The om;•; sion of the names of PWs 3 and 4 in the first information report lodged at 8.45 P.M. cannot, therefore, be of much significance to reject their testimony on that score.

Next, Mr. Kohli submits that the statements of PWs 3 and 4 recorded in the committing court and transferred under section 288, Crimi'nal Procedure Code, is inadmissible and should riot be acted upon, since no specific portion of their contradictory statements had been put to them in the course o! their cross-examination by the public prosecutor.

We find that after drawing the attention of these two witnesses to their contradictory statements recorded by the police with regard to t:'Jeir having seen the assault which they denied, the entire respective statements recorded by the committing magistrate in Hindi were read out to the witness who did not deny to have made the same but only explained that they had deposed in that manner under threat and pressure from the police.

Section 288, Criminal Procedure Code, which provides for transfer of evidence ~-ecorded in the committing court under certain circumstances, is subject, inter alia, to the provisions of section 145 of the Evidence Act, and the provisions of the latter section have been substantially complied with in this case. Under the circumstances there is no legal infirmity about the transfer of the deposition of the two witnesses to the record of the Sessions Court under section 288, Criminal Procedure Code, and it was a legitimate use of discretion by the Sessions Judge in adopting this course. Their evidence recorded in the committing court is substantive evidence in this case and is clearly admissible.

Raji'D.der Kumar Jain (PW 3) had written an inland letter which. the Inspector General of Police received on January 18, 1974, complaining about the police torture in threatening him to give evidence in the court.

He was examined before the Sessions Judge on January 19, 1974, when he, for the first time, denied in c, ourt to have seen the occurrence.

He had been examined in the commitfrng court on November 21, 1973, about six months after the occurrence when he had made no complaint about police torture and gave evidence as an eye witness to the occurrence.

The trial court was, therefore, perfectly justified in not accepting the belated explanation of PWs 3 and 4 about police threat under which alone they stated that they had supported the prosecution case.

Although the High Court was not prepared to accept the defence case about the arrest of the accused in Agra, it is not necessary to pursue the matter further. It is also not necessary to deal with I.he recovery of the knife nd the blood stained clothes about which the High Court was not prepared to accept the reasons given by the Sessions Judge for discarding that evidence.

W c agree with the Sessions Judge that it was unusual for the police to delay recovery of the blood-stained knife i•n a murder case. But since the two courts have relied. upon the evidence of the three eye witnesses, it is not necessary to consider whether the High Court was right in differing from the views of the trial court in the matter of the recovery of the knife and the clothes.

After having perused the entire evidence, we see no reason to C interfere with the conviction in thi~ case.

In the result the appeal is dismissed.

P.B.R.

Appeal dismissed.

ASHOK KUMAR

STATE (DELHI ADMINISTRATION

March 7, 1977

P. K. GOSWAMI

P. S. KAILASAM, JJ.

S. 288

s. 302

Indian Penal Code

s. 288

s. 288

Section 288

s. 145

R. L. Ko/

R. C. Kohli

G. L. Sanghi

M. N. Shroff

GOSWAMI

Delhi High Court

Indian Penal Code

Ashok Kumar

section 302

IPC

Rajindcr Kumar

Jai Bhagwan

Rajinder Kumar

Saroj Kumari

Ahmedabad

sections 366 and 376

Indian Penal Code

May 22, 1973

Hukum Chand

Ashok Kumar

Mor Sarai

Hukam Chand

Ra jinder Kumar

Irwin Hospital

U. Kaul

Vijay Kumar

Ram Saran

Irwin Hospitai

S. I. Dewan Singh

section 307

section 302

IPC

Mohar Singh

May 25, 1973

Sardar Singh

P. S. Kotwali

Delhi

May 28. 1973

Hukam Chand

Rajinder Kumar Jain

Puran Singh

section 288

Criminal Procedure Code

May 24, 1973

Manohar Lal

Constab.le Bal~r Singh

Agra

Puran

section 288

I Hukam Chand

section 288

l Hukam Chand

Ashok accused

Vijay

Kohli

S. I. Diwan Singh

Hukarii Chand

Mohar

Singh

section 288

Section 288

Criminal Procedure Code

section 145

section 288

Criminal Procedure Code

Raji'D.der Kumar Jain

January 18, 1974

January 19, 1974

November 21, 1973


STATE OF WEST BENGAL & ORS.

