S.C.R.

SUPREME COURT REPORTS 533

BHAGUBHAI. DULLABHABHAI BHANDARI v.

THE DISTRlCT MAGISTRATE, TRANA

& OTHERS (with connected petition)

[S. R~ DAS c. J., JAGANNADHADAS, VENKATARAMA AYYAR, B. P. SINHA and JAFER IMAM JJ.]

Bombay Police Act, 1951 (Bombay Act XXII of 1951), s. 56- 0onstitutional validity-Order of externment-Restrictions- Reasonableness-" Witness", scope of the word in the section-Whether not applicable to members of the police force or customs department- Oonstitution of India, Art. 19.

Section 56 of the Bombay Police Act, 1951, is not unconstitu tional and does not contravene the provisions of Art. 19 of the Constitution.

Gurbachan Singh v. State of Bombay ( [1952) S.C.R. 737), followed.

In order to attract the operation of the section the Officer con earned _should be satisfied that the witnesses are not willing to come forward to give evidence in public, but it is not necessary to show that all the witnesses a.re unwilling to give evidence. The terms of the section do not justify any restricted meaning being given to the word "witnesses" and it is applicable to memberf! of the police force and employees and officers of the Customs Department also.

Gurbachan Singh v. State of Bombay ( [1952] S.C.R. 737), explained.

Under the provisions of s. 56 of the Bombay Police Act, 1951, an order of externment was passed against the petitioner by whi'Ch he was directed to remove himself outside the limits of Greater Bombay and not to enter the said area for a. period of two yea.rs without the prescribed permission; and subsequently he entered Greater Bombay in order to" attend Court in a case pending a.go.inst him in which a warrant of arrest ha.d been issued. He wa.s convicted for committing the breach of the externment order and he contended that his ccnviction wa.s in itself a.n indication of the unreasonable ness of the restriction.

Held, that the restrictions cannot be said to be unreasonable as the petitioner could have a.voided the prosecution a.nu the convic: ti on by obtaining the previous permission of the prescribed authority.

Per JAGANNADHADAS J.-If the matter were res integra I should have felt difficulty in upholding the validity of s. 56(b) of

Ma; vB

BhagrWhai Dullabhabhai

Bhandari

The District

the Bombay Police Act, 1951, in so far as it did not demarcate the application thereof ta the more serious classes of offences falling within. the specified Chapters. I should also have felt difficulty in holding a provision ta be reasonable which clothes the executive officers with an authority to extern a person for so long a. period as two years.

Magistrate, Thana

ORIGINAL JURISDICTION: Petitions Nos. 439 & and others 440 of 1955.

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

H.J. Umrigar and R. A. Govind, for the petitioner in. Petition No. 439 of 1955.

J. B. Dadachanji, for the petitioner in Petition No. 440 of 1955.

M. G. Setalvad, Attorney-General of India, B. Sen and R. H. Dhebar, for the respondents.

1956.

May 8.

The judgment of S. R. Das C. J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment.

SINHA J.-These petitions under article 32 of the Constitution challenge the constitutionality of some of the provisions of the Bombay Police Act, XXII of 1951 (which hereinafter will be referred to as "The Act"), with special reference to section 56, as also of the orders passed against them externing them under that section of the Act. ·

In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana, the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhivandi Division, Bhiwandi, District Thana, and the State of Bombay are respondents 1, 2 and 3.

The petitioner is a citizen of India and carries on trade in grass at Bhilad, a railway station on the Western Railway.

On 21st January 1955 the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division, served a notice under section 56 of the Act in the following terms:-

" No. Ext. 3/1 of 1955 Office of the S.D.P.O. Bhiwandi,

Bhagubhai Bhiwandi, dated 21-1-1955.

Dullabhabhai (I) I, Shri C. V. Bapat, Deputy Superintendent Bhanda.-i , of Police and Sub-Divisional Office Bhiwandi Di viv. sion, District Thana, do hereby issue a notice to you, The District Shri Bhagu Dubai Bhandari alias Bhagwanbhai Dulla Magtstrate, Thana Bhai Jadhav of Bhilad District Thana, that it is proaud others posed that you should be removed outside the Dis- Sinha J. trict of Thana and you should not enter or return to the said district for a period of two years from the date of the order to be made under section 56 of the Bombay Police Act, 1951 for the following reasons:- . (II) Evidence is forthcoming that your following activities have caused and are calculated to cause alarm, danger and harm to person , and property in Bhilad and the surrounding areas:-

(1) You have been dealing in smuggled foreign liquor and maintained a veil of secrecy by criminal intimidation and physical violence to the villagers and other right thinking persons.

(2) Your activities have been in continuation of your similar activities for the last five years, given as under:- ( a) You criminally assaulted persons with the help of your associates and did violent acts in order to strike terror into the hearts of the villagers, so that they should not challenge you or your men.

(b) You have been criminally assaulting and intimidating Central Excise and Custom officials with the help of your gang, so as to stop them from looking into your anti-national, anti-social and illegal activities. As a result of your unlawful and dangerous activities you are held in terrific awe by the Central Excise and Custom Officers and men and villagers in Bhilad area who are continuously labouring under grave apprehension of danger to their person and property.

(c) You and your associates were and are making use of criminal intimidation against the villagers in order to prevent them from having recourse to legal means.

1956 (~II) That you and your associates are also understood to be in possession of unlicensed firearms which Bhagubhal h n,, uabhabhai as been causing considerable ~!arm and spreading a Bhandari feeling of insecurity of life and property in the mind v. of villagers from Bhilad and neighbouring villages The District and Central Excise and Customs employees.

Mag,, trate, Thana (IV) The witnesses are not willing to come forand others ward and to give evidence against you by reason of SinhaJ. apprehension of danger and harm to their person and property.

(V) Now, I Shri C. V. Bapat, Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division, District Thana in exercise of the 1 authority conferred upon me under section 59 of the Bombay Police Act, 1951 by the District Magistrate Thana under his number MAG. 2/ EX dated 17-1-1955 do hereby direct you to appear before me at 11 a.m. on 27-1-1955 at Dahanu in the office of the Sub-Divisional Police Office Dahanu for tendering your explanation regarding the said allegation.

You are also entitled to appear before me by advocate for the purpose of tendering your explanation and examining witnesses, produced by you.

Signed and sealed this day of 21st Jan. 1955.

Sd ........................ .

Deputy Superintendent of Police & Sub-Divisional Police Officer, Bhiwandi.

Shri Bhagu Dubai Bhandari @ Bhagwanbhai Dullabhai Jadhav of Bhilad, District Thana".

By that notice the petitioner was called upon to appear before the said police officer on the 27th January 1955 in order to enable the former to offer such explanation and examine such witnesses as he may be advised. In pursuance of that notice the petitioner appeared before the police officer aforesaid and the hearing of his case took place on different dates.

The petitioner claims to have examined seven "respectable persons" to testify on his behalf. Ultimately on the 11th July 1955 an order was passed by the District Magistrate of Thana externing the petitioner outside the Thana District. The order of

externment is Ex. D to the petition and contains the 1956 recitals that after considering the evidence before Bhagubhai him and the explanation offered by the petitioner the Dullabhabhai District Magistrate of Thana (the 1st respondent), Bhandari was satisfied that the petitioner "engages in giving v. threats and assaulting Central Excise and Customs T?e District Officials men and residents of Bhilad and surround- Magistrate, Thana .

'II d . d I . 'JI' 't t ffi f r . and others mg v1 ages an m u ges m i ic1 ra c o 1ore1gn liquor from Daman" and that in his opinion "wit- SinhaJ. nessess are not willing to come forward to give evidence in public against the said Shri Bhagubhai Dullabhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad by reason of apprehension on their part as regards the safety of their person and property". It is this order which is challenged as illegal and ultra vires and against which the petitioner has moved this Court for an appropriate writ, direction or order against the respondents, prohibiting them, their servants and agents from acting upon or taking any steps in enforcement, furtherance or pursuance of the said order and from interfering in any manner with the petitioner's right to reside in Bhilad and carry on his business. The petitioner had preferred an appeal to the Government against the said order of externment.

But the appeal was dismissed on the 9th September

1955. Against the said order the petitioner moved the High Court of Judicature at Bombay under article 226 of the Constitution, but the said application was also dismissed in limine by the. High Court by its order dated the 7th November 1955.

The District Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in this Court in answer to the petition. He swears that he had passed the externment order complained against after perusing the police reports and going through the explanation offered by the petitioner and the statements of the witnesses produced by him and on hearing his advocate. He further states in the affidavit that the general nature of the material allegations against the petitioner was given to him, that the material given to him was clear and by no means vague.

Only the names of the persons who had given the

7956 information against the petitioner :were not disclosed to him inasmuch as those persons were not prepared

d::!~~~~~; to come out in the open and depose against him in Bhandari public as witnesses. He was satisfied that witnesses v. were unwilling to come forward to give evidence in The DisMct public against the petitioner. He also iiffirms that Magistrate, Thana the petitioner's movements and acts were not only

and others causing alarm, danger or harm to personal property SinhaJ. of the general public round about Bhilad, but also that his movements and acts were causing danger and alarm to public servants of the police force and the Central Excise who were doing very responsible work at Bhilad which is on the borderline of the Indian territory adjoining Daman area which is Portuguese territory. He admits that the petitioner was discharged by the Judicial Magistrate, First Class, Umberl; laon because the witnesses did not appear and depose against him for fear of the petitioner.

In Petition No. 440 of 1955, Kun war Rameshwar Singh is the petitioner and the respondents are- 1.

Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch (I) C.l.D., Greater Bombay, 2.

The Commissioner of Police, Greater Bombay, and 3.

The State of Bombay.

The petitioner is a citizen of India and claims to be ' a "social worker" connected with several social organisations. He alleges that his main social activity has been the improvement of the lot of prostitutes and singing girls in certain quarters of Bombay.

