S1pllmb-r 28

SUPREME COURT REPORTS

DEONANDAN MISHRA

fl.

THE STATE OF BIHAR.

[1955]

(VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.]

Circumstantial evidence-Conviction based thereon-Standard of proof-Various links completing the chain of evidence-Failure to offer an explanation by the accused-Whether an additional link in the chain.

The standard of proof required to convict a person on circumstantial evi<lence is well-established by a series of decisions of the Supreme Court.

According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

The appellant was convicted under s. 302 of the Indian Penal Code and sentenced to transportation for life.

There were no eye~ witnesses to the murder and the conviction of the appellant rested solely on the circumstantial evidence which was relied on by the courts below.

The various facts which formed the links in the chain of circumstantial evidence in the present case taken together advanced the case against the appellant very much beyond suspicion and reasonably and definitely pointed to the appellant as the person who committed the murder.

In a case like the present when the various links in the chain had beez:i satisfactorily made out and the circumstances pointed to the appellant as the probable assailant with reasqnable definiteness and in proximity to the deceased as regards time and situation, and he offered no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innoceqce, such absence of explanation or false explanation would itself be an additional link which completed the chain.

Hanumant v.

The State of Madhya Pradesh ([1952] S.C.R. 1091 ), referred to.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 19 of 1955.

Appeal by Special Leave from the Judgment and Order dated the 11th May 1954 of the Patna High Court in Death Reference No. 8 of 1954 with Criminal Appeal No. 142 of 1954 arising out of the Judgment

and Order dated the 12th March 1954 in Sessions 1955 Trial No. 2 of 1954.

Deonant1an Mishra

v, B. P. Maheshwari, for the appellant.

Thi Stall of Bihar

M. M. Sinha, for the respondent.

1955. September 28. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by special leave. The appellant Deonandan Mishra (Deonandan Missir) who was a stenographer to the Inspecting Assistant Commissioner of Income-tax, Patna, has been convicted under section 302 of the Indian Penal Code for having committed the murder of his second wife, Mst. Parbati Devi, on the night of the 3rd/4th September, 1953 and sentenced to transportation for life.

The deceased was married to the appellant in or about the year 1941 and was his second wife. As appears from the subsequent events, she was considered to be a woman of loose morals.

She appears to have been forsaken by her husband as also by her father in or about the year 1945 and to have sought shelter in the Anath Ashram at Gaya.

Through the intervention of the Secretary of the Ashram and with the consent of both the husband and the father, she got remarried to one Nand Lall of Punjab in December, 1945.

After a stay of about an year and a half with Nand Lall in Punjab, she appears to have left him on account of alleged ill-treatment.

She came back to the Anath Ashram at Gaya in June, 1947, but left it again in October, 1947. What happened thereafter is not clear from the evidence and her whereabouts between October, 1947 and August, 1953, are not known and do not seem to have been traced. All that appears is that for some time prior to the date of the murder, she was found going up and down in places near about Gaya and that particularly on the 2nd and 3rd September, 1953, i.e., two days prior to her murder she was found going between Gay:l and Patna and a place Chakand in between these two places.

Early morning at about 7 A.M. on the 4L.1 September, 1953, P. W. 10, Havildar, found a naked dead body of a

IMnandan Mishra

T/,. Stali of BU.or

japrnadhatlas ].

female lying in the Kabristhan at the outskirts of Gaya about a mile and a half from the police thana.

It was lying on the western verandah of the bungalow of the Kabristhan with a number of cut injuries on the neck and on other parts of the body. Report of this was carried to the police and the body was subsequently identified to be that of Parbati Devi, the second wife of the appellant. Investigation followed and the appellant was arrested on the 6th September, 1953, and put up for trial in due course.

There is no eye-witness to the murder and the case against the appellant depends entirely on circumstantial evidence.

The standard of proof required to convict a person on such evidence is well-established by a series. of decisions of this Court, of which it is sufficient to mention Hanumant v. The. State of Madhya Pradesh(').

This standard requires that the circumstances relied upon must be fully established and that the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

The learned counsel for the appellant ha~, therefore, strenuously contended before us that the circumstances relied on have not been fully established and that in any case they are not enough to bring the offence home to the accused. The various circumstances relied upon have, therefore, to be briefly noticed.

The appellant belongs to a place called Chakanddih about a mile and a half from a railway station called Chakand, which is in between Patna and Gaya and which is about five miles from Gaya. It is in evidence that the deceased woman was seen alighting at the Chakand railway station on the night of the 2nd September, 1953, at about 10-15 P. M. from a train. proceeding from Gaya to Patna and that after so alighting she was found proceeding to the village Chakand-dih. It is also in evidence that she took the train again early next morning at Chakand for Patna.

The evidence further shows that on the 3rd morning at about 10 o'clock, she presented herself at the

(I) [1952] S.C.R.!091.

Income-tax office at Patna, and made enqumes about the appellant from a peon of the office, P.W. 12, and that the appellant was informed about this by him.

On receiving this information the appellant came out and on seeing the woman told the peon that she was his wife and asked him to make some arrangement to keep her for the day so that he might meet her in the evening after he was free from the office work.

The peon accordingly made arrangements for her stay till the evening in the quarters of the Chowkidar, P. W. 22, who lived in the compound of the office.

In the evening of that day, i.e., 3rd September, at about 7 P.M. the appellant came to his quarters and took away this woman in a rickshaw.

These facts are spoken to by the peon, P. W. 12, and the Chowkidar, P. W. 22.

It is further in evidence that after midday on the 3rd September, 1953, the appellant filed an application for casual leave, for one day, i.e., 4th September and that leave was granted. That the appellant did apply for leave and got it is not disputed.

The next evidence against the appellant is that he was seen that night, travelling with the deceased Parbati Devi in a compartment of the train which left Patna at about 8 P.M. that night for Gaya.

This evidence is that of three witnesses, P. W. 1, a daffadar and P.Ws. 3 and 4, two chowkidars, all of whom were on duty at Chakand railway station that night.

All of them speak to their having seen the appellant along with the deceased woman in a third class compartment at about 11 or 11-30 P.M. that night in the train from Patna to Gaya when it stopped at Chakand railway station for a few minutes.

It is their evidence that they knew both these persons well and that these persons did not get down at that station but proceeded in the train towards Gaya.

This evidence, if accepted as it has been by both the courts below-undoubtedly is a strong circumstance against the appellant inasmuch as it makes out that the appellant was last seen with the murdered woman a few hours before the tinu: when the murder must have taken place.

This evidence has been strongly clialle.tiged. The appellant admitted that the murdered

Deonandan Misltta

T"4 State of Bihar

JagannadhaJas J

.0-onandan Mishra

.v.

Tiu SI°" of Bihar

1az-•dloata1 J.

woman met him at his office at Patna in the first week of September, but his case before the Sessions Judge was that this was not on the 3rd but on the 2nd. In answer to questions under section 342, Criminal Procedure Code by the learned Sessions Judge, he admitted that the deceased came to the Income-tax Office at Patna, to see him and that he met her there and that he made her stay in the house of the Chowkidar and that he took her from the lodging of the chowkidar in the evening on a rickshaw. But he maintained that all this happened on the 2nd and not on the 3rd and said that after taking her from the lodgings of the chowkidar, at Patna on a rickshaw, he got down at the crossing and gave her money and sent her away.