WASH.I AHMED ETC.

March 7, 1977

[P. N. BHAGWATI ANDS. MURTAZA FAZAL ALI, JJ.J

Taxing statute-Principles of construction of words in a taxing statute- Bengal Finance (Sales Tax) Act, 1941, Schedule I, Item 6-"Green ginger", whether 1neans a "vegetable" falling within the category of goods described as "vegetables, green or dried con1111011ly known as subji, tarkari or sak" and thus exempt from tax liability.

Section 6 (1) of the Bengal Finance (Sales Tax) Act 1941 exempts from tax liability "vegetables, green or dried commonly known as subji, tarkari or sak" when not sold io. sealed containers. The Sales Tax Authorities levied sales tax on "green ginger" sold by the respondents, taking the view that inasmuch as green ginger is used to add flavour and taste to food, it is not "vegetable commonly known as subji, tarkari or sak". A writ petition challenging the validity of the orders of assessment was allowed by the Calcutta High Court which held that green ginger is vegetable within the rrieaning of that expression as used in Item 6 of the First Schedule to the Bengal Finance (Sales Tax) Act, 1941.

Dismissing the State appeals by Special Leave the Court,

HELD : ( 1) Green ginger is included within the meaning of the \Vords "vegetables-commonly kµ.oWn as sub.ii, tarkari or sak" in Item 6 of Schedule I and its sales are exempt from tax under s. 6 of the Bengal Finance (Sales

Tax) Act, 1941.

[152 DJ

(2) The word "vegetable" though not defined in the Act, being a word

of every day use, must be construed not in any technical sense, nor from E any botanical_point of view but as understood in common parlance i.e. denoting class of vegetable~• which are grown in a kitchen garden or in a farm and are used for the table. The word "vegetable" in Item 6 of Schedule I to Lhe Act, so construed, by giving its popular sense meaning, "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it" denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Green ginger obviously is a vegetable grown in a kitchen garden or in a farm and it is used for the table. It may not be used as a principal item of the meal, F but it certainly forms part of the meal as a subsidiary item. Green ginger 1s generally regarded as included within the meaning of the word "vegetable" as understood in common parlance.

[150 F-H, 151 G-H, 152 A]

Ran1aratar Budilaiprasad v. Assistant Sales Tax Officer Akola, A.LR_ 1961 S.C'. 1325; !i,-fls. Motirur Za111indary Co. Ltd. v. State of Bihar A.!.H. 1962 >.C. 660, applied.

Mad:1ya Pradr:s!J Pan Merchants' Association, Santra Market, Nagpur v.

G State of Madhya Prad, sh 7 S.T. Cases 99 at 102, referred to.

Grenfefl v. l.R.C. (1876) 1 Ex. O. 242 at 248: Planters Nut and Chocolate Co. Ltd. v. The King (1951) 1 D.L.R. 385; 200 Chests of Tea (1824) 9 Wheaton (U.S.) 430, at 438 quoted with approval.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1546-1551 of 1971.

(From the Judgment and Ordr dated 20-12-1968 of the Calcutia High Court in Appeals from Ongmal Orders Nos. 556-559, 571 and 572 of 1967)

A Lal Narni11 Si11ha, Sol. Gencrnl and G. S. Chatterjee, for the appellants.

P11rushottwn Chatterjee and Rathin Das, for the respondents.

