S.C.R.

SUPREME COURT REPORTS 1117

have therefore eliminated from our consideration the whole of the evidence given by Shanti Lal Ahuja, the Additional District Magistrate, and come to our conclusion in regard to the gilt of the appellant No. 1 relying solely on the testimony of the two independ- . ent witnesses Gadkari and Perulakar.

The result therefore is that the appeal of the appellant No. 1 will be dismissed except with regard to his conviction and sentence under section 120-B of the Indian Penal Code and the convictions and sentences passed upon him by the Judicial Commissioner under section 465 and section 466 as also section 161 of the Indian Penal Code will be confirmed. The appeal of the appellant No. 2 will be allowed and he be acquitted Md discharged of the offences with which he was charged and immediately set at liberty.

The bail bond of the appellant No. 2 will be cancelled.

V. M. SYED MOHAMMAD AND COMPANY

THE ST A TE OF ANDHRA. (With Connected Appeal)

[MEHR CHAND MAHAJAN C. J., MuKHERJEA,

S. R. DAS, V1v1AN BosE and

GHULAM HASAN JJ.J

Constitution of India, art. 14-Government of India Act, 1935, "'"Y 48 in List I/ of the Seventh Schedule-Madras .General Sales Tax Act (IX of 1939)-Whether ultra vires the Constitution or Government of India Act, 1935-Rule 16(5) framed under the Act-Whether ultra vires s. 5 (vi) of the Act.

Held, that the Madras General Sales Tax Act (IX of 1939) is not ultra vires the Government of India Act, 1935 as entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935 was wide enough to cover a law imposing a tax on the purchaser of goods as well as on the seller.

Held, also that inasmuch as there was nothing to suggest that the purchasers of other commodities were similarly situated as the purchasers of hides and skins in the present case, the Act

Rao Shiv Bahadt11

Si'flgh and

Another

The Stale of Vindhya Pradesh.

Bhagwati].

March111 ..

V. M .• 'iy, d Mohammad and Company

T ht St alt of.

Andhra

was not void under art. 14 of the Constitution on the ground that the impugned Act singles out for taxing purchasers of certain specified commodities only but leaves out purchasers of other commodities.

Article 14 does not forbid classification for legislative purposes provided such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question.

Rule 16(5) framed under the Act contravenes the provisions of s. 5(vi) of the Act but this sub-rule is severable and does not affect the validity of the rules which may otherwise lie within the ambit of the Act.

Chiranjit Lal Chowdhury v. The Union of India ([1950] S.C.R.

869) relied upon.

CIVIL

APPELLATE JuRISDICTION : Civil Appeals Nos. 187 and 188 of 1953.

Appeals under article 132 of the Constitution of India from the Judgment and Order, dated the 29th August, 1952, of the High Court of Judicature at Madras in Writ Petitions Nos. 21 and 41 of 1952.

K. V. Venkatasubramania Iyer (A. N. Rangaswami and M. S. K. Aiyangar, with him) for the appellant .

. M. Sesliachalapathi for the respondent.

K. T.

Chari, Advocate-General of Madras (V. V. Raghavan, with him) for the intervener (State of Madras).

T. R. Balakrishna Iyer and Sardar Bahadur for the intervener (State of Travancore-Cochin).

Nittoor Sreenivasa Rao, Advocate-General of Mysore (Porus A. Mehta, with him) for the intervener

(State of Mysore).

Lal Narayan Sinha (B. K. P. Sinha, with him) for the intervener (State of Bihar).

1954. March 11.

The Judgment of the Court was delivered by DAs J.-These two appeals arise out of Writ Petitions Nos. 21 and 41 of 1952 filed in the High Court of Judicature at Madras under article 226 questioning the validity of the Madras General Sales Tax Act (IX of 1939) and of the Turnover and Assessment Rules framed under that Act.

The petitioners are tanners carrying on business in Eluru, West Godawari District, which is now part of the newly created State of Andhra. They make large purchases of untanned hides and skins and after tanning them in their tanneries they export the tanned hides and skins or sell the same to local purchasers.

In the High Court the appellants impugned the Act and the rules on the following grounds :-

(a) The Provincial Legislature had no power under the Government of India Act of 1935 to enact a law imposing a tax on purchasers ;

(b) The liability to pay tax on sales is thrown on the purchaser not by the statute but by the rules.

This is an unconstitutional delegation by the legislature of its functions to the executive and the imposition of :the tax is accordingly illegal ; ( c) The Act has become void under article 14 of the Constitution, as it singles out for taxation purchasers in some trades and is, therefore, discrimina- tory; and ( d) The rules framed under the Act are inconsist- •ent with the provisions enacted in the body of the Act :and are void.

The High Court repelled each of the aforesaid grounds except that under item (d).

It held that rule 16(5) was ultra vires in that it offended against section 5 (vi) of the Act and dismissed their applications.

Hence the ; present appeals by the appellants under the certificate granted by the High Court that it was a fit case for :appeal to this court.

Learned advocate appearing in support of these :appeals has not pressed the objection under item (b) but has insisted on the remaining grounds of objec- tion. In our opinion the decisions of the High Court on those grounds are substantially well-founded and correct.

On the question of legislative competency the learned advocate drew our attention to entry 54 in List II of the Seventh Schedule to the Constitution •of India and argued that this entry clearly indicated that entry 48 in List II of the Seventh Schedule to the •Government of India Act, 1935, under which the

V. M.Syed Mohammad

and Company v.

The State of

Andhra

Das J.

V. M.Syed Afohammad and Company

Tiu Stale of

'4 1dhra

Das J.

impugned Act was passed, was much narrower in its scope and could not be read as authorising the making of a law with respect to taxes on the purchase of goods.

This argument appears to us to be fallacious, for the intention of the Constituent Assembly as expressed in entry 54 in List II of the Seventh Schedule to the Constitution cannot be a guide for ascertammg the intention of a totally different body, namely, the British Parliament, in enacting entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935.

Further, we agree with the High Court that entry 48 in List II of the Seventh Schedule to the Government of India Act, on a proper construction, was wide enough to cover a law imposing tax on the purchaser of goods as well and that the Constituent Assembly in entry 54 of List II in the Seventh Schedule to the Constitution accepted this liberal construction of the corresponding entry 48 and expressed in clearer language what was implicit in that corresponding entry.

The next poi, n_t urged by the learned advocate was founded on the article 14 of the Constitution. The appellants' grievance is that the impugned Act singles out for taxing purchasers of certain specified commodities only but leaves out purchasers of all other commodities.

The principle under! ying the equal protection clause of the Constitution has been dealt with and explained in Chiranjitlal Chowdhury v.

The Union of India (1 ) and several subsequent cases and need not be reiterated.

It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons.

Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question.

As pointed out by the majority of the Bench which decided Chiranjitlal Chowdhury's case, there ts a strong presumption in favour of the validity of legislative. classification and it is for those who challenge it as.

(1) (19soJ s.c.R: s69.

unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced.

There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins.

The majority decision in Chiranjitlal Chowdhury's case( 1 ) clearly applies to the case before us and there is no getting away from the position that the appellants before us have not discharged the burden of proof that, according to the majority decision, was upon them to do.

Lastly, the learned advocate urges that rule 16(5) clearly contravenes the provisions of section 5(vi) of the Act. This sub-rule has been held to be ultra vires by the High Court and, indeed, the learned Advocate- General of Madras did not in the High Court, as before us, dispute that rule 16(5) was repugnant to section 5(vi).

That sub-rule, however, affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule.

Further, it . has not been suggested before us that the appellants were ever called upon to pay any tax on purchase of hides or skins in respect of which tax had been previously paid by some prior purchaser.

That sub-rule is clearly severable and cannot affect the validity of the rules which may otherwise be within the ambit of the Act. Our attention has not been drawn to any other infirmity in t11e rules.

In the premises appeals which must, costs.

there is no substance in these therefore, be dismissed with

Appeals dismissed.

Agent for the respondent and for the interveners.

States of Madras, Mysore and Bihar: R. H. Dhebar.

(x) (1950] S.C.R. 86g.

V. M. Syed Mohammad

and Compan)' ·

The Statt of Andhra

Das].

