SUPREME COURT REPORTS

JAI NARAIN RAM LUNDIA

(1956)

KEDAR NATH KHETAN AND OTHERS.

[VIVIAN BosE, JAFER IMAM and CHANDRASEKHARA

AIYAR JJ.)

Execlttion-Power of transferee Court,-DeOTet for specific pSf'- formance-Reciprocal conditions indissolubly link.d together-AltSf'ation in a material particular, if permissible-Code of Civil Procedure (Act F of 1908), ss. 47, 42, 0. XXI, r. 82(1).

An executing court cannot go behind a decree so as to vary its terms and when the obligations it imposes on the paities are reciprocal and inseverable, rendering pa.rtie.l execution impossible, the decree must be executed wholly as it stands or not at all.

This is particularly true of a decree for specific performa.nce where the party who seeks execution must satisfy the executing court that he is in a position to perform the obligations which the decree imposes on him.

That in cases where the identity or substance of what the decree directs a party to give to the other is in dispute, the .executing court alone has the power to decide it under s. 4 7 of the Code of Civil Procedure and under s. 42 of the Code the powers of the court executing a decree on transfer are identical with those of the court which passed the decree.

That although the remedy provided by O. XXI, r. 32(1) of the Code of Civil Procedure is available in executioD. of a decree for specific performance, it can be used only by a person entitled to execute the decree and if, by reason of bis own incapacity to perform his part, he is precluded from seeking execution, O. XX!, r. 32(1), Can have no application.

Consequently, in a. case where, as in the present, the defendant sought to execute a decree for specific performane of a contract but was himself unable to perfor1n one of the obligations the decree imposed on his party, namely, to transfer five a.nnas share in a \ - partnership firm, for the res.son that the firm had ceased to exist by dissolution before the date of execution, he wn.s not entitled to execute the decree.

Heldf7trther, that the defendant could not be allowed to substitute five a.nnas share in the assets of the dissolved firm instead, as that would amount to an alteration of the decree which the execution court was not competent to make.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 206 of 1955.

On appeal from the judgment and order dated 7956 the 5th May 1954 of the Patna High Court in Appeal Jai Narain Ram from the Original Order No. 284 of 1951 arising out Lundia of the order dated the 11th July 1951 of the Court of v.

Subordinate Judge, Motihari in Misc. Case No. 30 of KedarNath 1951.

Khetan at1d others

Veda, Vyas, (S. K. Kapur and Ganpat Rai, with him) for the appellant.

0. K. Daphtary, Solicitor-General of India (K. B.

Asthana and 0. P. Lal, with him) for respondent No. 1.

1956. January 31. The Judgment of the Court was delivered by BosE J.-This appeal arises out of certain execution proceedings. The decree which the appellant, J ainarain 'Ram Lundia, seeks to execute is one that directs specific performance of a contract to sell certain shares in a private limited company known as the Ganga I)evi Sugar Mills, together with a five annas share in a partnership firm called the Mai:wari Brothers, on payment of a sum of Rs. 2,45,000.

The facts are as follows.

The partnership firm, known as the Marwari Brothers, was formed on the 29th of February 1936. The partners consisted of two groups called the Bettia Group and the Padrauna Group. The Padrauna Group consisted of (1) Kedarnath Khetan and (2) a firm called Surajmal. Thef;!e two were the plaintiffs in the suit. Kedarnath was

on~ of the partners of the Surajmal firm. The Bettia Group consisted of (1) Gobardhan Das (2) Jainarain Ram Lundia (3) Badri Prasad and (4) Bisheshwar Nath. On Bisheshwar Nath's death his son Madan Lal Jhunjhunwalla stepped into his shoes. These persons were the defendants.

The Marwari Brothers :Firm was formed for the purpose of promoting a company for starting a sugar mill in Cbamparan and for securing the managing agency of the company for itself for a period of ninety years. This was done. The capital of the company consisted of Rs. 8,00,000 divided into 800 shares of

J ai Narain Ram Lundia v.

KedarNath Khetan and others

Bose}.

Rs.1,000 each. The shares were distributed as follows.

In the Bettia Group Gobardhan Das and his brother Badri Prasad had 100 shares; Jainarain had 150 and Madan Lal had 100. The Bettia Group thus had 350 shares between them. The other group (Padrauna)

held the remaining 450 shares.

About five years later the two sets of partners fell out and, as a result, the Bettia Group agreed, on 1-1-1941, to sell a certain number of their shares in the Ganga Devi Sugar Mills Limited to the Padrauna Group along with a certain share in the Marwari Brothers firm. The exact number of shares agreed to be sold and the extent of the share in the firm was a matter of dispute but that does not concern us at this stage because we are only concerned with the final result embodied in the decree now under execution.

T}le Padrauna Group sued for specific performance and the dispute was carried as far-as the Federal Court. That Court affirmed the decree of the Calcutta High Court on 6-5-1949. The substance of the decree was this: I. "It is declared that upon payment and or tender to the defendants-appellants Jainarain Ram Lundia and Madan Lal Jhunjhunwala of the sum of Rs. 2,45,000 ........ with interest thereon ........ by the plaintiffs, the plaintiffs are entitled to 250 shares belonging to the said defendants in the Ganga Devi Sugar Mills Limited and five aunasshare belonging to them in the Marwari Brothers ........ and to all dividends and profits in respect thereof with effect from 1-2-1941.. ...... "

2. "And it is further ordered and decreed that against payment or tender by the plaintiffs to the said defendants ........ of the said sum of Rs. 2,45,000

with interest as aforesaid the said defendants-appellants and all proper parties do execute in favour of the plaintiffs proper deed or deeds of transfer or assignment of the said 250 shares in the Ganga Devi Sugar Mills Limited and the said five annas share in the Marwari Brothers ........ "

This was in slight variation of the first Court's decree. The exact variation does not matter. All

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._,

that it is necessary to note is that the plaintiffs (that 1956 is, the Padrauna Group) tendered the money some time after the first Court's decree and before the Jai N;,:,7~7aRam Calcutta High Court's decree. The tender was not v. accepted as the defendants (the Bettia Group) had KedarNath appealed. It is admitted that there was no second Khetan and others tender after the High Court's decree. - After the Federal Court had settled the matter, Bose J. one of the defendants, J ainarain Ram Lundia, applied to the Calcutta High Court for execution.