On the 2nd November, 1954 the petitioner was served with a notice under section 56 read with section 59 of the Act (Ex. A to the petition) setting out the allegations against him and calling upon him to explain those matters. In pursuance of the said notice the petitioner appeared before the Superintendent of Police to show cause against the proposed action against him. Ultimately on the 4th January, 1955 the Commissioner of Police, the second respondent, passed an order to the effect that the petitioner should remove himself from the limits of Greater Bombay

within seven days. That order is marked Ex. H and is to the following effect:-

" Order of Externment

Bhagubha{ Didlabhabhai

Bhandari (Section 56 of the Bombay Police Act, 1951) v.

Police Station: Nagpada No. 7 /c/43/1955.

The District Magistrate, T/1ana Whereas the Commissioner of Police, Greater and ot1ters Bombay, has directed by his order, dated the 13th August, 1954 and 11th December 1954, made under Sinha]. sub-section (2) of section 10 of the Bombay Police

Act, 1951 (Bombay Act XXII of 1951) that the powers, functions and duties under the said Act shall also be exercised by the Deputy Commissioners of Police, Greater Bombay.

And whereas evidence has been placed before me, Deputy Commissioner of Police, Crime Branch (I), against the person known as Kunwar Rameshwar Singh, to the following effect:- I. That since October, 1953 in the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay his movements and acts are causing alarm and harm to the persons residing in, carrying on business in, or visiting the said locality in that: '

(i) He with assistance of his associates some of them being Sk. Makbool Sk. Hussain, Abdul Rahiman, Suleman alias Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others, extort money from women residing in and carrying on business either as prostitutes or singing girls in the said locality on threats of assault and of causing bodily injury to them;

(ii) That he with the assistance of the said associates assault or threaten with assault the aforesaid women who do not comply with his demands for money;

(iii) That in order to compel the aforesaid women to pay him the money demanded 'by him he also posts his associates at or near the places of business of the aforesaid women and prevent customers from entering the !ooms of such women;

(iv) That he with the assistance of his associates extort money from shopkeepers, hotel-keepers, Bhagubhal h d k Dullal>habhai mere. ants an haw ers carrying on business in the Bhandari said locality and from rent collectors of buildings v. !lccupied by the aforesaid prostitutes and singing The District girls by assaulting them or thre.atening them with Mag•strate, Thana assault and dislocation of business

andothers

( ) T h. d ' h v hat e causes amage to t e property Sinha J. of the said hotelkeepers and hawkers of the said locality who do not pay him money demanded by him;

(vi) That he accosts persons visiting the rooms of singing girls in the said locality for the purpose of entertainment and demand money from them under threats of assault and of preventing them from visiting the said locality;

(vii) That he has committed several acts of the nature mentioned above; II. That witnesses to the above incidents are not willing to come forward to give evidence in public against him as they apprehend that they will be assaulted by him and/or by his associates if they do so.

And whereas I have heard the said person and considered the explanation tendered by him and also the evidence given by the witnesses produced by him and have heard his counsel; And whereas afte~ considering all the evidence and explanation detailed above, I am satisfied that:- The movements and acts of Kun war Ramesh war Singh since October, 1953, are causing alarm and harm to the persons residing in carrying on business in or visiting the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay and that he indulges in activities mentioned above.

And whereas in my opinion witnesses are unwilling to come forward to give evidence in public against the said person by reason of apprehension on their part as regards the safety of their persons; Now, therefore, in exercise of the powers vested in me under section 56 of the said Act, I, Shri W. K.

Patil, Deputy Commissioner of Police, Crime Branch

7956 (I) C.l.D., Greater Bombay hereby direct that the said Kun war Rameshwar Singh sh. all remove himself R Bhagubhai outside the limits of Greater Bombay by Central ly.

Dullabhabhai

(route) within seven days from the date of service of Bhandari this order and I further direct that he shall nbt enter v. the said area of Greater Bombay for a period of two Te District years from the date of this order without a permission Mlfgistrateh, Thana . •t• f h C • • f p l' G t and ot ers 1n wri mg rom t e omm1ss10ner o o 10e, rea er Bombay, or the Goyernment of Bombay.

Sd. W. K. Patil, Dy. Commissioner of Police, Crime Branch (I) C.l.D. Greater Bombay".

The order quoted above is a self-contained one and discloses the nature of the allegations against him which he had been called upon to explain. The petitioner pr-eferred an appeal to the third respondent, the State of Bombay. But his appeal was dismissea on the 17th January 1955. The petitioner challenged the validity of the said order passed by the respondents by a petition under article 226 of the Constitution to the Bombay High Court, but it was dismissed on the 14th March 1955 after hearing. The judgment of the High Court is Exhibit D. The learned Judge of the Bombay High Court who dealt with the petition has set out briefly the main allegations of the petitioner and the affidavit in answer to the petition sworn to by the 1st respondent here. The learned Judge observed in the course of his judgment that in view of the averments in the petition and those in the affidavit in reply it was impossible for him to hold that the Deputy Commissioner of Police knew that witnesses were willing to give evidence against the petitioner. The petitioner went up on Letters Patent Appeal and a Division Bench consisting of the Chief Justice and another Judge of the Bombay High

Court dismissed the appeal holding that once the opinion has been formed by the authority that witnesses were unwilling to give evidence in public against the petitioner, the court could not go behind that opinion. They also negatived the plea of want of bona fides in the 1st respondent who had initiated the proceedings.

Sinha/.

1956 The petitioner removed himself outside the limits of Greater Bombay. Having come to know that a Bhagubhai v,.uabllabhai warrant of arrest had been issued against him in Bhandari a certain pending case before the Presidency Magisv. trate, Fourth Court, at Girgaum, Bombay, on the The District 6th April 1955, the petitioner entered Greater Bom- Magistrate, Than• bay to attend court but he was arrested under the and others Act for committing a breach oftheexternment order.

SinhaJ.

He was prosecuted before the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under section 142 of the Act. He was convicted by the Magistrate and sentenced to nine months' rigorous imprisonment by a judgment dated the 8th September 1955. The Magistrate's judgment is Exhibit F to the petition. The learned Magistrate overruled the petitioner's contention that the order of externment passed against him was illegal, relying chiefly upon the judgments of the High Court referred to above, upholding the constitutionality of that order. As regards his defence that he had entered Greater Bombay in obedience to the warrant issued against him, the learned Magistrate observed that as a matter of fact, according to the statement of the petitioner's counsel before him he had taken that step "to test the validity of the order". Secondly, the learned Magistrate has rightly pointed out that the petitioner should have obtained the previous permission of the Policp Commissioner before returning to Bombay, as otherwise the order of externment would be rendered nugatory.

The learned Magistrate also observed in the course of his judgment that no allegations of mala ft.des had been made against the police officers who had initiated the p'roceedings against the petitioner.

The petitioner went up in appeal to the High Court of Bombay which by its judgment dated the 5th October 1955 upheld the conviction and the sentence.

The judgment of the High Court is Exhibit G to the petition. A Division Bench of the Bombay High Court repelled the contention on behalf of the appellant that the order of externment was invalid, relying chiefly upon the previous judgment of that very court upholding the constitutionality of the very order

impugned. Another matter referred to in the judgment 7956 of the High Court is rather significant. On behalf of Bhagubhai the appellant reliance had been placed upon a letter Dullabhabhai alleged to have been sent to the petitioner by the Bhandari Secretary to the Chief Minister granting permission v. to him to return to Bombay in order to see the Home Tl~• District Secretary. It was found on enquiry by the learned Mag:~~:!~.~:ana Government Pleader who intimated to the court that the alleged letter had not been signed by the Secretary Sinha J. to the Chief Minister and that no such letter had actually been sent to him. On that statement being made, the petitioner's counsel did not press his contention that his return was after permission. The petitioner moved this Court for special leave to appeal against the said judgment of the High Court in Petition No. 601of1955. One of the grounds in the petition was that the High Court should have held tha-t the externment order was illegal and that therefore the petitioner's entry was lawful.

A Constitution Bench of this Court by its order dated the 21st November 1955 dismissed the petition for special leave to appeal. This completes the statement of the case made on behalf of the petitioner.

In answer to this petition the first respondent has sworn to the affidavit filed in this Court. It is necessary to state in some detail the facts stated in this affidavit which furnish the background to the whole case against the petitioner. The petitioner is said to be a native of Balrampur, District Gonda, Uttar Pradesh. After passing his school examination in 1940, he joined the then Royal Indian Navy in 1942.

In tlie year 1946 while he was attached to S.S. Talwar in Bombay, he was "released from service". In 1947 he joined the B. B. & C. I. Railway as a clerk and was removed from his post in July 1947 for having made baseless allegations against his superior officer.

In 1949 he made an attempt to enter the police force of Greater Bombay, but that failed as he was found to be unreliable. Subsequently, in August 1950 he joined the State Transport Department as a clerk but had again to be removed from that post in April 1951.

Lat.er on, the petitioner obtained accommodation in

1956 Bombay on a false representation that he was a refugee from Pakistan. He was prosecuted and con Bhagubhai d d d fi f h Drillabhabhai victe an sentence to pay a ne o Rs. 30 or t ree Bhandari months' rigorous imprisonment in default. His appeal v. from that order of conviction and sentence to the The District High Court of Bombay was dismissed by a Division

Mag;:~·::;..~;•na Bench.in September 195~. On a similar false epre

sentation he had bbtamed from the Custodian of Sinha}.

Evacuee Property two shops in Bombay. Necessary proceedings bad to be taken against him for evicting him from those shops. After bis removal from Government jobs as aforesaid, the petitioner "came forward" as a social worker directing his activities mainly to "the redlight district" in certain quarters of Greater Bombay inhabited by over 10,000 public women. Along with his associates he started a norent campaign and resorted to violence with the help of so-called volunteers who were themselves bad characters, externees, drunkards and persons with previous convictions. With the help of associates like those he moved in the "redlight district" and realised money from his victims by threat and intimidation.