Gadkari

Perulakar

section 120

Indian Penal Code

section 465

section 466

section 161

Indian Penal Code

V. M. SYED MOHAMMAD AND COMPANY

MEHR CHAND MAHAJAN

MuKHERJEA

S. R. DAS

V1v1AN BosE

GHULAM HASAN JJ

Constitution of India

art. 14

Government of India Act, 1935

Seventh Schedule

General Sales Tax Act

s. 5

Government of India Act, 1935

Stale of Vindhya Pradesh

art. 14

Article 14

s. 5(vi)

article 132

Constitution of India

High Court of Judicature at Madras

K. V. Venkatasubramania Iyer

A. N. Rangaswami

M. S. K. Aiyangar

M. Sesliachalapathi

K. T.

Chari

V. V. Raghavan

T. R. Balakrishna Iyer

Sardar Bahadur

State of Travancore-Cochin

Nittoor Sreenivasa Rao

Porus A. Mehta

State of Mysore

Lal Narayan Sinha

B. K. P. Sinha

State of Bihar

article 226

Eluru

Godawari District

Andhra

article 14

section 5

Seventh Schedule

Seventh Schedule

Government of India Act, 1935

Das

Seventh Schedule

British Parliament

Seventh Schedule

article 14

Article 14

Chiranjitlal Chowdhury

section 5(vi)

Madras

section 5(vi)

Mysore

Bihar

R. H. Dhebar

V. M. Syed Mohammad


.March 16

SUPREME COURT REPORTS

HIMMATLAL HARILAL MEHTA

THE STATE OF MADHYA PRADESH

AND OTHERS.

[MEHR CHAND MAHAJAN C. J., MuKHERJEA,

S. R. DA>, VIVIAN BosE and

GHULAM HASAN JJ.]

[1954]

Coostitution of India, arts. 19(1) (g), 226, 286 (1) (a)-Central Provinces and Berar Sales Ta:r Act (Act XX! of 1947), as amended by Act XVI of 1949-Explanation II to section 2(g)-Whether ultra vires th~ Constitutian-Threat to use coercive rnachinery of Act for realising tax-Whether infringement of fundarnental rights under art. 19(J)(g) of the Constitution.

Held, (i) that explanation II to s. 2(g) of the Central Pro vinces <ind Berar Sales Tax Act (Act XX! of 1947) as amended by Central Provinces and Berar Act (Act XVI of 1949) is ultra vires the State Legislature.

(ii) A threat by the State to realize tax from the assessee without the authority of law by using the coercive machinery of the impugned Act is a sufficient infringement of his fundamental right under art. 19(1) (g) and gives him a right to seek relief under ..art. 226 of the Constitution.

The impugned Act, requiring the .assessee to deposit the whole of the tax before he can get the relief provided by it, cannot be said to provide an adequate alternative remedy.

The State of Bomba;· v. The United Motors (India) Ltd. ([1953] S.C.R. 1069); Raleigh Investment Co. v. The Governor-General in Council (L.R. 74 I.A. 50); Mohd. Yasin v. The Town Area Committee- {[1952] S.C.R. 572) referred to.

CIVIL

APPELLATE JURISDICTION : Civil Appeal No. 20 of 1952.

Appeal under article 132(1) India from the Judgment and April, 1952, of the High .at Nagpur in Miscellaneous 1951.

of the Constitution of Order dated the 25th Court of Judicature Petition No. 1623 of

N. P. Engineer (R. S. Dabir and I. N. Shroff, with him) for the appellant.

T. L. Shevde, Advocate-General of Madhya Pradesh, (T. P. Naik, with him) for respondent No. 1.

V. K. T. Chari, Advocate-General of Madras (V. V.

Raghavan, with him) for the intervener.

1954. March 16. The Judgment of the Court was deli1ered by MAHAJAN C. J.-This is an appeal by leave from a judgment of the High Court of Judicature at Nagpur dated the 25th of April, 1952, dismissing a petition under article 226 of the Constitution of India filed by the appellant questioning the vires of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947.

The appellant represents a concern C. Parakh and Company (India) Limited, a company registered under the Indian Companies Act, 1913, having its head office at Bombay, and several branches in the State of Madhya Pradesh.

The main business of the appellant company is that of cotton.

The head-office of the appellant at Bombay sells cotton bales to several mills and individuals under the control and the system regulated by the Textile Commissioner at Bombay, and upon a contract of sale being completed the goods after being ginned and pressed are sent from Khamgoan and other places in the State of Madhya Pradesh and are actually deliver-ed in Bombay and such other places outside the State of Madhya Pradesh as directed by the head office.

The cotton bales are sent by rail under an insurance in favour of the appellant, and are delivered to the buyer by tender of railway receipt against the payment of price in Bombay.

Under the Central Provinces and Berar Sales Tax Act, 1947 (Act XXI of 1947), cotton was declared liable to sales tax on the 11th of April, 1949, and since that date the appellant commenced paying the tax in respect of the purchases made by it, and continued to pay it till the 31st of December, 1950.

For the quarter ending on the 31st of March, 1951, the appellant declined to pay the tax in respect of 'the purchases made during that quarter, realizing that it could not be made legally liable for the payment of this tax in the State of Madhya Pradesh, the transactions done or effected in Madhya Pradesh not being "sales" within that State.

Apprehending that the company

Himmatlal H arilal Mehta v.

The State of M adh)'a Pradeshand Others

Mahajan C. J.

Himmatlal •Harilal Mehta v.

Tht State of Madhva Pradesh

and Others.

Mahajan C. J.

may be subjected to the payment of the tax without authority of law, an application was preferred in the High Court of Judicature at Nagpur praying for an appropriate writ or writs which may secure to the company protection from the impugned Act ancf its enforcement by the State. It was alleged that Explanation II to section 2(g) of the Central Provinces and Berar Sales Tax Act, 1947, as further amended by Act XVI of 1949 was ultra vires and illegal.

This petition, along with a reference in another case (Miscellaneous Civil Case No. 258 of 1951 : A.LR. 1952 Nag. 378), was heard by a Division Bench of the Nagpur High Court and it was held that Explanation II to section 2(g) of the Act was not enforceable because under the Constitution sales tax could only be collected in the State where the goods were delivered for consumption.

It was further held that Explanation II as amended by the C. P. & Berar Act XVI of 1949 was not validly enacted because it made drastic changes in the rules of the Sale of Goods Act without obtaining the assent of the Governor-General as required by section 107 of the Government of India Act, 1935.

It was observed that the mere production of the goods in a State is not enough t(!; make the tax payable unless the goods are appropriated to a particular contract, and that to impose the tax at that stage would be tantamount to charging an excise duty and not a tax on the sale of goods. In spite of these findings the High Court declined to issue a writ and dismissed the petition made to it under article 226 of the Constitution on the ground that a mandamus issues only to compel an authority to do or abstain from doing some act, that it is seldom ant1C1patory and certainly never issues where the action of the authority is dependant on some action of the petitioner and that in the present case the petitioner had not even made his return and no demand for the tax could be made from him. In this appeal it was argued by Shri Noshirwan Engineer, learned counsel for the appellant, that an illegal and unjust imposition operates as an illegal restraint on trade and violates fundamental right;

that the High Court having held that the Constitution by article 286 thereof made delivery of the goods for consumption the decisive factor for determining which State should have the right of taxing such sales, and having thus found the provision of the Explanation to the definition of "sale" unconstitutional, should have issued a writ of mandamus restraining the respondent State from enforcing that part of the Act.

To appreciate the contentions of the learned counsel it is necessary to set out the relevant provisions of the Act which the High Court has declared ultra vires the

State Legislature.

Act XXI of 1947 defines the expression "sale" in section 2(g) of the Act in these terms:-

" 'Sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payments or other valuable consideration, including a transfer of property in goods made in the course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge".

"Explanation (I)-"A transfer of goods on hirepurchase or other instalment system of payment shall, notwithstanding that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale."

Explanation ( II)-"Notwithstanding anything to the contrary in the Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar." This provision was amended by the Central Provinces and Berar Act XVI of 1949 which came into force on the 11th of April, 1949, by which Explanation II of section 2(g) was amended as follows :- Explanation (II)_:_"Notwithstanding anything to the contrary in the Indian Sale of Goods Act, 1930, the sale or purchase of any goods shall be deemed for the purposes of this Act, to have taken place in this

Himmatlal H arilal Mehta

Tht State of Afadh'J!a Pradesh

and Others.

