Dec1mh1r 1.

SUPREME COURT REPORTS [1955]

THAIVALAPPIL KUNJUVARU VAREED

fl.

THE STATE OF TRAVANCORE-COCHIN.

l S. R. DAs, AcTING C. J., VIVIAN BosE, BHAGWATI, JAGANNADHADAS and B. P. SINHA JJ.]

Constitution of India, Arts. 72, 161 and 238-Prerogative right of pardon vested in the Mahara7a of Cochin and affirmed by Art. XX! of Covenant dated 29th May 1949 entered into between the Rulers of Travancore and Cochin~Whet!1er superseded and abrogated in view of thr: acccJsion and integration of United State of Travancore Cochin with Dominion of India and the Union of India-Whether itJ r:ontinuence consistent U'ith ~4rts. 62, 161 and 238 of the Constitutioa.

A sentence of death passed on the appellant by the Sessions Judge of Trichur (now siturrted in the United State of Travancore- Cochin and previously in the former State of Cochin) was confirmed by the High Court. Mercy petitions presented to the Raj Pramukh of Travancore-Cochin and to the President of India were rejected.

The question for determination was v; hether the appellant could rely on the pre-existing power of the Maharaja of Cochin to exercise the po, ver of pardon in respect of a sentence of death passed by the courts in his State, the prerogative right having been affirmed by Art. XX! of the Covenant dated the 29th May 1949, entered into between the Rulers of T ra vancore and Cochin.

Held that the pre-existing prerogative right of pardon vested in the Maharaja of Cochin must be taken to have been superseded and abrogated having regard to the event.s which culminated in the accession and integration of the State of Travancore+Cochin with the Dominion of India and thereafter its absorption into the Union of India when the Constitution of India came into force on the 26th January 1950, the continuance of such prerogative being inconsistent \Vith Arts. 72, 161 and 238 of the Constitution.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 90 of 1955.

On appeal by special leave from the Judgment and order dated the 17th June 1955 of the Travancore-Cochin High Court at Ernakulam in Criminal Miscellaneous Petition No. 113 of 1955 (R.T. No. 4 of 1954 and Criminal Appeal No. 136 of 1954).

B. R. L. Iyengar, for the appellant.

Sardar Bahadur, for the respondent.

1955. December 1. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by special leave and arises under somewhat unusual circumstances. The appellant was convicted of murder in

Sessions Case No. lO of 1954 by the Sessions Judge of Trichur now in the State of Travancore-Cochin and sentenced to death. The sentence was in due course confirmed by the High Court and an application for leave to appeal against it to this Court was rejected.

The appellant filed mercy petitions to the Raj- Pramukh of Travancore-Cochin and to the President of India and both of them were rejected.

After all these attempts had failed, the Sessions Judge issued a warrant on the 29th March, 1955, fixing 6th April, 1955, for the execution of the prisoner.

Meanwhile, the Superintendent, Central Jail, Viyyur, where the condemned prisoner was lodged, informed the Sessions' Judge by his letter dated the 1st April, 1955, that the prisoner had sent a mercy petition to the Maharaja of Cochin and requested for directions, since no orders had been received in respect of that petition.

It may be mentioned that the Sessions Division of Trichur is admittedly in the former State of Cochin.

It does not appear from the record whether this mercy petition to the Maharaja of Cochin was sent before or after the mercy petitions to the Raj-Pramukh of Travancore-Cochin and to the President were disposed of. On receipt of the letter dated the 1st April, 1955, from the Superintendent, Central Jail, the Sessions Judge passed an order that the circumstances of the case demanded that the execution of the sentence should not take place on the date already fixed.

He accordingly issued an order staying execution of the sentence, previously ordered by his warrant dated the 29th March, 1955.

At this stage, the Public Prosecutor filed an application to the Sessions Judge on the 30th May, 1955, praying that the stay may be vacated and that fresh directions to execute the warrant may be issued.

On that application, the Public Prosecutor raised the question that a mercy

Tliaivalappil Irunjuvaru Var11d

The Stall of T ravancor1-Cochin

TloaioalaHil KwijutJMU fl' amd

Tiu S1a11 of T rauancor4-Cochin

]agartnadhadas ].

pet1t1on to the Maharaja of Cochin, who as such, has lost sovereignty over the territory forming part of the previous Cochin State, and hence also lost his prerogative of pardon, was incompetent and could not stand in the way of the warrant being executed.

The learned Sessions Judge dealt with this question and agreed with the contention of: the Public Prosecutor. Accordingly, he vacated the stay and issued a fresh warrant for execution of the prisoner giving a week's time to the prisoner to take the matter on appeal to the High Court, if so advised.

The prisoner filed an appeal to the High Court and the learned Judges of the High Court after consideration of the arguments on both sides agreed with the view taken by the learned Sessions Judge, and dismissed the appeal by its judgment dated the 17th June, 1955.

The present appeal is against this order of the High Court.

For the hearing of this appeal counsel was assigned to the appellant amicus curiae and all the relevant constitutional provisions have been fully and fairly placed before us. Learned counsel appearing for the State has also been heard.

We are satisfied that the question that has been raised does not admit of substantial argument and that the view taken by both the Courts below is correct.

The entire basis for any argument on behalf of the appellant is the pre-existing undoubted power of the Maharaja of Cochin to exercise the prerogative of pardon in respect of a sentence of death passed by the courts within his State. That prerogative right has been affirmed in Article XXI of the Covenant dated the 29th May, 1949, entered into between the Rulers of Travancorc and Cochin for the formation of the United State of Travancore and Cochin. The article is in the following terms : "Notwithstanding anything contained in the preceding provisions of this Covenant, the Rulers of Travancore and Cochin shall continue to have, and exercise, their present powers of suspension, remission or commutation of death sentences in respect of any person who may have been, or is hereafter, sentenced

I f '

2S.C.R.

SUPREME COTJRT REPORTS 1025

to death for capital offence committed within the territories of Travancore or Cochin as the case may be".

It is only on the assumption that the power thus recognised in this article of the Covenant still survives in the Maharaja of Cochin, notwithstanding that he had lost his sovereignty over the territories which constituted the State of Cochin that the appellant has any statable case. -But this assumption is clearly unfounded having regard to the events which culminated in the accession and integration of the State of Travancore-Cochin with the Dominion of India and thereafter its absorption into the Union of India, when the Constitution of India came into operation on the 26th January, 1950. The relevant historical events may briefly be stated.

In August, 1947, the Rulers of the States of Travancore and Cochin executed separate instruments of accession to the Dominion of India on the same lines as most other Indian States did, at the time. In May, 1949, the two States formed into a United State

under a Covenant signed by each of the Maharajas, the provisions of which were guaranteed by the Government of India. It is Article XXI of this Covenant which has already been referred to and which provides for the continuance of the prerogative of the Maharaja of Cochin for commutation of death sentences within his State. Under this Covenant it was also . provided that the then Ruler of Travancore should be

the first Raj Pramukh of the United State of Travancore-Cochin.

It was specifically provided by Article IX thereof as follows :

"The Raj Pramukh shall, within a fortnight of the appointed day, execute on behalf of the United State an Instrument of Accession in accordance with the provisions of section 6 of the Government of India Act, 1935, and in place of the Instruments of Accession of the Covenanting States".

By Article X(4) of the Covenant it was provided that

"The Legislature of the United State shall, subject to the provisions of this Covenant, have full power

191)1)

Thaivalappil KUl!furaru Yatud

Tm Stat, of T ra111111COr,..Co&/iitt

Jag1JMadliar/a1 J.

T haivalappil Kunjuvaru V arttd

The State of Travantore-Cochin

:Jagannadhadas].

to make laws for the United State, including provisions as to the Constitution of the United State, within the framework of this Covenant and the Constitution of India".

In pursuance of article

IX, the Raj Pramukh of Travancore-Cochin executed an Instrument of Acce<- >ion dated the 14th July, 1949, which was accepted bv the Governor-General of India on the 15th August,

1949. By article I of this Instrument it was declared that the United State acceded to the Dominion of India. In pursuance of Article X(4) the legislative assembly of the State of Travancore-Cochin resol"ed that the Constitution framed by the Constituent Assembly be adopted by the State. In cons•:quence thereof the Raj Pramukh of Travancore-Cochin issued a proclamation dated the 24th November, 1949, which runs as follows :

"Whereas with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935, which now governs the constitutional relationship between this State and the Dominion of India. will stand repealed ; ! and whereas, in the best interests of the United State of Travancore and Cochin, which is closely linked with the rest of India by a community of interests in the economic, political and other fields, it is desirable that the constitutional relationship established between this State and the Dominion of India, should not only be continued as between this State and the contemplated Union of India further strengthened, and the Constitution of India as drafted by the Constituent Assembly of India, which includes duly appointed representatives of this State, provides a suitable basis for doing so ; And whereas by virtue of the power vesting in it under the Covenant establishing this State, the Legislative Assembly of the State has resolved that the Constitution framed by the Constituent Assembly of India be adopted by this State ; I now hereby declare and direct-

That the Constitution of India shortly to be adopted by the Constituent Assembly of India shal.l be the Constitution for the United State of Travancore and Cochin as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions : That the provisions of the said Constitution shall as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State".