Thus by all questionable means the petitioner started extorting moneys by harassing the inmates of that district and those who frequented those quarters. The rest of the Jong affidavit running into 29 paragraphs is devoted to denying the allegations made by the petitioner that he had been a victim of police combination against him or that the procedure laid down by the law had not been followed or that the petitioner had not a fair and full opportunity of explaining his case to the authorities. The affidavit further asserts that witnesses who had given their statements to the police against the petitioner were not willing to come forward openly to depose against him and some of those witnesses who did turn up were prevailed upon by the petitioner to change their original statements made during the preliminary inquiries.

On those averments it was submitted by the lst respondent that the proceedings against him were regular and in accordance with the provisions of

the Act and that there was no merit in his cont956 tentions.

Bhagubhai These two petitions were heard along with Peti- Dullabhabhai tion No. 272 of 1955 which is being disposed of by a Bhandaro separate judgment. In that case the order impugned v. had been passed under section 57 of the Act. Sections The District 56 to 59 of the Act are closely connected. The com- Magistat;~ Thana mon arguments addressed to us by Shri Purshotham an _ 0_•rs challenging the validity of sections 56 to 59 have been Sinha}. dealt with in that judgmeQt and need not be repeated here. It is only necessary to deal with the provisions of the section impugned in these two cases, namely, section 56 of the Act, which is in these terms:-

'1Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounc; ls for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction by

1956 such route and within such time as the said officer may prescribe and not to enter or return to the said Bhagubhai Dullabhabhai area from which he was directed to remove himself".

Bhandari In order to attract the operation of the section

Th Dv: . quoted above with special reference to the portions

Magira:tr:;:an relevant to these cases, it is necessary (1) that the

and others a Commissioner, the District Magistrate or the Sub-

Divisional Magistrate specially empowered by the SinhaJ.

State Government in that behalf, as the case may be, should be satisfied that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or that there are reasona hie grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII, Indian Penal Code, or in the abetment of any such offence, and (2) that in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property. When the officer concerned is satisfied about these two essential matters, he may direct such person to remove himself outside the local limits of his jurisdiction and not to return to the said area for a period not exceeding two years as laid down in section 58.

But before passing such orders the person proceeded against under section 56 has to be given an opportunity of exP.laining matters against him by adducing such evidence as he may tender after he has been informed in writing as to the "general nature of the material allegations against .him".

Such a person is entitled to appear before the officer by an advocate or attorney for the purpose of tendering his explanation and evidence.

It has not been contended on behalf of the petitioners that they had not been given the opportunity contemplated by section 59. But grievance was sought to be made of the fact that particulars of the evidence against the petitioners and of their alleged activities have not been given to them. That argument has

been dealt with in the judgment in the other case. It 1956 is necessary therefore to deal only with the particular h .

Bhagubhai arguments advanced on behalf of eae petit10ner Dullabhabhai peculiar to his case.

Bhandari In Petition No. 439 of 1955, it was said that this v.

Court had laid down in the case of Gurbachan Singh The Dislrict

v. State of Bombay(1) as follows:- Magistrate, Th11n11 Th l . . l d' d and others " e aw is certam y an extraor mary one an has been made only to meet those exceptional cases Sinha J, where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein".

The words "no witnesses" have been emphasized as supporting the argument that unless all the witnesses before the police are unwilling to give evidence in open court the provisions of section 56 cannot be taken.recourse to.

In our opinion, it is reading too much into the observations of this Court quoted above, made by Mukherjea, J. (as he then was). The learned Judge did not mean to lay down, and we do not understand him as having laid down, that unless each and every witness is unwilling to give evidence in open court, the provisions of section 56 are Lot available to the police. The words of section 56 quoted above do not lend themselves to that extreme contention.

If such an extreme interpretation were to be put on that part of section 56, it is not difficult to imagine a situation where it will become almost impossible to apply that section to any case.

It was next contended on behalf of the petitioner in this case that the section contemplates witnesses other than members of the police force and employees and officers of the Customs Department.

It is said that it is the duty of the police force as of the employees of the Customs Department to brave all danger and to come out in the open even against desperate criminals to give evidence against them in court and to subject themselves to cross-examination.

That is a counsel of perfection which every member

(1) [1952] S.C.R. 737. 71

1956 of the police force or every employee of the Customs Department may not be able to act up to.

Further- Bhagubhai h f h f h . Dullabhabhai more, t e terms o t e section d9 not justi y any sue Bhandari restricted meaningbeing given to the word "witness". v.

Hence, in our opinion, there is no justification for the The District contention that members of the police force and.em- Magistratt, Thana ployees and officers of the Customs Department must

andothers ) • th d "d t

Sinha J. a ways come m e open an give ev1 ence agams criminals or potential criminals. If the officer concerned is satisfied that witnesses of whatever description they may be, are not willing to come out in the open, one of the essential conditions of the application of section 56 is fulfilled and it is no more necessary for them to stop to consider as to which class of persons those witnesses may come from.

In Petition No. 440 of 1955 the learned counsel for the petitioner had a more uphill task in view of the fact that this very order impugned had been examined in the criminal prosecution against the petitioner by the Presidency Magistrate and by the High Court on appeal and the petition for special leave to appeal to this Court had been refused.

But it was argued on behalf of the petitioner that section 56 itself was invalid as contravening the provisions of article 19 of the Constitution-an argument which has already been dealt with by this Court in Gurbachan Singh v. State of Bombay(') referred to above. In that case, Mukherjea, J. (as he then was) delivered the judgment of the court after examining the constitutionality of section 27(1) of the City of Bombay Police Act, (Bombay Act IV of 1902). The operative words of that section are almost exactly the same as those of section 56 of the Act.

It is not therefore necessary to re-examine the constitutionality of those very provisions in this case.

It is enough to point out that no attempt was made in this Court to shake the authority of that decision.

Shri Dadachanji, who appeared on behalf of the petitioner in this case faintly suggested that the petitioner bad been proceeded against under the penal sec-

(1) [1952] S.C.R. 737.

""'"

tion of the Act notwithstanding the fact that he had 1956 entered Greater Bombay in order to look after the Bhagubhat case pending against him in which a warrant of arrest Dullabhablrai had been issued.

But that is a closed chapter so Bhandari far as the courts including this Court also are conv. cerned inasmuch as his conviction stands confirmed The District h f l f h• C t h' Magistrate Thana as a result of t e re usa o t is ?urt to gran Im and others special leave to appeal from the Judgment of the Bombay High Court. He further contended that Sinha}. his conviction for . his having entered Gre.ater Bombay itself is an indication of the unreasonableness of the restriction and of the law under which the order of externment had been passed against him. But if the petitioner had only taken the course indicated by the law, namely, of obtaining the previous permission of the prescribed authority, he could have avoided the prosecution and the conviction. It must therefore be held that there is no merit in this contention also.

For the reasons aforesaid it mu"st be held that section 56 of the Act is not unconstitutional and that the orders passed against the petitioners are not invalid. These applications must stand dismissed.

JAGANNADHADAS J.-ln view of the decision of this Court in Gurb<ichan Sngh v. The State of Bombay(1), I agree that these petitions should be dismissed.

But I think it right to add that if the matter were res integra I should have felt difficulty in upholding the validity of section 56(b) of the Born bay Police Act, 1951 (Bombay Act XXII of 1951) in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters, serious either because of the nature of the offence contemplated or the circumstances under which it is to be committed and so forth. I should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to• extern a person for so long a

(1) [1962] 8.C.R. 787.

1956 period as two years. It has been said that there is a

Bhagubhal power of cancellation at any time vested in the officer Dullabhabhai co.ncerned. Even so, I should have thought that the Bha,.dari vesting of a power to extern a person out of his home v. for so long a period without the obligation to review T.h• Dislrict the order at some stated periodical intervals, say Magislrale, Thana once in three months or six months, is prima facie antl others unreasonable. Externment might appear on the sur- Jagannadhadas J. face not to be as serious an interference with personal liberty as detention. But in actual practice it may be productive of more serious injury to the person concerned-or the rest of his family if he is the earning member. An externed person is virtually thrown on the streets of another place where he has got to seek his livelihood afresh. He has to start in a new society with the black-mark of externment against him and may be driven thereby to more criminality.

On the other band, in the case of a person under detention, the State normally takes or is bound to take care of him, and in appropriate cases provides also for his family.

In view, however, of the previous decision of this Court which is binding on me, I am prepared to accept the validity of section 56 of the Bombay Police Act, 1951, and of the orders of externment passed thereunder in these two cases.

Petition dismissed.

533

BHAGUBHAI. DULLABHABHAI BHANDARI

THE DISTRlCT MAGISTRATE, TRANA

& OTHERS

S. R~ DAS

JAGANNADHADAS

B. P. SINHA

JAFER IMAM JJ.

Bombay Police Act, 1951

Bombay Act XXII of 1951

s. 56

Art. 19

Section 56

Bombay Police Act, 1951

Art. 19

s. 56

Bombay Police Act, 1951

s. 56(b)

Bombay Police Act, 1951

Article 32

Constitution of India

H.J. Umrigar

R. A. Govind

J. B. Dadachanji

M. G. Setalvad

B. Sen

R. H. Dhebar

S. R. Das

Venkatarama Ayyar

B. P. Sinha

Jafer Imam

Sinha J. Jagannadhadas

SINHA

article 32

Police Act

section 56

Babubhai Dullabhbhai Bhandari

State of Bombay

Bhilad

21st January 1955

section 56

Dullabhabhai

Bhilad District Thana

section 56

Bombay Police Act, 1951

Central Excise and Custom Officers

Bhagubhal

SinhaJ.

C. V. Bapat

section 59

Bombay Police Act, 1951

Dahanu

11th July 1955

District Magistrate of Thana

Bhagubhai

Dullabhabhai District Magistrate of Thana

Bhandari

Daman

9th September

1955

High Court of Judicature at Bombay

article 226

7th November 1955

Bhandari

Bhilad

Kun war Rameshwar Singh

W. K. Patil

Commissioner of Police, Greater Bombay

The Commissioner of Police, Greater Bombay, and 3.