Mahajan C. J.

Himmatlal Harilal Mehta v.

The State of Madhya P1 adesh and Others.

Mahajan C. J.

Province-wherever the contract of sale or purchase might have been made- .

(a) If the goods were actually in this Province at the time when the contract of sale or purchase in respect thereof was made, or

(b) In case, the contract was for the sale or purchase of future goods by description, then, if the goods are actually produced or found in this Province at any time after the contract of sale or purchase in respect thereof was made."

Certain amendments were made in the Act by Act IV of 1951 which came into force on the 1st of April, 1951, but these are not relevant to the present mqmry.

As pointed out above, the High Court held that the new Explanation II was ultra vires the State Legislature and that the mere production of goods was not enough to make the tax payable unless the goods were appropriated to a particular contract.

The correctness of this view can no longer be questioned by reason of the majority decision of this court in The State of Bombay v. The United Motors (India) Ltd.(1), wherein it was held that article 286 ( 1) (a) of the Constitution read with the Explanation thereto and construed in the light of article 301 and article 304 prohibits the taxation of sales or purchases involving inter-State elements, by all States except the State in which the goods are delivered for the purpose of consumption therein and that the view that the Explanation does not deprive the State, in which the property in the goods passed, of its taxing power and that consequently both the State in which the property in the goods passes and the State in which the goods are delivered for consumption have the power to tax, is not correct.

The learned Advocate-General of the State did not in this situation, and very properly, challenge the correctness of the decision of the High Court on this point, and conceded that the Explanation was clearly ultra vires the State Legislature.

He however contended that on the principle enunciated by the Privy

(1) [1953]'8.C.R. rn6g.

Council in Raleigh Investment Co. v. The Got1ernor- General-in-Council('), jurisdiction to question assessment otherwise than by use of the machinery expressly provided by the Act, was inconsistent with the statutory obligation to pay, arising by virtue of the assessment and that the liability to pay the sales tax under the Act is a special liability created by the Act itself which at the same time gives a special and particular remedy which ought to be resorted to, and therefore the remedy by a writ ought not to be allowed to be used for evading the provisions of the Act, especially a fiscal Act. It was also said that the conditions requisite for the issue of a writ of mandamus were not present in the case and that it was not within the scope and purpose of article 226 of the Constitution to decide an academic question.

In our opinion, the contentions raised by the learned Advocate-General are not well founded.

It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the appellant if it failed to make the return or to meet the demand and in order to escape from such serious consequences threatened without authority of law, and infringing fundamental rights, relief by way of a writ of mandamus was clearly the appropriate relief. In Mohd. Yasin v. The Town Area

Committee("), it was held by this court that a licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his fundamental right to carry on his business and there~ fore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32, a fortiori also under article 226.

These observations have apposite application to the circumstances of the present case.

Explanation II to section 2(g) of the Act having been declared ultra vires, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to

(1) 741.A.50.

(2) [1952] S.C.R. 572.

\-l\ S.G, ludi~(~S

19'4

Himmatlal Harilal M1Alo

Th• Stat1 •f Madhya Prade1l

and Others.

Mahajan C. :J.

19M

Himmatlal Hmilal Mehl•

.v.

Thi Statt of

Madva Pradeih

and Others.

Mahajan C.J.

realize it from the appellant is a sufficient infringe• ment of his fundamental right under article 19(1) (g) and it was clearly entitled to relief under article 226 of

the Constitution.

The contention that because a remedy under the impugned Act was available to the appellant it was disentitled to relief under article 226 stands negatived by the decision of this court in The State of Bombay v. The United Motors (India) Ltd.('}, above referred to.

There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental tight had been infringed and sought relief under article 226.

Moreover, the remedy provided by the Act is of an onerous and burdensome character.

Before the appellant can avail of it he has to deposit the whole amount of the tax.

Such a provision can hardly be described as an adequate alternative remedy.

For the reasons given above, we are of the opm1on that the High Court, having held that the Explanation II to section 2(g) of the Act Was ultra vires, was in error in dismissing the application on the ground that it was not entitled to relief under the provisions of article 226 of the Constitution.

In the result therefore we 11llow this appeal with costs and direct an appropriate writ to issue restraining the first respond ent from imposing or authorising imposition of a tax on the appellant in exercise of its authority under Explanation II held void.

Appeal allowed;

(1) (1953] S.C.R. 1069.

HIMMATLAL HARILAL MEHTA

THE STATE OF MADHYA PRADESH

AND OTHERS

MEHR CHAND MAHAJAN

MuKHERJEA

VIVIAN BosE

GHULAM HASAN JJ.

arts. 19(1)

section 2(g)

art. 19(J)(g)

s. 2(g)

Berar Sales Tax Act

Central Provinces and Berar Act

art. 19(1)

art. 226

L.R. 74 I.A. 50

article 132(1)

R. S. Dabir

I. N. Shroff

T. L. Shevde

T. P. Naik

V. K. T. Chari

V. V.

Raghavan

MAHAJAN

High Court of Judicature at Nagpur

article 226

C. Parakh and Company (India) Limited

Indian Companies Act, 1913

Madhya Pradesh

Bombay

Khamgoan

11th of April, 1949

31st of December, 1950

31st of March, 1951

Mahajan

State of Madhva Pradesh

section 2(g)

Nagpur High Court

section 2(g)

Berar Act XVI of 1949

Sale of Goods Act

section 107

Government of India Act, 1935

article 226

Noshirwan Engineer

article 286

section 2(g)

Berar

Berar Act XVI of 1949

section 2(g)

State of Madhya P1 adesh

1st of April, 1951

article 286

article 301

article 304

article 226

article 32

article 226

section 2(g)

S

19

Himmatlal Harilal

Mahajan C.

Himmatlal Hmilal Mehl•

article 19(1)

article 226

article 226

article 226

section 2(g)

article 226


S.C.R.

SUPREME COURT REPORTS.

THE STATE OF RAJASTHAN

tJ.

THE MEWAR TEXTILE MILLS LTD.,

BHIL W ARA AND OTHERS.

[MEHR CHAND MAHAJAN c. J., MUKHERJEA,

S. R. DAs, VIVIAN Bos'.E and

GHULAM HASAN JJ.]

U29

Industrial Disputes Act (Act XIV of 1947), s. 7(3) (a), and

(b) as amended by s. 34 of the Industrial Disputes (Appellate Tribunal) Act (XLVlll of 1950)-A fudge of a High Court and a District fudge-Whether includes a fudge of the High Court and a District fudge in the former State of fodhpur.

Held, that under s. 7(3) (a) and (b) of the Industrial Disputes Act (XIV of 1947) as amended by s. 34 of the Industrial Disputes (Appellate Tribunal) ct (XLVIII of 1950) the phrase "a Judge of a High Court and a District Judge" includes a Judge of the High Court and a District Judge in the former State of Jodhpur.

C1v1L Ai>PELLATE JuR1so1cTtoN : Civil Appeal No. 103 of 1952.

Appeal under article 133 ( 1) ( c) of the Constitution of India from the Judgment and Order, dated the 10th August, 1951, of the High Court of Judicature for Rajasthan at Jodhpur (Wanch6o and Bapna

JJ.), in D. B.

Civil Miscellaneous Application No. 21 of 1951.

K. S. Hajela, Advocate-General of Rajasthan, for the appellant.

No appearance for the respondents.

1954. March 17. The Judgment of the Court was delivered by

GHULAM HASAN J.-This appeal is brought under a certificate granted by the High Court of Rajasthan under article 133 ( c) of the Comtitution of India against a judgment and order of that High Court in writ petition under article 226 holding the appointment of one Shri Sukhdeo Narain as invalid and directing that all proceedings taken by him as the Industrial Court under section 7 of the Industrial Disputes Act (No. XIV of 1947) are null and void.

Marth 17

Thi State of

Rajasthan

Tht Mewar Tex

tile Mills Ltd.,

Bhilwara and Ot™rs.

Ghulam HaJan ].

We are informed that Shri Sukhdeo Narain has ceased to work as an Industrial Tribunal and the". present appeal, therefore, becomes infructuous, but we are invited by the Advocate-General on behalf of the State of Rajasthan who is the appellant before us to decide the question as to the validity of the appointment, as it is likely to affect other awards made by tribunals under the Industrial Disputes Act.