The Judgment of the Court was delivered by

BHAGWATI, J.-The short question which arises for determination in these appeals is whether green ginger falls within the category of goods described as "vegetables, green or dried, commonly known as "sabji, tarkari or sak" in Item ( 6) of Schedule I to the Bengal Finance (Sales Tax) Act, 1941. If it is covered by this description, it would be exempt from sales tax imposed under the provisions of that Act.

The Sales Tax authorities held that green ginger is used lo add llavour and taste to food and it is, therefore, not vegetable commonly known as sabji, tarkari or sak".

The orders of the Sales Tax authorities were challenged in a writ petition filed under article 226 of the Constitution and a Single Judge of the High Court who heard the writ petition disagreed with the view taken by the Sales Tax authorities and held that green ginger is vegetable within the meaning of that expression as used in Item (6) of the First Schedule to the Act.

This view of the learned Single Judge was affirmed by a Division Bench of the High Court on appeal under clause ( 15) of the Letters Patent. Hence the present appeal by the State with special leave obtained from this Court.

The Bengal Finance (Sales Tax) Act, 1941 levies sales tax on the taxable turnover of a dealer computed in accordance with the provisions of that Act.

Section 6, sub-section ( 1) provides that no tax shall be payable under the Act on the sale of goods specified in the first column of Schedule I, subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereat and Item (6) of Schedule I specifies in the first column "vegetable, green or dried, commonly known as "Sabji, tarkari or sak" so that no tax is payable on the sale of goods falling within this category, subject to the exception set out in the second column, namely, that they would be liable to bear tax "when sold in sealed containers." It was common ground in the present case that green ginger was not sold by the assessee in sealed containers and the only question which, therefore, requires to be considered is whether green ginger can be regarded as vegetable commonly known as 'sabji, tarkari or sak'.

Now, the word 'vegetable' is not defined in the Act but it is well settled as a result of several decisions of this Court of which we may mention only two, namely, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, A kola((') and M/s Motipur Jamindary Co. Ltd. v. State of Bihar( 2 ) that this word, being a word of every day use, mrust be construed not in any technical sense, nor from any botanical point of view, but as understood in common parlance.

The question which arose in Ramavatar's case (supra) was whether betel leaves are "vegetables"

(I) A.LR. 1961 S.C. 1325.

(2) A.LR. 1962 S.C. 660.

WEST BENGAL v. WASH! AHMED (Bhagwati, J.) 15 1

and this court held that they are not included within that term.

This Court quoted with approval the following passage from the judgment of the High Court of Madhya Pradesh in Madhy{]j Pradesh Pan Mercha11ts' Association, Samra Market, tyagpur v. State of Madhya Pradesh(') :

"In our opinion, the word "vegetables" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes betore.

The term "vegetables" is to be understood as commonly understood denoting. those classes of vegetable matter which are grown in kitchen gardens and are used for the table.", and observed that "the word 'vegetable' in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table''.

This meaning of the word 'vegetable' was reiterated by this Court in Motipur Zamfodary case (supra) where this Court was called upon to consider whether sugarcane can be regarded as vegetable and it was held by this Conrt that sugarcane cannot be said to fall within the definition of the word 'vegetable'.

It is interesting to note that the same principle of construction in relation to words used in a taxing statute has also been adopted in English, Canadian and American courts. Pollock B. pointed out in Grenfell v. l.R.C. ( 2) that "if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense''-that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.' " So also the Supreme Court of Canada said in Planters Nut and Chocolate Co. Ltd. v. The King,(') while interpreting the words 'fruit' and 'vegetable' in the Excise Act : "They

are ordinary words in every day use and are, therefore, to be construed according to their popular sense".

The same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea(') where the learned Judge said that "the particular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does "not suppose our merchants to be naturalists, or geologists, or botanists" ''.

IJ will, therefore, be seen that the word 'vegetable' in Item (6) of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it" and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table.

Now, obviously green ginger is a vegetable

(!) 7 S.T.C. 99 at 102.

(2) (1876) 1 Ex. D. 242 at 248.