India

2nd November, 1954

section 56

section 59

4th January, 1955

Section 56

Bombay Police Act, 1951

District Magistrate

13th August, 1954 and 11th December 1954

section 10

Act, 1951

Bombay Act XXII of 1951

Kunwar Rameshwar Singh

Makbool Sk. Hussain

Abdul Rahiman

Suleman alias Sapad

Ahmad Yusuf alias Ahmed Dalal

Shafi

Sinha

Kun war Ramesh war Singh

Kamathipura

section 56

W. K.

Patil

Rameshwar Singh

W. K. Patil

State of Bombay

17th January 1955

article 226

Bombay High Court

Bombay High

Court

Greater Bom- Magistrate, Than• bay

section 142

8th September 1955

High Court of Bombay

5th October 1955

Dullabhabhai

21st November 1955

Balrampur

Gonda

Uttar Pradesh

S.S. Talwar

B. B. & C. I. Railway

District High Court of Bombay

Bhandaro

section 57

Purshotham

The com- Magistat;~ Thana mon arguments addressed to us by Shri Purshotham an  0•rs challenging the validity of sections 56 to 59 have been Sinha}.

sections 56 to 59

section 56

section 7

XVI or XVII of the Indian Penal Code

Indian Penal Code

section 58

section 56

section 59

Bhandari

section 56

Mukherjea

section 56

section 56

section 56

section 56

section 56

article 19

section 27(1)

Police Act

Bombay Act IV of 1902

section 56

Dadachanji

Dullabhablrai

Sinha

section 56

section 56(b)

Born bay Police Act, 1951

Bombay Act XXII of 1951

Jagannadhadas

section 56

Bombay Police Act, 1951


S.C.R.

SUPREME COURT REPORTS

MADAN GOPAL BAGLA v.

THE COMMISSIONER OF INCOME-TAX,

WEST BENGAL.

[S. R. DAS C.J., BHAGWATI and

VENKATARAMA AYYAR JJ.]

Income-tax-Allowable deduction-Timber business-Surety to third party-Bacl debt-Capital loss or business loss-Indian In

come-tax Act, 1922 (XI of 1922), s. 10 (2)(xi).

The appellant who was a.-timber merchant obtained a loan from the Bank of India on the ]oint security of himself and a third party, M. On the same day M obtained a loan from the Imperial Bank of India on the joint security of himself and the appellant.

M failed in his business and the Imperial Bank of India realised the amount of the loan from the appellant who after getting some divi dends from the receivers, wrote off the ha.lance as bad debt in the assessment year in question and claimed it as an allowable deduc tion under s. 10 of the Indian Income-tax Act, 1922 o~ the footing that it was in the course of securing finances for the business of timber that he stood surety with M and that it was the usual custom to secure loans on the joint security from Banks by persons carry ing on business. It was not established that the appellant was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit.

Held, that the debt in question could not be considered a debt in respect of the business of the assessee who was not a person carrying on a business of standing surety for other persons and that, in any event, the loss suffered by reason of having to pay a debt borrowed for the benefit of another would be a capital loss and not a business loss and was not an allowable deduction under s. 10(2)

(xi) of the Indian Income-tax Act.

Oommi3sioner of Income-tax, Madras v. S. A. S. Rama.swamy Ohettiar ([1946) 14 I.T.R. 236), distinguished.

Commissioner of Income-tax, Madras v. S. R. Subramanya Pillai ([1950) 18 I.T.R. 85), approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6of1954.

Appeal from the judgment and order dat.ed the 8th day of June 1951 of Calcutta High Court in Income-tax Reference No. 1 of 1951.

R. J. Kolah and P. K. Ghosh, for the appellant.

Maya

G. N.Joshi, Porus A. Mehta and R.H. Dhebar, for the respondent.

1956. May 8. The Judgment of the Court was Th• Commissiontr delivered by

Madan Gopal

Bagla

01 Income-tax, BHAGWATI J:-This is an appeal with certificate We!t Bengal under section 66-A(2) of the Indian Income-tax Act, 1922 from the judgment and order passed by the High Court of Judicature at Calcutta on a reference under section 66(1) of the Act, whereby the High Court answered the referred question in the negative.

The appellant is a timber merchant. On 5th February 1930 he obtained a loan of Rs. l lakh from the Bank of India on the joint security of himself and one Mamraj Rambhagat. Oil the same day Mamraj Rambhagat obtained a loan of Rs. l lakh from the Imperial Bank of India, Bombay on the joint security of himself and the appellant. The appellant paid off his loan of Rs. 1 lakh to the Bank of India but Mamraj Rambhagat failed to make good the amount of his loan to the Imperial Bank of India, Bombay. This sum of Rs. 1 lakh was realised by the Imperial Bank of India from the appellant with interest thereon of Rs. 626 on 24th March 1930.

Mamraj Rambhagat failed in his business and his estate went into the hands of the receivers on 25th April 1930. The appellant opened a ledger account in the name ofMamraj Rambhagat and the total amount of Rs. 1,00,626, was debited to this account. The appellant received the dividends from the receivers: Rs. 31,446 on 30th October 1930, Rs. 9,434 on 25th April 1934 and Rs. 4,716 on 17th May 1938, aggregating to Rs. 45,596, leaving a balance of Rs. 55,030 unpaid, which sum he wrote off as bad debt in the assessment year 1941-42 (the account year being 1997 Ramnavmi) and claimed as an allowable deduction under section 10 of the Act.

The Income-tax Officer disallowed the claim holding that the said loss was a capital loss, and so did the Appellate Assistant Commissioner. It was argued on behalf of the appellant before the Appellate Assistant Commissioner that it was the usual custom in 1956 Bombay to secure loans on joint security from Banks h Madan Goj>al by persons carrying on business. It was stated t at Bagla this manner of securing loans on joint security was v. preferred by the Banks and it was also in the interest Tlie Commissioner of the traders as lower rate of interest was charged, of Incomc-ta_x, if the loan was on joint security. It was also stated West Bengal that the appellant used to borrow money on joint BliagwatiJ. security frequently and certain old pro-notes jointly executed were submitted before the Appellate Assistant Commissioner. Reference was made to the case of Commissioner of Income-tax, Madras v. 8. A. 8.

Ramaswamy Ohettiar(1), where it was held that it was a custom amongst Nattukottai Chettiars to stand surety for one another for borrowing from Banks for the purpose of lending out at higher rates of interest and that the loss incurred under the agreement of guarantee by the Chettiar firm should be allowed as a ded11ction. The Appellate Assistant Commiesioner, however, distinguished the case on facts and held that even though the appellant stood surety for Mamraj Rambhagat in course of securing finance for his business of timber, it was the loss of a sum borrowed by another, the sum borrowed was capital in its nature and the loss suffered by the appellant on account of Mamraj Rambhagat's failure to pay was

a capital loss.

On appeal taken by the appellant before the Income Tax Appellate Tribunal, the Tribunal was of the opinion that the Appellate Assistant Commissioner had not expressed any opinion in his order as

to whether there was such custom or not nor had he asked the appellant to establish the custom. The Tribunal in these circumstances held that the custom was accepted by the Department. The Tribunal did not see any distinction between the money lending business and timber business which were both financed by this type of borrowing and differing from the Appellate Assistant Commissioner followed the decision in Commissioner of Income-tax, Madt'as v.

S. A. 8. Ramaswamy Ghettiar (supra) and came to

(1) [1946] 14 I.T.R. 236.

MadanGojJal

Bagla

The Com1nissioner

of Income-tar,

West Bengal

Bhagwati1 /,

the conclusion that the loss suffered by standing surety was an allowable loss and upheld the contention of the appellant. At the instance of the respondent the Tribunal stated a case to the High Court under section 66(1) of .the Act and referred the following question for its decision:-

" Whether on the facts found the sum of Rs. 55,030 is allowable as a bad debt under the provisions of section 10(2) (xi) of the Indian Income-tax Act".

The said reference was heard by the High Court and in its judgment the High Court held that the. Tribunal had proceeded on an erI"oneous assumption as to the facts of the case and the application of the money.

Since no part of the loan, which had been taken from the Imperial Bank of India by Mamraj Rambhagat on the joint security of himself and the appellant, was applied to the appellant's .own business, there was no question of au allowable deduction in relation to the business of the appellant. The High Court held that the Tribunal was in error(lven in law inasmuch as under section 10(2) (xi) it is only a trading or business debt of the trade or business of the appellant, which could be claimed as a loss and as the debt claimed was not in respect of the business of the appellant, which was the business of trading in timber and not of a person carrying on the business of standing surety for other persons, the loss suffered by the appellant was a capital loss and not a business loss at all. Regarding the decision relied upon by the Tribunal, the High Court referred to a later decision in Commissioner of Income-tax, Madras v. S. R. Subramanya Pillai('), which held that the earlier decision must be read as confined to its peculiar facts and not applicable to business other than money lending business ofNattukottai Chettiars. The High Court, therefore, answered the referred question in the negative.

Hence this appeal.