The deotee was transferred to the Subordinate Judge, Motihari, and the execution proceedings started there on 25-1-1951. One of the plaintiffs, Kedarnath Khetan, filed an objection petition on 20-3-1951.

That is the objection we are concerned with. Among other things, one of the objections was that the defendants were not in a position to implement the conditions imposed on them by the decree because the Marwari Brothers firm was dissolved by agreement between the parties before the Federal Court's decree and was no longer in existence. The present appeal turns almost entirely on that fact and on the consequences that flow from it.

The first Court, that is, the Subordinate Judge's Court at Motihari to whom the decree had been transferred, declined to go into this holding that it had no jurisdiction as a transferee Court.

The plaintiff Kedarnath appealed to the High Court and succeeded. The High Court held that the transferee Court had jurisdiction, that the Marwari Brothers had been dissolved and that because of that the defendants could not execute the decree.

The defendants appealed here.

We will first consider the question of fact, namely, whether the Marwari Brothers was still in existence as a firm at the date of the execution application.

On this point we agree with the High Court that it was not, for the following reasons.

The plaintiff Kedarnath asserted in his objection petition that the firm had been dissolved by agreement between the parties "including the plaintiffs and the defendants". This fact was not denied by

J ai Narain Ram Lundi a v.

KedarNath Khetan and others

Bose}.

the defendant Jainarain Ram Lundia in his rejoinder though the fact was specifically alleged to be within his personal knowledge. Even if he did not know whether the firm had been dissolved or not (a fact which cannot be the case for reasons that we shall give later) he was certainly in a position to admit or deny whether the fact was within his personal knowledge. His silence can therefore only have one meaning. The defendant's learned counsel contended before us that the fact had been denied by implication because Kedarnath stated that his side was, and had always been, ready to perform their part of the decree. Counsel argued that as the plaintiffs contended that performance was not possible after the dissolution of the M.arwari Brothers firm this meant that the firm was still in existence.

We reject this contention and remark in passing that this is inconsistent with another argument which was also urged in this Court, namely that the fact of dissolution was no bar to performance on the defendant's part.

Quite apart from the language of the rejoinder, the defendant Jainarain said in paragraph 15 of his application dated 12-7-1954 made to the High Court for leave to appeal here that

"the said Marwari Brothers was in existence on the date of the said conveyance, namely 14th September 1950, and died a natural death on the conveyance of the Ganga Devi Sugar Mills. to North Bihar Sugar Mills".

This is a clear admission that the firm was dissolved, at any rate, on 14-9-1950.

The plaintiff's contention is that it was dissolved much earlier but whether that was so or not will make no difference to this appeal because 14-9-1950 is also before the date of the application for execution.

The defendant's learned counsel tried to explain this away also.

He said that the defendant did not mean that the firm was dissolved on that date but that as the only purpose for which the firm existed, namely, the managing agency of the Ganga Devi Sugar Mills, had gone the firm could no longer function.

' -

In .order to understand this, some further facts will 1956 be necessary. While the plaintiff's appeal was being Jai Narain Ram heard in the High Court, the defendants made an Lundia application to that Court on 14-4-1954 asking for v. permission to adduce further evidence in the shape of Kedar Nath a sale deed dated 14-9-1950.

The defendant con- Khetan and others tended that he had only "recently" come to know that the Ganga Devi Sugar Mills had sold all its land, machinery, etc. to the North Bihar Sugar Mills on 14-9-1950. This terminated the managing agency, and as the only business of the firm was this managing agency and as that was the only purpose for which the firm was formed, it was no longer able to function. But he said that this deed would show conclusively that the firm was in existence on that date.

The High Court refused to accept this document because it considered that the only ground on which additional evidence can be admitted in appeal is when the Court is unable to pronounce judgment on the material already before it; as that was not the case here it rejected the document.

We need not decide whether there is any conflict of view between the Privy Council decisions in Kessowji Issur v. G.I.P. Rly.(1) and Parsotim v. Lal Mohar(g) on the one hand and Indrajit Pratap Sahi v.

Amar Singh(3) on the other because, even if this evidence were to be admitted and were to be accepted as true, there would still be the defendant's admission in the High Court that the firm stood dissolved at least on 14-9-1950. We are not able to construe the statement in any other way. The plaintiff says that the dissolution was much earlier and that the firm mentioned in the sale deed now sought to be filed was not the same firm but another firm of the same name, but even ifthe defendant's version be accepted the fact still remains that even according to his statement there was a dissolution before his application for execution and that therefore the defendants were not in a position to assign their five annas share

(1) [1907] L.R. 84 I.A. 115, 122.

(2) [1981] L.R. 58 I.A. 254.

(3) [1928] L.R. 50 I.A. 183, 190, 191.

Bose].

1956 in the Marwari Brothers firm.

We now have to consider the effect of that.

Jai Narain Ram

Lunaia Much of the argument about this revolved round v. the question whether the equitable rules that obtain Kedar Nath before decree in a suit for specific performance con- Kheta" and others tinue at the stage of execution. It is not necessary

- for us to go into that here because the position in the Bose]. present case is much simpler. When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance bv the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannot do. There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an executing Court cannot do.

The only question therefore is whether the decree in the present case is of this nature. We are clear that it is.