For our present purposes, the last paragraph in this Proclamation is important. On the coming into force of the Constitution of India on the 26th January, 1950, the State of Travancore-Cochin became a part of the Union of India and was one of the Part B States as provided under article 1 clause

(2) taken with Part B of the First Schedule. The Constitution specifically provided for the prerogative of mercy in respect of sentences of death in articles 72, 161 and

238. Article 72 provides for the power of the President, article 161 for the power of the Governor in a Part A State, and article 238(1) taken with article 161 for the power of the Raj Pramukh of a Part B State. In the light of these provisions the continuance of the prerogative of the Maharaja of Cochin relating to the execution of the death sentences with reference to the ex-State of Cochin would be inconsistent with the new Constitution. Such power, therefore, must be taken to have 'been superseded and abrogated as stated in the last para of the Proclamation above mentioned.

It would follow that article XXI of the Covenant of May, 1949, no longer survives.

Article 372 ( 1) of the Constitution has also been relied upon on behalf of the appellant. This runs as follows: "Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or re-

Thaioalappil K utifuoaru Varud

Tiu State of T ravancore-Cochin

Jagannadhadat ].

Tbai"llaHiJ ,. .. ,;..- v.,...i

Tile Slllt• qf T fDDont; orf.Cochin

pealed or amended by a competent Legislature or other competent authority".

The argument based on this article is that the criminal law of the ex-Cochin State continued to be in force in spite of the new Constitution having come into force and that the exercise of the prerogative by the Maharaja of Cochin in respect of the ex-State of Cochin was an integral part of that law. Apart from the question whether such prerogative which was incidental to his sovereignty, could survive after he lost his sovereignty over the territory, the difficulty in the way of this argument is two-fold. (1) The continuance is subject to the other provisions of the Constitution ; and (2) The continuance is only until altered or repealed or amended by a competent Legislature.

As already pointed out, the continuance of the prerogative of the Maharaja of Cochin would be inconsistent with articles 72, 161 and 238 of the Constitution. Further it is to he noticed that by the Code of Criminal Procedure (Amendment) Act, 1951, (Central Act I of 1951), passed by the Union Legislature, the Code of Criminal Procedure, 1898, has been made applicable to the whole of India by amending section 1 of the Code and by substitution therein for the words "whole of India except Part B States'', the words "whole of India except the States of Jari:tmu and Kashmir and Manipur". The Code of Criminal Procedure and along with it sections 401, 402, and 402-A thereof, relating to commutation of sentences having thus been made specifically applicable to all Part B States by Central Act I of 1951, the . prerogative under the old Cochin law must in any case be deemed to have been repealed or abrogated by competent legislative authority after the coming into force of the Constitution. It was suggested in the Courts below that in so far as the Maharaja's prerogative was concerned the Legislature was incompetent to abrogate . it in view of article 362 of the Constitution. But that article has no bearing. It refers only to personal rights, privileges and dignities of the Rulers of Indian States. It is obvious even from the Covenant, in which article XXI appears, that the

...

power of pardon thereunder is different from "personal rights, privileges and dignities" which have been dealt with under articles XVI and XVII in the following terms.

"XVI. The Ruler of each Covenanting State, as also the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.

XVII. ( 1) The succession, according to law and custom to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler thereof is hereby guaranteed".

There is thus no substance in any of the arguments on which the ca~ for the appellant can possibly be presented.

This appeal is accordingly dismissed.

THAKUR PRAT AP SINGH

f).

SHRI KRISHNA GUPTA AND OTHERS.

[S. R. DAs, ACTING C. J., V1v1AN BosE. BHAGWATI, fAGANNADHADAS and B. P. SINHA JJ.]

Jilt!ction Dispute-Rule requiring candidate to state occupati-:m in nomination paper-If mandatory in character-Duty of Court- Central Provinces and Berar Municipalities Act (II) of 1952, ss. 9(1)

(iii) (c), 23.

The appellant was a candidate for the office of President of the Municipal Committee, Damoh. The nomination was made in an o\d form under the old rules which required a candidate to enter his caste.

Under the new rules this was changed and occupation had to be stated instead, which none except the respondent No. I had done. Objection to the validity of the appellant's nomination paper was overruled by the Supervising Officer. The appellant secured the highest number of votes and was declared elected. The respondent No. 1, thereupon, filed the election petition. He failed in the Election Tribunal which held that the defect was not substantial and was curable. The High Court, however, reversed this decision in revision, holding that failure to comply with any of the provisions set out in the rules was fatal and in such cases the nomination papct should be rejected.

ThaiaalaOllU EwfirwotM V amd

Th• SIDie of T rav1111&0t1-Cochin

]opullldhad1J1 J.

Decem6'r 2.

THAIVALAPPIL KUNJUVARU VAREED

THE STATE OF TRAVANCORE-COCHIN

l S. R. DAs

VIVIAN BosE

BHAGWATI

JAGANNADHADAS

B. P. SINHA JJ.

Constitution of India

Arts. 72, 161 and 238

Raj Pramukh

Travancore-Cochin

Cochin

State of Travancore+Cochin

Constitution of India

26th January 1950

Arts. 72, 161 and 238

B. R. L. Iyengar

Sardar Bahadur

Raj- Pramukh of Travancore-Cochin

President of India

29th March, 1955

6th April, 1955

Superintendent, Central Jail, Viyyur

1st April, 1955

Maharaja of Cochin

Raj-Pramukh

30th May, 1955

Tliaivalappil Irunjuvaru Var11d

17th June, 1955

29th May, 1949

Travancorc

Travancore

State of Travancore

Dominion of India

Union of India

Constitution of India

26th January, 1950

Government of India

section 6

Government of India Act, 1935

Thaivalappil KUl!furaru Yatud

State of Travantore-Cochin

Constitution of India

India

15th August,

1949

24th November, 1949

Government of India Act, 1935

United State of Travancore and Cochin

Constitution of India

Constituent Assembly of India

Constitution of India

Constitution of India

State of Travancore-Cochin

article 1

First Schedule

articles 72, 161 and

238

Article 72

article 161

article 238(1)

article 161

Article 372

article 395

articles 72, 161 and 238

Central Act I of 1951

Code of Criminal Procedure, 1898

section 1

Code of Criminal Procedure

sections 401, 402

Part B States by Central Act

article 362

15th day of August, 1947

THAKUR PRAT AP SINGH

S. R. DAs

V1v1AN BosE. BHAGWATI

fAGANNADHADAS

ss. 9(1)

ThaiaalaOllU EwfirwotM


2S.C.R.

SUPREME COURT REPORTS 1029

power of pardon thereunder is different from "personal rights, privileges and dignities" which have been dealt with under articles XVI and XVII in the following terms.

"XVI. The Ruler of each Covenanting State, as also the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.

XVII. ( 1) The succession, according to law and custom to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler thereof is hereby guaranteed".

There is thus no substance in any of the arguments on which the ca~ for the appellant can possibly be presented.

This appeal is accordingly dismissed.

THAKUR PRAT AP SINGH

f).

SHRI KRISHNA GUPTA AND OTHERS.

[S. R. DAs, ACTING C. J., V1v1AN BosE. BHAGWATI, fAGANNADHADAS and B. P. SINHA JJ.]

Jilt!ction Dispute-Rule requiring candidate to state occupati-:m in nomination paper-If mandatory in character-Duty of Court- Central Provinces and Berar Municipalities Act (II) of 1952, ss. 9(1)

(iii) (c), 23.

The appellant was a candidate for the office of President of the Municipal Committee, Damoh. The nomination was made in an o\d form under the old rules which required a candidate to enter his caste.

Under the new rules this was changed and occupation had to be stated instead, which none except the respondent No. I had done. Objection to the validity of the appellant's nomination paper was overruled by the Supervising Officer. The appellant secured the highest number of votes and was declared elected. The respondent No. 1, thereupon, filed the election petition. He failed in the Election Tribunal which held that the defect was not substantial and was curable. The High Court, however, reversed this decision in revision, holding that failure to comply with any of the provisions set out in the rules was fatal and in such cases the nomination papct should be rejected.

ThaiaalaOllU EwfirwotM V amd

Th• SIDie of T rav1111&0t1-Cochin

]opullldhad1J1 J.

Decem6'r 2.

1955 '

T"4Tcur PraJap

Singh

Shri Krishna Gupta

ond otkrs

Held, that the rule requiring the occupation of the candidate to be st.ated in the nomination form was directory an<l not mandatory in character and as the failure to comply with it did not affect the merits of the case as laid down in s. 23 of the Act, the election could not be set <iside on that ground.

Rattan Anmol Singh v. Atma Ram ([1955] I S.C.R. 481 ), dis tinguished.

Courts should not go by mere technicalities but look to the ub stance.

Some rules may be vital, while others are merely directory, and a breach of thtle may be overlooked, provided there is substantial compliance \Vith the rules read as a whole and no prejudice ensues.

When the Act does not n1ake a clear distinction, it is the duty of the court to sort out one class from the other along broad based commonsense lines.

Punjab Co-operative Bank Ltd., Amritsar '" lnconle-Tax Officer, Lahore ([1940] L.R. 67 I.A. 464), referred to.

C1v1L

APPELLATE No. 294 of 1955.

juRISDICTION :.

Civil Appeal

Appeal by special leave from the f udgment and Order dated the 7th September, f955, of the Nagpur High Court, in Civil Revision No. 833 of 1954.

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

R. S. Dabir and R. A. Govind, for respondent No. 1.

1955.