He also added that once formerly she had come to his office to demand money. His case that he met the deceased woman at Patna on the 2nd and not on the 3rd was not accepted by both the courts below. Not only was there the evidence of the peon,

P.W. 12, and the chowkidar, P.W. 22, in support of the prosecution case as to the date being the 3rd but a responsible and educated person like the Inspector of Income-tax, against whom nothing has been alleged, has also spoken to the same from his personal knowledge.

It is also significant that the appellant when he was questioned under section 342, Criminal Procedure Code in the court of the Committing Magistrate did not specifically put forward his case that it was on the 2nd and not on the 3rd, that he met the woman at his office in Patna.

His answers in that court were bare denials when he was asked whether he saw Parbati Devi at the Patna Incometax Office on the 3rd and whether he asked the chowkidar to allow her to remain i.n his house for the whole of the day.

His present case that he met the deceased at Patna on the 2nd and not on the' 3rd appears to be afterthought. In the circumstances, the following facts, viz., that the appellant met the deceased at Patna Income-tax Office on the 3rd, that .he took charge of her tht evening from the quarters of the chowkidar of the office by taking her in a rickshaw, that he was found travelling with her by

the night train at about 11 or 11-30 P.M. at the Chakand railway station and proceeding towards Gaya, must be taken to have been fully and clearly established as found by both the courts below.

The next important circumstance alleged against him is the existence of a strong motive.

That the relations between both of them were completely strained, and that the marital tie was virtually (though not legally) snapped, is admitted and is clearly borne out on the record by the Thyagpatra which he gave to the Secretary, Anath Ashram, in 1945 authorising him to get her married to another person.

It is also admitted that the appellant had married a third wife some time before this murder.

The suggestion for the prosecution is that in all these circumstances and having regard to the bad reputation which this woman had gathered round her, as the evidence clearly shows, and in view of the fact that she started troubling him by visits at his office, the appellant had a strong motive to commit the murder.

It is urged for the defence that this woman must have had a p.umber of persons with whom she must have been carrying on love intrigues and that she must have provoked strong jealousies of various persons in and around the place where she was admittedly moving for at least some time prior to her murder and that any one of such persons might have had much sronger motives to commit the crime.

Now, while it is perfectly true that there is no clear evidence about the life and movements of this woman from about October, 1947 to August, 1953, there can be no doubt that on the material before the Court, the existence of a strong motive on the part of the appellant is clearly indicated.

As has been already stated this woman left the appellant in the year 1945 and took shelter jn the Anath Ashram, Gaya. Ex. 2 (a), a Thyagpatra executed by the appellant on the 12th October, 1945, shows that he purported to give up all rights , over this woman as a husband and authorised the Ashram to arrange to get her married according to her choice.

Simultaneously with this Thyagpatra, he als0 sent a letter to the Secretary~

Dlonandan Mishra v.

Thi State of Bihar

Jagannadhadas J.

Dlonandan Mi1hta ...

Till Stall of Bihm

l•1annadhadas ].

Anath Ashram, Ex-2-A(l), which is as follows:

"It is submitted that I have duly filled the tyagpatra (divorce form) in connection with my wife Parbati Devi and submitted the same to the Ashram.

Besides this, I pray to the Ashram Samiti and the Bibah Samiti, with my folded hands that they should keep in mind to get Parbati Devi married at a very distant place in any other State, because she is woman of such a loose character that if she is married to a place near about it will bring ill fame to the A&hram and to me.

As I am an employee in the Police department, it shall adversely affect my service.

I pray you not to refuse my prayer".

The state of mind of the appellant as disclosed in this letter furnishes a clue as to how his mind would have reacted when in spite of her having been married away at a distant place, she came. back and was virtually knocking about from place to place between Patna and Gaya and went so far as to meet him in the very office where he was working to demand money. It is strongly urged that tills letter only shows the state of his mind about eight years prior to the murder.

But in view of his own admission that she started troubling rum again by visiting rum at his office, and demanding money at least on two occasions including that on the 3rd September, the courts below were perfectly justified in considering that a strong present motive on the part of the appellant has been made out.

Learned counsel for the appellant urges that the existence of the motive and the evidence as to the appellant having been last seen travelling in the train with tills woman on the night of the 3rd September a few hours prior to the time of the murder, even if believed are, at best circumstances whlch may create a

trong suspicion but that they are not enough by themselves to make out the guilt of the accused. It is pointed out that there is no evidence that the appellant and the deceased woman were found getting down at the Gaya station or that they were both found proceeding towards Kabristhan after so getting down. Undoubtedly there is some gap in the evidence

at this point.

But their getting down at Gaya or proceeding towards Kabristhan must have taken place at or after midnight.

It is in evidence that Kabristhan was on the out-skirts of Gaya about a mile and a half from the Gaya police station, on the bank of the river Phalgu and that there was no human habitation within about 100 yards of the place.

The absence of any specific evidence, therefore, as to the appellant having been seen with the murdered woman going towards Kabristhan or near about Kabristhan is intelligible.

It cannot be denied, however, that if the circumstances against the appellant stopped short at this poin::, there may be room for hesitation. There are however further circumstances relied upon by the courts below and they require to be noticed and considered.

These further circumstances are ( 1) the finding of a blood-stained knife (pen-knife) near the dead body, and (2) the existence of certain injuries upon the person of the appellant when he was arrested on the 6th.

The evidence of P.W. 23, the officer-in-charge of Kotwali police station, Gaya, who proceeded to investigate this offence on getting information thereof at 7 A.M. on the 4th September shows that he then found the dead body of the woman, in a pool of blood underneath and near the neck, and that there was found at the time a blood-stained knife near the head. This knife was seized and marked as Ex. 1.

The prosecution has given evidence of three witnesses, P.Ws. 11, 13 and 18, who are respectively the Daftari, the Chaprasi and the Inspector attach to the Income-tax Office, Patna, in which the appellant was working, that they had seen with the appellant a knife similar to the one which was shown to them in Court, as having been found by the side of the dead body.

Out of these P.W. 18, the Income-tax Inspector says in crossexamination that he had never seen such a knife "before".

The appellant, while in his examination under section 342, Criminal Procedure Code admitted that he used to keep a knife for mending pencil, denied that the knife, produced in court as being the one which was found by the side of the dead body, was

D1onand1Jt1 MlshrtJ

Th6 Stale of Blhar

Jaganna4/uulu J.

IJ.oMndan Misl1'a

Tl# Stal1 of Bihar

Jagannadlia4as J.

his or was like the one he kept. It was strongly urged on behalf of the defence that there was no proof that this was the very knife which the appellant used to have.

The learned Judges of the High Court met this criticism as follows:-

"Of course no witness could have possibly deposed that this was the knife which was in possessioa of the appellant.

They say that the knife which they had seen with the appellant prior to the occurrence was a knife similar to the one . which was found in a blood-stained condition near the dead body. We have examined that knife for ourselves and it has a peculiarity of its own.

The knife has an ivory handle. It has a cork screw and a bottle opener-all combined.

A knife of this description, therefore, can be identified and it is not one of the kind which can be said to be an ordinary one".

In view of the above observation by the learned Judges and having regard to the evidence of P.W. 18, who, though he did not speak of these peculiar features, has categorically said that he had never seen such a knife before, there is no reason to disagree with the finding of the High Court that the find of this knife near the dead body is a strong circumstance against the appellant.

The next circumstance found against the appellant is the presence of injuries on his. body at the time of his arrest on the 6th.

P.W. 24, a Civil Assistant Surgeon of Gaya who examined him at 6 P.M. on t11e 6th of September, found the following four simple injuries on his person. ( 1) One wound on the left ring finger, (2) one wound on the back of left hand near thumb, (3) two abrasions in front of right knee, and ( 4) one small abrasion in front of left knee.