We according! y proceed to give our decision.

The question involved in the case is whether the appointment of Shri Sukhdeo Narain is invalid because he does not fulfil the qualifications laid down for a tribunal under section 7(3) of the Industrial Disputes Act.

Section 7(3) hereinafter referred to as the Industrial Act says:-

"Where a tribunal consists of one member only, that member, and where it consists of two or more members, the chairman of the tribunal, shall be a person who-

(a) is or has been a Judge of a High Court; or

(b) is or has been a District Judge ;

" The Industrial Act was applied to Rajasthan by the Rajasthan Adaptation of Central Laws Ordinance, 1950 (Ordinance IV of 1950), by the Rajpramukh on January 24, 1950.

By this adaptation section 7 of the Industrial Act came to be applied to Rajasthan.

Shri Sukhdeo Narain was appointed on October 9, 1950, by a notificati<; m which ran as follows :-

"In exercise of the powers conferred by section 7 of the Industrial Disputes Act, 1947 (XIV of 1947) the Government of Rajasthan is pleased to constitute an Industrial Tribunal consisting of Shri Sukhdeo Narain, a retired Judge of the High Court of the erstwhile Jodhpur State for the adjudication of an Industrial dispute in the Mewar Textile Mills Ltd., Bhilwara, in Rajasthan."

The appointment of Shri Sukhdeo Narain was objected to by the respondent on the ground that the

words "a Judge of a High Court" in section 7(3) mean

"a Judge of the High Court of Judicature for Rajasthan established under the Rajasthan High Court Ordinance, 1949" and as Shri Sukhdeo Narain had been a Judge of the High Court of the former State of Jodhpur, he could not be held to be Judge of the High Court under section 7(3) of the Industrial Act. This objection was upheld by the High Court.

Though the appointment of Shri Sukhdeo Narain in the notification was based upon the fact that he was a retired Judge of the High Court of Jodhpur, in arguments it was also contended before the High Court that even if he was not qualified for appointment as a former Judge of a High Court, he was certainly qualified for appointment as a former District Judge.

The High Court repelled this contention.

It appears that the United State of Rajasthan came into existence on April 7, 1949, and the United State of Matsya was integrated with it on May 15, 1949.

Section 5 of Ordinance No. IV of 1950 lays down that :

"For the purpose of the application of any Central law to Rajasthan, unless there be anything repugnant in the subject or context,-

(ix) references therein to other civil, criminal and revenue courts, to public offices, and to Judges, Magistrates, officers or authorities shall be deemed to be references to such courts, offices and Judges, Magistrates, officers or authorities of or in Rajasthan."

The High Court held that the word "Rajasthan" as defined in Ordinance I of 1949 means the United State of Rajasthan and "the Judges and other officers" mentioned in section 5 (ix) must be held to be those in the service of the United State of Rajasthan.

Accordingly they held that Shri Sukhdeo Narain could not be held to be a District Judge within the meaning of section 7(3) (b) and his appointment as an Industrial Tribunal under that section was, therefore, invalid.

We are of opinion that this_ appeal can be decided on a short ground.

The Industrial Disputes (Appellate Tribunal) Act (XL VIII of 1950) came into force on May 20, 1950.

By section 34 it was provided that the

The State of Rajasthan

v,.

T ht Mewar Textile Mills Ltd., Bhilwara and Others.

GhUlam Has an J.

The Stat1 ef

Rqjast!,.an

Tht Mewar T1xtile Mills Lld.,

8hilwara and Others.

Oh~/am Hasan ]'

1132 SUl'REME COURT REPORTS [1954]

Industrial Disputes Act, XIV of 1947, shall be amended in the manner specified in the Schedule and the Schedule substituted sub-section (2) to section (1) of the Industrial Act as follows :-

"It extends to the whole of India except the State of Jammu and Kashmir."

As we have already stated the appointment of Shri Sukhdeo Narain was made on October 9, 1950, i.t:., after the Industrial Disputes Act had become applicable to Rajasthan.

It is not necessary therefore to invoke the provisions of Ordinance IV of 1950 in deciding the question of the validity of the appointment.

The argument based on section 34 of Act XL VIII of 1950 was put forward before the High Court at the time of the hearing of the application for leave to appeal and it was contended that in view of section 34 the provisions of Rajasthan Adaptation of Central Laws Ordinance, 1950, namely section 5, subsections (vii) and (ix), stood amended or repealed but the High Court observed that even if this argument had been .raised before them in appeal, it would have made no difference.

It has been contended before us by Mr. Hajela, the learned Advocate-General on behalf of the State, that after the Industrial Disputes Act of 1947 was extended to Rajasthan by section 34 of the Industrial Disputes (Appellate Tribunal) Act, XLVIII of 1950, the provisions of the former stood amended by section 34 and could not be read subject to section 5 of the Rajasthan Adaptation of Central Laws Ordinance IV of 1950.

We think there is force in this contention. ·, The effect of section 34, as we have already indicated, was to extend the territorial application of the Industrial Disputes Act, 1947, to the whole of India including Rajasthan the exception being the State of Jammu and Kashmir only.

This being so the words "A Judge of a High Court and a District Judge" used in section 7(3) (a) and (b) respectively of the Industrial Disputes Act, 1947, must be held now to include "A Judge of the High Court and a District Judge in the former State of Jodhpur". There is now no room for the application of section 5 of Ordinance IV of 1950 according to which a Judge of the High Court

and a District Judge could only mean a Judge of the High Court for Rajasthan established under the Rajasthan High Court Ordinance 1949 and a District Judge of or in Rajasthan within the meaning of section 5 (ix) of Ordinance No. IV of 1950.

Accordingly we hold that the appointment of Shri Sukhdeo Narain was perfectly valid.

We accordingly set aside the order of the High Court but without costs, as the respondent is not represented.

Agent for the appellant : R. H. Dhebar.

HEM RAJ

().

THE STATE OF AJMER

(And Connected Appeal)

[MEHR CHAND MAHAJAN C. J., VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, art. 136(1)-Principles gorcrning the exercise of powers by the Supreme Court under art. 136(1)-Confessions-Whether can be corroborated by evidence already in possession of police.

Unless it is shown that execeptional and special circumstan~ ces exist that substantial and grave injustice has been done and the case in question presents features _of sufficient gravity to war~ rant a review of the decision appealed against, the Supreme Court does not exercise its overriding powers under art. 136 ( 1) of the Constitution and the circumstance that the appeal has been admitted by special leave does not entitle the appellant to open out the whole case and contest all the findings of fact and raise every point which could be raised in the High Court.

Even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for.

The contention that confession cannot be corroborated by the use of materials already in the possession of the police is devoid of force. A confession made and recorded even during a trial can be corroborated by the evidence already recorded.

It may .be made and recorded in the court of committing magistrate and materia, ls already in the possession of the police may be used for purpose ef corroboration.

Tiu Stat• qf

Raja.sthan

TM Mewar T ,,,_ Iii< Mthq J, td.,

, Bhilwara

and Ot/urs.

Ghulam Ha.son ]. '

Marth 17.

THE STATE OF RAJASTHAN

THE MEWAR TEXTILE MILLS LTD, BHILWARA AND OTHERS

MEHR CHAND MAHAJAN

MUKHERJEA

S. R. DAs

GHULAM HASAN JJ.

Industrial Disputes Act

s. 7(3)

s. 34

s. 7(3)

Industrial Disputes Act

s. 34

article 133

Constitution of India

K. S. Hajela

High Court of Rajasthan

article 133

article 226

Sukhdeo Narain

section 7

Industrial Disputes Act

State of

Rajasthan

Mewar Tex

tile Mills Ltd.

State of Rajasthan

Industrial Disputes Act

section 7(3)

Industrial Disputes Act

Section 7(3)

January 24, 1950

section 7

Sukhdeo Narain

October 9, 1950

section 7

Industrial Disputes Act, 1947

Government of Rajasthan

Bhilwara

section 7(3)

section 7(3)

High Court of Jodhpur

United State of Rajasthan

April 7, 1949

United State of Matsya

May 15, 1949

Section 5

United State of Rajasthan

section 5

section 7(3)

May 20, 1950

section 34

State of Rajasthan

Mewar Textile Mills Ltd.