December 2.

The Judgment of the Court was delivered by

BosE J.-The appellant was a candidate for the office of President of the Municipal Committee of Dam oh. The respondents (seven of them) were also candidates. The nominations were made on forms supplied by the Municipal Committee but it turned out that the forms were old ones that had not been brought up to date. Under the old rules candidates were required to give their caste, but on 23-7-1949 this was changed and instead of caste their occupation had to be entered. The only person who kept himself abreast of the law was the first . respondent.

He struck out the word "caste" in the printed form and wrote in "occupation" instead and then gave his occupation, as th" new rule required, and not his

caste. All the other candidates, including the appellant, filled in their forms as they stood and entered their caste and not their occupation. The first respondent raised an objection before the Supervising Officer and contended that all the other nomi11ations were invalid and claimed that he should be elected as his was the only valid nomination paper. The objection was overruled and the election proceeded.

The appellant secured the highest number of votes and was declared to be elected. The first respondent thereupon filed the election petition uut of which this appeal arises. He failed in the trial Court. The learned Judge held that the defect was not substantial and so held that it was curable. This was reversed by the High Court on revision. The learned High Court Judges referred to a decision of this Court in Rattan Anmol Singh v. Atma Ram(') and held that any failure to comply with any of the provisions set out in the various rules is fatal and that in such cases the nomination paper must be rejected.

We do not think that is right and we deprecate this tendency towards technicality ; it is the substance that counts and must take precedence over mere form.

Some rules are vital and go to the root of the matter : they cannot be broken ; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues ; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. This principle was enunciated by Vicount Maugham in Puniab Co-operative Bank Ltd., Amritsar v. lncometax Officer, Lahore(") and was quoted by the learned High Court Judges:

"It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially".

(1) [ 955) I S.C.R.481.

(2) [ 940) L. R. 67 I. A. 464, 476.

Thakur Pratap

Singh

v, Shri Krishna Guptt1

and othtrs

Bose J.

1955 T""""' l'Ntap SiqA

S/wl If"'""" Gupt4

""' 0"'61

S-J.

But apart from that, 'this is to be found in the Act itself.

The learned High Court Judges were of opinion that the directions here about the occupation were mandatory. That, we think, is wrong.

The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act

(II) of 1922. Among other things,, the section empowers the State Government to

"make rules under this Act regulating the mode ........ of election of presidents ........ " and section 175 (1) directs that

"all rules for which provision is made in this Act shall be made by the State Government and shall be consistent with this Act".

Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23 :

"Anything done or any proceeding taken under this Act shall not be questioned ...... on account of any defect or irregularity not affecting the merits of the case".

The rules have therefore to be construed in the light of that provision.

Rule 9(1)(i) states that- " ........ each candidate shall .......... deliver to the Supervising Officer a nomination paper completed in the f'prm appended and subscribed by the candidate himself as assenting to the nomination and by two duly qualified electors as proposer and seconder".

The amended form requires the candidate to give, among other things, his name, father's name, age, address an<l occupation ; and rule 9(1) (iii) directs that the Supervising Officer.

"shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds :

• • • •

(c) that there has been any failure to comply with any of the provisions of clause (i) ...... ".

It was contended that the word "may" which we have underlined above has the force of "shall" in that context because clause (a) of the rule reads-

" (a) that the candidate is ineligible for election under section 14 or section 15 of the Act".

It was argued that , if the candidate's ineligibility under those sections is established, then the Supervising Officer has no option but to refuse the nomination and it was said that if that is the force of the word "may" in a case under clause

(a) it cannot be given a different meaning when clause ( c) is attracted.

We need not stop to consider whether this argument would be valid if section 23 had not been there because the rules cannot travel beyond the Act and must be read subject to its provisions. Reading rule 9(1) (iii) (c) in the light of section 23, all that we have to see is whether an. omission to set out a candidate's occupation can be said to affect "the merits of the case".

We are clear it does not. Take the case of a man who has no occupation. What difference would it make whether he entered the word "nil" there, or struck out the W'>rd "occupation" or placed a line against it, or just left it blanks ? How is the case any different, so far as the merits are concerned, when a man who has a occupation does not disclose it or misnames it, especially as a man's occupation is not one of the qualifications for the office of President. We are clear that this part of the form is only directory and is part of the description of the candidate ; it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt.

It was also argued that there was a reason for requiring the occupation to be stated, namely, because section 15(k) of the Act disqualified any person who "holds any office of profit" under the Committee.

But disclosure of a candidate's occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or

T""""1 Pralap

Singli

S/irl Krisluta GuJi.

and olbers

Bos1 J.

Thakur ITatap

Singh

Shri Krishna Gupta

and othns

Bose J.

"agriculture" and need not be particularised ; also, in any event, section 15 sets out other grounds of disqualification which are not required to be shown in the form.

As regards our earlier decision. That was a case in which the law required the satisfaction oI a particular official at a particular time about the identity of an illiterate candidate. That, we held, was the substance and said in effect that if the law states that A must be satisfied about a particular matter, A's satisfaction cannot be replaced by that of B ; still less can it be dispensed with altogether. The law we were dealing with there also required that the satisfaction should be endorsed on the nomination paper.

That we indicated was mere form and said at page 488-

"If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality".

A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decisions that deal with other laws made in other countries to deal with situations that do not necessarily arise in India.

The appeal succeeds and is allowed with costs here and in the High Court. The order of the High Court is set aside and that of the Civil Judge restored.

15th day of August, 1947

THAKUR PRAT AP SINGH

KRISHNA GUPTA AND OTHERS

S. R. DAs

V1v1AN BosE. BHAGWATI

B. P. SINHA JJ.

ss. 9(1)

Krishna Gupta

s. 23

Punjab Co-operative Bank Ltd.

L.R. 67 I.A. 464

B. B. Tawakley

R. S. Dabir

R. A. Govind

Vicount Maugham

L. R. 67 I. A. 464

Krishna Guptt1

Bose

section 18

section 175

section 23

section 14

section 15

section 23

section 23

section 15(k)

Thakur ITatap

Singh

Krishna Gupta

Bose

section 15

section 23

India


2 S.C.R.

SUPREME COURT REPORTS 1035

CHAND! PRASAD SINGH

THE ST ATE OF UTT AR PRADESH.

[VIVIAN Bos£ and VENKATARAMA AYYAR JJ.]

Trial before Sessions Tudge for an offence under s. 409, l.P.l. with the aid of asses; ors for misappropriating certain sums of money from three different persons-Received by appellant as Secretary of a Company-And for an offence under s. 477-A, l.P.C. for falsifyi11t a minute book-With the aid of Turv-Same persons acting as assessors and iurors-V rdict of not guilty in respect of both charges-Disagreement with verdict of jury under s. 477-A and reference to the High Court under s. 307 of the Code of Criminal Procedure-Dis- 11greement with the opinion of assessors under s. 409 and conviction of accused-Appeal to the High Court-Appeal and reference both heard together and disposed of by one judgment by High Court-Sessions Tudge whether contravened any provision of law or committed illegality in acttnf!; as he did-Appellant's status-Whether that of a servant 01 tnat of an age11t--S::.'11ant and agent-Distinction between- Appellant charged with three offences under s. 409, l.P.C. and one offence under s. 477-A; l.P.C.-Whether contravention of s. 234 of the Code of Criminal Procedurc-S. 255 of the Code of Criminal Procedure-Applicability of.

The appellant was tried bv the Sessions Judge with the aid of assessors tor an offence under s. 409, I.P.C. for misappropriating certain sums of money recei; ed as promoter of a Company from three different persons for the purpose of allotment of shares and omitted to be brought into the Company after it was formed, and also for an oflence under s. 477-A, I.P.C. by the same Sessions Judge with the aid of a jury for the offence of falsifying a minute hook, the same persons acting both as assessors and jurors. They rcurned a ve1 Jict of not guilty in respect of both the charges. The Sessions Judge, disagreeing with the verdict of the jury under s. 477-A, referred the matter to the High Court under s. 307 of the Code of Criminal Procedure. .Disagreeing also with the opinion of the assessors in respect of the charge under s. 409, I.P.C. he held the appellant guilty and sentenced him to 4 years' regorous imprisonment. Against this conviction the appellant appealed to the High Court. Both the reference under s. 307 of the Code of Criminal Procedure and the appeal were heard togethef by the High Court. which confirmed the appellant's conviction under s. 409 and the sePtence passed by the Sessions Judge and disagreeing with the veidict of the jury it held him guilty under s. 477-A and sentenced him to two years' rigorous imprisonment. Oil appeal by special leave to the Supreme Court :- -

Held (i) that the contention that when the Sessions Judge disagreed with the verdict of the jury and the opinion ot the assessors, l l-3'i S. C. Ind a/59

Dee1mber7.