In his opinion, the injuries were. all about three days old.

Numbers 1 and 2 might have been cawed by a sharpedged weapon such as a pen-knife and injuries 3 and 4 by some hard and rough substance such as friction against the ground. According to him, the nature and position of the injuries were . such that "if the victim is lying on the ground and if the assailant is over on the chest of the victim and he is holding the victim

by his left hand and if he is inflicting injuries near about his left hand the victim is struggling-making the assailant unsteady, then injuries Nos. 1 and 2 may be caused by his own weapon and injuries Nos. 3 and 4 may be caused due to friction against the ground".

This answer indicates the possibility of the injuries having been received by. a person while making a murderous attack on the victim with a pen-knife. The appellant when asked about these injuries in his examination under section 342, Criminal Procedure Code stated in the Sessions Court (as well as in the committal court) that he fell down at Jehanabad platform on the 3rd due to Dhoti getting entangled, and sustained injuries.

In support of his explanation he relied on an applicatiGn for extension of leave sent first by telegram on the morning of the 5th of September to the Commissioner of Income-tax, Patna asking for extension of leave followed by a letter of that very date to the same effect.

The letter was addressed to the Inspecting Assistant Commissioner of Income-tax, Northern Range, Patna, and runs as follows:

"I beg to state that I started from home from Patna in the night train of 3rd September 1953. When the train stopped at Jehanahad I wanted to come out of the train for taking a stand on the platform due to unbearable heat in the train.

At the gate of the compartment as soon as I wanted to come out my one leg entangled with the lower part of my dhoti resulting instantaneous fel~ down from the train. Due to this accident I got injuries at both the knees and the cut marks in the bck of my left palm. I therefore request you to kindly extend my leave up to 10th September, '53".

When questioned under section 342, Criminal Procedure Code before the Sessions Court about the extension of his leave, he said "I was a stenographer.

How can have I typed when my left hand was injured.

Hence I wanted to extend the leave".

It appears to us, however, very doubtful, having regard to the nature of the injuries, whether this can be the real reason for his extending the leave.

He does not

DI01lll1lllan Mislrr• v.

T"6 StaU of Bihar

JaglJlltllllflzadl J.

D10rumdan Mishra

Thi State of Bihi:ir

Jagannadh.atla1 ].

say so specifically in his application for leave. Nor, does it appear so likely from the medical evidence how injuries Nos. 1 and 2 could have been caused by the alleged fall on the railway platform. In the crossexamination of the Doctor it was suggested that if there is a broken glass piece lying on the ground and if during the fall the hand came in violent contact with that piece of glass, then such injuries may be caused.

But the appellant in his explanation and in the application for leave does not say anything which indicates that he received the injuries on the hand from a .. Qiece of glass.

In this state of the evidence, it cannot be said that the courts below were not justified in coming to the conclusion which they did, viz., that the explanation of the appellant for the injuries was false and that the injuries may well have been received on the occasion of the murder.

Summing up, the various facts which formed the links in the chain of circumstantial evidence m this case, may be stated to be as follows :

1. There was a fairly strong motive for the appellant to cofnmit the murder in question.

2. He took charge of the murdered woman on the evening of the 3rd September by taking her out from the quarters of the chowkidar of the Incometax Office, Patna, and leaving the place with her in a rickshaw.

3. He was found travelling with her by a train which was proceeding to Ga ya that night, at Chakand railway station and this was at about 11 or 11-30 P.M., i.e., a few hours priorto the time when she must have been murdered.

4. The knife, which looked like the one which he was known to be using in his office and which was not of a common pattern, was. found just by the side of the head of the murdered woman stained with blood.

5. V!hen he was arrested two and a half days after the murder, he had simple injuries on his hand and the knees which might well have been received, according to the medical evidence, in an assault on the murdered woman with the knife above mentioned.

These circumstances taken together, advance the case against the appellant very much beyond suspicion and reasonably and definitely point to the appellant as the person who committed the murder.

In such a situation the fact that he has no explanation to offer as to how, after having taken charge of this woman on the evening of the 3rd at Patna and after having travelled with her in the train that very night towards Gaya, he left the woman, where and how he parted company with her and what became of her so far as he knows, goes a long way against him.

The fact that on the other hand he tries to dissociate himself from her company at the relevant time by putting fo1ward for the first time in the Sessions Court, the story of having met her at Patna on the 2nd September and of his having parted company with her that evening at some crossing after giving her some money, which is patently false, is very significant. The further fact that the explanation for his injuries appears to be false is also significant.

These false explanations are telling circumstances which, in a case depending on circumstantial evidence taken with the other facts such as those in this case, are enough to bring the guilt home to the accused.

To combat this conclusion, learned counsel for the appellant drew our attention to the nature and position. of the injuries on the body of the deceased woman as disclosed by the medical evidence of the Doctor,

PW. 17, who conducted the post-mortem examination, as also the various indications at the site of the occurrence, as found and spoken to by the policeofficer,, P.W. 23, who was the first officer to go to the scene by about 7 A.M. on the 4th on receiving information.

He also drew our attention to the fact that according to the report of the Serologist and Chemical Examiner, no human blood appeared to have been found on the saree and the bodice found lying near about the place where the dead body was lying and that neither the saree nor the bodice showed anv indication of having been torn or tampered with , and that on the other hand the body was found lying absolutley naked with face upwards.

These features

Deonandan Mishra

The Stak of Bihar

Jagannadhadas J.

DllJIUlnllan Mislita

Tiu State of Bifuw

Jagamuzahadas J.

have all been pressed into service for a strong argu ment that the murder must have been the act of more than one person and probably having its source in sex jealousy.

We have very closely and anxiously gone into this aspect of the matter by carefully scrutinising the entire evidence in this behalf. It is unnecessary to recapitulate the same.

Whatever may have been the actual situation on the spot and the method by which the murder was in_ fact committed-a matter for mere speculation-we are satisfied that the murder could have been committed by a single individual in the .. position of the appellant. Sitting in an appeal by way of special leave, we are not prepared to say that the medical evidence and other concomitant circumstances were such as to compel a conclusion contrary to that arrived at by the Courts below. It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactody made out and the circumstances point to the appellant as the prqbable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence.

We find, therefore, no sufficient reason to differ from the view taken by the lower courts and this appeal must accordingly be dismissed.

DEONANDAN MISHRA

THE STATE OF BIHAR

VIVIAN BosE

JAGANNADHADAS

B. P. SINHA JJ.

Supreme Court

s. 302

Indian Penal Code

Deonant1an Mishra

B. P. Maheshwari

M. M. Sinha

Deonandan Mishra

section 302

Indian Penal Code

Parbati Devi

3rd/4th September, 1953

Gaya

Nand Lall

Punjab

2nd and 3rd September, 1953

Patna

4L.1 September, 1953

Havildar

IMnandan Mishra

6th September, 1953

Chakand

2nd September, 1953

Chakand-dih

Chowkidar

3rd September, 1953

Deonandan Misltta

State of Bihar

JagannadhaJas

onandan Mishra

Tiu SI°" of Bihar

section 342

Criminal Procedure Code

chowkidar

section 342

Criminal Procedure Code

Anath Ashram

12th October, 1945

Dlonandan Mi1hta

Anath Ashram

Ashram Samiti

Bibah Samiti

Gaya

Kabristhan

Kabristhan

Gaya police station

Kotwali police station, Gaya

section 342

Criminal Procedure Code

The appellant, while in his examination under section 342, Criminal Procedure Code admitted that he used to keep a knife for mending pencil, denied that the knife, produced in court as being the one which was found by the side of the dead body, was

D1onand1Jt1 MlshrtJ

Th6 Stale of Blhar

Jaganna4/uulu J.