Bhilwara

GhUlam

Industrial Disputes Act

State of Jammu and Kashmir

Industrial Disputes Act

section 34

section 34

section 5

Hajela

Industrial Disputes Act

section 34

section 34

section 5

section 34

Industrial Disputes Act, 1947

India

section 7(3)

Industrial Disputes Act, 1947

Jodhpur

section 5

section 5

R. H. Dhebar

HEM RAJ

STATE OF AJMER

VIVIAN BosE

Constitution of India

art. 136(1)

Supreme Court

art. 136(1)

art. 136

Ghulam Ha.son


S.C.R.

SUPREME COURT REPORTS 1133

and a District Judge could only mean a Judge of the High Court for Rajasthan established under the Rajasthan High Court Ordinance 1949 and a District Judge of or in Rajasthan within the meaning of section 5 (ix) of Ordinance No. IV of 1950.

Accordingly we hold that the appointment of Shri Sukhdeo Narain was perfectly valid.

We accordingly set aside the order of the High Court but without costs, as the respondent is not represented.

Agent for the appellant : R. H. Dhebar.

HEM RAJ

().

THE STATE OF AJMER

(And Connected Appeal)

[MEHR CHAND MAHAJAN C. J., VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, art. 136(1)-Principles gorcrning the exercise of powers by the Supreme Court under art. 136(1)-Confessions-Whether can be corroborated by evidence already in possession of police.

Unless it is shown that execeptional and special circumstan~ ces exist that substantial and grave injustice has been done and the case in question presents features _of sufficient gravity to war~ rant a review of the decision appealed against, the Supreme Court does not exercise its overriding powers under art. 136 ( 1) of the Constitution and the circumstance that the appeal has been admitted by special leave does not entitle the appellant to open out the whole case and contest all the findings of fact and raise every point which could be raised in the High Court.

Even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for.

The contention that confession cannot be corroborated by the use of materials already in the possession of the police is devoid of force. A confession made and recorded even during a trial can be corroborated by the evidence already recorded.

It may .be made and recorded in the court of committing magistrate and materia, ls already in the possession of the police may be used for purpose ef corroboration.

Tiu Stat• qf

Raja.sthan

TM Mewar T ,,,_ Iii< Mthq J, td.,

, Bhilwara

and Ot/urs.

Ghulam Ha.son ]. '

Marth 17.

Hem Ra].

Till Sta" qf

- A.jmer

Mahajan C. ] 1

Queen v. Thompson ([189}] 2 Q.B. 12) and Mata Emperor (A.I.R. 1931 Oudh 166) referred to.

CRIMINAL

APPELLATE

JURISDICTION : Appeals Nos. 58 and 87 of 1953.

[1954]

Din v. The

Criminal

Appeal by Special Leave granted by the Supreme Court on the 30th June, 1953, from the Judgment and Order dated the 25th April, 1953, of the Court of the Judicial Commissioner at Ajmer in Criminal Appeal No. 13 of 1953 and Criminal Reference No. 19 of 1953 arising out of the Judgment and Order dated the 18th March, 1953, of the Court of the Sessions Judge at Ajmer in Sessions Trial No. 1 of 1953.

Appeal by Special Leave granted by the Suprem~ Court on the 27th October, 1953, from the Judgment and Order dated the 25th April, 1953, of the Court of the judicial Commissioner at Ajmer in Criminal Appeals Nos. 14 and 15 of 1953 and Criminal Reference No. 15 of 1953 arising out of the Judgment and Order dated the 18th March, 1953, of the Court of the Sessions Judge at Ajmer in Sessions Trial No. 1 of 1953.

Bakhshi Tek Chand (Bhagwan Singh and Rajinder Narain, with him) for appellant in Criminal Appeal No. 58 of 1953.

B. D. Sharma for respondent in Criminal Appeal No. 58 and appellant in Criminal Appeal No. 87 of 1953.

K. N. Agarwala for .respondent in Criminal Appeal No. 87 of 1953.

1954. March 17. The Judgment of the Court was delivered by MAHAJAN C. J.-Criminal Appeals Nos. 58 and 87 of 1953 relate to the same occurrence, and arise out of a common judgment delivered by the Judicial Commissioner of Ajmer.

Both of them are before us by special leave granted by this court on different occasions.

Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of

the decision appealed against, this court does not .exercise its overriding powers under article 136(1) of the Constitution and the circumstance that because the appeal has been admitted by special leave does not entitle the appellant to open out the whole case and contest all the findings of fact and raise every point which could be raised in the High Court. Even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for. The question for consideration is whether this test is satisfied in either of these two appeals.

After hearing the learned counsel in both the appeals we are satisfied that none of them raise any questions which fall within the rule enunciated above.

On the 16th of July, 1952, Mangilal deceased, partner of firm Rambhajan Mangilal 0£ Bijainagar, received by express delivery post a letter Exhibit P-5 in a closed .cover Exhibit P-6.

This letter was actually delivered to Mangilal's son Laduram who, on reading it, found that it purported to have been sent by "Bhayankar Daku Dal" demanding payment of Rs. 5,000 at 6-30 p.m. on the 17th of July at the crossing near the 27th milestone on the Ajmer-Bijainagar road and saying that "if you cheat or do 420 or in case you inform the police, no other punishment except that of death . will be meted out to you and you will be shot dead and made to lie on the ground." Laduram took the miginal letter with the envelope to his uncle Ramjas at Ajmer and both of them saw the Superintendent of Police :and gave him the letter and the envelope and asked for immediate protection and investigation.

The Superintendent of Police, however, took no action in this behal£. Mangilal failed to comply with the demand to pay. On the 17th of July about 9-30 p.m. when he was sitting at his shop and his munim Gajanand was writing the accounts, two persons came from the neighbouring street.

One of them was dressed in a khaki suit and the other in a blue suit.

The man in blue <lemanded from Mangilal a reply to the letter, while the man in khaki entered the shop and removed Mangilal' s gun which was hanging in a canvas case from :I

fle~Raj

The Stajl of

Ajmer

Mahajo; C.].

H1111 Raj v. 711' /; tale of

4jmn

Mahajan C. ].

peg on the wall of the shop.

On Mangilal's replying that his son Laduram had taken the letter to Ajmer, the person dressed in blue fired from a Mauser pistol and shot Mangilal dead.

The two assailants then ran away. On the way they threw the Mauser pistol and khaki clothes in the street at a short distance from the shop.

Mangilal died shortly afterwards.

The first information report was lodged by Nand Lal (P. W. 1) immediately after the occurrence at 9-45 p.m.

In thi& report Nand Lal described the occurrence in the following terms:

"From the lane two men, one of whom was wearing khaki clothes having a hat on the head and the other wearing blue clothes with a blue cap on the head came near Mangilalji and stood there.

The man with khaki clothes said something to Mangilal and the man with blue clothes went straight inside the shop and picked up Man gila\' s gun from behind the door shutter and brought it out and stood near the khaki clad man,. and at that time shot Mangilal with a pistol he had."

The prosecution challaned four persons, viz., Hem Raj, appellant in Criminal Appeal No. 58 of 1953, Hukum Singh, respondent in Criminal Appeal No. 87 of 1953, Milap Singh and Abdul Hakim.

It was alleged that all the four of them had acted in conspiracy and realised money from rich persons through threatening letters and in pursuance of the conspiracy Exhibit P-5 was sent. Hem Raj and Hukum Singh were arrested on the evening of the 26th July at Bijainagar and were sent to jail on the 28th of July, 1952.

On the 30th of July, 1952, Hem Raj made a confession in iail before a Magistrate.

On the 5th of September, 1952,. at the first hearing of the case before the committing Magistrate, the confession was retracted by means of an application made through counsel and a number of grounds were given why the confession was inadmissible and not of any value.

All the accused persons denied the charge. Milap Singh and Abdul Hakim were acquitted by the learned Sessions Judge who however convicted Hem Raj and Hukum Singh of the different offences with which they had been eharged.

He'in Raj and Hukum Singh appealed to the Judicial

... '

Commissioner at Aimer. Hukum Singh's appeal was al!owed but that of Hem Raj was dismissed. As stated already, Hem Raj's appeal before us is by special leave and the State has also appealed against the acquittal of Hukum Singh and that also by special leave.