Ci1a:1di PrastSd

Singh

Ti1t State of Uttar Prad•sh

he shoul<l have referred the \Vhole case under s. 301 of the Code of Criminal Procedure to the High Co!1rt and not merely that part ot

it \\'hich related to the charge under s. 477-A, l.P.C. was without force because the Sessions judge had contravened no provision of law and committed no illegality in deciding the case which related to the charge under s. 409, l.P.C. That s. 307, Code of Criminal Pmcedure appiies in terms only to trials by a jury and the Sessions Judge had no po\ver under that section to refer cases tried with the aid of a:; sessors for the decision ot the High Court. In the present case there \VJS the further fact that both the appeal against the conviction under s. 409, LP.C. and the r:.:ference under s. 307 of the Code of Criminal Procedure in n::spect of the charge under s. 477-A WC'I? disposed of by the same judgment ;

(ii) that the contention that the appellant's true status was that of a serv;.i.nt and not that of= an agent and that he should have been tried not under s. 409, l.P.C. but under s. 408, I.P.C. was also without force inasmuch as his status \Vas that of an agent and not that of a servant in view of his duties as Secretary of the Society.

The distinction betv:een the t\VO is this a srvant acts under the direct control and supervision of the master, and is bound to conform to all reasonable orders given to him in the course of his work .. An agent though bound to exenise his authority in accordance with all lawful instruction~ \.Vhich may be given to him from time to time by his princip:ii, is not subject in its exercise to the direct control or supervision of the principal ;

(iii) that the contention that there h1-::. been violation of s. 234 of the Cod.: of c:riminal Procedure ir. that the appellant had been charged with three offcn..:es under s. 409i l.P.C. and one under s. 477-A was also \vithout force as the case was governed by s. 235 ot the Co<lc 0£ Criminal Pru;:edure as the several offences under s. 409, I.P.C. and s. 477-A, 1.P.C. <irose out of th~ same acts and formed part of the san1e transaction.

EmpEror v. Haria Dhobi, (A.LR. \937 Patna 662), Pachaimuthu In 1e, ([1932] l.L.R. 55 Ma<l. 715), Emperor v. Lachrnan Gangota, (A.LR. 1934 Patna 424), Emperor v. Kalidas ([1898] 8 Born. L.R. 599), Emperor v. Vyankat Sing {fl907] 9 Born. L.R. 1057) and Emperor v. Chanbasappa (A.LR. 1932 Born. 61), referred to.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 143 of 1954.

On appeal by leave from the judgment and order dated the 23rd March 1954 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 112 of 1953 connected with Criminal Reference Register No. 15 of 1953 arising out of the judgment and order dated the 24th February 1953 in Sessions Trial No. 5 of 1952 of the Sessions Court at Lucknow.

B. B. Tawakley, (K. P. Gupta and A. D. Mathur with him) for the appellant.

S. P. Sinha (K. B. Asthana and C. P. Lal with him) for the respondent.

1955. December 7. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-This is an appeal by special leave against the judgment of the High Court of Allahabad affirming the conviction of the appel- 1:1.nt by the Sessions Judge, Lucknow under sections 409 and 477-A of the Indian Penal Code.

On 12-2-1949 a Society known as the Model Town Co-operative Housing Society, Ltd., was register.d under the provisions of the Co-operatiYe S'J<.:ieties Act (II of 1912), its object being to acquire vacant sites in the town of Lucknow and to al\ot them to its members so as to enable them to build houses of their own. The appellant. was the chief promoter thereof, and collected monies from prospective shareholders by way of share money. The first general body meeting of the :Society was held on 1-3-1949. At that meeting, the appellant was elected Honorary Secretary and one Sri Munna Lal Tewari as Treasurer. The latter having resigned, one S. C. Varma was appointed Treasurer in his stead. On 22-4-1949, there was a meeting of the Managing Committee, at which the appellant was directed to hand over the accounts of the Society and its funds to its Treasurer. The appellant gave a list of 38 persons as members of the Society, delivery cheques issued by 13 of them as their share money, and paid a sum of Rs. 3,500 being the amount stated to have been received by him from the other 25 members as share money. The Society did not function thereafter.

On 16-7-1949 some of the members wrote a letter to the Registrar of Co-operative Societies pointing out that the Society had not functioned ever since its incorporation, and asking that steps might be taken for examination of its accounts and, if necessary, for its being wound up. On this, there was an investigation of the affairs of the Society by two Assistant

Chandi Prasad

Singh

The Stat. of U tlar Pradtsli

Chandi Pra5od

Si1ish

The State of Uttar Pradesh

V rnkatarama Ayyar ].

Registrars, and on the basis of their reports dated 22-2-1950 and 18-5-1950 the present prosecution was started against the appellant charging him under sections 409 and 477-A of the Indian Penal Code. The charge under section 409 was that he had received a sum of Rs. 500 from one Sri Chaturvedi, a sum of Rs. 100 from Dr. 0. P. Bhanti and another sum of Rs. 100 from Dr. R. S. Seth, all as share money in December 1948, and that he had misappropriated the same. The charge under section 477-A was that on 22-4-1949 the appellant acting as the Secretary of the Society falsified the minute book, Exhibit P-18, by omitting to show therein the share money received from the three persons above mentioned. The defence of the appellant: was that the three amounts aforesaid were paid to him not as prospective Secretary for the purpose of allotment of shares, but were deposited with him in his individual capacity for purchasing shares, in case the Society worked well.

The trial of the offence under section 409 was held with the aid of assessors and that under section

477-A with the aid of a jury, the same persons acting both as assessors and jurors, and they returned a verdict of not guilty with reference to the charges under both the sections. The Sessions Judge, disagreeing with the verdict of the jury under section

477-A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure. He also disagreed with the opinion of the assessors with reference to the charge under section 409, and held that the appellant: was guilty and sentenced him to four years' rigorous imprisonment and a fine of Rs. 1,000. Against this conviction, the appellant preferred an appeal to the High Court. Both the reference under section 307 and the appeal were heard together by the High Court, which agreed with the Sessions Judge that the appellant had received the three amounts as share money and in his capacity as Secretary, and accordingly confirmed his conviction under section 409 ahd the sentence passed by the Sessions Judge.

Disagreeing with the verdict of the jury, it also held him guilty under section 477-A and sentenced him to

two years' rigorous imprisonment. The present appeal by special leave is directed av, ainst this judgment.

Mr. Taw2, kley firstly contended that the finding of the courts below that the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth were paid :is share money was erroneous, and in support of this contention relied on a letter written by one of them, Dr.

Seth, to 'the appellant on 3rd May 1951 (Ex. D-5) in which it was stated that the amount was paid on the express understanding that if the Society ran, a share

would be allotted to him and otherwise the monev would be returned.

This letter was written long afte~· proctedings had been taken by the Registrar, and the courts below did not attach much importance to it. On the ot!1er hand, Dr. Seth himself gave evidence in these proceedings which deprives Exhibit D-5 of very much of its value.

Exhibit P-10 is the receipt gra; iL l to Sri Chaturvedi. It expressly recites that Rs. 500 was received as share monev fm five shares in the Society. Notices were also isued to both Sri

Chaturvedi and Dr. Bhanti to lttend the general body meeting of the Society to be held on 1st March 1949 for electing the President and members of the Managing Committee of the Society, and Dr. Seth and Dr. Bhanti actually attended it.

Sri Chaturvedi and Dr. Bhanti have also given evidence that they paid the amounts only as share capital. The courts below accepted the above evidence, and held that the moneys were not paid to the appellant in his individual capacity. There are no grounds for disturbing that finding in special appeal.

It is now necessary to deal with the several contentions of law urged by Mr. Tawakley in support of this appeal. His first contention was that when the Sessions Judge disagreed with the verdict of the jury and with the opinion of the assessors, he should have referred the whole case under section 307 for the decision of the High Court and not merely that part or it which related to the charge under section 477-A, and that his failure to do so vitiated the conviction.

He argued that when the same facts constitute two

Singh

The State ef Uttar .frad; sh

Veatarama

4, yyar J.

Chandi Prasad

Singh

Th£ St, te of Uttar Pracb.sh

Y enkatarama

Apar J.

distinct offences one of which is triable with the aid of jurors and the other with assessors, and the accused is charged with both, the reference under section 307 must relate to both thecharges, if inconsistent findings by different courts with reference to the ·; ame matter is to be avoided. What would happen, he asked, if, in the present case, the appellant did not file an appeal against his conviction U<lder section 409, but the High Court came to the conclusio!\ in the reference under section 307 that Sri Chaturvedi, Dr. Bhanti and Dr. Seth did not pay the amounts to the appellant as share money, and tlldt no offence had been committed by him under section 477-A ? The conviction of the appellant under section 409 based on the finding of the Sessions Judge that those amounts were paid as share money would stand, notwithstanding that it would be against the decision of the High Court. This anomaly could be avoided, it is argued, by holding that the reference under section 307 must be of the whole case.

Reliance is placed in support of this contention on the observations in Emperor v. Haria Dhobi('). We are unable to agree , with this contention. If the procedure adopted by the Sessions Judge is to be held to be illegal, it can only be on the ground that he contravened some provision of law which requires him to refer the whole case to the High Court. It is conceded that the only provision of law dealing with this matter is section 307.

But that section applies in terms only to trials with the aid of a jury. There is therefore no power in the Sessions Court to refer cases tried with the aid of assessors for decision of the High Court under that section. That was the view taken in Pachaimuthu In re('), where it was held that the Assistant Sessions Judge had no jurisdiction to refer under section 307 the whole case to the High Court, that he should himself dispose of the charges which were triable with the aid of assessors, and that the reference in respect of those charges was bad, This decision was followed in Emperor v. Lachman

(1) A. I. R. 1937 Patna 662.

(2) [1932] l. L. R, 55 Mad. 715.