IJ.oMndan Misl1'a

TlStal1 of Bihar

Jagannadlia4as J.

his or was like the one he kept.

6th of September

section 342

Criminal Procedure Code

Dhoti

3rd September 1953

Jehanahad

10th September, '53

section 342

Criminal Procedure Code

D10rumdan Mishra

V!hen

Deonandan Mishra

Jagannadhadas

Jagamuzahadas


2 S.C.R.

SUPREME COURT REPORTS 583

BED RAJ v.

THE STATE OF UTTAR PRADESH.

[VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.]

Sentence, Enhancement of-By the High Court-Principles applicable thereto.

A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment.

In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.

Interference is only called for when it is manifestly inadequate.

In the circumstances and bearing all the considerations of the present case in mind it was impossible to hold that the Sessions Judge did not impose a substantial sentence.

The Supreme Court set aside the sentence imposed by the High Court and restored that of the Sessions Judge as no adequate reason

had been assigned by the High Court for considering the sentence passed by the Sessions Judge as manifestly inadequate.

Dalip Singh v. State of Punjab ([1954] S.C.R. 145) and Nar Singh v. State pf Uttar Pradesh ([1955] 1 S.C.R. 238), referred to.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 88 of 1954.

Appeal by Special Leave from the Judgment and Order dated the 7th January, 19~4 of the Allahabad High Court in Criminal Appeal No. 377 of 1953 connected with Crimizial Revision No. 461 of 1953 arising out of the Judgment and Order dated the 17th November, 1952 of the Court of Additional Sessions Judge at Meerut in Session Trial No. 113 of 1952.

B. B. Tawakley, (K. P. Gupta, with him), for the appellant.

K. B. Asthana and C. P. Lal, for the respondent. 1955.

September 28.

The Judgment of the Court was delivered by

BosE J.-The only question here is about sentence.

Septemb1r 118

Bid Raj v.

Tiu State of Ullar

Pradesh

Bose J.

The appellant Bed Raj and another, Sri Chand were jointly charged with the murder of one Pheru.

The Sessions Judge convicted Bed Raj under section 304, Indian Penal Code, and sentenced him to three years' rigorous imprisonment.

He 'acquitted Sri Chand.

Bed Raj appealed to the High Court and that Court, on admitting the appeal for hearing, issued notice to the appellant to show cause why the sentence should not be enhanced. The appeal and the rev1S1on were heard together.

The appeal was dismissed and the High Court enhanced the sentence to ten years.

Now, though no limitation has been placed on the High Court's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along well known ju_dicial lines.

The only question before us is wheth"r those lines have been observed in the present case.

The facts that have been found by the Sessions Judge and accepted by the High Court are to be found in the opening paragraph of the lear.ned Sessions Judge's judgment.

They are as follows : "Roop Chand, the son of Bed Raj accused, was removing the dung of the bullocks of Pheru deceased from an open space near his cattle shed.

Pheru protested to the boy and turned down the basket in which the boy had put the dung. The two accused who are brothers then came to the scene from their own cattle shed which was near by and there was an exchange of abuses between them and Pheru.

The accused Sri Chand then caught hold of Pheru by the waist and Bed Raj accused took out a knife and stabbed him in 3 or 4 places. The knife was then left sticking in the neck of the deceased and the accused ran away".

The assault occurred about 8 o'clock on the morning of the 23rd February 1952. Pheru was removed to the hospital and the Medical Officer Dr. Fa.teh Singh examined him and found that he was suffering from shock.

He found three injuries on his person :

all "simple".

He gave the following description of them:

" ( 1) Incised and punctured wound f'Xf'X(' neck, right side lower part.

(2) Incised wound 1 X "l" X ! " right deltoid regior. frontal and lower part above downward. (3) Incised wound f'X 1/s" <¥' Epigastric region".

He said-

"Whcn Pheru was admitted in the hospital he was under shock but his condition was _not dangerous .... When Pheru came he could speak. He was not unconscious. As he was under shock no report was made for recording his dying declaration .... I cannot give the definite cause of death.

I cannot tell if such an injury can cause death. There was no haemorrhage from Pheru's neck after his arrival in my hospital".

Speaking of the injuries, the doctor said-

"Injuries 2 and 3 on the person of Pheru which were incised wounds were not punctured. It was not possible to inflict them from a sharp pointed weapon".

The appellant was also examined by the doctor and a slight simple injury, which could have been caused by a simple blunt weapon, was discovered.

This indicates that there was a scuffle between the appellant and the deceased in which the appellant was hit over the nose and, up to a point, bears out what the appellant says in his defence, namely that Pheru was beating the appellant's son Rup Chand; he went there and tried to extricate Rup Chand; Pheru started beating him (the appellant) and he, the appellant, received a fist blow on the nose.

The depth of the injury on Pheru's neck was ! of :m inch.

In this connection the doctor says- " A knife can penetrate lt or 2 inches in a case of deliberate stabbing".

Pheru died about 12-45 A. M. on the 24th February 1952, that i~ to say, about 16 or 17 hours after the assault.

The post-mortem was conducted gy another doctor, Dr. J. K. Dwivedi.

Describing the injury on the neck-the only one we need consider as the other two were slight-he said that clotted blood was present all roun1l injury No. 1 and that- 9-83 S. C";. Indi::i/59

1955 - Btd Rq/

Tlir. 8~1111 of Ullar

Pradtsh

BoSI J.

1955 "the right side dome of pleura is punctured under Bed Raj injury No. 1 and clo1ted blood present all round it.

Th• Stat;01 Utt., Upper lobe of right lung

(appex) is punctured for p, a, foh , i"X.!-''Xf'.

Clotted blood present over the lung surface ~II round the punctured area.

A branch of the Bose J.. l l d externa jugu ar vein was divi ed in right side neck under injury No. 1. . . . Death was due to shock and haemorrhage as a result of injury to neck".

In cross-examination he said-

"It 'was possible and impossible also that the bleeding could be stopped.

Such injury as injury No. 1 are more likely to cause death".

After reviewing the evidence the learned Sessions Judge held-

"It is evident that the whole scene took just a few moments.

Both of the accused must have been in a moment of heat and before either of them could think of doing any act, the whole thing was over ...... .

That the injuries with the knife were likely to cause death is clear but they were caused at a time when the parties were in a heat and there was a sudden fight and no room for premeditation".

Because of this, and seeing that ther was no reason to infer pre-concert, he acquitted the other accused, and by reason of those circumstances he considered that three years would be sufficient punishment and sentenced the appellant accordingly.

This was on 17-11-1952.

The appellant filed an appeal to the High Court on 13-12-1952 and that Court thereupon issued notice to him to show cause why the sentence should not be enhanced.

The High Court directed enhancement on 7-1-1954.

On the same day the State Government ordered the release of the appellant on probation, under section 2 of the

U. P.

Prisoner's Release on Probation Act, 1938, for the full term of the sentence imposed by the Sessions Court. We are not concerned with the State Government's order except in so far as _it indicates the view that that Government took of the antecedents and conduct in prison of the appellant, matters that arc also relevant for consideration by a Court

when determining a question of sentence: a prisoner can only be released on probation under that Act if the State Government is satisfied.

"from his antecedents and his conduct m the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison".