The sole question for our determination in this appeal is whether the loss of Rs. 55,030 suffered by the appellant in this transaction was a capital loss or

(1) [1050] 18 I.TR. 85.

was a trading loss or a bad debt incurred by the ap-

- 1956 pellant in the course of carrying on his business of timber. It is clear that no part of the monies bor- Ma"; a"gopal rowed on the joint security of the appellant and Mamv. raj Rambhagat from the lmt>erial Bank of India, The Commissioner Bombay went to finance the timber business of the apof Income-tax, pellant, but they were all utilised by Mamraj Ram- West Bengal bhagat in his own business. These monies were not Bhagwati J. required to finance the timber business of the appellant, nor was the debt due by Mamraj Rambhagat and in respect of which the account was opened by the appellant in his ledger in the name of Mamraj Rambhagat a debt due by Mamraj Rambhagat to the timber business of the appellant. If any monies had been borrowed by the appellant in his timber business, they would certainly have been his capital and whatever loss he incurred therein would have been his capital loss. The manner in which these monies were sought to be connected with the timber business and treated as a trading loss or bad debt of the timBer

business was by showing that it was the custom amongst the persons carrying business in Bombay to borrow monies from Banks on joint security and if A wanted monies for financing his business, he could do so by asking B to join him as surety, but he could not ask B to join him as such unless he stood surety for B in the loans, which B borrowed in his turn from the Bank. A's joining B as surety was thus a consideration for B's joining A as surety in his transaction with the Bank and, therefore, although no part of the monies borrowed by B came into the business of A, A joined B as surety for the purpose of financing his own business, which he could not do without B joining him as surety in the loan which he himself obtained from the Bank for the purpose of financing his own business. The transaction of A's joining B as surety in the matter of B's procuring a loan for the financing of his business was thus an essential operation of the financing of A's business and was, therefore, an incident of A's business and any loss incurred by A in the transaction could thus be treated as a trading loss in the course of carrying on of A's

1956 business. The loss incurred by the appellant in the

Madan GoJ>al transaction. of his joining Mamraj Rambhagat as Bagla surety in the loan which Mamraj Rambhagat procured v. from the Imperial Bank of India could, it was urged, Th• Commi&Sioner thus be treated as a trading loss or bad debt of the of Incometax, appellant's timber business.

West Bengal It is necessary, therefore, to see what is the exact

B/JagwatiJ. nature and scope of the custom said to have been accepted by tl•J Department. The custom stated before the Appellate Assistant Commissioner was that persons carrying on business in Bombay used to borrow monies on joint security from the Banks in order to facilitate getting financial assistance from the'Banks and that too at lower rates of interest. A businessman could procure financial assistance from the Banks on his own, but he would in that case have to pay a higher rate of interest. He would have to pay a lower rate of interest if he could procure as surety another businessman, who would be approved by the Bank. This, however, did not mean that mutual accommodation by businessmen was necessarily an ingredient part of that custom. A could procure B, C or D to join him as surety in order to achieve this objective, but it did not necessarily follow that if A wanted to procure B, C or D to thus join him as surety, he could only do so if he in his own turn joined B, C or D as surety in the loans, which B, C or D procured in their turns from the Banks for financing their respective businesses. Unless that factor was established, the mere procurement by A of B, C or D as surety would not be sufficient to establish the custom sought to be relied upon by the appellant so as to make the transaction of his having joined Mam raj Rambhagat as surety in the loan procured by Mamraj Rambhagat from Imperial Bank of India, a transaction in the course of carrying on his own timber business and to make the loss in the transaction a trading loss or a bad debt of the timber business of the appellant. The old pronotes jointly executed by the appellant and others, which were submitted before the Appellate Assistant Commissioner did rrot carry the case of the appellant far enough and stopped

short of proving the custom alleged by the appellant in its entirety. The transaction in question could not, therefore, be deemed to be one entered into by the appellant in the course of or in car, rying on his timber business.

Procuring finances for his timber business would no doubt be an essential operation in the course of his carrying on his business, but the same thing could not be predicated of this transaction of his joining Mamraj Rambhagat as surety for procuring Rs. l lakh from the Imperial Bank of India, which was wholly to finance Mamraj Rambhagat's business and not the timber business of the appellant.

Learned counsel for the appellant laid particular emphasis on the finding by the Appellate Assistant Commissioner that "it was in the course of securing finance for the business of timber that he stood surety with Mamraj Rambhagat". This finding merely records the statement of fact, but does not go so far as to establish the custom sought to be relied upon by the appellant. The old pronotes submitted by the appellant before the Appellate Assistant Commissioner merely related to his own transactions, where he had been joined by others as surety and did not establish that the others had been similarly accommodated by him in the matters of loans which they had in theit' turn procured from the Banks. The solitary instance of the appellant's having joined Mamraj Rambliagat in the transaction in question could not be sufficient to establish the custom sought to be relied upon by him and we do not see any reason to enlarge the scope of the so-called custom beyond what is warranted by the facts as set out in the order passed by the Appellate Assistant Commissioner.

The custom among the Nattukottai Chettiars held proved in Commissioner of Income-tax, Madras v. S.

A. S. Ramaswamy Ohettiar (supra) was that they stood surety for one another, when they borrowed from Banks for the purpose of lending out at higher rates of interest. It was, moreover, an essential element in the carrying on of a money lender's business that

Madan<Sopal

Bag/a v.

The Commissioner

of Income-tax,

West Bengal

Bhagu•ati J.

558 SUPREME COURT REPfiRTS [1956]

19s6 money,•which was thus lent out should be procured and that could not be done unless it was borrowed Ma";;,?; Pal on the joint security of Nattukottai Chettiars, who v. stood surety for one another. Unless that type of Th• Commissioner suretyship was resorted to, a Nattukottai Chettiar by of Income-tax, himself could never procure any monies which he

Wesl Bengal could invest in his money lending business. The BhagwatiJ. following passage from the judgment at page .238 is very apposite:-

"lt is their custom to borrow from banks for the purpose of lending out the sums so obtained at higher rates of interest. The banks require such overdrafts to be guaranteed by other Chettiars. The Chettiars stand surety for one another in these borrowings. If a Chettiar refused to accommodate another moneylender in this way, he would not be able to obtain a guarantor for his own essential borrowings.

The assessee in this case borrowed money on the guarantee of others and in turn stood surety for other Chettiars".

There were thus elements of mutuality and the essential ingredient in the carrying on of the money lending business, which were elements of the custom proved in that case, both of which are wanting in the present case before us.

It is significant to note that this case was distinguished by the learned Judges of the Madras High Court in Commissioner of Income-tax, Madras v. S.

R. Subramanya Pillai (supra), where it was held that that decision must be confined to its own peculiar facts and does not apply to businesses other than Nattukottai Chetty money lending business. In that case the assessee was a bookseller, who borrowed from time to time jointly with one L a sum of Rs. 16,200 out of which the assessee took a sum of Rs. 10,450 for his business needs and L took the balance. The joint borrowing was necessitated by the business needs of both the borrowers and by the insistence of money lenders, who required the joint security of the two persons. L failed in his business and the assessee had to repay the creditors the whole of the joint borrowing.

The assessee had also to

1956 spend a sum of Rs. 658 in an unsuccessful attempt to recover the amount due from L. The assessee claimed to deduct the sum of Rs. 658 and also the sum of Madan Gaf>al Bag/a Rs. 5,049, which be had to pay the creditors on acv. count of L's share of the joint loan, in the computa- The Commissiatter tion of his business profits. It was held that the asof Income-tax, sessee was not entitled to deduct these sums in the West Bengal computation of his business profit either under sec- Bl!agwatiJ. tion 10(2) (xi) or section 10(2)(xv) or as business loss.

This case furnishes the proper analogy to the present case and points to the right conclusion in regard to the claim of the appellant.

The following passage from the judgment of the learned C. J. under appeal correctly sums up, in our opinion, the whole position:-

"The debt must therefore be one which can properly be called a trading debt and a debt of the trade, the profits of which are being computed. Judged by that test, it is difficult to see how the debt in the present case can be said to be a debt in respect of the business of the assessee. The assessee is not a person carrying on a business of standing surety for other persons. Nor is he a money-lender.

He is simply a timber-merchant.

There seems to have been some evidence before tpe Appellate Assistant Commissioner that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person.

But it is not established, nor does it seem to have been alleged, that he in his turn was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit. Even if such had been the case, any loss suffered by reason of having to pay a debt borrowed for the benefit of another, would have been a capital loss to him and not a business loss at all.

The result, therefore, is that the appeal fails and must stand dismissed with costs.

Appeal dismissed.

MADAN GOPAL BAGLA

S. R. DAS C.J.

BHAGWATI

come-tax Act, 1922

s. 10

Imperial Bank of India

s. 10

Indian Income-tax Act, 1922

s. 10(2)

Income-tax Act

R. J. Kolah

P. K. Ghosh

Maya

G. N.Joshi

Porus A. Mehta

R.H. Dhebar

Madan Gopal

section 66

Indian Income-tax Act, 1922

High Court of Judicature at Calcutta

section 66(1)

5th February 1930

Bank of India

Mamraj Rambhagat

Imperial Bank of India, Bombay

24th March 1930

25th April 1930

ofMamraj Rambhagat

30th October 1930

25th April 1934

17th May 1938

section 10

Bagla

West Bengal

Ramaswamy Ohettiar(1

Income Tax Appellate Tribunal

section 66(1)

section 10(2)

Income-tax Act

section 10(2)

ofNattukottai Chettiars

Mamv. raj Rambhagat

Bombay

Mamraj Ram- West Bengal

Bhagwati

s

1956

Madan GoJ

Imperial Bank of India

Mam raj Rambhagat

Mamraj Rambliagat

Nattukottai Chettiars

Madan

Sopal

Madras High Court

Nattukottai Chetty

section 10(2)(xv)


May8

SUPREME COURT REPORTS [1956]

M/s. MODI FOOD PRODUCTS CO. LIMITED

SHRI FAQIR CHAND SHARMA & OTHERS.

[JAGANNADHADAS, VENKATARAMA AYYAR and

B. P. SINHA JJ.]

Indu.trial Di•putea (Appellate Tribunal} Act, 1950, No.

XL VIII of 1950-Ss. 28 a.nd 22(a)-Lay off during pendency of prior diwute-Application 11nder s. 28 alleging breach of s. 22(a)- Tribimal finding lay off justified-Application should be di•mi8Sed- Quantum of compensation pa11ablc-Whcn proviso (b) to s. 25·0, In dustrial Dispute• Act applicable.