Gangota(1}. The same view has also been taken by the High Court of Bombay in a number of cases : Vide Emperor v. Kalidas( 2 ), Emperor v. Vyankat Singh( 3) and Emperor v. Chanbasappa( 4 ). We are accordingly of opinion that the Sessions Judge had contravened no provision of law, and had committed no illegality in deciding the case, in so far as it related to the charge under section 409, himself. In this case there is the further fact that the appellant preferred an appeal against his conviction under section 409 by the Sessions Judge, and that appeal was heard along with the reference under section 307 in respect of the charge under section 477-A, and that they were both of them disposed of by the same judgment.

It was next contended that the true status of the appeilant was that of a servant and not of an agent, and that he should have been charged not under section 409 but under section 408. The substance of the charge against the appellant is that as the promotor of a Society he lawfully received the amounts paid by Sri Ch:nurvedi, Dr. Bhanti and Dr. Seth, but that after its incorporation, when he failed on 22-4-1949 to hand over those amounts to the Treasurer aad to include their names as shareholders in the minutes book, he committed offences under sections 409 and- 477-A.

Now, what is the status of the appellant as Secretary of the Society in which capacity he cQmmitted the offences, servant or agent ? The distinction between the two is thus stated in Halsbury's Laws of England, Volume 22, page 113, para 192:

"A servant acts under the direct control and supervision of the master, and is bound to conform to all reaonable orders given _him in the course of his work ...... An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal".

Having regard to the nature of the duties of the appellant as the Secretary of the Society, we are clearly

(3) A. I. R. 1934 Patna 424.

(2) [1898] 8 Born. L. R. 599.

(l) [1907] 9 Bom. L. R. 1057.

(4) A. I. R. 1922 Bom. 61.

Singh

The State of Uttar Prades!t

Venkatarama Ayyar J.

C/1a1rli Prasad

Singh

T, 11t State of Uttar Prades:1

Vcnkatarama

Ay; ar J.

of opinion that his status was that of an agent and not a servant.

Moreover, whether the appellant shouid be charged under section 408 or section 409 is of no importance in the present case, as the sentence imposed on him under section 409, viz., our years' rigorous imprisonment could be mairna:Pe<I even under section 403.

It was argued by the appellant that an offence under section 408 was triable with the aid of a iury, whereas that under section 409 was triable with the aid of assessors, and that he had been prejudiced in that he had lost the benefit of a tria I by jury. But this objection was not taken in the trial court, and is not now open. Vide section 536 of the Code of Criminal Procedure.

It is next contended that there has been a violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offencesunder section 409 and one under section 477-A.

But the case is Governed by section 235, as the several offences under sections 409 and 477-A arise out of the same acts and form part of the same transaction.

Moreover, the appel.lant has failed to show any prejudice as required by section 537. This objection must accordingly be overruled.

It was finally contended that there had been_no proper examination of the appellant under section 342, and that therefore the conviction was illegal. Thio objection was not raised in the Courts below, and is sought to be raised in this Court by a supplemental proceeding. We find no substance in this obiection.

In the result, this appeal fails and is dismissed.

1035

CHAND! PRASAD SINGH

THE ST ATE OF UTT AR PRADESH

s. 409

s. 477

s. 477

s. 307

Code of Criminal Procedure

s. 409

s. 409

s. 477

s. 234

S. 255

Code of Criminal Procedure

s. 409

I.P.C

s. 477

I.P.C

s. 477

s. 307

Code of Criminal Procedure

s. 409

I.P.C

s. 307

Code of Criminal Procedure

s. 409

s. 477

Supreme Court

State of Uttar Prad•sh

s. 301

Code of Criminal Procedure

s. 477

s. 409

s. 307

s. 409

s. 307

Code of Criminal Procedure

s. 477

s. 409

s. 408

I.P.C

s. 234

s. 409

s. 477

s. 235

s. 409

I.P.C

s. 477

Pachaimuthu

B. B. Tawakley

K. P. Gupta

A. D. Mathur

S. P. Sinha

K. B. Asthana

C. P. Lal

High Court of Allahabad

sections 409 and 477

Indian Penal Code

Lucknow

Munna Lal Tewari

S. C. Varma

Chandi Prasad

Singh

Stat. of U tlar Pradtsli

State of Uttar Pradesh

sections 409 and 477

Indian Penal Code

section 409

Chaturvedi

0. P. Bhanti

R. S. Seth

section 477

section 409

section

477

section

477

section 307

Code of Criminal Procedure

section 409

section 307

section 409

section 477

Bhanti

Seth

3rd May 1951

Tawakley

section 307

section 477

State ef Uttar

section 307

section 409

section 307

section 477

section 409

section 307

section 307

Pachaimuthu

section 307

High Court of Bombay

section 409

section 409

section 307

section 477

section 409

section 408

Ch

nurvedi

sections 409

State of Uttar Prades!t

Venkatarama Ayyar

State of Uttar Prades:1

Vcnkatarama

section 408

section 409

section 409

section 403

section 408

section 409

section 536

Code of Criminal Procedure

section 234

Code of Criminal Procedure

section 409

section 477

section 235

sections 409 and 477

section 537

section 342


.2s.C.R.

SUPREJviE COURT REPORTS 1043

TILKESHW AR SINGH AND OTHERS

THE STATE OF BIHAR.

:BtiSE, VnrKATARAMA

AYYAR and

CHANDRASEKHARA AIY AR JJ.]

l:vidence-foi11t recording of statements made by witnesses during investigation--Legaiity-Testimony of such witnesses in court- Admissibility-Sttbstitution of a charge under s. 149, I.P.C. for one r'1lder s. 34, l.P.C.-Validity-Accused filing statement instead of being examined in court-Legality-Prejudice--Cud.· of Criminal Procedure, (Act V of 1898), ss. 161(3), 342-lndian Penal Code (Act XLV of 1860), ss. 34. 149. ·

Although the joint recording of statements made by witnesses during an investigation is a contravention of s. 161(3) of the Code of Criminal Procedure and must be disapprove<:!, that by itself docs not render the testimony given by such witnesses in court inadmissible. lt is, however, for the court to decide whether it will rely on such testimony or attah any weight to it.

/, ahirnddin v. Emperor, (A.LR. 1947 P.C. 75), applied.

Raliram Tik_aram v. Emperor, (A.LR. 1945 Nag. 1) and Maganlai Ra.f!:r.k_is!u>n v. Emp,·:or (A.LR. 1946 Nag. 173), disappro\cd.

Hejoy C/zand Pr.tra v. The State, (A.LR. 1950 Cal. '163), approved.

The coui-1has power to substitute a charge under s. 149 of the Indian Penal Code for a charge under s. 34.

J(amaii Singh and others v. The State of Punjab, ([1954] S.C.R.

904) and Willie Slaney's case, (Criminal Appeal No. 6 of 1955), referred to.

Although s. 342 of the Code of Criminal Procedure contemplates oral examination of the accused in court and though the practice of filing written statements is to be deprecated, the fact that the accused filed a statement instead of being examined is no ground for interference unless he is shown to have been prejudiced thereby.

Consequently, in a case where the accused were put up for ::rial under s. 302 read with s. 34 of the Indian Penal Code, and the Additional Sessions Judge relying on the evidence of three of the prosecution witnesses whose statements during the investigation were recorded jointly in contravention of s. 161(3) of the Code of Criminal Procedure, convicted and sentenced them to transportation for life and the High Court in appeal agreed with the findings of fact, but altered the conviction to one under s. 326 read with s. 149 of the Indian Penal Code, as also the sentence, their conviction was not liable to be set aside.

Dtc1mber 8.

Tilktshwar Singh

and others

The Stal# of Bihar

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 150 of 1954.

On appeal by special leave from the judgment and order dated the 12th August 1953 of the Patna High Court in Criminal Appeal No. 345 of 1952 arising out of the judgment and order dated the 20th August 1952 of the Court of Additional Session Judge, Darbhanga in Session Case No. 12 of 19'.>2.

H. /. Umrigar and R. C. Prasad, for the appellant.

B. K. Saran and M. M. Sinha, for the respondent. 1955.

December 8. The Judgment of the Court was delivered by

VENKATARAMA

AYYAR J.-The appellants were charged before the Additional Sessions Judge, Darbhanga under section 302 read with section 34 of the Indian Penal Code for the murder of one Balbhadra Narain Singh. They were also chargerl, some under section 147 and the others under section 148, for being members of an unlawful assembly and for rioting.

The case of the prosectuion was as follows : The deceased and the appellants were pattidars in the village of Mahe, and there was ill-feeling between them on account of the village pattidari. On 5-3-1951, at about 10 A.M. the deceased was returning from the river to his baithka. On the way, the appellants who were armed with bhalas, sword and lathi, and some others surrounded him at the courtyard of the village school and attacked him. One Harischandra Singh who is still absconding, plunged his bhala into the abdomen of the deceased, and the appellants joined in the attack on him. The deceased ran to his baithka. and from there, he was taken to the police station at Singhia.

There, he made a complaint which has been filed as the first information report, and therein he set out the incidents mentioned above, and implicated the appellants as concerned in the attack.

The deceased was then taken to the hospital, and in view of his precarious condition the doctor recorded his dying declaration.

The deceased was then sent

for treatment to the hospital at Samastipur, but on the way he died. On the basis of the first 1 nformation report and on the enquiries made by . them, the police charged the appellants under section 302 read with section 34 for murder and under sections 147 and 148 for rioting.