Dr. Tek Chand for Hem Raj raised three points before us : ( 1) That the confession was inadmissible in evidence, the prosecution having failed to establish affirmatively that it was free and voluntary and that it was not preceded by any inducement to the prisoner to make a statement held out by a person in authority.

It was said that as no direct or circumstantial evidence of any kind was available, the police was straining every nerve to get any one of the four persons arrested confess, so that he may be given pardon and made an approver.

The police was particularly keen to make somebody an approver because of their own negligent conduct in not giving protection to the deceased when Laduram, his son, had approached the Superintendent of Police with the threatening letter received by him and that the police also had not been able to discover how the pistol had been stolen from its owner.

It was contended that Hem Raj was actually arrested on the 25th July and illegally kept in custody, that even after remand by the Magistrate he was not immediately sent to jail but was taken to the house of the Superintendent of Police and kept there for more than four hours, that all these circumstances raised a strong suspicion against the voluntary character of the confession and showed that the police was making efforts bv threats and inducements to extort a confession from him.

It was further suggested that while Hem Raj was in jail the Superintendent of Police paid him a visit. There is no relevant evidence to establish this fact.

(2) That the Magistrate who recorded the confession did not disclose his identity that he was a Magistrate to Hem Raj and that instead of recording the confession in his court room he recorded it in jail without any sufficient grounds for doing so and this circumstance also vitiated the confessions.

Hem Raj

T1" Stat1 of

Ajm, r

MahajanC.j.

Hem Raj v.

The State of Amer

Mahajan C. J.

(3) That there was no independent corroboration of any of the material facts contained in the confession and that whatever material has been considered as corroboration by the courts below was already in the possession of the police before the confession was recorded and therefore the confession was merely a recital of facts already in possession of the police and was modelled on it and that the police discovered nothing in pursuance of the confession and their knowledge about the material facts of the case was not enriched in any manner by the confession and therefore there was no evidence whatsoever in the case on which the conviction of the appellant could stanc.

The learned Judicial Commissioner as well as the learned Sessions Judge considered all these contentions and negatived them and there were valid reasons for doing so.

On the question whether the confession was voluntary, there are concurrent findings of the courts below and there are no grounds for going behind these findings.

On the question whether material particulars of the confession have been corroborated, there are again concurrent findings. All the arguments addressed to us relate to the re-appreciation of evidence which had been believed by the courts below and do not warrant interference by us in the decisions of the courts below.

We have, however, also examined these arguments independently and we have no hesitation in endorsing the views of the courts below.

As regards the voluntary nature of the confession, the significant fact is that the confession was made on the 30th of July, that is, two days after Hem Raj had been lodged in jail, and was not in police custody or amenable to police influence.

He had more than 36 hours to make up his mind whether to make a confession or not.

He is not a rustic but runs a cycle shop in Bijainagar. It is noteworthy that Hukum Singh was similarly situated and about whom an application had been made that he was willing to confess. When the Magistrate approached him he said that he would only make a statement after consulting his lawyer and declined to make any statement.

Further from the 30th of July till the 5th of September no

steps were taken by Hem Raj to resile from his confession.

There was ample time at his disposal to make an application to the Magistrate or to the District Magistrate that the confession had been extorted from him by threats and inducement. On the 5th of September when an application was made by his counsel retracting the confession it was more in the nature of an argument than in the nature of a detailed statement of the facts and circumstances in which the confession had been made.

When examined under section 342, Criminal Procedure Code, he said that he made the confession under threats held out by the Superintendent of Police and Sri Ram Chandra, Sub-Inspector.

He further said that the Superintendent of Police told_ him "that if I made a confession of my guilt, I would be made an approver ; the Superintendent of Police said that he was a Vaishya and as I too was a Vaishya he would help me.

I told the Superintendent of Police that I would do as he asked me to do.

About 10-30 a.m. on the 30th of July Sub-Inspector Ram Chanclra came to jail and compelled me to make a confession." The last portion was clearly a lie as there is no evidence whatsoever that Ram Chandra visited him at the time the Magistrate recorded his confession.

The Magistrate who recorded the confession has been examined, and he states that he told the prisoner that he was a Magistrate and that he complied with all the requirements of law in recording the confession.

The memorandum made by him shows that the following questions were put to Hem Raj: "Do you wish to make a confession ?", to which Hem Raj replied "Yes". "Are you making it of your own free will and without the compulsion of anybody?"; the answer was "Yes".

The third question was "You are not bound to make a confession.

Do you understand this ?" The answer was "Yes". The fourth question was : "If you make a confession it may be used in evidence against you.

Do you realize this ?" The answer was "Yes".

The last question was "Shall I record your confession?" The answer was "Yes".

It was after these queries that a confession covering about 21 pages and full of detail~ which are precise and cannot be

Hem Raj v.

The Stalt of

Ajmt"r ¥ ahajan C. j.

HtmRaj

v. rht Slat• of Ajmet

.Mohajan C.J,

described as vague was recorded.

The police could not even dream of these details or make an effort to tutor such a detailed confession to the prisoner and it is absolutely unthinkable that such a tutored confession could be narrated by Hem Raj to the Magistrate after 36 hours of any possible attempt made to tutor him.

As a matter of fact, some of the facts contained in the confession and indicated later were not even known to the police then.

The confession contained the usual endorsement that the confession was voluntary and all the necessary matters had been explained to the prisoner before he made the confession.

It is significant that the confession was not retracted till Hem Raj took legal advice arid even then it was not stated who supplied all the details contained in the confession to Hem Raj. The allegations made by the prisoner have been denied by the police officers examined and we are not inclined to accept those allegations as true.

The circumstances relied upon by Dr. Tek Chand regarding the conduct of the police before Hem Raj was lodged in jail do not, in our opinion, affect the voluntary character of the confession.

The contention that the Magistrate did not tell the prisoner that he was a Magistrate is also belied by the Magistrate's evidence.

No doubt the confession was recorded in jail th9ugh ordinarily it should have been recorded in the court house, but that irregularity seems to have been made because nobody seems to have realized that that was the appropriate place to record it but this circumstance does not affect in this case the voluntary character of the confession. Dr. Tek Chand drew our attention to a quotation from Taylor's Evidence, 11th Edn., page 588, para. 872, and to the decision in Queen v. Thompson('), in which it had been emphasized that in order that evidence of a confession by a prisoner may be admissible, it must be affirmatively proved that such confession was free and voluntary and that it was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed.

The

(1) [1893] 2 Q. B. 12.

principle laid down in that case is well settled, but we do not think that Dr. Tek Chand is right in contending that that principle has not beeQ borne in mind by the courts below.

The mere bald assertion by the prisoner that he was threatened, tutored or that inducement was offered to him, cannot be accepted as true without more.

There is no material whatsover to hold that the prisoner was threatened or beaten. As a fact it has been found by the cours below that that assertion was untrue.

The story of tutoring, on the face of it, is incredible.

It was not possible for the police or anyone to teach the prisoner all that is contained in the confession.

As regards inducement, again, there is no material whatsoever and the circumstances relied upon are not such which raise a suspicion that the confession was extorted by inducement.

Even if some suspicion of this character could be raised in this case, it has to be held that the confession was made after the inducement had dearly been removed.

As regards the question whether the confession made by Hem Raj has been corroborated in material particulars, we are satisfied that there 1s sufficient evidence on the record to justify the Judicial Comm1ss10ner's conclusion. P. W. 34, Gajanand, an eyewitness of the occurrence, deposed that the man in blue had the pistol and fired the fatal shot. This is in line with what had been stated by Nand Lal in the First Information Report though later on he made a different statement.

The courts below accepted the evidence of Gajanand in preference to the statement of Nand. Lal.

That being so, Gajanand's evidence fully corroborates the confession of Hem Raj that it was he who fired the fatal shot and that he was dressed m blue uniform.

On the 18th of July, 1952, certain articles were recovered from Hem Raj's hc; mse-a hat, a mask, a bush shirt and a pistol.

These recoveries are good independent evidence in corroboration of the confession.

On the 0)th July, 1952, certain other items were admittedly recovered from Hem Raj's house and these also corroborate the confession. Hem Raj also

H'1n Raj

The Stdtt of

4ftmr

Mahajan C.J,

Hem Raj v.