(3) (1951) 1 D.L.R. 385.

(4) (1824), 9 Wheaton (U.S.) 430 at 438. l 1-240SCI/77

grown in a kitchen garden or in a farm and is nsed for the table.

It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable. The assessee in fact placed evidence before the Sales Tax authorities showing that the Railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnigbt:y showing the rates in the municipal market.

There can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word 'vegetable' as understood in common parlance.

That a part, we find that Item ( 6) speaks not simply of vegetables but "vegetables-;; ommonly known as sabji, tarkari or sak" and the Division Bench of the High Court held green ginger to fall within the meaning of the words "sabji, tarkari or sak". We should certainly be very slow to disturb a meaning placed on these words in Bengali language by two judges of the High Court who may reasonably be expected to be quite conversant with that language.

We are accordingly of the view that green ginger is included within the meaning of the words "vegetables-commonly known as sabji, tarkari or

sak" in Item ( 6) of Schedule I and its sales must be held to be exempt from tax under section 6 of the Act.

The result is that the appeals fail and are dismissed with costs.

Costs will be only in one set.

S.R.

Appeals dismissed.

STATE OF WEST BENGAL & ORS

WASH.I AHMED ETC

March 7, 1977

Schedule I

Section 6

Calcutta High Court

First Schedule

Schedule I

s. 6

Schedule I to Lhe Act

A Lal Narni11 Si11

G. S. Chatterjee

P11rushottwn Chatterjee

Rathin Das

BHAGWATI

Schedule I

article 226

First Schedule

Section 6

Schedule I

Schedule I

Ramavatar

High Court of Madhya Pradesh

Motipur Zamfodary

Pollock B.

Supreme Court of Canada

Story

Schedule I to the Act

Corporation of Calcutta

Schedule I

section 6


KESHEORAO

NARNARA YAN & ANOTHER

February 17, 1977

[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]

Constitution of India-Article 227-Powers of the High Court-Bon1bay Tenancy & Agricultural Lands (Vldarbha Region and Kutch Area). Act 1958-Sections 36. 38. 100(2). 132(3)-Recovery of possession.

Berar Regulation of AKricultural Leases Act 1951-Section 9A--!1!fi11or lessor's avvlication for possession within 3 years after attaining 111ajority.

Respondent No. 1 landlord after his father's death and during his :minority let out the agricultural land in dispute to the appellant tenant through his mother for one year.

After the expiry of the lease period the tenant refused to deliver possess.ion of the field.

The mother filed a suit for possession \vhich v.-as dismissed. Section 9A of the Berar Regulation of Agricultural Leases Act 1951 (Madhya Pradesh Act No. XXIV of 1951) enables a minor lessor to get possession within 3 years of his attaining n1ajority.

The landlord, therefore, after attaining majority filed a petition for possession .. _ By order dated 8-8-1955, the authorities terminated the tenancy under s. 9A(2) of the Berar Act. It was directed that the landlord shall apply for possession of the suit land after 31-3-1956.

Pending the proceedings under s. 9A the landlord applied for recovery of mesne profits or, in the alternative, the lease an1ount.

Subsequently, the landlord filed a '>Uit in the year 1960 against the tenant for recovery of mesne profits or for rent since the tenant continued to be on the land. When the suit was pending the landlord filed anothe-r application under s. 100(2) and s. 36 read with secti0n 38 of the Bombay 'fenancy and Agricultural Lands (Vidarbha Region & Kutch Area) Act 1958 (Bombay Act No. XLIX of 1958). The relief prayed was for a declaration t11at Kesheorao was -ilot a tenant. In the alternative, the landlord claimed for relief of resumrtion of the suit filed under sectio(l 36(2) and 38(1) of the Tenancy Act.