The defence of the appellant was that the deceased was attacked by some unknown assailants 1n his baithka in the early hours of 5-3-1951, and that they were not concerned in the offence.

The Additional Sessions Judge, Darbhanga accepted the evidence of the prosecution, and convicted the appellants under section 302 read with section 34, and sentenced them to transportation for life.

He also convicted them, some under section 147 and the others under section 148, but imposed no separate sentence under those sections. The appellants took the matter in appeal to the High Court of Patna. The learned Judges agreed with the Sessions Judge in his conclusions of fact, but altered the conviction from one under section 302 read with section 34 to one under section 326 read with section 149, and the sentence from transportation for life to various terms of imprisonment.

The learned Judges also maintained the conviction of the appellants on the charge of rioting, but awarded no separate sentence therefor.

It is against this judgment that the present appeal 1s directed.

On behalf of the appellants, it was firstly contended by Mr. Umrigar that the finding of the courts below that the incident took place at the school courtyard and not at the baithka of the deceased was bad, because it wa.s based on inadmissible evidence, viz., Exhibit P-7 and the testimony of P.Ws. 4, 7 and 12.

Exhibit P-7 is a statement of the deceased taken by the police officer subsequent to the lodging of the first information and after the investigation had begun, and its reception would be barred by section 162 of the Code of Criminal Procedure. But the learned Judges thought that it would be admissible under section 32(1) of the Indian Evidence Act, and the correctness of this view is disputed by the appellants.

IJut even if Exhibit P-7 is inadmissible in evidence,

9!l!l

r;/l:IJhwar Sinflt

and others

Tiu Stal• of Biliar

Vmkatarama

Ay_var J.

Tilkeshwar Singh

and ot!ur

TM State of Bihar

Venkatarama

AY., var J,

that would not assist the appellants, as the learned Judges observed that apart from that document, they would have, on the other evidence, held that the decea,; ed was attac'.,_ed at the school courtyard.

Then, we come to the evidence of P., Vs. 4, 7 c•.nd 12 on which the courts below have relied in accepting the version of the incident as given by the prosecution.

Mr. U mrigar contended that their evidence was inadmissible, because they were examined by the police at the stage of investigation, and their statements were not recorded separately as required by section 161(3) of the Code of Criminal Procedure. This is what the investigating officer,

P.W. 18, deposed with reference to this matter.

"The Daffadar produced Sita! Singh

(P.W. 12), Ram Karan Singh (P.'vV. 7) and Ramkinker (P.\V. 4).

First of all, I examined them separately but recorded their joint statement in respect of common things.

I made a separate record about the idc!ltificatio:-i and the wcapo;15", The recording of a joint statement of the exam11oation of P.vVs. •!, 7 and 12 is clearly in contrQvention of sect:on 161(3), and must be disapproved. But the questio'.1 is whether that renders the testimony of P.'vV s. 4, 7 nd 12 in court inadmi"ible.

Section 16i(3) does not say so, and indeed, seeing that the police are not bound to make a record of the statements o[ witnesses in which case there is admittedly no bar to the reception of their testimony, it would be anomalous if we were to hold that their evidence is inadmissible, because the statements were also reduced to writing but not in the manner provided in the section.

The Indian Evidence Act contains elaborate provisions as to who are competent witnesses and on 'Nhat matters their evidence is inadmissible.

And on these prov1s10ns, P.Ws. 4, 7 and 12 are neither incomnetent \Vitnesses, nor is their evidence as to the incidents to which they deposed, inadmissible.

In Zahiruddin v.

Emperor( 1 ) it was held by the Privy Council that the failure to comply with the provisions of section 162(1) might greatly (I

A.I.R. 1947 P.C. 75. "'

impair the value of the evidence of the witness, but that would not affect its admissibility. On the same reasoning, it will follow that the evidence of P.Ws. 4, 7 and 12 is not inadmissible for the reason that their statements had been recorded by P.W. 18 jointly and not separately as required by section 161(3).

In support of his contention that their evidence is inadmissible, Mr. Umrigar relied on the decisions in Baliram Tikaram v. Emperor (' ) and Maganlal Radhak_ishan v. Emperor(). In Baliram Tikaram

v. Emperor( ), which was a decision under section 162 of the Code of Criminal Procedure the accused had not been furnished with copies of the statements recorded by the police officers under section 161, and it was held that that deprived the accused of a valuable right, and must have caused prejudice to them. That was the view taken in Viwanath v. Emperor( 3), and no exception can be taken to it. But the learned Judges went on to obse.rve that the evidence of the witnesses who gave statements at the investigation would itself be inadmissible.

The reason for this opinion was thus stated by them :

"How can the evidence be admissible and proper for consideration when the accused is robbed of hrs statutory means or cross-examination and thereby denied the opportunity of effectively cross-examining his adverse witnesses ? No evidence recorded by the Court, unless it satisfies the requirement of section 138, Evidence Act, can become admissible and proper for consideration. It would indeed be bold to sav that the evidence of a witne'ss is legally admissibl~ against a party even though he at the time it was given had not the full opportunity to cross-examine him".

This view was reiterated by the same learned Judges in M aganltd Radhakishan v. Emperor( 2 ), but, for the reasons already given, we are unable to accept this as a correct statement of the law. \Ve are of the opinion that while the failure to comply with the requirements , of section 161(3) might affect the weight to be

(I) A.I.R. I 945 Nag. I.

(2) A.LR. 1946 Nag. 173.

(3) I.LR. [1937] Nag. 178.

Tilke hwar Singh

and others

ThtSta!e of Bihm

Venkatarama Ayyar ].

Tilkeshwar Singh

and others

" Tiu State of Bihar

V1nkatarama

Ayyar J.

attached to the evidwce of the witnes!es, it does not render it inadmissible.

That was so held by Harries, C.J. and Bachawat, J. in Bejoy Chand Patra v. The State('), where this question arose directly for decision, and we are in agreement with this view. In the present case, the attention of the learned Judges was drawn to the infirmity in the evidence of P.W s. 4, 7 and 12, arising by reason of the failure to observe section 161(3), but they . were, nevertheless, prepared to accept it as reliable. We must accordingly hold that the findings of the courts . below are not open to attack on the ground that they were based on inadmissible evidence.

It was next contended that the charge on which the appellants were tried was one under section 302 read with section 34, and that the learned Judges of the High Court erred in convicting them under section 326 read with section 149. Before the learned Judges the contention that was pressed was that there was no power in the court to substitute section 149 for sectior> 34, but they declined to accept it. The question has since been considered by this Court in Kamai! Singh and others v. The State of Punjab(') and Willie Slaney's case( ). It is conceded by Mr. Umrigar that in view of these decisions, the question is no longer open. It must be answered adversely to the appellants .•

It was finally contended that there had been no proper examination of the appellants under section 342, and that the conv1ct1on should accordingly be quashed.

What happened was that when the court commenced its examination under section 342, the appellants stated that they would file written statements.

Tbose statemerts \Vere very elaborate and furnished the answer of the appellants to all the points raised in the prosecution evidence.

Mr. Umrigar was unable to suggest any question which could have been put, with reference to which the statements did not contain an answer.

Clearly, the appellants have not been prejudiced.

It is no doubt true that (I) A.LR. 1950 CaL 363.

(2) [1954] S.C.R. 904.

(3) Crin1inal Appeal No. 6 of 1955.

section 342 contemplates an examination in court, and the practice of filing statements is to be deprecated. But thar_ is not a ground for interference, unless prejudice is established.

And it is nothing unusual for the accused to prefer filing statements mstead of answering questions under section 342, lest they should suffer by inadvertent admissions or by damaging statements.

As no prejudice has been shown, this contention also must be rejected.

In the result, the appeal is dismissed.

JAYARAM VITHOBA AND ANOTHER

ti.

THE STATE OF BOMBAY.

[V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRA-

SEKHARA AIYAR JJ.l

Code of Criminal Procedure (Act V of 1898), s. 423(1)(b) and (J), s. 439-Powers of Appellate Court-High Court's powers of revision-Conviction by the trial Court but no sentence-High Court CMftrming conviction and awarding sentence-Legality-Bombay Prevention of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5.

The first appellant was prosecut."-1 under s. 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887) for being present in a gaming house for the purposes of gaming and was, in addition, charged under s. 4( a) of the Act for keeping a gaming house.

The Presidency Magistrate, ':"ho tried the case, found him guilty under s. 4(a) and sentenced him to three months' rigorous imprisonment.

He also tound him guilty under s. 5 but awarded no separate sentence under that section.

In revision, the High Court set aside the conviction under s. 4(a), but confirmed that under s. 5 and awarded a sentence of th.-ee months' rigorous imprisonment under that section. It was contended for the first appellant that the High

Court had no power under s. 423( I) (b) of the Code of Criminal Procedure to impose any sentence under s. 5 of the Act when no such sentence had been awarded by the Magistrate and that, in any event, the award of such a sentence amounted to an enhancement and was, in conequence, ille,; al, as no notice had been issued therefor, a< rrquired by law.

Held, that though s. 423(l)(b) of the Code of Criminal Procedure w:is not applicable to the case, the High Court had power to pass he sentence under s. 423(I)(d).