During the pendency of an appeal before the Labour Appellate Tribunal in respect of a prior. industrial dispute between the same parties the management laid off certain workmen and offered to pay compensation equal to half the basic wages and dea.rness allowance for the first 45 days in accordance with the provisions of proviso (a) to s. 25-0, Industrial Disputes Act. The workmen made an application to the Tribunal under s.23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 alleging that there was a breach of e. 22(a) of the same Act, and that the lay off was not bona fid• and claimed full wages for the entire period of the lay off as compensation. The Tribunal held that the lay off was justified but that the workmen were entitled to half the basic wages and dearness allowance not merely for the first 45 days but for the entire period under proviso

(b) to s. 25·0.

Held, that on the finding of the Tribunal that the lay off was justified the application under e. 23 was liable to be dismissed.

Proviso (b) to s. 25-C, Industrial Disputes 4ct, is only appli cable in case of a second and distinct Jay off and does not apply tc a period subsequent to the first 46 days of one continuous lay off.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 353of1955.

On appeal by special leave from the judgment and order dated the 22nd August 1955 of the Labour Appellate Tribunal of India at Lucknow in Misc.

Case No. lll-C-650of1954.

Veda Vyas, (8. K. Kapur and N. H. Hingorani, with him) for the appellant. - J. N. Bannerji, (P. C. Agarwalla, with him) for the respondent.

...

1956 1956.

May 8.

The Judgment of the Court was delivered by .

M /s. Modi Food VENKATARAMA AYYAR J.-The appellant is a com- Products Co.

A Limited pany registered under the Indian Companies ct, v. and owns a factory called Modi Oil Mills in the dis- Shri Faqir Chan, l trict of Meeru t. The responeen ts are workmen em- Sharma and others ployed in the Mills. The business of the Mills consi'sts in the manufacture of o, ils and paints. On 12-7-1954 the management put up the following notice:

"Notice is hereby given that due to non-availability of groundnut seed and neem seed at the parity with the ruling prices of the groundnut oil and neem oil, the Management is reluctantly compelled to close the Groundnut Crushing Section and Neem Section till the next groundnut season and thus the workers in the attached list are surplus and their services are laid off with effect from 14th July, 1954.

Workers, thus affected, shall be paid compensation according to Industrial Dispute~ (Amendment) Act, 1953, subject to conditions laid therein. It is further notified that the time of the attendance as provided in Section 25(D) and (E) shall be 10 a.m. for all the laid off workers".

Pursuant to this notice, 142 workmen mentioned therein, being the respondents in this appeal, were laid off from the 14th July 1954. On 26-7-1954 the workmen acting through their Union sent a notice to the management demanding full wages for the period of lay off on the ground that it was unjustified and illegal. The management denied these allegations, and refused the demand. This being an industrial dispute as defined in section 2(k) of the Industrial Disputes Act XIV.of 1947, in the ordinary course, proceedings would have been taken with reference thereto under the provisions of that Act. But there was at that time another industrial dispute between the parties pending final adjudication. That dispute had been referred under section 10 of the Industrial Disputes Act for adjudication to the Regional Conciliation Officer, Meerut. He had pronounced his award, and against that, both the parties

1955 had preferred appeals to the Labour Appellate Tri-

M/s. Modi Food bunal, and they were pending at the date of the Products co. notice. The Industrial Disputes (Appellate Tribunal) Limited Act XL VIII of 1950, hereinafter referred to as the v.

Act, contains special provisions with reference to Sliri Faqir Chand certain disputes which might arise between parties, Sharma and others when there is already pending adjudication between

Venkataraina them another industrial dispute. They are sections Ayyar J. 22 and 23, which are as follows:

"22. During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act no employer shall-

(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or

(b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal. 23.

Where an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly".

on 24-8-1954 the respondents filed an application before the Labour Appellate Tribunal under section 23 of the Act. Therem, they alleged that the Jay off was not bona fide, because the ground given therefor, namely, non-availability of groundnut and neem seeds at parity with ruling prices was not true; that further in view of the pendency before the Labour Appellate Tribunal of an industrial dispute between the parties, the lay-off was in contravention of section 22(a) of the Act, and they accordingly prayed

->-

that they might be awarded by way of compensation 1956 full wages for the entire period of the lay off.

The M/s. Modi Food appellant contested the claim. It contended that the Products Co. non-availability of groundnut and neem seeds as Limited mentioned in the notice was true, and that the lay v. off was bona fide. It also claimed that section 22( a) Shri Faqir Chand'' of the Act had no application to the dispute, as the Sharma and others notice distinctly stated that the workmen would be Ven;;:;; rama paid compensation as provided in section 25-C of the AyyarJ.

Industrial Disputes Act as amended by Act XLIII of 1953. It also contended that under that section compensation was payable only for the first 45 days at the rate mentioned in the body of the section and not for any period subsequent thereto. The Tribunal held that the lay off was justified. It further held on a construction of section 25-C that the workmen were entitled to half the basic wages and dearness allowance not merely for the first 45 days but for the entire period, and that as the appellant did "not

observe the provisions of that section", there was an alteration of the conditions of service within section 22(a) of the Act. It accordingly awarded compensation for the whole of the period at 50 per cent. of the basic wages and darness allowance. Against this decision, the management has preferred this appeal by special leave.

On behalf of the appellant, Sri Veda Vyas contended firstly, that on its finding that the lay off was justified, the only order which the Tribunal could have passed was one of dismissal of the petition filed by the respondents, and that"the award of compensation was, in consequence, without jurisdiction; and secondly, that on a true construction of section 25-C

of the Industrial Disputes Act, the workmen were entitled to compensation only for a period of 45 days as provided in proviso (a) to section 25-C. We are of opinion that both these contentions axe well-founded.

On the first question, the jurisdiction of the Tribunal to grant relief under sectin 23 of the Act arises only if it is made out that there was contravention of section 22 by the management. The respondents understood this position quite correctly, and with

1956 a view to bring themselves within section 23, they -- alleged that the lay off was not bona fide, inasmuch as, Ml s. Modi Food

Products Co. in fact, groundnut and neem seeds were available. This Limited contention rests on the supposition that the condiv. tions under which wotkmen could be laid off are con- Shri Faqir Chand ditions as to their service, and• that when the em-

Sharma and others ployer lays off workmen without proper grounds

y,,,;;;;;, mt> therefor, it is a violation of the conditions of service Ayy:r J. within section 22( a) of the Act.

There was some argument before us whether lay off, whether justifiable or otherwise, could be brought within section 22(a) of the Act as amounting to breach of the conditions of service. On the one hand, the argument was that the expression "conditions of service" would include only such conditions as would operate when the workmen were actually in service, such as the quantum of wages, hours of work, provision for leave and so forth, and that when there was a lay off, these conditions could by their very nature have no application, and that if the lay off was unjustified, that would give the workmen a right to take proceedings under the provisions. of the Industrial Disputes Act, but that they could make no claim under section 23 as for a breach of the provisions of section 22(a). The contention, on the other side, was that the workmen and the management should be deemed to have agreed that there would be lay off only for good and proper reasons and under .conditions permitted by law, and that if those conditions were not satisfied, the lay off would be an alteration of the conditions of service within section 22(a). The question is one of some importance, but it is unnecessary to express any opinion on it, as counsel for the appellant conceded after some argument that conditions under which the workmen could be laid off would be conditions of service. On this footing, he contended that as the lay off was, in fact, justified, there was no breach of those conditions, and that, in consequence, section 22(a) of the Act had no application. On behalf of the respondents, it is argued that the lay off must, by its very nature, be temporary and of short duration, and that if it is for

a long or indefinite period as in the present case, it could not be said to be a proper lay off such as could

Mfs. Modi Food be deemed to have been agreed to by the workmen, Products co. and that section 22(a) of the Act would, there.fore, be Limited applicable. v.

It is common ground that there are no statutory Shri Faqir Cliand rules prescribing the conditions under which tere Sharma and others could be a lay off. If there had been, they w.ould ope- Venkatarama rate as conditions of service between the parties, and Ayyar J. then the question would simply have been whether there had been a compliance with them. Under the provisions of the Industrial Employment (Standing Orders) Act XX of 1946, certain Standing Orders had been framed with reference to this matter. Counsel on both sides state that after the enactment of the Industrial Disputes (Amendment) Act XLIIIofl953, they are no longer in force, and that there are no statutory provisions applicable to the present d.ispute. We must, therefore, decide the question on the footing that the only condition which the parties might be taken to have agreed to is that the lay off should be for adequate grounds and for a reasonable period. On this question, there is a clear finding in favour of the appellant. The Tribunal has found that groundnut and neem seeds were not available at parity prices,.and that for that reason, the work had to be stopped. It is not likely thap businessmen would cut their profits to spite the workmen. The period of the lay off was expressed to be until the next groundnut season, and we have been told that the season for groundnut begins sometime in November- December. In fact, all the respondents have been reemployed in relays from September onwards, and by the first week of December all of them had been absorbed. On the finding of the Tribunal that the. lay off was justified, it follows that the application of the respondents under section 23 of the Act was liable to be dismissed on the ground that there had been no contravention of section 22(a).

But, notwithstanding this finding, the Tribunal went on to hold that the application under section 23 of the Act was maintainable.

To appreciate the

1956 reasoning behind this decision, it is necessary to refer to section 25-C of the Industrial Disputes Act, ~Ifs. Modi Food

Products co. which runs as follows: Limited "Right of workmen laid-off for compensation: v.

Whenever a workman (other than a badli workman Shri Faqir CJoand or a casual workman) whose name is borne on the Sliarmaandothers muster rolls of an industrial establishment and who

Venkatarama has completed not less than one year of continuous A:; yar J. service under an employer is laid-off, he shall be paid by the employer for all days during which he is so laid off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent. of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid off: Provided that- ( a) the compensation payable to a workman during any period of twelve months shall not be for more than forty-five days except in the case specified in clause (b);

(b) if during any period of twelve months, a workman has been paid compensation for forty-five days and during the same period of twelve months he is again laid off for further continuous periods of more than one week at a time, he shall, unless there is any agreement to the contrary between him and the employer, be paid for all the days during such subsequent periods of lay-off compensation at the rate specified in this section".