The Tenancy Court took the vie\v that the tenancy was terminated by the order dated 8-8-1955 under section 9A of the Berar 1\ct and that the possession of Kesheorao thereafter was not in the caoacity of a tenant and allowed the landlord's claim for possession under s. 132(3) of the Tenancy Act. The Tribunal reversed the judgment of the Appellate Authority and held that the tenant was a protected Jessee and entitled to enjoy that status under s. 6 of the Tenancy Act.

The Tribunal held that the landlord in his application under _sectioni 36 (2) will have to satisfy the conditions contained in s. 38(3) and (4) of the Tenancy Act. The Tribunal, therefore, dismissed the application of the landlord for possession. The Jligh Court in exercise of its powers Under Article 227 of the Constitution quashed the order of the llevenue Tribunal and restored the order passed by the Deputy Co1lector.

The High Court h~Jd that the landlord was entitled to get possession under s. 36 read withs. 38 and section 100(2) of the Tenancy .!\ct and directed the handing over of the possession to the landlord.

In an appeal by Special Leave the tenant contended that (1) The landlord took various proceedings on the basis that the appeJlant \Vas a tenant and, therefore. the landlord recognised or at any rate acquiesced in the tenancy of the appellant.

<2) The order passed under s. 9A of the J1erar Act cannot be given effect to lh'lder s. 36 of the Tenancy Act.

(3) In any event, the application for possession \vas not filed within t\VO yenrs from the date of the order for possession.

DismissinJ:! the appeal bv special leave.

HELD: (1) After the order dated 7-8-1955 \vas passed under section 9A of the Beror Act the lease was terminated nnd the appellant ceased to be n

KESHEORAO v. NARNARAYAN (Kailasam, J.) 15

tenant.

The status Of the appellant as a tenant was also lost on the expiry .of the 7 years neriod on 31-3-1956 conferred on him under the Berar Act.

It is clear from various proceedings that the landlonl never recognised or -acquiesced in the tenancy of the appellant.

The claim was for n1esne profits -0r in the alternative for lease and cannot amount to acquiescing in the tenancy.

Under the Tenancy Act no right has been conferred on the appellant .after his status as protected tenant came to an end. 'fhe landlord in fact made an application for possession within the period of two years from the date the ·renancy Act cnme into force and the applicalion was, therefore, not barred 1:ly limitation. [16H, 17A-C, E-Fl

(2) The Revenue Tribunal \Vas in error in upsetting the order of the .Appellate Authority to the effect that after the order under s. 9A of the Berar Act was passed the possession of the appellant wa5 not in the capacity of :a tenant.

The High Court \Vas justified in interfering \Vith the order of the Revenue Tribunal. [17G-H]

CIVIL APPELLATE JURISDICTION '. Civil Appeal No. 2031 of c 1968.

(Appeal by special leave from the Judgment and Decree dated 1.2.1968 of the Bombay High Court (Nagpur Bench) in Special Civil Appeal No. 387 of 1966).

M. W. Phadke, V. M. Phadke and A. G. Ratnaparkhi, for the appellant.

Sharad Manohar, Suresh Sethi and B. P. Maheshwari, for respondents.

The Judgment of the Court was delivered by

KAILASAM, J.

This appeal arise out of special leave granted by E this Court against the judgment and order of the High Court of Judicature Bombay at Nagpur. For convenience sake we will refer .to the appellant as the tenant and the respondent No. 1 as the landlord because the history of the litigation is 25 years old and the parties had resorted to various remedies before various Tribunals.

The dispute relates to \Field Survey No. 6 area 15 acres 23 gunthas F in village Gangaon.

Jodhraj the father of Narnarayan, the landlord before us, died some time in J 942. Narnarayan who was then .a minor became the owner and his widowed mother Trivenibai leased the land on behalf of the minor to Kesheorao, the tenant before us, for one year. After the expiry of the lease on 31st January, 1952, the tenant refused to deliver possession of the field. The mother filed the suit, Snit No. 125-A of 1952 for possession.