The law does not envhage a person being convicted for an

T ilkeshwar Sin:h

and others

Th• Stale of Bihar

Venkatarama

Ayyar J.

Dec em/Hr 13,

TILKESHW AR SINGH AND OTHERS

THE STATE OF BIHAR

s. 149

I.P.C

s. 34

ss. 161(3), 342

Penal Code

ss. 34

s. 161(3)

Code of Criminal Procedure

s. 149

Indian Penal Code

s. 34

s. 342

Code of Criminal Procedure

s. 302

s. 34

Indian Penal Code

s. 161(3)

Code of Criminal Procedure

s. 326

s. 149

Indian Penal Code

Tilktshwar Singh

Tilktshwar Singh

and others

The Stalof Bihar

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No.

Umrigar

R. C. Prasad

B. K. Saran

M. M. Sinha

VENKATARAMA

AYYAR

Additional Sessions Judge, Darbhanga

section 302

section 34

Indian Penal Code

Balbhadra Narain Singh

section 147

section 148

Mahe

Harischandra Singh

Singhia

Samastipur

section 302

section 34

sections 147 and 148

section 302

section 34

section 147

section 148

High Court of Patna

section 302

section 34

section 326

section 149

section 162

Code of Criminal Procedure

section 32(1)

Indian Evidence Act

IJhwar Sinflt

Tilkeshwar Singh

State of Bihar

U mrigar

section 161(3)

Code of Criminal Procedure

Daffadar

Sita! Singh

Ram Karan Singh

Ramkinker

s. 4, 7

Section 16

Indian Evidence Act

section 162(1)

section 161(3)

section 162

Code of Criminal Procedure

section 161

section 138

section 161(3)

Tilke hwar Singh

Venkatarama Ayyar

Ayyar

Harries

Bachawat

s. 4, 7 and 12

section 161(3)

section 302

section 34

section 326

section 149

section 149

Willie Slaney

section 342

section 342

section 342

section 342

JAYARAM VITHOBA

STATE OF BOMBAY

VENKATARAMA AYYAR

SEKHARA AIYAR

Code of Criminal Procedure

s. 423(1)(b)

s. 439

ss. 4(a), 5

s. 5

Bombay Act IV of 1887

s. 4( a)

s. 4(a)

s. 5

s. 4(a)

s. 5

s. 423( I)

Code of Criminal Procedure

s. 5

s. 423(l)(b)

Code of Criminal Procedure

s. 423(I)(d)

Venkatarama

Ayyar


2S.C.R. ·

SUPREME COURT REPORTS 1049

section 342 contemplates an examination in court, and the practice of filing statements is to be deprecated. But thar_ is not a ground for interference, unless prejudice is established.

And it is nothing unusual for the accused to prefer filing statements mstead of answering questions under section 342, lest they should suffer by inadvertent admissions or by damaging statements.

As no prejudice has been shown, this contention also must be rejected.

In the result, the appeal is dismissed.

JAYARAM VITHOBA AND ANOTHER

ti.

THE STATE OF BOMBAY.

[V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRA-

SEKHARA AIYAR JJ.l

Code of Criminal Procedure (Act V of 1898), s. 423(1)(b) and (J), s. 439-Powers of Appellate Court-High Court's powers of revision-Conviction by the trial Court but no sentence-High Court CMftrming conviction and awarding sentence-Legality-Bombay Prevention of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5.

The first appellant was prosecut."-1 under s. 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887) for being present in a gaming house for the purposes of gaming and was, in addition, charged under s. 4( a) of the Act for keeping a gaming house.

The Presidency Magistrate, ':"ho tried the case, found him guilty under s. 4(a) and sentenced him to three months' rigorous imprisonment.

He also tound him guilty under s. 5 but awarded no separate sentence under that section.

In revision, the High Court set aside the conviction under s. 4(a), but confirmed that under s. 5 and awarded a sentence of th.-ee months' rigorous imprisonment under that section. It was contended for the first appellant that the High

Court had no power under s. 423( I) (b) of the Code of Criminal Procedure to impose any sentence under s. 5 of the Act when no such sentence had been awarded by the Magistrate and that, in any event, the award of such a sentence amounted to an enhancement and was, in conequence, ille,; al, as no notice had been issued therefor, a< rrquired by law.

Held, that though s. 423(l)(b) of the Code of Criminal Procedure w:is not applicable to the case, the High Court had power to pass he sentence under s. 423(I)(d).

The law does not envhage a person being convicted for an

T ilkeshwar Sin:h

and others

Th• Stale of Bihar

Venkatarama

Ayyar J.

Dec em/Hr 13,

J•yar11m Vilhoba

and anoth1r

The Slate •f

BrJmbay

offence without a sentence being imposed therefor, and the award of

:ii. sentence by the High Court was only consequentia) on and inci~ dental to the affirmancc of the conviction, and it was a just and proper order to be passed under the law, within the meaning of s. 423(l)(d) of the.Code of Criminal Procedure.

Such a sentence cannot amount to an enhancement as it was awarded only for the first time in appeal.

Even if it were to be regarded as an enhancement, the order of the High Court could not be held to be bad for want of notice under s. 439(2), as the fim appellant had an opportunity of showing cause against the conviction and enhancement, and, in any event, no prejudice had resulted to him by reason of the abence of a formal notice under the section~

Ibrahim v. Emperor (A.LR. 1940 Born. 129), Superintendent and Remembrancer of Legal Affairs v. Hossein Ali (A.LR. 1938 Cal. 439} and Pradip Chaudhry v. Emperor

(A.LR. 1946 Pat. 235), d~ approved.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 75 of 1954.

Appeal by Special Leave from the Judgment and Order dated the 24th July 1953 of the Bombay High Court i'n Criminal Revision Application No. 669 of 1953 arising out of the Judgment and Order dated the 29th June 1953 of the Court of Presidency Magistrate, 9th Court at Bandra, Bombay 111 Case No. 11872/73/P of 1952.

P. K. Chatterjee, for the appellants.

N. S . .J3indra, (P. G. Gokhale, with him) for the respondent.

1955. December 13.

The Judgment of the Court was delivered by

VENKATARAMA AYYAI<. J.-The first appellant was at the relevant date, in possession of room No. 10 in House No. 334, Bazar Road, Bandra, Bombay.

On information that this room was being used as a gaming house, Mr.

Bhatt, Sub-Inspector of Police, raided it on 19-9-1952, and fc11nd the two appellants and four others in possession of gaming instruments.

All of them were prosecuted under section 5 of the Bombay P, evention of Gambling Act (Bombay Act IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for the purposes of

gaming, and the first appellant was, in addition, charged under section 4(a) of the Act for keeping a gaming house.

The presidency Magistrate who tried the case, found the first appellant guilty under section 4(a) of the Act, and sentenced him to three months' rigorous imprisonment.

He also found him guilty under section 5 of the Act, but awarded no separate sentence under that section.

The second appellant was found guilty under section 5, and sentenced to three months' rigorous imprisonment.

The appellants took the matter in revision to the High Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under section 5, and awarded a sentence of three months' rigorous imprisonment under that section.

As regards the second appellant, both the conviction and sentence were confirmed.

Against this order, the present appeal by special leave has been preferred.

Both the courts below have concurrently found that the appellants were present in a gaming house for the purpose of gaming, and have thereby committed an offence punishable undcr section 5 of the Act, and that finding is not under challenge before us. The only contention that has been raised before us-and it arises only as regards the first appellantis that as the High Court had set aside his conviction under section 4(a) of the Act, it should have set aside the sentence passed on him under that section, and that it had no power under the Code of Criminal Procedure, to impose a sentence under section 5, when none such had been passed by the Magistrate.

This contention is based on the terms of section 423.

Under that section, when there is an appeal against a conviction, the court has the power under subclause ( 1) (b) either ( 1) to reverse the finding and sentence, and acquit or discharge the accused, or order his retrial, or (2) to alter the finding but maintain the sentence, or (3) to reduce the sentence with or without altering the finding, or ( 4) to alter the sentence with or without either reducing the sentence or altering the finding, but, subject to section 106(3), not so as to enhance the same. It is urged that the 12--85 s. c. India/59.

Jayaram Vitliob~

and another v.

The State q(

Bomb't•

Venkatarama

Ayyar J.

]aJ•aram Vitholta

nnd anolher

T!it State of

Bomba7

V tnkatarama

Ay.Jar ].

present case does not 'fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been impo; cd under that section by the Magistrate, and that accordingly the order of the High Court could not be justified under any of the p'rovisions of the Code. It is further contended that the award of sen tence under section 5 amounted in the above circumstances to an enl1ance1nent, and was, in consequence, illegal, as no notice had been issued therefor, as required by law.

In support of this contention, the decision 111 Ibrahim v. Em perm (1 ) is relied on. In that case, as in the present, the accused was convicted both under section 4(a) and section 5 of the Act, but a sentence was passed under section 4(a) and none under section 5.

On appeal, the learned Judges set aside the conviction under section 4 (a), and on the question of sentence, observed that the Magistrate was wrong in not having imposed a separate sentence under section 5, and continued :

"He ought to have imposed a sentence under each section ; but as he has not imposed a sentence under section 5, we cannot impose one ourselves, for that would be enhancing the sentence".

These observations undoubtedly support the first appellant.