These facts were not known to the High Court when it made its order of enhancement, but it is a matter relevant for our consideration now that the appeal is before us.

Now the High Court accept the findings of the Sessions Judge about the circumstances in which the offence took place.

They agree that the attack was not premeditated and that there was a sudden quarrel and that the blows were inflicted in the heat of passion.

They also say that there was counter-abuse and they notice the abrasion on the appellant's nose.

Despite this they hold that

"it is possible that this injury was received by the appellant in the attempt of the deceased to resist the attack made by the appellant.

There was therefore no fight".

This is a very half-hearted finding and ignores the fact that the benefit of all doubts must be given to the accused.

If it was only "possible" that the injury was due to Pheru's attempt to ward off an attack by the appellant, then it r_nust be equally "possible" that it was received in the course of a scuffie.

The appellant very definitely says in his examination that there was a fight and the abrasion on his nose, which the doctor says was caused by a blunt weapon, bears out his version that Pheru struck him with his fist.

The circumstances also indicate that there must have been a scuffie. Why else should it be necessary for the second accused to come and hold him down by the waist?

When villagers or any man for that matter, come to blows after hot words and an interchange of abuse, there is nearly always resis'tance to the initial attack.

Very rarely does a man "turn the other check". It must also be remembered that the incident started with the use of force by Pheru. It was he who took hold of the basket of oow dung and 20-83 S. C. Indiaj59

Bed Raj v.

The State of Uttar Pradesh

Bose J.

,1955

Btd Rqj

Till Stale of Ullar

Pradesh

Bosa J.

overturned it.

That occasioned the quarrel, and the finding is that there was abuse and counter-abuse. It was then that the second accused rushed in and caught Pheru by the waist. That accused was acquitted because there was nothing to suggest that that was done. in aid of the appellant's intention to assault Pheru and he was absolved .of all intention to assault on. his own account; and the finding is that even the appellant had no such intention till the last moment.

If that was the case, then why should the second accused rush in and hold Pheru by the waist? If he had no intention to assault on his own account and none to assist the appellant in his assault, the only other reasonable conclusion is that he tried to stop a fight.

It would be fair in the circumstances to reach that conclusion, for the accused is as much entitled to the benefit of any doubt when a co-accused is acquitted as in any other case. In any case, it was incumbent on the High Court to reach a more definite finding than the one given before deciding to enhance the sentence.

The only reason that the learned Judges give is that Pheru was unarmed and as the attack was made with a knife it cannot be said that the appellant did not act in a cruel or unusual manner.

Nevertheless, they uphold the finding that the offence falls under section 304, Indian Penal -Code, and not under section 302.

A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reason.. which must be disclosed on the face of the judgment; see for example the observations in Dalip Singh v.

Stilte of Puniah(') and Nar Singh v. State of Uttar Pradesh(°). In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.

Interference i~ only called for when it is manifestly inadequate Jn our opinion, these principles have Jlot been observed.

It is

(II {UJ5f] 8. C.R. 145, 156.

(2) {Jiiii~] I S. C. lt. 2311, :Ml.

impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial senteilce, and no adequate reasoP has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.

In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence , imposed by the High Court should be set aside and that of the Sessions Court restored. Ordered accordingly.

---r-

BHIKAJI NARAIN DHAKRAS AND OTHERS

THE STATE OF MADHYA PRADESH

AND ANOTHER.

[S. R. DAS, ACTING c. J., BHAGWATI, VENKATARAMA

AYYA11, }AFER IMAM and CHANDRASEKHARA

AIYAR JJ.]

Fundamental Rights, Infringement of-I.Aw void for inconsistency -'Void', Meaning of-Removal of inconsistency by amendment of the'

Constitution, if revivifies the law-Constitution of India as amended by the Constitution (First Amendment) Act, 1951 and the Constitution (Fourth Amendment) Act, 1955, Arts. 13, 19(6), 31(2)-C.P. & Berar Motor Vehic!es (Amendment) Act, 1947 (Act Ill of 1948).

The petitioners who carried on their business as stage carriage operators of Ma<ihya Pradesh for a considerable number of years challenged the constitutional validity of the C.P. & Berar Motor Vehides (Amendment) Act, 1947 (Act III of 19!l8) which amended the Motor Vehicles Act, 1939 (Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators.

In exercise of the powers conferred by new s. 43(1)(iv) a notification was issued on the 4th of February, 1955, qeclaring the intention of the Government to take up certain ro.ites. The case of the petitioners was that the passing of the Constitution and the grant of fundamental rights rendered the ltct void under Art. 13 ( 1) being inconsistent with the provisions of Arts. 19(1) (g) and 31(2), and reliance was placed on the decision of the Supreme CQurt in Shagir Ahmad v. The State of T.J .P. & others. On behalf of the .respondents it was contended that although as a result of the said decision the iu>pugned Act w:iS

Bed iw

T/14 SI/JU of Ullar

Praduh

Bose J.

September 29

583

BED RAJ

THE STATE OF UTTAR PRADESH

VIVIAN BosE

JAGANNADHADAS

B. P. SINHA JJ.

Supreme Court

[1955] 1 S.C.R. 238

B. B. Tawakley

K. P. Gupta

K. B. Asthana

C. P. Lal

Bid Raj

Tiu State of Ullar

Bose

Bed Raj

Chand

Pheru

section 304

Indian Penal Code

Sri Chand

Roop Chand

Bed Raj

Raj

23rd February 1952

Fa.teh Singh

Rup Chand

24th February 1952

J. K. Dwivedi

Pradtsh

section 2

Release on Probation Act, 1938

Bosa

section 304

section 302

BHIKAJI NARAIN DHAKRAS

S. R. DAS

BHAGWATI

VENKATARAMA

AYYA11

}AFER IMAM

CHANDRASEKHARA

AIYAR

Constitution of India

Arts. 13, 19(6), 31(2)

Motor Vehicles Act, 1939

Central Act IV of 1939

s. 43(1)(iv)

4th of February, 1955

Art. 13

Arts. 19(1)

Supreme CQurt

Praduh

Bose

September 29


2 S.C.R.

SUPREME COURT REPORTS 589

impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial senteilce, and no adequate reasoP has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.

In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence , imposed by the High Court should be set aside and that of the Sessions Court restored. Ordered accordingly.

---r-

BHIKAJI NARAIN DHAKRAS AND OTHERS

THE STATE OF MADHYA PRADESH

AND ANOTHER.

[S. R. DAS, ACTING c. J., BHAGWATI, VENKATARAMA

AYYA11, }AFER IMAM and CHANDRASEKHARA

AIYAR JJ.]

Fundamental Rights, Infringement of-I.Aw void for inconsistency -'Void', Meaning of-Removal of inconsistency by amendment of the'

Constitution, if revivifies the law-Constitution of India as amended by the Constitution (First Amendment) Act, 1951 and the Constitution (Fourth Amendment) Act, 1955, Arts. 13, 19(6), 31(2)-C.P. & Berar Motor Vehic!es (Amendment) Act, 1947 (Act Ill of 1948).

The petitioners who carried on their business as stage carriage operators of Ma<ihya Pradesh for a considerable number of years challenged the constitutional validity of the C.P. & Berar Motor Vehides (Amendment) Act, 1947 (Act III of 19!l8) which amended the Motor Vehicles Act, 1939 (Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators.