The relevant part of the decree has already been quoted. It directs that

"against payment or tender by the plaintiffs .... the said defendants ... do execute in favour of the plaintiffs proper deed or deeds of transfer of .... five annas share in the Marwari Brothers .... " This is not a case of two independent and severable directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that they cannot exist without each other. The fact that it is a decree for specific performance where the decree itself cannot be given unless the side seeking performance is ready and willing to perform his side of the bargain and is in a position to do Bo, only strengthens the conclusion that that was the meaning

and intendment of the language used.

But the 1996

Principle on which we are founding is not confined to J ai Narain Ram cases of specific performance. It will apply whenever Lundia a decree is so conditioned that the right of one party v. to seek performance from the other is conditional on Kedar Nath his readiness and ability to perform his own obliga- Khetan and others tions. The reason is, as we have explained, that to hold otherwise would be to permit an executing Court

to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinct suits.

Fry on Specific Performance was quoted to us (6th edition, Chapter IV, pages 546 onwards) where the learned author states that relief can often be obtained after judgment along much the same lines as before: thus a party to a contract may, in a proper case, apply for rescission of the contract and so forth. It was urged by the other side that even if that can be done it can only be done by the Court which passed the decree and not in execution. We do not intend to examine this because even if these remedies also exist, provided application is made to the proper Court, it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behind it. If the decree says that on payment being made some definite and specific thing is to be given to the other side, the executing Court cannot alter that and allow something else to be substituted for the thing ordered to be given.

The learned counsel for the defendant-appellant contended that even if the Marwari Brothers had ceased to exist as a firm the plaintiff was still entitled to a five annas share in its assets on dissolution. But a five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution in the decree would be to alter it in a very material particular. The defendant may or may not have the

Bose}.

J ai Narain Ram Lundia v.

KedarNath /(hetan and others

Bose J.

right to ask the Court which passed the decree to vary it in that way but he can certainly not ask the executing Court to do so.

The .decree must either be executed as it stands in one of the ways allowed by law or not at all.

In the High Court, and also before us, much was made of the fact that the plaintiff had not re-tendered the money after the decree was varied by the High 8ourt and it was argued that that preclnded him from contesting the defendant's right to attach his property under Order XXI, rule 32(1), of the Civil Procedure Code.

The remedy provided in Order XXI, rule 32(1), is, of course, one of the remedies available in execution of a decree for specific performance but it can only be used by a person who is entitled to execute the decree, and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, Order XXI, rule 32(1), cannot apply.

The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can?

The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it.

It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so under section 4 7 of the Ci vii Procedure Code, it can only be determined by the Court executing the decree. And as for the first Court's conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that section 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such decree as if it had been passed by itself.

The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal Court when it passed its decree he

- ,

is precluded from doing so now. It is true this would 1956 have been a good ground for resisting a decree for Jai Narain Ram specific performance but is no answer to the objection Lundia to execution. The defendant undertook to perform v. his part when the decree was passed and he must KedarNath make good that undertaking before he can seek execu- Khetan and others tion because the decree, in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and uncorrelated parts and be executed unilaterally. It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree later if he did not know these facts at the time, as he says, it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court

which passed it alters or modifies it.

Then it was argued that this objection to execution should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for transfer of the decree to Motihari and that as that was not done it is too late now. But here also the answer is the same. The only question before the Calcutta High Court on the application made to it was whether the decree should be transferred or not.

Whether the plaintiff might or could have taken the objection in the High Court is beside the point because it is evident that he need not have done so on the only issue which the application for transfer raised, namely, whether the decree should be transferred or not; at best it could only be said that the plaintiff had a choice of two forums. If the appellant's contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine. In our opinion section 42 of the Civil Procedure Code is a complete answer to this contention.

The appeal fails and is dismissed with costs.

BoseJ.

JAI NARAIN RAM LUNDIA

KEDAR NATH KHETAN AND OTHERS

VIVIAN BosE

JAFER IMAM

AIYAR JJ.

Code of Civil Procedure

ss. 47, 42, 0

s. 4

the Code of Civil Procedure

s. 42

the Code of Civil Procedure

Khetan

S. K. Kapur

Ganpat Rai

K. Daphtary

K. B.

Asthana

. P. Lal

J ainarain 'Ram Lundia

Ganga I)evi Sugar Mills

Mai:wari Brothers

Marwari Brothers

29th of February 1936

Bettia Group

Padrauna Group

Kedarnath Khetan

Surajmal.

Kedarnath

Surajmal firm

Gobardhan Das

Jainarain Ram Lundia

Badri Prasad

Bisheshwar Nath

Madan Lal Jhunjhunwalla

Marwari Brothers :Firm

Cbamparan

Bettia Group Gobardhan

Jainarain

Madan Lal

Padrauna)

Ganga Devi Sugar Mills Limited

Marwari Brothers firm

Calcutta High Court

Jainarain Ram Lundia

Madan Lal Jhunjhunwala

KedarNath

Bose

J ainarain Ram Lundia

Subordinate Judge, Motihari

Kedarnath Khetan

Subordinate Judge's Court at Motihari

Kedarnath

KedarNath Khetan

Jainarain Ram Lundia

M.arwari Brothers firm

Ganga Devi Sugar Mills

North Bihar Sugar Mills

Jai Narain Ram

Kedar Nath

Khetan

L.R. 84 I.A. 115

L.R. 58 I.A. 254

L.R. 50 I.A. 183

J ai Narain Ram

section 4

section 42

Lundia

Motihari

section 42


S.C.R.

SUPREME COURT REPORTS

HARIPADA DEY v.

THE STATE OF WEST BENGAL

AND ANOTHER.

[BHAGWATI, JAFER IMAM and Gov1NDA MENON JJ.]

Constitution tJf India, Art. 184(1)(c)-Jurisdiction of High Court-Certificate on mere question of fact no certificate at all- Oonstitution of India, Art. 186(1)-Special Jurisdiction of the Supreme Court to intervene on mere question of facts to be invoked -High Oourt not to arrogate that fimction to itself-Evidence- Prosecution not to be blamed for the lacuna to addiu:e evidence by defence.