The suit as G well as further proceedings by way of appeal I.and second appeal failed and the tenant was held to be protected lessee for a period of five years from 1951-52.

Availing himself of the benefit of .section 9-A of the Berar Reu lation of Agricultural Leases Act Madhya Pradesh Act 24/51 which •enabled the minor to' get possession within 3 years of his attaining H majority he filed a petition for 1t.

By an order dated. 8th {\ugust, 1955 the Sub-Diviional Officer found that Narnarayan 1s entitled to 'terminate the lease of the tenant Kesheorao and ordered that lease of

SUPREME COURT REPORTS

[1977] 3 S.C.R.

Kesheorao is terminated under section 9A(2) of the Berar Regulation of Agricultural Leases Act and further ordered under that section that Narnarayan shall apply for possession of the suit filed after 31st March, 1956. This order admittedly became final.

Pending the proceedings under section 9-A the landlord applied for recovery of mesne profits or in the alternative for lease amount.

The landlord subsequently filed Civil Suit No. 3 of 1960 against the tenant for recovery of mesne profits or for rent.

The suit was necessitated because the tenant continued to be on the land. The claim was for mesne profits or for lease amount.

When this case was pending the landlord filed another application under section 100(2) and section 36 read with section 33 of the Bombay Tenancy Act, 1953. (Vidharba Region and Kutch area).

The relief prayed for was for a declaration that Kesheorao was not a tenant.

In the alternative the landlord claimed for relief of resumption of the suit filed under sections 36(2) and 38(1) 0£ the Bombay Tenancy Act.

The tenancy suits and the landlord's application were also prolonged and ultimately the appellate authority took the view that the tenancy was terminated by order dated !8th August, J 955 under section 9-A of the Berar Regulation of Agricultural Leases Act and that his possession thereafter was not in the capacity of a tenant and therefore set aside the order dated 30th September, 1963 and allowed the • landlord's claim for possession nnder section 132(3) of the Bombay Tenancy and Agricultural Lands Act, 1958. The tenant took up the matter to the Revenue Tribunal, Nagpur and the Revenue Tribunal set aside the order of the Appellate authority holding that the tenant was protected lessee and entitled to enjoy that status under section 6 of the Tenancy Act.

Holding that the landlord in his p'(jtion under section 36(2) will have to satisfy the condition contained in section 38(3) and ( 4) of the Tenancy Act the Revenue ·.Tribunal decided that the landlord was not entitled to that relief.

Aggrieved by the order of the Revenue Tribunal the landlord filed the writ petition out of which this appeal arises before the Nagpur High Court under Article 227 of thei Constitution praying that the order of the Revenue Tribunal may be quashed and the order passed by the Special Deputy Collector may be restored.

The High Court allowed the writ petition setting aside the order of the Revenue Tribunal.

The High Court held. that the petitioner was entitled to get possession under section 36 read with section 38 and section 100(2) of the Bombay Tenancy Act and directed that the possession will be, given to the landlord after the crops of the year 1967-68 are removed.

It is unnecessary for the purposes of this appeal to go into the various proceedings between the landlord and the tenant.

For the purpose of decisi'on of this appeal it is sufficient to state that the landlord who was a minor filed a petition under section 9-A of the Berar Regulation of Agricultural Leases Act and obtained ail order from the Sub-Divisional Officer on 8th August, 1955 terminating the H lease of the tenant and directing that the landlord shall flpolv for possession of the field on 31st March, 1956.

After 7th August. 1955 when the lease was terminated the tenant ceased to be a tenant.

KESHEORAO v. NARNARAY/\N (Kailasam,. ! .. ) 17

Equally the status of the tenant was lost by Kesheorao when the protected tenancy came to an end with the expiry of the 7th years' peri0d conferred on him under the Berar Act.

The result was that the tenancy rights of Kesheorao were put an end to by the order dated 8th August, 1955 and whatever rights he , might have had under the Berar Act came to an end on 31st March, 1956.