A different view, however, was taken in two other decisions, which may now be noticed. In Superintendent and Remembrancer of Legal Affairs v. Hossein Ali( 2 ), the accused had been convicted by the Magistrate both under section 363 and section 498 of the Indian Penal Code, and sentenced to imprisonment under section 363, no separate sentence having been awarded under section 498. On appeal, the Sessions Judge set aside the conviction under section 363, but held the accused guilty under section 498. On a reference as to whether the Sessions Judge could pass any sentence under section 498, it was held by the High Court that he could, under section 423(1)(b) of

(I) A.l.R. 1940 Born. 129.

(2) A.I.R. 1938 Cal. 439

the Code of Criminal Procedure, as there was an alteration of the conv1ct1on under sections 363 and 498 to one under section 498. This view proceeds, in our opinion, on a misconception of the true meaning of the words "alter the finding" in section 423(1) (b) of the Code of Criminal Procedure.

When a statute enacts provisions creating specific offences, in law these offences constitute distinct matters with distinct incidents. Under section 233 of the Code of Criminal Procedure, they have to be separately charged, and under section 367, the judgment has to specify the offence of which and the law under which the accused is convicted.

When there is a conviction for more offenc'es than one, there are distinct findings in respect of each of them, and when section 423 ( 1 )(b) speaks of a finding being reversed or altered by the court of appeal, it has reference to the finding in respect of each of the offences. When, therefore, the High Court set aside the conviction under section 4

(a) and affirmed that under section 5, there are two distinct findings, one of reversal and another of affirmance, and there is no question of alteration.

The decision in Superintendent and Remembrancer of Legal Affairs v. H ossein Ali (1) was followed in Pradip

Chaudhry v. Emperor( 2). There, the Sessions Judge convicted the accused under sections 324 and 148 of the Indian Penal Code and sentenced them to imprisonment under section 324, but no sentence was imposed on them under section 148.

On appeal, the High Court set aside the conviction under section 324, and confirmed that under section

148. Dealing with the contention of the accused that the Court had no power under section 423(1)(b) of the Code of Criminal Procedure to award a sentence under section 148, the learned Judges observed that they had "ample power tp transpose the sentence, so long as the transposition does not amount to enhancement".

We are unable to support the reasoning in this decision either. There is nothing about transposition of sentence under section 423(1)(b). , It only provides for altering the finding and maintaining the sentence, (I) A.I.R. 1938 Cal. 439.

(2) A.I.R. 1946 Patna 235.

Jayaram Vithoba

tllld another

The Stall of

Bombay

Venkatarama

Ayyar ].

ja; v aram ViJ/1oba

and a11other

Thi Stat~ of

Bomba~"

Venkatarama

Ayya< ].

and that can apply only to cases where the finding of guilt under one section is altered to a finding of guilt under another. The section makes a clear distinction between a reversal of a finding and its alteration, and provides that when there is a reversal, the order to be passed is one of acquittal, discharge or retrial, whereas when there is an alteration, the order to be passed is one of maintaining, reducing or altering the sentence.

But here, the order passed by the High Court is not one of alteration of any finding. It is, as already stated, a reversal of the finding under 5'Ction 4(a) and a confirmation of the conviction under section 5. VI e are therefore of opinion that on the language of the section, the imposition of a sentence under section 5 by the High Court cannot be justified.

The question still remains whether apart from section 423(1)(b), the High Court lras the power to impose the sentence which it has. When a person is tried for an offence and convicted, it is the duty of the court to impose on him such sentence, as is prescribed therefor. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.

When the trial Magistrate convicted the first appellant under section 5, it was plainly his duty to have imposed a sentence. Having imposed a sentence under section 4(a), he obviously considered that there was. no need to impose a like sentence under section 5 and to direct that both the sentences should run concurrently.

But, in strictness, such an order was the proper one to be passed. The appellants then took the matterin revisions to the High Court, and contended that their conviction under section 5 was bad. The High Court went into the question on the merits, and found them guilty under that section. It was the duty of the High Court to impose a sentence under section 5, and that is precisely what it has done. The power to pass a sentence under those circumstances is derived from the law which enacts that on conv1ct1on a sentence shall be imposed . on the accused, and that is a power which can and ought to be exercised by all the courts which, having jurisdiction to decide whether the

accused is guilty or not, find that he is. We are of op1mon that this power is preserved to the appellate court expressly by section 423(1)(d), which enacts that it can "make any amendment or any consequential or incidental order that may be just or pmper".

When a conviction is affirmed in appeal but no sentence had been awarded by the trial Magistrate, the award of a sentence is consequential on and incidental to the affirmance of the conviction, and it is a just and proper order to be passed under the law.

We are unable to agree with the view expressed in Ibrahim v. Emperor(1) that such an order would be an enhancement of the sentence.

Before a sentence can be said to be enhanced, there must be one which could be enhanced and when no sentence was imposed on a conviction by the trial Magistrate and one is fot the first time awarded in appeal, it cannot correctly be said to be an enhancement. We are accordingly of opinion that it was within the competence of the High Court to have passed the sentence which it had.

There is another ground on which the order of the lower court can be sustained. Against the conviction of the appellants by the Presidency Magistrate, no appeal lay, and accordingly the appellants preferred a revision to the High Court. Under section 439 ( 1) of the Code of Criminal Procedure, the High Court in hearing a revision can ex.er.cise the powers of a court of appeal under section 423, and may enhance the sentc:nce.

Under section 439(2), an order of enhancement could not be passed, unless the accused had an opportunity of being heard in his defence, and under section 439(6), the accused is also entitled, when proceedings are taken under section 439(2), to show cause against his conviction. The substance of the matter is that when proceedings are taken against the accused for enhancement of sentence under section 439 (2), he has a right to be heard both on the question of the propriety of the conviction and of the sentertce to be imposed on him if he is convicted. In the present case, the first appellant had an opportunity of pre- (!) A.I.R. 1940 Born. 129.

Jayaram Vithoba and another

The State of Bombay

V er1katararna

Ayyar J.

\955

varam Vithoba nnd a1101h1r

Thi State of

Bombay

Venkatorama

A)!l'ar ].

seating his case in respect of both these matters, and, in fact, he availed himself of the same. He himself raised in his revision the question of his guilt under section 5, and the High Court on a consideration of all the evidence affirmed his conviction. On the question of sentence, section 5 enacts that when a person is fonnd guilty under that section, the punishment shall not be less than three months' imprisonment and Rs. 200 fine, if he had been convicted for the same offence previously. The first appellant had a previous conviction, and the sentence of imprisonment is the minimum which could be passed against him under section 5. With reference to this aspect of the matter, the High Court observes :

"In view of the fact that the first accused admits one previous conviction under section 5 of the Act, the sentence of three months' rigorous imprisonment passed upon him by the learned Presidency Magistrate is justified".

Now, the question is whether, in the circumstances, the order of the High Court could be held to be bad for want of notice under section 439(2). The law does not prescribe that any particular formalities should be complied with, before action is taken under that section.

It only provides that the accused should have an opportunity or showing cause against the conviction and enhancement, and as the first appellant was heard on both these questions, the requirements of the section were satisfied. The order of the High Court could accordingly be _maintained under section 439, even if it were to be regarded as an enhancement of the sentence. In any event, no prejudice has resulted to the first appellant by reason of the absence of a formal notice under section 439(2).

In the result, the appeal is dismissed.

section 342

section 342

JAYARAM VITHOBA AND ANOTHER

THE STATE OF BOMBAY

SEKHARA AIYAR JJ

Code of Criminal Procedure

s. 423(1)(b)

s. 439

ss. 4(a), 5

s. 5

Bombay Act IV of 1887

s. 4( a)

Presidency Magistrate

s. 4(a)

s. 5

s. 4(a)

s. 5

s. 423( I)

Code of Criminal Procedure

s. 5

s. 423(l)(b)

Code of Criminal Procedure

s. 423(I)(d)

Venkatarama

Ayyar

s. 423(l)(d)

Code of Criminal Procedure

s. 439(2)

P. K. Chatterjee

N. S . .J3indra

P. G. Gokhale

VENKATARAMA AYYAI

Bhatt

section 5

Bombay Act IV of 1887

section 4(a)

section 4(a)

section 5

section 5

section 4(a)

section 5

section 5

section 4(a)

Code of Criminal Procedure

section 5

section 423

section 106(3)

Jayaram Vitliob~

State

Venkatarama

aJ•aram Vitholta

section 5

section 5

section 4(a)

section 5

section 4(a)

section 5

section 4

section 5

section 5

section 363

section 498

Indian Penal Code

section 363

section 498

section 363

section 498

section 498

section 423(1)(b)

Code of Criminal Procedure

sections 363 and 498

section 498

section 423(1)

Code of Criminal Procedure

section 233

Code of Criminal Procedure

section 367

section 423

section 4

section 5

sections 324 and 148

Indian Penal Code

section 324

section 148

section 324

section

148

section 423(1)(b)

Code of Criminal Procedure

section 148

section 423(1)(b)

Jayaram Vithoba

section 5

section 5

section 423(1)(b)

section 5

section 4(a)

section 5

section 5

section 5

section 423(1)(d)

Ibrahim

section 439

Code of Criminal Procedure

section 423

section 439(2)

section 439(6)

section 439(2)

section 439

State of Bombay

varam Vithoba

State of

Bombay

Venkatorama

section 5

section 5

section 5

section 5

section 439(2)

section 439

section 439(2)