The High Court has no jurisdiction to grant cettifica.te under Art. 134(l)(c) of the Constitution on mere question of fa.ct, e.nd is not justified in passing on such question to the Supreme Court for further consideration, thus converting the Supreme Court into .a.

Court of Appeal on facts.

No doubt the Supreme Court, in ce.se of gross misca.rrie.ge of justice or departure from legal procedure such e.s vitiates the whole trial, possesses the power a.nd ha.s special jurisdiction to intervene under Art. 136(1) of the Constitution e.nd e.lso if the findings of fa.ct were such e.'s were shocking to judicial conscience; but no High Court can arrogate that function to itself because it finds itself helpless to redress the grievance.

Certificate granted on mere question of fa.ct would be no certificate e.t a.II; High Court should refuse sueh certificates under Art. 134(1)(c) e.nd should e.sk the parties to approach the Supreme Court to invoke its special jurisdiction under Art. ' 136(1) of the Constitution.

The accused e.nd not the prosecution is to be blamed for the lacuna. in the defence in not adducing evidence in support of his contentions, which if forthcoming would he.ve demolished the ce.se of the prosecution.

Narsingh and another v. The State of Uttar Pradesh, ([1955) 1 S.C.R. 238), Baladirz cf Others v. The State of Uttar Pradesh, (A.I.R. 1956 S.C. 181) and Sunder Singh v. The State of Uttar Pradesh, (A.I.R. 1956 S.C. 411), referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 86 of 1954.

Appeal under Article 134(l)(c) of the Constitution of India from the judgment and order dated the 27th May 1954 of the Calcutta High Court in Criminal Appeal No. 158 of 1953.

September 5

Haripada Dey

The State of

H'e.st Btngal u nd anotll e-r'

Sukumar Ghose for the appellant.

D. N. Mukeijee for P. K. Bose for respondent No. l.

K. L. Arora for respondent No. 2.

1956. September 5.

The Judgment of the Court was delivered by

BHAGWATI J.-The Appellant was charged under Section 411, Indian Penal Code with dishonestly receiving or retaining in his possession one Hillman Car number WED 4514 bearing Engine and Chassis No. All 78482 WSO knowing or having reason to believe the same to be stolen property. The learned Presidency Magistrate, Calcutta, convicted him of this offence and sentenced him to rigorous imprisonment for 2 years. The Appellant took an appeal to the High Court at .Calcutta and a Division Bench of the High Court constituted by Mr. Justice Jyoti Prakash Mitter and Mr. Justice Sisir Kumar Sen dismissed the appeal confirming the conviction and sentence passed upon him. The Appellant filed a petition for leave to appeal to this Court and that petition according to what we ara told is the practice obtaining in the Calcutta High Court came before a Division Bench differently constituted-a Bench constituted by the learned Chief Justice and Mr. Justice S. C. Lahiri.

This Bench allowed the petition and ordered that a certificate for leave to appeal under article 134(l)(c) of the Constitution may be drawn up. In an elaborate judgment the learned Chief Justice observed:

"In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact".

After discussing in detail the various circumstances in the case which did not meet with his approval, he wound up by saying:

"In my view it is impossible not to feel in this case that there has not been as full and fair a trial as ought to have been held. In the circumstances, it appears to me that the petitioner is entitled to have

his case further considered and since such further consideration can only be given by the Supreme Court, I would grant the certificate prayed for".

Contrary to what we had in the previous case before us, viz., Criminal Appeal No. 146 of 1956 (Orn

Prakash v. The State of Uttar Pradesh), where no reasons were given as to why the Conrt exercised its discretion in granting the certifieate, in this judgment we have an elaborate discussion as to why such discretion was being exercised by the Court. The reasoning, however, does not. appeal to us.

Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under article 134(1)(c) in a case where admittedly in his opinion the question involved was one of fact-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further consideration of the case of the Appellant on facts. The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial could not be any justification for granting a certificate under article 134( I) ( c) and converting this Court into a Court of Appeal on facts.

No High Court has the jurisdiction to pass on mere questions of fact for further consideration by this Court under the relevant articles of the Constitution. We no doubt possess that power and in proper cases have exercised it under article 136(1).

If there has been a gross miscarriage of justice or a departure from legal procedure such as vitiates the whole trial we would certainly intervene and we would also intervene if even the findings of fact were such as were shocking to our judicial conscienca and grnnt in such cases special leave to appeal under :trticle 136(1). That is, however, a special jurisdiction which we can exercise under article 136(1), but no High Court can arrogate that function to itself and pass on to us a matter which in its view is purely one involving questions of fact, because it finds itself helpless to redress the grievance. In surh a case, the High Court should

Harij>ada Dey

Tl1c Stat: of lVest Bengal

a11d auofht'r

Haripada Dey

The State of West Bengal and another

BhagwatiJ.

refuse to give a certificate under article 134(1)(c) and ask the parties to approach us invoking our special jurisdiction under article 136(1) of the Constitution.

We are, therefore, of the opinion that the discretion that was so elaborately exercised by the Calcutta High Court in this case was wrongly exercised. The certificate purporting to have been granted under article 134(1)(c) was no certificate at all and it does not avail the appellant liefore us.

Following our decisions in Narsingh and another v.

The State of Uttar Pradesh('), Baladin & Others v. The State of Uttar Pradesh(') and Sunder Singh v. The State of Uttar Pradesh('), Mr. Sukumar Ghose for the appellant urged that this was a fit case where we should exercise our discretion and grant the appellant Rpecial leave to appeal under article 136(1) of the Constitution. He pointed out that eviin though the appellant had led no evidence in defence there were on the record of the case certain documents which if taken as proved would have been sufficient to demolish the prosecution case. These were commented upon by the learned Chief Justice in the judgment which he delivered when certificate for leave to appeal under article 134(1)( c) was granted by him. These documents, it was urged, went to show that sometime before the car in question was stolen, an application had been made by the appellant to the police authorities in Chandarnagore for registration of Hillman Minx 1951 Model car which bore the same number on the engine, chassis and tin-plate as the car in question and on that application, investigation had been made by the A.S.I. police, who made his report, the contents of which would go to establish the case which was put forwaro by the appellant in his defence. It is no doubt true that the prosecution has got to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence. If the prosecution succeeds in establishing its case, the conviction would follow, but if the prosecution fails to discharge the burden which lies upon it to prove the charge which

(1) [1955) 1 S.0.R. 238.