The Stat1 of

Ajmer

Mah•j•n C. ].

delivered to the . police a black pair of socks, a slate coloured muffler, a blue pair of shorts and a torch.

These deliveries further support the confession.

Then certain recoveries were made, as stated in the confession, from the roof of Bansilal' s shop on 27th of July, 1952.

These were a revolver and a number of cartridges.

Lastly there is the recovery of the gun case :ind the gun. The learned Judicial Commissioner, in these circumstances, was justified in holding that the confession had been corroborated in respect of clothes worn by the assailant, and in respect of the arms and ammunition and that it was also corroborated by the removal of the latch from the shop of Hukum Singh.

Dr. Tek Chand contended that the recovery of clothes and delivery of arms and ammunition by Hem Raj to the police had been made before the 30th of July, when the confession was made, and that facts within the knowledge of the police before the confession was made, could not be used as evidence corroborating the confession.

For this proposition he placed reliance on a decision of the Oudh Chief Court in Mata Din v. The Emperor('), wherein it was observed that a true confession made by a person who takes part in a murder invariably adds something to the knowledge already possessed by the investigating officer and that is the greatest test of its truth.

In our opinion, the contention raised by the learned counsel is not well founded.

In the first instance, it is not correct to say that all the facts mentioned in the confession were known to the police at the time when the confession was made.

The police did not know anything about the existence of 30 bore cartridges.

They did not know as to who had written the letter Exhibit P-5 and did not know who had gone to Beawar to post it.

The police also did not know that death had been caused by a shot from a Mauser pistol Exhibit P-19.

Be that as it may, we see no validity in the contention that a confession can only be corroborated by evidence discovered by the police after a confession has been made and any material that is

(1) A.I.R. 1931 Oudh 166.

already in their possession, cannot be put in evidence in support of it. The decision in Mata Din's case( ) does not support the view contended for.

Th<c~ decision merely concerns itself with the value of a confession and does not relate to the nature and character of evidence that can be led to corroborate it.

It does not lay down the proposition that a confession cannot be corroborated by use of materials already in possession qf the police.

A confession can be made even during a trial and the evidence already recorded may well be used to corroborate it.

It may be made in the court of the committing Magistrate and materials already in possession of the police may well be used for purposes of corroboration.

The contention therefore that evidence in possession of the police before the confession was made cannot be used to corroborate the confession, must be repelled.

The result is that the evidence in conjunction with the confession satisfactorily estabilshes the charge under section 302/34, Indian Penal Code, against Hem Raj and also satisfactorily proves the offence under section 386, Indian Penal Code.

Dr. Tek Chand very strong! y criticized the conclusion reached by the Judicial Commissioner that the letter Exhibit P-5 was posted by Hem Raj.

He contended that from the mere circumstance that Hern Raj was in Beawar on the date the ktter was posted it could not be inferred that it was posted by him.

We think that the criticism is not valid and the inference drawn in the circumstances of this case by the courts below could not be said to be unreasonable.

As regards the State's appeal against Hukum Singh, clearly the confession of Hem Raj cannot be used as substantive evidence against him.

The learned public prosecutor contended that Hukum Singh was the writer of the letter Exhibit P-5 and the evidence furnished by the key Exhibit P-12 found in his trouser pocket, coupled with the breaking of the door latch, and the circumstance that he was seen together with Hem Raj, was sufficient material for his conviction.

We are unable to agree.

We are of the opinion that the learned Judicial Commissioner was perfectly right

(1) A.LR. 1931 Oudh 166.

B-98 S.C. India/59

195f

Hem Raj v.

The State of

Ajmer.

Mahajan C. J.

Hem Raj v.

The State of

Ajmer.

Mahajan C. J.

March 18.

in holding that this evidence by itself was insufficient to uphold his conviction and that Hukum Singh was entitled to the benefit of the doubt in respect of both the charges found against him.

There is hardly any material on the record to justify our interference with an order of acquittal in an appeal by special leave.

In the result both these appeals fail and are dismissed.

Appeals dismissed.

M. S. SHERIFF

f/.

THE STATE OF MADRAS AND OTHERS.

[MEHR CHAND MAHAJAN C. J., MuKHERJEA,

S. R. DAs, VIVIAN BosE and GHuLAM HASAN JJ.]

CTiminal Procedure Code (Act V of 1898), s. 476B-Whether appeal competent to the Suprenie Court from aT?_ order of Division Bench of High Court directing the filing of a complaint for perjury.

Held that an appel is competent to the Supreme Court under s. 476B of the Code of Criminal Procedure from an order of a Division Bench of a High Court directing the filing of a complaint for perjury.

Also held. that the simultaneous prosecution of civil and criminal proceedings regarding the same matter is likely to embarrass the accused and so ord£narily, and in the absence of special circumstances, the criminal proceedings should be given precedence and the civil proceedings should be stayed pending the termination of the criminal.

CRIMINAL

APPELLATE JURISDICTION : Case No. 281 of 1951.

Appeal under article 132 of the Constitution of India from the Judgment and Order dated the 1st August, 1951, of the High Court of Judicature at Madras in Criminal Miscellaneous Petitions Nos. 1261 and 1263 of 1951.

K. Rajah Iyer Aiyangar, with him) (R. Ganapathy Iyer and

M. S. K. for the appellant/petitioners .

section 5

Sukhdeo Narain

R. H. Dhebar

HEM RAJ

THE STATE OF AJMER

MEHR CHAND MAHAJAN

VIVIAN BosE

GHULAM HASAN JJ.

Constitution of India

art. 136(1)

Supreme Court

art. 136(1)

art. 136

Ghulam Ha.son

Din

Bakhshi Tek Chand

Bhagwan Singh

Rajinder Narain

B. D. Sharma

K. N. Agarwala

Ajmer

article 136(1)

16th of July, 1952

Mangilal

Laduram

Bhayankar Daku Dal

17th of July

Ramjas

Gajanand

Mangilal

Ajmer

Nand Lal

Mangilalji

Man

Hem Raj

Hukum Singh

Milap Singh

Abdul Hakim

Hem Raj

Hukum Singh

Bijainagar

28th of July, 1952

30th of July, 1952

5th of September, 1952

He'in Raj

Tek Chand

State of Amer

Mahajan

30th of July

5th of September

section 342

Criminal Procedure Code

Ram Chandra

30th of July Sub-Inspector

Ram Chanclra

.Mohajan C.J

Taylor

Gajanand

Nand. Lal

18th of July, 1952

Bansilal

27th of July, 1952

Oudh Chief Court

Beawar

Mata Din

section 302

Indian Penal Code

section 386

Indian Penal Code

Hern Raj

State of

Ajmer

M. S. SHERIFF

STATE OF MADRAS

MuKHERJEA

S. R. DAs

GHuLAM HASAN

CTiminal Procedure Code

s. 476B

s. 476B

Code of Criminal Procedure

article 132

Constitution of India

High Court of Judicature at Madras

K. Rajah Iyer Aiyangar

R. Ganapathy Iyer

M. S. K.


Hem Raj v.

The State of

Ajmer.

Mahajan C. J.

March 18.

SUPREME COURT REPORTS [1954]

in holding that this evidence by itself was insufficient to uphold his conviction and that Hukum Singh was entitled to the benefit of the doubt in respect of both the charges found against him.

There is hardly any material on the record to justify our interference with an order of acquittal in an appeal by special leave.

In the result both these appeals fail and are dismissed.

Appeals dismissed.

M. S. SHERIFF

f/.

THE STATE OF MADRAS AND OTHERS.

[MEHR CHAND MAHAJAN C. J., MuKHERJEA,

S. R. DAs, VIVIAN BosE and GHuLAM HASAN JJ.]

CTiminal Procedure Code (Act V of 1898), s. 476B-Whether appeal competent to the Suprenie Court from aT?_ order of Division Bench of High Court directing the filing of a complaint for perjury.

Held that an appel is competent to the Supreme Court under s. 476B of the Code of Criminal Procedure from an order of a Division Bench of a High Court directing the filing of a complaint for perjury.

Also held. that the simultaneous prosecution of civil and criminal proceedings regarding the same matter is likely to embarrass the accused and so ord£narily, and in the absence of special circumstances, the criminal proceedings should be given precedence and the civil proceedings should be stayed pending the termination of the criminal.