In exercise of the powers conferred by new s. 43(1)(iv) a notification was issued on the 4th of February, 1955, qeclaring the intention of the Government to take up certain ro.ites. The case of the petitioners was that the passing of the Constitution and the grant of fundamental rights rendered the ltct void under Art. 13 ( 1) being inconsistent with the provisions of Arts. 19(1) (g) and 31(2), and reliance was placed on the decision of the Supreme CQurt in Shagir Ahmad v. The State of T.J .P. & others. On behalf of the .respondents it was contended that although as a result of the said decision the iu>pugned Act w:iS

Bed iw

T/14 SI/JU of Ullar

Praduh

Bose J.

September 29

Bhikaji Narain Dhakras and othtrs

The Stale of Madhya Pradesh

andanotlur

rendered void, the Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, had the effect of removing the inconsistency and the Amending Act (III of 1948) became operative again. It was, however, contended on behalf of the petitioners that the impugned Act being void under Art. 13(1) was dead and could not be revivified by any subsequent amendment of the Constitution.

It must be re-enacted.

Held that Shagir Ahmad's case had no application and the con tentions put forward by the respondents were well founded and must be accepted.

That it is well-settled that the word 'void' in Art. 13 means void to the eXtent of the inconsistency with a fundamental right and the language of the article makes it clear that the entire operation of an inconsistent Act is not .wiped out.

It applies to past transactions and the rights and liabilities accruing therefrom and continues even after the commencement of the Constitution to pply to noncitizens.

Keshavan Madhava Menon v. The State of Bombay [1951] S.C.R. 288, relied on.

The true effect of Art. 13( 1) is to render an Act, inconsistent with a fundamental right, ifioperative to the extent of the inconsistency. It is overshadowed by the fundamental right and remains dormant but is not dead. With the amendment made in cl. ( 6) of Art. 19 by the first Amendment Act the provisions of the impugned Act were no longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such amendment with this difference that, unlike amended clause (2) of Art. 19 which was expressly made retrospective, no rights and obligations could be founded on the provisions of the impugned Act from the date of the Commencement of the Constitution till the date of the amendment. The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was, therefore, perfectly valid. . .

Shagir Ahmad v. The State of U.P. & Others, [1955] 1 S.C.R. 707 and Behrom Khurshed Pesikaka v. The State of Bomby. [1955] 1 S.C.R. 613, distinguished and held inapplicable.

American authorities held inapplicable.

Nor can the impugned Act, e>n a parity of reasoning be held to infringe any longer the fundamcnal rights of the petitioners under Art. 31(2) in view of the amenament effected therein by the Constitution (Fo11rth Amendment) Act of 1955 which came into force on the 27th April, 1955, these petitions having been filed thereafter, and the petitioners could not be allowed to challenge the validity of the impugned Act on that ground.

Scmble.

It is not clear at all that the impugned Act was in conflict with s. 299 of the Government of India Act, 1935, before the advent of the Constitution,

ORIGINAL JURISDICTION : Petitions Nos. 189 to 193 of 1955.

Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.

G. S.

Pathak, (Rameshwar Nath and Rajinder Narain, with him) for the petitioners in Petition No. 189 of 1955.

Rameshwar Nath and Rajinder Narain, for petitioners in Petition No. 190 of 1955.

Sri Narain Andley and Rajinder Narain, for petitioners in Petitions Nos. 191 to 193 of 1955.

T. L. Shevde, Advocate-General of Madhya Pradesh (I. N. Shr_off, with him), for respondents in all petitions. 1955.

September 29.

The Judgment of the Court was delivered by

DAS Acre. C. J.-This judgment will dispose of all the five petitions (Nos. 189 to 193 cl. 1955) which have been heard together and which raise the same question as to the constitutional validity of the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).

The facts are short and simple.

Each of the petitioners has been carrying on business as stage carriage operator for a considerable number of years under permits granted under section 58 of the Motor Vehicles Act, 1939 (Central Act IV of 1939) as amended by the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).

Prior to the amendmen, t section 58 of the Motoc Vehicles Act, 1939 was in the following terms:-

"58(1). A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit.

Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective . without renewal

Bhikaji Narain Dhakras and othtrs

The State of Madh, a Pratksh

andanotlur

!955

BlliktJji Jf trraln D/uJkras and ot/urs

v; T Ji. Stai. qf Madhya Pradesh

andnnothtr

Das .dctg. C. J.

for such period of less than three years as the Provincial Government may prescribe.

(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit:

Provided that, other conditions Leing equal, an application for renewal shall be given preference over new applications for permits".

It will be noticed that under the section as it originally stood the permit granted thereunder was for a period of not less than 3 years and not more than 5 years and a permit-holder applying for renewal of the permit had, other things being equal, preference over new applicants for permit over the same route and would ordinarily get such renewal.

Very far reaching amendments were introduced by the C. P. & Berar Motor Vehicles (Amendment) Act, 1947 into the Motor Vehicles Act, 1939 .in its application to Central Provinces and Berar.

By section 3 of the amending Act, item (ii) of sub-section ( 1) of section 43 of the Central Act was replaced by the following items : . "(ii) fix maximum, minimum or specified fares or freights for stage carriages and public carriers to be applicable throughout the province or within any area or any route within the province, or

 (iii) notwithstanding anything contained in section 58 or section 60 cancel any permit granted under the Act in respect of a transport vehicle or class of such permits either generally or in any area specified in the notification :

Provided that no such notification shall be issued before the expiry of a period of three months from the date of a notification declaring its intention to do so:

Provided further that when any such permit has been cancelled, the permit-holder shall be entitled to such compen5ation as may be provided in the rules; or

(iv) declare that it will engage in the business of road transport service either generally or in any area specified in the notification".

The following sub-section (3) was added section (2) of section 58 of the Central Act 8 of the amending Act, namely:-

after sub-

I 955

l;>y section Bhikaji Narain Dhakras and othns "(3) Notwithstanding anything contained in sub-section (I), the Provincial Government may order a Regional Transport Authority or the Provincial Transport Authority to limit the period for which any permit or class of permits is issued to any period less than the minimum specified in the Act".

Section 9 of the amending Act added after section 58 a new section reading as follows :-

"58-A.

Notwithstanding anything hereinbefore contained the Provincial Government may by order direct any Regional Transport Authority or the provincial Transport Authority to grant a stage carriage permit to the Provincial Government or any undertaking in which the Provincial Government is financially interested or a permit-holder whose permit has been cancelled under section 43 or any local authori ty specified in the order".

The result of these amendments was that power was given to the Government ( i) to fix fares or freights throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry of three months from the date of notification declaring its intention to do so and on payment of such compensation as might be provided by the Rules, (iii) to declare i.:s intention to engage in the business of road transport generally or in any area specified in the notification, (iv) to limit the period of the license to a period less than the minimum specified in the Act, and (v) to direct the specified Transport Authority to grant a permit, inter alia, to the Government or any undertaking in which Government was financially interested.

It may be mentioned here that in the State of Madhya Pradesh there are two motor transport companies known as C. P. Transport Services Ltd., and Provincial Transport Co. Ltd., in which, at the date of these writ petitions, the State of Madhya Pradesh and the Union of India held about 85 per cent. of the share capital. Indeed, since the filing of these petitions the entire undertakings of these

v Tll4Ststeof Madhya Pradesh

and anot!rn

Das Act1:. C. J.

Bhikaji Narain Dhah-as and others

TM State of Madhya Pradesh

and another

Das Actg. C. ].

companies have been purchased by the. State of Madhya J;>radesh and the latter are now running the services on some routes for which permits had been granted to them.