(2) A.I.R. 1956 S.0.181.

(S) A.I.R. 1956 S.0. 411.

has been framed against the accused he is entitled to an acquittal. In this case both the Courts below held that the prosecution had proved its case by the evidence of the witnesses who were called including the motor expert, who on applying chemicals discovered on the engine the very number which was the number on the stolen car. On this state of the evidence, it was the bounden duty of the appellant if he wanted to prove his defence to adduce evidence in support of his contentions and if he did not do so, he had only to thank himself for it. The prosecution could not be blamed for that lacuna and if both the Courts below went on the record as it stood and came to the conclusion, finding it as a fact, that the prosecution had established its case, it could not be urged, as was sought to be done in the judgment delivered by the learned Chief Justice in the petition for leave to appeal to this Court, that that evidence, if forthcoming, would have demolished the case of the prosecution.

If those who represented the appellant did not take counsel within themselves and put forward the defence as they should have done, there was no blame on the prosecution nor on. the learned Presidency Magistrate who tried the case and came to the conclusion adverse to the appellant. Whatever sentiment appears to have been imported in the matter has been simply out of place and even if one may have a lurking suspicion at the back of his mind and might feel that there has not been a full and fair trial as ought to have been held, that is no justification for going behind the concurrent findings of fact reached by both the Courts below to the effect that the prosecution had succeeded in establishing the guilt of the appellant. We see nothing in this case to warrant an interference under article 136(1) of the Constitution. This application will, therefore, be rejected and the appeal will stand dismissed. Bail bond cancelled and the appellant to surrender his bail.

Haripada Dey v.

The State of West Bengal

and another

Bhagu•ati J.

HARIPADA DEY

THE STATE OF WEST BENGAL

AND ANOTHER

BHAGWATI

JAFER IMAM

Gov1NDA MENON JJ.

Art. 184(1)(c)

Art. 186(1)

Supreme Court

Art. 134(l)(c)

Art. 136(1)

Art. 134(1)(c)

[1955) 1 S.C.R. 238

Article 134(l)(c)

Constitution of India

Haripada Dey

State of

H'e.st Btngal

Sukumar Ghose

D. N. Mukeijee

P. K. Bose

K. L. Arora

Section 411

Indian Penal Code

Presidency Magistrate, Calcutta

High Court at .Calcutta

Jyoti Prakash Mitter

Sisir Kumar Sen

Calcutta High Court

S. C. Lahiri

article 134(l)(c)

article 134(1)(c)

article 134( I)

article 136(1)

article 136(1)

State of West Bengal

BhagwatiJ.

article 134(1)(c)

article 136(1)

article 134(1)(c)

Sukumar Ghose

article 136(1)

article 134(1)( c)

Chandarnagore

A.S.I. police

article 136(1)

Bhagu•ati


September 17

SUPREME COURT REPORTS [1956]

SHAMRAO VISHNU PARULEKAR

THE DISTRICT MAGISTRATE, THANA (and connected petition)

(S. R. DAS C. J., VENKATARAMA AYYAR, B. P. SINHA, S. K. DAS and GovINDA MENON JJ.)

Preventive detention-Order of detention by the District Magistrate-Report sent to the State Government-Approval by the Statc- Gro1tndsfor the order sent later-Validity of detention-" Grounds on which the order has been made", Interpretation of-Preventive Deten tion Act, 1950 (IV of 19~0), ss. 8(2)(8), 7.

Sub-section (3) of s. 3 of the Preventive Detention Act, 1950, provides that when an order oJ detention is me.de under sub-Section

(2) by an officer mentioned therein, he shall forthwith report the fact to the State Government together with the grounds on which the order has been ma.de ... and no such order ... shall remain in force for more than twelve days alter the making thereof unless in the meantime it has been approved by the State Government.

Under s. 7(1) "when a person is detained in pursuance of a detention order, the authority making the order shall ... communicate to him the grounds on which the order has been made, and shall

afford him the earliest opportunity of makin~ a representation against the order to the appropriate Government' .

The petitioners were arrested on 27th January 1956 in pursuance of the orders of detention passed under s. 3(2) of the Preventive Detention Act, 1950, by the District Magistrate who sent his report the next day to the State Government which approved of the same on 3rd February 1956. Meantime, the grounds on which the orders of detention were made were formulated by the District Magistrate who furnished the same to the petitioners on 31st January 1956 under s. 7 of the Act. A copy of these grounds was sent to the State Government on 6th February 1956. The petitioners challenged the validity of the detention and contended, inter alia, that as the expression "grounds on which the order bas been m&de" occurring in s. 3(3) is word for word, the same as in s. 7 of the Act, it must have the same ineaning a.nd as the copy of the grounds referred to in s. 7 had not been sent along with the report under s. 3(3) to the State Government before it had approved of the orders of detention there was a violation of the procedure prescribed by the statute and consequently the detention became illegal. It was found that the report sent by the District Magistrate set out not merely the fact of the making of the order of detention but also the materials on which

he had made the order.

Held, that the failure on the part of the District Magistrate to

send a.long with his report under s. 3(3) the very grounds which he 1956 subsequently furnished the detenu under s. 7, is not e. brae.ch of the requirements of the.t sub-section and that it was sufficiently complied Shamrao Vis/111,. with when he reported the materials on which he made the order.

Parulekar

fl v.