CRIMINAL

APPELLATE JURISDICTION : Case No. 281 of 1951.

Appeal under article 132 of the Constitution of India from the Judgment and Order dated the 1st August, 1951, of the High Court of Judicature at Madras in Criminal Miscellaneous Petitions Nos. 1261 and 1263 of 1951.

K. Rajah Iyer Aiyangar, with him) (R. Ganapathy Iyer and

M. S. K. for the appellant/petitioners .

H. J. Umrigar and S. Subramaniam for respondent No. 2.

1954. March 18.

The Judgment of the Court was delivered by

BoSE J.-The question in this case is whether an appeal lies to this court under section 476B of the Criminal Procedure Code from an order of a Division Bench of a High Court directing the filing of a complaint for perjury.

Two persons, Govindan and Damodaran, filed petitions under section 491 of the Criminal Procedure Code for release claimii; ig that they had been illegally detained by two Sub-Inspectors of Police who are the appellants before us.

Govindan said he was being detained by one Sub-Inspector and Damodaran said he was being detained by the other.

Both the Sub.

Inspectors said that the petitioners were not in their custody.

The first Sub-Inspector, who was concerned with Govindan, said that Govindan had never been arrested by him and had not been in his custody at any time. The other denied that Damodaran was in his custody.

He admitted that he had arrested him at one time but said that he had been released long before the petition. Each swore an affidavit in support of his return. In view of this conflict between the two sets of statements the High Court directed the District Judge to make an enquiry.

Considerable evidence was recorded and documents were filed and the District Judge reported that in his opinion the statements made by the two Suh-Inspectors were correct.

The High Court disagreed and, after an elaborate examination of the evidence, reached the conclusion that the petitioners were telling the truth and not the Sub-Inspectors.

The petitioners were however regularly arrested after their petitions and before the High Court's order; one was released on bail and the other was remanded to jail custody by an order of a Magistrate. Accordingly their petitions became infructuous and were dismissed.

After this, the petitioners applied to the High Court under section 476 of the Criminal Procedure Code and

M. S. S"'7if/

T!w State ef

Madras and Othe1's.

Bose].

M. S. Sheriff

Th< State of Madras and Others.

Bose].

asked that the Sub-Inspectors be prosecuted for perjury under section 193, Indian Penal Code.

The applications were granted and the Deputy Registrar of the High Court was directed to make the necessary complaints.

The Sub-Inspectors thereupon asked for leave to appeal to this court.

Leave was refused on the ground that no appeal lies, but leave was granted under article 132 as an interpretation of article 134

(1) and 372 of the Constitution was involved. The Sub- Inspectors have appealed here against that order as also against the order under section 476.

In addition, as an added precaution, they have filed a petition for special leave to appeal under article 136 ( 1).

The first question we have to decide is whether there is a right of appeal.

That turns on the true meaning of section 476B of the Criminal Procedure Code read with section 195 (3).

The relevant portion of the former reads thus :-

"Any person .......... against whom ........ a complaint has been made" [under section 476] "may appeal to the court to which such former court is subordinate within the meaning of section 195 (3) .... "

The latter section reads-

"For the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court. ....... "

The rest of the, section does not concern us.

Two things are evident. First, that a right of appeal has been expressly conferred by section 476B provided there is a higher forum to which an appeal can be made; and second, that the appellate forum has been designated in an artificial way.

The appeal lies to the court to which the former court is subordinate within the meaning of section 195 (3). But "subordinate" does not bear its ordinary meaning.

It 1s used as a term of art and has been given a special meaning by reason of the definition in section 195 (3) : a fiction has been imposed by the use of the word "deemed".

We have accordingly next to examine the content of the fiction.

. '

The section says that the court making the order under section 476 shall be deemed to be subordinate to the court

(a) to which appeals ordinarily lie

(b) from the appealable decrees or sentences of such former court.

Now the former court in this case is a Division Bench of the High Court.

The only court to which an appeal ordinarily lies from the appealable decrees and sentences of a Division Bench of a High Court is this court.

Therefore, a Division Bench of a High court is a court "subordinate" to this court within the meaning of section 195 (3); accordingly an appeal lies to this court from an order of a Division Bench under section 476.

It was contended that there is no ordinary right of appeal to this court and that such rights as there are are those expressly conferred by the Constitution in a very limited and circumscribed set of circumstances, therefore, such appeals as lie to this court cannot be said to lie "ordinarily".

We do not agree.

Such an argument concentrates attention on the word "ordinarily" and ignores the words "appealable decrees or sentences".

Before we can apply the definition we have first to see whether there is a class of decrees or sentences in the court under consideration which are at all open to appeal.

If there are not, the matter ends and there is no right of appeal under section 476-B. If there are, then we we have to see to which court those appeais wia "ordinarily" lie.

It is evident that the only court to which the appealable decrees and sentences of a Division Bench of a High Court can lie is the Supreme Court. There is no other court to which an appeal can be made.

It follows that that is the ordinary course in the case of all appealable decrees and sentences and that consequently this is the court to which such appeals will ordinarily lie.

As there is a right of appeal we have next to consider the matter on its merits and there the only relevant consideration is whether "it is expedient in the interests of justice" that an enquiry should be

M. 8. Shnif!

The State ef

Madras and Otlurs

B.,.J.

M. S. Sheriff

The State of

Madras and Others.

Bose].

made and a complaint filed.

That involves a careful balancing of many factors.

The High Court has scrutinised the evidence minutely and has disclosed ample material on which a judicial mind could reasonably reach the conclusion that there is matter here which requires investigation in a criminal court and that it is expedient in the interests of justice to have it enquired into.

We have not examined the evidence for ourselves and we express no opinion on the merits of the respective cases but after a careful reading of the judgment of the High Court and the report of the District Judge we can find no reason for interfering with the High Court's discretion on that score.

We do not intend to say more than this about the merits as we are anxious not to prejudge or prejudice the case of either side.

The learned Judges of the High Court have also very rightly observed in their order under section 476 that they were not expressing any opinion on the guilt or innocence of the appellants.

We were informed at the hearing that two further sets of proceedings arising out of the same facts are now pending against the appellants.

One is two civil suits for damages for wrongful confinement.

The other is two criminal prosecutions under section 344, Indian Penal Code, for wrongful confinement, one against each Sub-Inspector.

It was said that the simultaneous prosecution of these matters will embarrass the accused.

But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused.

As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.

As between the civil and the criminal proceedings we are of the opinion that the criminal matters should

' .....

be given precedence.

There is some difference of opinion in the High Courts of India on this point.

No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration.

The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages.

The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotton all about the crime.

The public interests demand that criminal justice should be swift and sure ; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial.

Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule.

Special considerations obtaining in any particular case might make some other course more expedient and just.

For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.

The result is that the appeal fails and is dismissed but with no order about costs.

Civil Suits Nos. 311 of 1951 to 314 of 1951, in the Court of the Subordinate Judge, Coimbatore, will be stayed till the conclusion of the prosecution under section 193, Indian Penal Code.

As the plaintiffs there are parties here, there is no difficulty about making such an order.

The petition for special leave is dismissed.

Appeal dismissed.

Petition for special leave dismissed.

M. S. Sheri.If

The Stale of Madras and others.

Bose].

Mahajan

Hukum Singh

M. S. SHERIFF

THE STATE OF MADRAS AND OTHERS

MuKHERJEA

S. R. DAs

VIVIAN BosE

GHuLAM HASAN JJ.

CTiminal Procedure Code

s. 476B

s. 476B

Code of Criminal Procedure

article 132

Constitution of India

High Court of Judicature at Madras

K. Rajah Iyer Aiyangar

R. Ganapathy Iyer

M. S. K.

H. J. Umrigar

S. Subramaniam

section 476B

Govindan

Damodaran

section 491

Govindan

Damodaran

section 476

section 193

Indian Penal Code

article 132

article 134

section 476

article 136

section 476B

section 195

section 476

section 195

section 476B

section 195

section 195

section 476

section 195

section 476

section 476

Supreme Court

State of

Madras

section 476

section 344

Indian Penal Code

High Courts of India

section 476

Subordinate Judge, Coimbatore

section 193

Indian Penal Code

M. S. Sheri

Madras