A cursory perusal of the new provisions introduced by the amending Act will show that very extensive powers were conferred on the Provincial Government and the latter were uthorised, in exercise of these powers, not only to regulate or control the fares or freights but also to take up the entire motor transport business in the province and run it in competition with and even to the exclusion of all motor transport operators.

It was in exercise of the powers under the newly added sub-section (3) or section 58 that the period of the permit was limited to four months at a time. It was in exercise of powers conferred on it by the new section 43(1) (iv) that the Notification hereinafter mentioned declaring the intention of the Government to take up certain routes was issued.

Tt is obvious that these extensive powers were given to the Provincial Government to carry out and implement the policy of nationalisation of the road transport business adopted by the Government.

At the date of the passing of the amending Act (III of 1948) there was no such thing as fundamental rights of the citizens and it was well within the legislative. competency of the Provincial Legislature to enact that law.

It has been conceded that the amending Act was, at the date of its passing, a perfectly valid piece of legislation.

Then came our Constitution on the 26th Janmry

1950. Part III of the Constirution is headed "Fundamental Rights" and consists of articles 12 to 35.

By article 19(1) the Constitution guarantees to all citizens the right to freedom under seven heads. Although in article 19(1) all these rights are expressed in unqualified language, none of them, however, is absolute, for each them is cut down or limited by whichever of the several clause< (2) to (6) of that article is applicable to the particular right.

Thus the right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)

(g) was

controlled by clause (6) which, prior to its amendment to which reference will presently be made, ran as follows :-

" ( 6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public:, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clau~ shall affect the operation of any existing law in so far as it presc1lbes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business".

The fundamental rights conferred by articles 14 to 35 are protected by the provisions of article 13 the relevant portions of which are as follows:-

"13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void".

The amending Act ( III of 1948) was, at the commencement of the Constitution, an existing law. The new provisions introduced by the Act authorised the Provincial Government to exclude all private motor transport_ operators from the field of transport business. Prima f acie, therefore, it was an infraction of the provisions of article 19(1)

(g) of the Constitution and would be void under article 13(1), unless this invasion by the Provincial Legislature of the fundamental right could be justified under the provisions of clause ( 6) of article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under article 19(1) (g) in the interests of the general

Bhikaji Narain Dhakras and otlw

Tiu State of Madhya Pradesh

and anothtr

Das Actg. C. J.

Bltikqji Narain Dhalcras and oth1J1s

The State of MadhJa Pradesh

and another

Dat Aclg. C.Jo

public.

In Shagir Ahmad v.

The State of U.P. d: Others(') it was held by this Court that if the word "restriction" was taken and read in the sense of limitation and not extinction then clearly the law there under review which, like the amending Act now before us, sanctioned the imposition of total prohibition on the right to carry on the business of a motor transport operator could not be justified under article 19(6).

It was further held in that case that if the word "restriction" in clause (6) of article 19 of the 'Constitution, as in other clauses of that article, were to be taken in certain circumstances to include prohibition as well, even then, having regard to the nature of the trade which was perfectly innocuous and to the number of persons who depended upon business of this kind for their livelihood, the impugned law could not be justified as reasonable.

In this view of the matter, there is no escape from the conclusion that the amending Act, in so far as it was inconsistent with article 19(1) (g) read with clause (6) of that article, became. under article 13(1), void "to the extent of such inconsistency" and if there were nothing else in the case the matter would have been .completely covered by the decision of this Court in that case.

On the 18th June 1951, however, was passed the Constitution (First Amendment) Act, 1951.

By stc tion 3(1) of that Act for clause (2) of article 19 a new sub-clause was substituted which was expressly made retrospective.

Clause (6) of article 19 was also amended. That clause, so amended, now reads as follows:-

"(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State . from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of anv existing law in so far as it relates to, or prevent the State from making any law relating to,-

(!) [1955] I S. C.R. 707.

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise".

It will be noticed that clause (6), as amended, was not made retrospective as the amended clause (2) had been made. The contention of the respondents before us is that although the amending Act, on the authority of our decision in Shagir A4mad's case (supra), became on and from the 26th January, 1950 void as against the ciLizens to the extent of its inconsistency with the provisions of article 19(1) (g), nevertheless, after the 18th June 1951 when clause (6) was amended by the Constitution (First Amendment) Act, 1951 the amending Act ceased to be inconsistent with the fundamental right guaranteed by article 19( I) (g) read with the amended clause (6) of that article, because that clause, as it now stands, permits the creation by law of St:ite monopoly in respect, inter alia, of motor transport business and it became operative again even as against the citizens.

The petitioners, on the other hand, contend that the law having become void for unconstitutionality was dead and could not be vitalised by a subsequent amendment of the Constitution removing the constitutional objection, upless it was re-enacted, and reference is made to Prof Coolev's work on Constitutional Limitations, Vol.

I, p. 3.84 Note referred to in our judgment in Shagir Ahmad's

case (supra) and to similar other authorities.

The question thus raised by the respondents, however, was not raised by the learned Advocate-General in that case, although the notification was published by the U. P. Government on the 25th March 1953 and the proposed scheme was published on the 7th April, 1953, i.e., long after the Constitution (First Amendment) Act, 1951 had been passed.

This question was not considered by this Court in Shagir Ahmad's case, for it was there conceded (see p. 720 of the report) that the validity of the U. P. Act which, in this res-

Bhikaji Narain Dhakras and otlurs

The Stale of Madhya Pradesh

and anot/ur

Das Actg. C. J.

Bhikoji Nor a in Dhakras and others

Ti1' State •f MadhJa PraJesh

and another

DOI Adg. C. J.

pcct, was similar to the C. P. & Berar Act now under consideration, was not to be decided by applying the provisions of the amended clause (6).

Nor was this problem raised before or considered by this Court in Behram Khurshed Pesikaka v. The State of Bombay(').

We, therefore, conceive it to be open to us to go into the new question that has now been mooted before us and to consider what effect the amended clause ( 6) has on the impugned Act.

This involves a question of construction of article 13 of the Constitution.

The meaning to be given to the word "void" in article 13 is no longer res integra, for the matter stands concluded by the majority decision of this Court in Keshavan Madhava Menon v.

The State of Bombay(').

We hJve to apply the ratio decidendi in that case to the facts of the present case.

The impugned Act was an existing law at the time when the Constitution came into force.

That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(1) (g) restrictions which could not be justified as reasonable under clause ( 6) as it then stood and consequently under article 13(1) that existing law becamr void "to the extent of such inconsistency".

As explained in Keshavan Madhava Menon's case (supra) the law became void not in toto or for all purposes or for all times or for all persons but only "to the extent of such inconsistency'', that is to say, to the extent it became inconsistent with the provisions of• Part III which conferred the fundamental rights on the c1t1zens.

It did not become void independently of the existence of the rights guaranteed by Part III. In other words, on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of article 19(1) (g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right.

Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from

(1) [1955] 1 S. C.R. 613.

(2) [1951] S. C.R. 228.

the statute book.

Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menon's case.

The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right.

In short, article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1) (g) read with clause (6) as it then stopd ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution. Therefore. between the 26th January 1950 and the 18th June 1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under article 19 (1) (g). The true .position is that the impugned law became, a.~ it were, eclipsed, for the time being, by the fudamental right.

The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or infirmity. If that were not so, then it is not intelligible what "existing law" could have been sought to be saved from the operation of article 19(1) (g) by the amended clause (6) in so far as it sanctioned the creation of State monopoly, for ex hypothesi, all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of clause

(6) as it then stood. The American authorities refer only to post-Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to life but were still born as it were.