The scope and intendment of the expression the grounds on The Distrht which the order has been made" in ss. 3(3) e.nd 7 of the Act a.re Magistrate Thana quite different and it is not essential that the grounds which are ' furnished to the detenu must have been before the State Government before it approves of the order.

ORIGINAL JURISDICTION: Petitions Nos. 100 and 101 of 1956.

Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus.

N. 0. Chatterjee, Sadhan Chandra Gupta and Janardhan Sharma, for the petitioners.

0. K. Daphtary, Solicitor-General for India, Porus A. Mehta and R.H. Dhebar, for the respondents.

1956.

September 17.

The Judgment of the Court was delivered by v ENKATARAMA AYY AR J .-These are petitions under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus. On 26th January 1956 the District Magistrate, Thana, passed orders under section 3(2) of the Preventive Detention Act IV of 1950 (hereinafter referred to as the Act) for the detention of the petitioners~ and in execution of the orders, they were arrested on 27th January 1956. The next day, the District Magistrate sent his report to the State Government which on 3rd February 1956 approved of the samE'.

Meantime, on 30th January 1956 the District Magistrate formulated the grounds on which the orders of detention were made, and the same were communicated to the petitioners on 31st , January 1956.

A copy of these grounds was sent to the State Government on 6th February 1956.

The petitioners challenge the validity of the detention .on two grounds.

They contend firstly that the grounds for the order of detention which were furnished to them under section 7 of the Act are vague,

1956 and secondly that the requirements of section 3(3) of

Shamrao v;,1,,,,. the Act had not been complied with, in that those

Panitekar grounds had been sent to the State Government by

v. the District Magistrate, not along with his report on The Distrid 28th January 1956, but on 6th February 1956, after Magist.-ate, Thana the State Government had approved of the order. - There is no substance whatsoever in the first con- Venkataran1a

AyyarJ. tention. The communication sent to the petitioners runs as follows:

"During the monsoon season in the year 1955, you held secret meeting of Adivasis in Umbergaon, Dhanu, Palghar and Jawhar Talukas of Thana District at which you incited and instigated them to have recourse to intimidation, violence and arson in order to prevent the labourers from outside villages hired by landlords from working for landlords. As a direct result of your incitement and instigation, there were several cases of intimidation, violence and arson in which the Adivasis from these Talukas indulged.

Some of these cases are described below ........ ".

Then follows a detailed statement of the cases. It is argued for the petitioners that no particulars were given as to when and where the secret meetings were held in which they are alleged to liave participated, and •that the bald statement that they took place during the monsoon season was too wide and vague to be capable of being refuted.

But then, the particulars which follow give the dates on which the several incidents took place, and it is obvious that the meetings must have been held near about those dates.

The communication further states that it is not in the public interests to disclose further facts.

Reading the communication as a whole, we are of opinion that it is sufficiently definite to apprise the petitioners of what they were charged with and to enable them to give their explanation therefor.

That was the view taken by Chagla, d. J. in the applications for habea8 corpuB, which the petitioners moved in the High Court of Bombay under article 226 of the Constitution, and we are in agreement with it. Tl:e complaint that the grounds are vague must therefore fail.

As regards the second contention, it will be usefu

to set out the relevant sections of the Act bearing on 1955 the question: Shamrao Vishnu Section 3(1) "The Central Government or the Parulekar State Government may-- v.

(a) if satisfied with respect to any person tat The District with a view to preventing him from acting in any Magistrate, Tha11a manner preJ"udicial to- - Venkatarama

(i) the defence of India, the relations of India Ayyar J. with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the community; or

(b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.

(2) Any of the following officers, -namely,-

(a) District Magistrates,

(b) Additional District Magistrates specially empowered in this behalf by the State Government, ( c) the Commissioner of Police for Born bay, Calcutta, Madras or Hyderabad,

(d) Collector in the State of Hyderabad may if satisfied as provided in sub-clauses (ii) and

(iii) of clause (a) of sub-section (1) exercise powers conferred by the said sub-section.

(3) When any order is made under this section by an officer mentioned in sub-section (2) be shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Gov ernment.

(4) Where any order is made or approved by the State Government under this section, the State Shauirao Vishn11

Parulekar Government shall, as soon as may be, report the fact v. to the Central Government together with the grounds The District on. which the order has been made and such other Magistrate, T/la"a particulars as in the opinion of the State Govern- - ment have bearing on the necessity for the order". vnktrtara11ia

Ayyar J.

Section 7(1) "Where a person is detained in pursU ance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose''.

On these sections, the argument of Mr. Chatterjee for the petitioners is that section 3(3) requires that when an order of detention is made by one of the authorities mentioned in section 3(2)-in this case it was so madethat authority should forthwith report the fact to the State Government together with the grounds on which the order was made; that this provision is clearly intended to safeguard the rights of the detenu, as it is on a consideration of these grounds that the Government has to decide whether it will approve of the order or not; that when therefore the grounds had not been made available to the State Government before they had approved of the order, as happened in the present case, there was a clear violation of the proeedure prescribed by the statute, and that the detention became illegal.

Now, it is clear from the affidavit filed on behalf of the respondent that when the District Magistrate sent a report under section 3(3) on 28th January 1956, he did send a report not merely of the fact of the making of the order of detention, but also of the materials on which he had made the order. The contention of the petitioner is that the grounds which

were formulated on 30th January 1956 and communi- 1956 cated to them on 31st January 1956 should also have Shamrao Vishnu been sent along with the report. The question is whe- Parulekar ther what the District Magistrate did was sufficient v. compliance with the requirements of section 3(3), and The District that will depend upon the interpretation to be put Magistrate, Thana upon the words "grounds on which the order has Venkatarama been made" occurring in that section. Construing AyyarJ. these wotds in their naturi:tl and ordinary sense, they would include any informii tion or material on which the order was based. The Oxford Concise Dictionary gives the following meanings to the word "ground": 'Base, foundation, motive, valid reason'. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grounds therefor. But it is contended by Mr. Chatterjee that the expression "grounds on which the order has been made" occurring in section 3(3) is, word for word, the same as in section 7, that the same expression occurring in the same statute must receive the same construction, that what section 3 requires is that on the making of an order for detention, the authority is to formulate the grounds for that order, and send the same to the State Government under section 3(3) and to the detenu under section 7, and that therefore it was not sufficient merely to send to the State Government a report of the materials on which the order was made.