The appellant does not dispute the right of the respondents to compensation, and, in fact, they were informed by the very notice dated 12-7-1954 under which they were laid off, that compensation would be paid to them in accordance with section 25-C. It is as regards the quantum of compensation payable nnder that section that the parties are disagreed. It will be remembered that the lay off commenced on 14-7-1954 and was to continue until the next groundnut season, and that the workers were actually absorbed in batches from September,.and that by the first week of December, they had all of them been employed. There was thus one continuous lay off

for periods varying from 57 to 121 days. The conteng_s tion of the appellant is that, on these facts, the work- M/s. Modi Food men were entitled to compensation only in accordance Products co. with proviso (a) to section 25-C, and that they would Limited therefore be entitled to 50 per cent. of the basic v. wages and dearness allowance for the first 45 days Shri Faqir Chand and for the rest of the period, no compensation was Sharma and_ others payable. The re&pondents agree that proviso (a) to .venk;;;;.ama section 25-C applies to the first period of 45 days; but Ayyar 1. they contend that for the remaining period of the lay off, the governing provision is proviso (b) to section 25-C, and that under that proviso, they would be entitled to compensation as provided in the body of the section, i.e. 50 per cent. of the basic wages and dearness allowance, for the remaining period also. This contention was accepted by the Tribunal, and holding that the compensation awarded by the appellant was not in accordance with section 25-C, it decided, as already mentioned, that there was an alteration of the conditions of service, and accordingly awarded compensation under section 23 of the Act.

It is contended for the appellant that the construction which the Tribunal has put on section 25-C is erroneous, and that the amount of compensation offered by the appellant was the correct amount payable under that section. As already stated, there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to section 25-C. The dispute is only as to whether for the rest of the period of lay off the workmen are entitled to compensationunder proviso (b) to section 25-C. That proviso would apply only if the workmen had been paid compensation for 45 days, and were again laid off for further periods of more than one week at a time. On the wording of the section, it is clear that the lay off whjch falls within proviso (b) to section 25-C must be distinct from that for which compensation had been paid in accordance with proviso (a) to section 25-C and subsequent thereto in point of time. And as, in the present case, there was one continuous lay off for the entire period, proviso (b) could have no application.

1956 Counsel for the respondents contends that though

M/s. Modi Food there was only one lay off, it should notionally be split Products co, up into two, the first period being the 45 days covered umited by proviso (a) to the section and the rest of the period, v. by proviso (_b). It is arguable that there could be a Shri Faqir Chand second and distinct lay off following the first with- Sharma and others out a break, as for example, when the management

V.nkatar"ma first notifies lay off for a period of 4;5 days and pays Ayyar J. compensation therefor, and again issues a fresh notification at the end of the period declaring a further lay off for a period exceeding 7 days in continuation of the notified.Jay off, and that that would fall within proviso (b). But, in the present case, there was only one notification, and the period specified therein was up to the next season. By no straining of the language of proviso (b) to section 25-C can such a lay off be brought within its purview. The respondents rely in support of their contention on the decision in Automobile Products of India Ltd. v. Their Workmen(').

But that decision gives no effect whatever to the words "again laid off'', and moreover, if the construction adopted therein is correct, there would be no need for the provisos (a) and (b), as what would be payable under them, according to the respondents, would become payable under the body of the section itself. If, as observed in the above decision, this conclusion leads to an anomalous position, it is for the legislature, if it thinks fit, to amend the section and not for the Tribunal to construe it otherwise than what it plainly means. We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a), and that as the appellant had offered to pay the same by its notice dated 12-7-1954, there was ilo alteration of the conditions of service within section 22 of the Act, and that, in consequence, the petition of the respondents was liable to be rejected.

We accordingly allow the appeal, set aside the order of the Tribunal, and dismiss the petition of the respondents. The parties will bear their own costs.

{1) [1955} l Labour Law Journal 67.

M/s. MODI FOOD PRODUCTS CO. LIMITED

FAQIR CHAND SHARMA & OTHERS

JAGANNADHADAS

B. P. SINHA JJ.

Ss. 28

s. 28

s. 22(a)

s. 25

s. 25

Industrial Disputes Act

s. 25

s. 25

22nd August 1955

Veda Vyas

K. Kapur

N. H. Hingorani

J. N. Bannerji

P. C. Agarwalla

Modi Food VENKATARAMA AYYAR

14th July, 1954

Section 25(D)

14th July 1954

section 2(k)

Industrial Disputes Act

section 10

Industrial Disputes Act

Meerut

Modi Food bunal

Sliri Faqir Chand

Sharma

Venkataraina

section 10

section 22

section 23

section 22(a)

Modi Food

section 22( a)

Faqir Chand

section 25

section 25

section 22(a)

section 25

Industrial Disputes Act

section 25

section 22

section 23

Modi Food

Products Co.

Ayy

section 22( a)

section 22(a)

Industrial Disputes Act

section 23

section 22(a)

section 22(a)

section 22(a)

section 22(a)

Ayyar

section 23

section 22(a)

section 23

section 25

Industrial Disputes Act

Modi Food

Products co.

Faqir CJoand

Venkatarama

section 25

Modi Food men

The contengs tion of the appellant is that, on these facts, the work- M/s. Modi Food men were entitled to compensation only in accordance Products co. with proviso (a) to section 25-C, and that they would Limited therefore be entitled to 50 per cent.

section 25

section 25

section 25

section 25

section 23

section 25

section 25

section 25

section 25

section 25

Modi Food

section 25

section 22


S.C.R.

SUPREME COURT REPORTS_ 569

THE STATE OF PUNJAB v.

KHARAITI LAL.

[JAGANNADHADAS and B. P. SINHA JJ.]

East Punjab Essential Services (Maintenance) Act, 1947 (East Punjab AcO XIII of 1947 ), ss. 8, 5, 7-Complaint-Whether it

should be authorised by the State Government-Police Act, 1861 (V of 1861), ss. 22, 29-Absence from Police Lines-Neglect of duty- Whether amounts to abandonment of employment or absence from work.

Section 7(3) of the Ea.st Punjab Essential Services (Mainten a.nee) Act, 194 7, provides that "no court shall take cognisance of any offence under this Act except upon complaint in writing ma.de by a person authorised in this behalf by the State Government".

Held, that the law does not require that the particular com plaint chould have been authorised by the State Government and it is sufficient if it has been filed by a person authorised by the State Government to do so.

Neglect of duty as contemplated by s. 29 of the Police Act, 1861, is quite different from abandoning an employment or absent ing oneself from work without reasonable cause within the meaning of s. 5(b) of the East Punjab Essential Services (Maintenance) Act.

The respondent, a constable, on account of physical infirmity was not assigned any "work" in the Police Lines within the mean ing of cl. (b) of s. 5 of the Ea.st Punjab Essential Services (Ma.inten ance) Act. He absented himself from the Police Lines without per mission. Held, that his absence from Police Lines during the rele vant time may have a.mounted to neglect of duty but he could not be convicted under s. 5(b).

CRIMINAL APPELLATE JURISDICTION: Criminal Ap'peal No. 140 of 1954.

Appeal by special leave from the judgment and order dated the 23rd July 1953 of the Punjab High Court in Criminal Revision No. 487 of 1953 arising out of the judgment and order dated the 17th April 1953 of the Court of Sessions Judge at Hoshiarpur in Criminal Appeal No. D/1 of 1953.

N. S. Bindra and P. G. Gokhale, for the appellant.

A. N. Chona and K. L. Mehta for the respondent.

Moy&

The State of Punjab v.

Khaf'aiti Lal

1956. May 8.

The Judgment of the Court was delivered by SINHA J.-This is an appeal by special leave from the judgment of a single Judge of the High Court of Judicature of. Punjab at Simla in Criminal Revision No. 487 of 1953 dated the 23rd July 1953 acquitting the respondent, a constable in the police force of the State of an offence under section 7 of the East Punjab Essential Services (Maintenance) Act, XIII of 1947 (which hereinafter will be referred to as "the Act"), for which he had been convicted by a Magistrate of the First Class at Dharamsala by his judgment d'ated the 30th March 1953 and sentenced to 15 days' rigorous imprisonment, which orders of conviction and sentence had been affirmed by the Sessions Judge of Hoshiarpur, Camp Dharanisala, by his judgment and order dated the 17th April 1953.

The facts leading up to this appeal may shortly be stated.

The respondent was prosecuted on a complaint filed , l>y the Superintendent of Police, Kangra District, in the Court of the Ilaqa Magistrate, Dharamsala, District Kangra, for an offence under section 7 of the Act.

The allegations against the respondent were that he joined the Police Department as a constable in Jullundur District in 1947, that in December 1952 he was transferred from Jullundur District to Kangra District and posted to Police Lines, Kangra, as a constable on general duty at Seraj police station; that in January 1953 he came to Police Lines, Dharamsala for monthly training (refresher course), that on the 2nd February 1953 at the time of roll call at 7 p.m. the appellant was assigned the duty as sentry No. 1 without rifle behind the Police Lines Armoury, Dharamsala, from 9 p.m. to 11 p.m.

The respondent, though informed of the assignment of the aforesaid duty to him, refused to obey that order or to perform any other duty in the Lines.

There- . upon his name was struck off from the Duty Roster and another foot constable was duly placed in that post of duty. On the night between the 2nd and 3rd February 1953 at 11-30 p.m. a surprise roll call of the employees of the Police Lines was duly made by means

of an alarm sounded with a bugle which was blown continuously for about 15 minutes. The respondent was found absent on such a roll call and another constable was deputed to search for the respondent but he could not be found.

He appeared the next morning at about 9-30 a.m. after remaining absent from the Police Lines without offering any explanation for his unauthorised absence. The gravamen of the charge as laid in the petition of complaint was that he refused to carry out the order of his superior officer who had assigned a duty to him and that he remained absent from his official duty in the Police

Lines without obtaining permission and without any cogent reasons, from 11-30 p.m. on the 2nd February 1953 till 9-30 a.m. on the day following.