The American authorities, therefore, cannot fully apply to pre-Constitution laws which were perfectly valid before the Constitution. But apart from this distinction between pre-Constitution and post-Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution.

All laws, existing of future, which are inconsistent

Bhikaji Narain Dhakras and others

The State of Madhya Pradtsh

and another

Das Actg. C. J.

Bb.ikoji Narain DhaMas and others

The State of

Mad~?a Pradesh

and another

Das Actg. C. ].

with the provisions of Part III of our Constitution are, by the express provision of article 13, rendered void "to the extent of such inconsistency''..

Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remailled operative, even after the Constitution, as against non-citizens.

It is only as against the citizens that they remained in a dormant or moribund condition; In our judgment, after the amendment of clause (6) of article 19 on the 18th June 1951, the im- . pugned Act ceased to be unconstitutional and became revivified and enforceable agaii1st citizens as well as against non-atJzens.

It is true that as the amended clause (6) was not made retrospective the impugned Act could have no operation as against citizePs between the 26th January 1950 and the 18th June 1951 and no rights and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended clause (2) by reason of its being expressly made retrospective had effect even during that period.

But after the amendment of clause

(6) the impugned Act immediately became fully operative even as against the citizens.

The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was published on the 4th February 1955 when it was perfectly constitutional for the State to do so.

In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act, 1951 are wellfounded and the objections urged against them by the petitioners are untenable and must be negatived.

The petitioners then contend that assuming that the impugned Act cannot be questioned on the ground of infringement of their fundamental right under article 19(1) (g) read with clause (6) of that article, there has been another infraction of their fundamental right in that they have been deprived of their property, namely, the right to ply motor vehicles for gain whim is an interest in a commercial undertaking and, therefore, the impugned Act does conflict with the prq.vns of article 31(2) of the Constitution and

again they rely on our decision in Shagir Ahmad's case.

Here, too, if there were nothing else in the case this co.Ptention may have been unanswerable. But unfortunately for the petitioners there is the Constitution (Fourth Amendment) Act, 1955 which came into force on the 27th April, 1955.

By section 2 of that Act article 31 of the Constitution was amended and for clause (2) of that article the following clauses were substituted:-

" (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not a<lequ; ite.

(2-A) Wl:ere a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property".

Article 31-A of the Constitution was also amended.

There can be no question that the amended provisions, if they apply, save the impugned law, for it does not provide for the transfer of the ownership or right to possession of any property and cannot, therefore, be deemed to provide for the compulsory acquisition or requisitioning of any property. But the petitioners contend, as they did with regard to the Constitution (First Amendment) Act, 1951, that these amendments which came into force on the 27th April 1955 are not retrospective and can have no application to the present case. It is quite true that the impugned Act became inconsistent with article 31 as soon as the Constitution came into force on the 26th January 1950 as held by this Co1,1rt in Shagir Ahmad's case (supra) and continued to be so inconsistent right

B/aikaji Narain Dhakras and other&·

The Stau of Madhya PraJnli

and another

Das Actg. C.J.

Blai!oji Narain DluWas and others

Thi Stat• of Madhya Pr!Uksh

and another

Das Act~. C. ].

up to the 27th April 1955 and, therefore, under article 13(1) became void "to the extent of such inconsistency".

Nevertheless, that inconsistency was removed on and from the 27th April 1955 by the Constitution (Fourth Amendment) Act, 1955.

The present writ petitions were filed on the 27th May 1955, exactly a month after the Constitution (Fourth Amendment) Act, 1955 came into force, and, on a parity of reasoning hereinbefore mentioned, the petitioners cannot be permitted to challenge the constitutionality of the impugned Act on and from the 27th April 1955 and this objection also cannot prevail.

Learned counsel for the petitioners sought to raise the question as to the invalidity of the impugned Act even before the advent of the Constitution. Prior to the Constitution, when there were no fundamental rights, section 299 of the Government of India Act, 1935 which corresponds. to article 31 had been construed by the Federal Court in Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar (') and in other cases referred to in Rajah of Bobbili v. The State of Madras(•) and it was held by the Federal Court that the word "acquisition" occurring in section 299 had the limited meaning .of actual transference of ownership a..'ld not the wide ·· meaning of deprivation of any kind .that has been given by this Court in s,, bodh Gopal Bose's case (') to _that wo.rd acquisition appearing in article 31 (2) in the light of the other provisions . of the Constitution.

It is, therefore, not clear at all that the impugned Act was in conflict with section 299 of the Government of India Act, 1935.

Besides, this objection was not taken or even hinted at in the petitions and cannot be permitted to be raised at this stage.

The result, therefore, is that these petitions must be dismissed. In the circumstances of this case we make no order as to costs.

(1) fl944~ F. C.R. 284.

(2J 1952 1 M. L. J. 174, 193-194.

13) 1954 S. C.R. 587.

Gll':\-56 83 S. C. India/59-16-4-63-1,000.

BHIKAJI NARAIN DHAKRAS AND OTHERS

THE STATE OF MADHYA PRADESH

AND ANOTHER

S. R. DAS

BHAGWATI

AFER IMAM

AIYAR JJ.

Constitution of India

Arts. 13, 19(6), 31(2)

Motor Vehicles Act, 1939

Central Act IV of 1939

s. 43(1)(iv)

4th of February, 1955

Art. 13

Arts. 19(1)

Supreme CQurt

Bhikaji Narain Dhakras

Art. 13(1)

Shagir Ahmad

Art. 13

Art. 13( 1)

Art. 19

Art. 19

[1955] 1 S.C.R. 707

[1955] 1 S.C.R. 613

Art. 31(2)

27th April, 1955

s. 299

Government of India Act, 1935

Article 32

Constitution of India

G. S.

Pathak

Rameshwar Nath

Rajinder Narain

Rameshwar Nath

Narain Andley

T. L. Shevde

I. N. Shr_off

DAS Acre

cl. 1955

section 58

Motor Vehicles Act, 1939

Central Act IV of 1939

section 58

Motoc Vehicles Act, 1939

section 62

State of Madh

Motor Vehicles Act, 1939

Central Provinces and Berar

section 3

section 43

section 58

section 60

section 58

Section 9

section 58

section 43

State of Madhya Pradesh

C. P. Transport Services Ltd.

Provincial Transport Co. Ltd.

Union of India

Das Act

State of Madhya J;>radesh and

section 58

section 43(1)

26th Janmry

1950

articles 12 to 35

article 19(1)

article 19(1)

article 19(1)

articles 14 to 35

article 13

India

article 19(1)

article 13(1)

article 19

article 19(1)

Das Act

State of MadhJa Pradesh

article 19(6)

article 19

article 19(1)

article 13(1)

18th June 1951

article 19

article 19

Shagir A4mad

26th January, 1950

article 19(1)

article 19( I)

Coolev

U. P. Government

25th March 1953

7th April, 1953

Stale of Madhya Pradesh

article 13

article 13

article 19(1)

article 13(1)

Keshavan Madhava Menon

article 19(1)

Article 13(1)

[1955] 1 S. C.R. 613

article 13(1)

article 19(1)

26th January 1950

article 19

article 19(1)

Das Act

Bb.ikoji Narain DhaMas

Das Act

article 13

article 19

4th February 1955

article 19(1)

article 31(2)

section 2

article 31

Article 31

27th April 1955

article 31

Blai!oji Narain DluWas

Das Act

article 13(1)

27th May 1955

section 299

Government of India Act, 1935

article 31

section 299

bodh Gopal Bose

article 31

section 299

Government of India Act, 1935