Reliance was placed on the following passage in Maxwell's Interpretation of Statutes, 10th Edition, page 522:

"It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act".

The rule of construction contended for by the petitioners is well-settled, but that is only one element in deciding what the true import of the enactment is, to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. "The presumption", says Craies, "that the same words are used in the same meaning is however very slight, and

7956 it is proper 'if sufficient reason can be assigned, to construe a word in one part of an Act in a different Sha111rao Vi1hnu

Parrilekar sense from that which it bears in another part of v. an Act'" (Statute Law, 5th Edition, page 159).

The District And Maxwell, on whose statement of the law the Magistrate. Thana petitioners rely, observes further on;

"But the presumption is not of much weight.

Ven-katara1na d d ff Ayyar J.

The same wor may be use in di erent senses in 1he same statute, and even in the same section". (Interpretation of Statutes, page 322).

Examining the two provisions in their context, it will be seen that section 3(1) confers on the Central - Government and the State Government the power to • pass an order of detention, when the grounds mentioned in that sub-clause exist.

When an order is made under this provision, the right of the detenu nuder section 7 is to be informed of the grounds of detention, as soon as may be, and that is to enable him to make a representation against that order, which is a fundamental right guaranteed under article 22(5).

Coming next to section 3(2), it provides for the power which is conferred on the State Government under section 3(1) being exercised by certain authorities with reference to the matters specified therein. This being a delegation of the power conferred on the State Government under section 3(1), with a view to ensure that the delegate acts within his authority and fairly and properly and that the State exercises due and effective control and supervision over him, section 3(3) enacts a special procedure to be observed when action is taken under section 3(2).

The authority making the order under section 3(2) is accordingly required to report the fact of the order forthwith to the State along with the grounds therefor, and if the State does not approve of the order within twelve days, it is automatically to lapse. These provisions are intended to regulate the course of business between the State Government and the authorities subordinate to it exercising its power under statutory delegation; and their scope is altogether different from that of section 7 which deals with the right of the detenue as against the State

Government and its subordinate authorities. Sec- 7956 tion 3(3) requires the authority to communicate the Shamrao Vis/mt< grounds of its order to the State Government, so that Parulekar the latter might satisfy itself whether detention v. should be approved. Section 7 requires the statement The District of grounds to be sent to the detenu, so that he might Magistrate, Tha"a make a representation against the order. The pur- - • Venkataran1a pose of the two sections is so different that it cannot Ayyar J. be presumed that the expression "the grounds on which the order has been made" is used in section 3(3) in the same sense which it bears in section 7:

That the legislature could not have contemplated that the grounds mentioned in section 3(3) should be identical with those referred to in section 7 could also be seen from the fact that whereas under section 7(2) it is open to the authority not to disclose to the detenu facts if it considers that it would be against public interests so to do, it is these facts that will figure prominently in a report by the subordinate authority to the State Government under section 3(3), and form the basis for approval. If the grounds which are furnished under section 3(3) could contain matters which need not be communicated to the detenu under section 7, the expression "grounds on which the order has been made" cannot bear the same meaning in both the sections.

There is also another reason in support of this conclusion. When the authority mentioned in section 3(2) decides, on a consifi}eration of the materials placed before it, to act under that section and orders detention, it is required by section 3(3) to report that fact with the grounds therefor to the State Government forthwith.

But under section 7, the duty of the authority is to communicate the grounds to the detenu, as soon as may be. Now, it bas been held that as the object of this provision is to give the detenu an opportunity to make a representation against the order, the grounds must be sufficiently definite and detailed to enable him to do so.

It is obvious that the communication that has to be served on the detenu under section 7 of the Act is a formal document setting out the grounds for the order and the

1956 particulars in support thereof, subject, of course, to section 7(2); whereas the report to the State under Slta1nrao Vishnu

Parulekar section 3(3) is a less formal document in the nature v. of a confidential inter-departmental communication, The District which is to contain the particulars on which the order Magistrate, Thana was made. It could not have been intended that the contents of the two communications which are so Vcnkatal'ama Ii AyyarJ. dissimilar in t eir scope and intendment should be identical.

Mr. N. C. Chatterjee also cited certain observations of Kania C.J. in State of Bombay v. Atma Ram Sridhar Vaidya(') as supporting his contention that the grounds which are furnished to the detenu must have been before the State Government before it approves of the order. Said the learned Chief Justice:

"It is obviouR that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made''.

But the grounds referred to in the above passages are the reasons for making the order, not the formal expressions in which they are embodied, and that will be clear from the following observation further on:

"By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts".

Our conclusion is that th11 failure on the part of the District Magistrate of Thana to send along with his report under section 3(3), the very grounds which he subsequently communicated to the detenu under section 7 is not a breach of the requirements of that sub-section, and that it was sufficiently complied with when he reported the materials on which he made the order.

The second contention of the petitioners also fails, and these applications must therefore be dismissed.

(l l [1951] s c It. lr.7, 178.