Thus he was said to have committed an offence under section 7 of the Act.

On those allegations the respondent was placed on his trial before the Magistrate of the First Class at Dharamsala.

After recording the prosecution evidence the learned Magistrate framed a charge under section 7 of the Act under two heads, firstly, that he had on the 2nd February 1953 at Dharamsala as a foot constable in the police force of the Kangra District had disobeyed the lawful orders given by a superior officer who had assigned to him a duty as such foot constable of a sentry without rifle in the rear of the armoury in the Police Lines from 9 p.m. to 11 p.m. and, secondly, that on the same date and at the same place he had absented himself from duty as a foot constable without reasonable excuse and had thus remained absent from 11-30 p.m. on the 2nd February 1953 to 9-30 a.m. of the following day.

The respondent's defence as disclosed in his answer to questions put by the court under section 342, Criminal Procedure Code was one of denial of the charge. His substantive defence may be stated in his own words:-

"On 2nd February, 1953 at 7 p.m. my duty was allotted to me and I signed at Ex. P. D./I.

I then told Raghbir Singh P.W. that according to the Civil Surgeon, Jullundur I could only be given sitting or

The State of Punjab v.

Kharaiti Lal

Sinha}.

Th• Slate of Punjab v.

Hharaiti Lal

Sinha J.

office duty. I showed him the copy Exhibit D. E. I also told him that the Civil Surgeon, Dharamsala, bad also examined that very day on 2nd February

1953. 'Thereupon Ragbbir Singh P.W. cancelled my said duty. I was lying ill in the Police Lines Barracks and did not hear the bugle.

In the morning of 3rd February, 1953, I came to know that my absence had been noted. Thereupon I presented myself for duty to the Head Constable and signed at Exhibit P.E./I.

My leg was burnt in rescue work at Gujranwalla when I was in the special Police Lines".

He also examined a number of defence witnesses including the Civil Surgeon of Jullundur who deposed to having examined the respondent on the 27th February 1953 "and found that he had got extensive burn scars on the back of the right thigh and leg crossing the knee.

Hence he could not perform any strenuous duty like standing for long hours.

In my opinion he could be given some light duty in the office.

Ex. D. W. l/D is a true copy of my medico-legal report of this case".

The learned Magistrate acquitted the accused in respect of the first part of the charge relating to his alleged disobedience of the lawful orders of his superior officer to perform sentry duty. But he convicted .him of the second part of the charge, namely, absence from duty and sentenced him to 15 days' rigorous imprisonment. On appeal by the accused, the learned Sessions Judge affirmed the_ findings of the trial Magistrate and held that the appellant before him was absent from duty without permission during the night between the 2nd and 3rd February 1953.

He accordingly dismissed the appeal.

On a revisional application made by the convicted person, the learned single Judge who heard the case, came to the conclusion that the accused had not offended against any provisions of the Act.

Accordingly he acquitted him. The ratio of his decision may be given in his own words as follows:-

"This Act does not appear to me to apply to the kind of act which the constable is said to have done.

He had been called to Dharamsala on a refresher

course and on the night in question and in the early morning he appears to have been not present at the time when be according to the prosecution should have been present. This, in my opinion, does not attract the attention of the Essential Services Maintenance Act. It is possible that if he is guilty he is liable to some disciplinary punishment, but his prosecution under the East Punjab Essential Services Maintenance Act is in my opinion not justified. I hold that he has not offended against the provisions of this Act and therefore he has not committed any offence under this Act".

Against this order of acquittal the State of Punjab obtained special leave to appeal to this Court, apparently because the judgment of the learned Judge of the High Court involved very important questions as to the scope and effect of the Act and the question of law decided by the High Court was of great public importance.

This case was first placed on the 11th April this year before another Bench of this Court and learned counsel for the respondent raised a preliminary objection to the maintainability of the prosecution on the ground, it was alleged, that there was no proper complaint under section 7(3) of the Act and as this question had not been raised in any of the courts below and as counsel for the appellant was taken by surprise, the Bench granted two weeks time to enable him to satisfy the court that there was a proper compliance with the provisions of section 7(3) of the Act. When the matter came up before us for hearing, the learned counsel for the appellant placed before us the following notification by the Punjab Government authorising all police officers above the rank of Deputy Superintendent of Police and the Heads of the various Government Departments to make complaints in writing to a court in respect of alleged offences against the Act:-

" Dated Simla-2, the 20th January, 1948.

No. 1248-H Camp-48/2075.-ln exercise of the powers conferred by sub-section (3) of section 7 of the East Punjab Essential Services (Maintenance) Act

1956_

Tire State of

P11njab

K/imaiti I.al

Sinha J.

The State of Punjab v.

Kharaiti Lal

SinhaJ.

1947, the Governor of the East Punjab is pleased to authorise all police officers of and above the rank of Deputy Superintendent of Police and the Heads of the various Government Departments to make complaints in writing to a court against persons of their respective Departments, who are alleged to have committed offences against the Act.

Sd. Nawab Singh Home Secretary to Govt. of East Punjab".

On a reference to the notification quoted above, it is clear that the complaint filed by. the Superintendent of Police, Kangra District, in the court of the Ilaqa Magistrate, Dharamsala in the district of Kangra, was filed in compliance with the provisions of sub-section (3) of section 7 of the Act which is in these terms:-

"N o court shall take cognisance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government".

But it was argued on behalf of the respondent that there was nothing to show that the complaint on the basis of which the prosecution had been initiated in this case had been authorised by the State Government. The law does not require that the particular complaint should have been authorised by the State Government. What is required is that the complaint should have been filed by a person authorised by the State Government to do so. The notification has authorised a Superintendent of Police to file a complaint in respect of a contravention of the provisions of the Act by a person in his department. It is not denied that the respondent was such a person. Hence the preliminary objection.must be overruled.

Coming to the merits of the decieion, it is a little surprising that the learned Judge below should have completely ignored the opening words of section 3 of the Act which completely answer the ratio of the decision under appeal.

"This Act shall apply to all employment under the State Government ........ " (omitting words not material for the present case).

The learned Judge of the High Court has quotea the provisions of sections 5 and 6 of the Act in support of his conclusion that the Act is "intended to be applied in special cases of dislocation of essential services because of extraordinary events such as strikes or because of political agitation or similar circumstances". The relevant portion of section 5 is in these terms:-

" Any person engaged in any employment or class of employment to which this Act applies who- ( a) disobeys any lawful order given to him in the course of such employment, or . (b) without reasonable excuse abandons such employment or absents himself from work,

is guilty of an offence under this Act".

The opening words of section 5 have reference to the opening words of section 3 so far as an employee under the State Government is concerned. As the learned Judge missed these opening words as indicated above, he fell into the error of supposing that a)>erson in the position of the respondent was not intended to be governed by the Act. It is mainfest that the learned Judge has acquitted the appellant, not on a misreading of the provisions of the Act, but by ignoring the opening words of section 3. It must therefore be held that the judgment of the High Court cannot be sustained. But it still remains to consider whether the orders passed by the High Court acquitting the respondent should be interfered with. The courts below have acquitted the respondent of the first part of the charge which could have come within clause (a) of section 5 which lays down offences under the Act. The respondent had been convicted by the first two courts of an offence referred to in the second part of the charge, namely, of his having absented himself from duty.

Under section 22 of the Police Act, V of 1861, every police officer is to be considered to be always on duty and may at any time be employed as a police officer, and on the findings of the courts of fact that the respondent had absented himself from the Police Lines

The State of

Pttnjab

Kharaiti Lal

Si11ha J.

The State of

Punjab

Kltaraiti Lal

Sinha}.

during the night between the 2nd and 3rd February 1953 he may have made himself liable to the penalty for neglect of duty under section 29 of the Police Act, or may have made himself liable to departmental punishment for absence from the police lines without permission. But we are not concerned here with these provisions. The respondent bad been found guilty under clause (b) of section 5, that is to say, for the offence of absenting himself from work. Neglect of duty as contemplated by section 29 of the Police Act is quite different from abandoning an employment or of absenting oneself from work without reasonable cause which is the particular offence contemplated by clause (b) of section 5.

As already indicated, on account of the respondent's physical infirmity or deficiency the work assigned to l:lim had been cancelled and he was expected to be in police lines during the material time without apparently doing any "work". It is clear from the record that he bad not been assigned any "work" within the meaning of clause (b) of section 5. Hence his absence from Police Lines during the relevant time may have amounted to neglect of duty; but, in our opinion, is not synonymous with absence from work or abandonment of employment which has been made penal under clause (b) of section 5.

For the reasons aforesaid it must be held that the respondent bad been rightly acquitted, though for wholly wrong reasons. The appeal must therefore stand dismissed.

Appeal dismissed.

569

THE STATE OF PUNJAB

KHARAITI LAL

JAGANNADHADAS

B. P. SINHA JJ.

ss. 8, 5, 7

ss. 22, 29

Section 7(3)

s. 29

Police Act, 1861

s. 5(b)

s. 5

s. 5(b)

N. S. Bindra

P. G. Gokhale

A. N. Chona

K. L. Mehta

SINHA

section 7

Dharamsala

section 7

Jullundur District

Kangra District

Seraj police station

2nd February 1953

2nd and 3rd February 1953

section 7

section 7

section 342

Criminal Procedure Code

2nd February, 1953

Raghbir Singh

Jullundur

Sinha

Ragbbir Singh

Gujranwalla

Dharamsala

State of Punjab

section 7(3)

section 7(3)

Punjab Government

section 7

Nawab Singh

Kangra

Ilaqa Magistrate, Dharamsala

section 7

section 3

sections 5 and 6

section 5

section 5

section 3

section 3

section 5

section 22

Police Act

State of

Pttnjab

Kharaiti Lal

State of

Punjab

Kltaraiti Lal

section 29

Police Act

section 5

section 29

Police Act

section 5

section 5

section 5