The only ground on which the rights of a tenant are claimed is that after 31st March, 1956 and after 31st March, 1958 though his tenancy rights expired he continued to be a tenant because he was in possession and various proceedings were taken by the landlord on the basis that he was a tenant.

This plea cannot be accepted. It is seen from the various proceedings that the landlord never recognised or acquiesced in the tenancy of Kesheorao.

The landlord claimed for mesne profits or alternatively for lease amouut. The claim was not based on the landlord acquiescing in the tenancy.

We have been taken through the relevant provision of the Bombay Tenancy Act but there is no provis:\)n by which any right as a tenant is conferred on Kesheorao after his status as protected tenant expired.

In this view the tenant ceased to have any right after 31st March, 1958, up to which tiine he could continue due to an amendment in the Act and, if he had managed to continue ;•n possession it was in spite of the landlord.

The objection that is taken ]Jy the learned counsel for the tenant is that the order which is made on 8th )August, 1955 under section 9-A cannot be given ffect to except under the provisions of section 36 of the Bombay Tenancy Act.

It was also submitted' that in any event the application had not been filed with;'rl. two years from the date of the order for possession.

It was brought to our notice that the landlord did make an application on 1 lth January, 1960 for possession within two years from the date of the Bombay Act coming into force and as such it is not barred by limitation. The applicab; iity or otherwise of section 132(2) and (3) was vehemently argued, but, in the view we have taken, it is unnecessary to go into that question.

We find that the tenant ceased to have _any right after 3 lst March, 1958 and did not acquire any rights subsequentfy by the landlord acquiescing in the tenancy. While the tenant had no right the landlord had obtained an order under section 9-A terminating the lease of the tenant and directing the landlord to apply for possession of the field on 31st March, 1956. The landlord had in fact applied for possession after we are also informed that the landlord obtained possession as early as 18th February, 1968. In the circumstances we do not feel called upon to interfere with the decision of the High Court holding that the landlord is entitled to get possession.

The Revenue Tribunal was in error in upsetting the mder of the appellate authority that the tenancy was terminated by the Sub-Divisional Officer on 8th August, 1955 under section 9-A of the leases Act and that his possession thereafter was not in the capacity of a tenant.

The High Court was therefore justified in interfering with the order of the Revenue Tribunal.

We see no ground for ;•nterfering with the conclusion arrived at by the Hih Court and dismiss this appeal. In tlie circumstances the parties will bear their own costs.

P.H.P.

Appeal dismissed:

KESHEORAO

NARNARA YAN & ANOTHER

February 17, 1977

M. H. BEG, C.J.

A. C. GUPTA

P. S. KAILASAM, JJ.

Constitution of India

Article 227

Sections 36

Section 9A

Section 9A

Madhya Pradesh Act

s. 9A(2)

s. 9A

s. 100(2)

s. 36

section 9A

Kesheorao

s. 132(3)

s. 6

s. 38(3)

Article 227

s. 36

section 100(2)

s. 9A

s. 36

section 9A

Kailasam

s. 9A

M. W. Phadke

V. M. Phadke

A. G. Ratnaparkhi

Sharad Manohar

Suresh Sethi

B. P. Maheshwari

KAILASAM

Gangaon

Jodhraj

Narnarayan

Trivenibai

31st January, 1952

section 9

8th {\ugust, 1955

section 9A(2)

31st March, 1956

section 9

section 100(2)

section 36

section 33

Bombay Tenancy Act, 1953

Vidharba Region

sections 36(2) and 38(1)

section 9

30th September, 1963

section 132(3)

Revenue Tribunal, Nagpur

section 6

section 36(2)

section 38(3)

Nagpur High Court

Article 227

section 36

section 38

section 100(2)

section 9

7th August. 1955

31st March, 1958

8th )August, 1955

section 9

section 36

lth January, 1960

section 132(2)

3 lst March, 1958

section 9

18th February, 1968

8th August, 1955

section 9