SHAMRAO VISHNU PARULEKAR

THE DISTRICT MAGISTRATE, THANA

S. R. DAS

B. P. SINHA

GovINDA MENON JJ.

ss. 8(2)(8), 7

s. 3

Preventive Detention Act, 1950

s. 7(1)

s. 3(2)

Preventive Detention Act, 1950

3rd February 1956

31st January 1956

s. 7

6th February 1956

s. 3(3)

s. 7

s. 7

s. 3(3)

s. 3(3)

s. 7

ss. 3(3)

Article 32

N. 0. Chatterjee

Sadhan Chandra Gupta

Janardhan Sharma

K. Daphtary

Porus A. Mehta

R.H. Dhebar

article 32

District Magistrate, Thana

section 3(2)

Detention Act IV of 1950

30th January 1956

31st , January 1956

section 7

section 3(3)

Distrid 28th January 1956

Umbergaon

Dhanu

Palghar

Thana District

Chagla

High Court of Bombay

article 226

Shamrao Vishnu

Section 3(1)

Central Government

India

Ayyar

Foreigners Act, 1946

Calcutta

Madras

Hyderabad

Parulekar Government

Central Government

Section 7(1)

Chatterjee

section 3(3)

section 3(2)

section 3(3)

28th January 1956

section 3(3)

section 3(3)

section 7

section 3

section 3(3)

section 7

Maxwell

Craies

District And Maxwell

Ayyar

section 3(1)

Central - Government

section 7

article 22(5)

section 3(2)

section 3(1)

section 3(1)

section 3(3)

section 3(2)

section 3(2)

section 7

Section 7

section 3(3)

section 7

section 3(3)

section 7

section 7(2)

section 3(3)

section 3(3)

section 7

section 3(2)

section 3(3)

section 7

section 7

section 7(2)

Slta1nrao Vishnu

section 3(3)

N. C. Chatterjee

Kania

District Magistrate of Thana

section 3(3)

section 7


S.C.R.

SUPREME COURT REPORTS

KESHA V NILKANTH JOGLEKAR v.

THE COMMISSIONER OF POLICE, GREATER

BOMBAY (and connected petitions)

[S. R. DAS C.J., VENKATARAMA AYYAR, B. P. SINHA,

S. K. DAs and GovINDA MENON JJ.]

Preventive detention-Detention order by the Commissioner of Police-Duty to report forthwith to the State Government-" Forthwith", J1feaning of-Time tak-, n for sending report-Validity of detention-Preventive Detention Act, 1950 (IV of 1950), ss. 3(3), 7.

Section 3(3) of the Preventive Detention Act, 1950, provides that when an order of detention is made by an officer mentioned in s. 3(2) he shall forthwith report the fact to the State Government together with the grounds on which the order has been made ..... . and no such order ...... shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.

On 13th January 1956 the Commissioner of Police, Bombay, passed orders under s. 3(2) of the Preventive Detention Act, 1950, directing the detention of the petitioners and in pursuance thereof they were arrested on 16th January 1956 The grounds on which the orders were made were furnished to the petitioners on 20th January 1956 and the next day the Commissioner reported the fa.ct of the order and the grounds therefor to the State Government, which approved of the same on 23rd January 1956. The pet.itioners contested the validity of the detention on the ground that when the Commissioner passed the orders for detention on 13th January 1956 it was his duty under s. 3(3) to report that fact forthwith to the State Government, and as he did not do so until 21st January 1956, he had acted in contravention of the statute and that the detention was therefore illegal. It was found that the delay in sending the report could not have been a.voided by the Commissioner and that it was due to causes to which the petitioners had very largely contributed.

Held, that the word "forthwith" in s. 3(3) of the Preventive Detention Act, 1950, has not a fixed and an absolute meaning and it must be construed with reference to the object of the section and the circumstances of the case. It cannot mean the same thing as "as soon as may be" in s. 7 of the Act and the former is more peremptory than the latter. The difference between the two expressions lies in this that while under s. 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under s. 3(3) what is allowed is only the

September 17

1956 period during which he could not, withoub any fault of his own, send the report. /(eshav Nilkanth . . , J gl k An act which is to be done forthwith must be held to have oear b d h""d "h een so one w en it is one wit all reasonable despatch and The Co;::,, is$iouer without avoidable delay. of Police, Greater The Queen v. The Justices of Beikshire ([1878-79] 4 Q.B.D. 469), Bombay Hudson and others v. Hill and others ([1874] 43 L. J. C.P. 273), and R•g. v. Pri<M, (S-Moore P.O. 203), relied on.

ORIGINAL JURISDICTION: Petitions Nos .. 102, 105 to llO of 1956.

Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus.

N. C. Chatterjee, Sadhan Chandra Gupta and Janardhan Sharma, for petitioners in Petitions Nos.

102, 105 to 108 of 1956.

Sadhan Chandra Gupta and Janardhan Sharma, for petitioners in Petitions Nos. 109 and 1JOof1956.

C. K. Daphtary, Solicitor-General for India, Porus A. Mehta and R. H. Dhebar, for respondents in Petitions Nos. 102 and 105 of 1956.

Porus A. Mehta and R. H. Dhebar, for respondents in Petitions Nos. 106 to llO of 1956.

1956. September 17.

The Judgment of the Court was. delivered by

VENKATARAMA AYYAR J.-These are petitions filed under article 32 of the Constitution for the issue of writs in the nature of habeas corpus. They arise on the same facts and raise the ; same questions.

On 13-1-1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the Preventive Detention Act IV of 1950 (hereinafter referred to as the Act), directing the detention of the present petitioners, and pursuant thereto, they were actually arrested on 16-1-1956. The grounds on which the orders were made were formulated on l~-l-1956, and communicated to the petitioners the next day. On 21-1-1956 the Commissioner reported the fact of the order and the grounds therefor to the State Government, which approved of the same on 23-1-1956.

The contention of the petitioners before us is that when the Uommissioner passed the orders for detention on 13-1-1956, it was his duty under section 3(3} to report that fact forthwith to the State Government, and as he did not do so until 21-1-1956, he had acted in contravention :of the statute, and that the detention was therefore illegal. That raises the question as to what "forthwith" in section 3(3) of the Act signifies, and whether on the facts the report was made "forthwith", within the meaning of that word in that sub-section.

The word "forthwith", it has been observed, is of elastic import. In its literal sense, it might be construed as meaning that the act to be performed forthwith in relation to another should follow it automatica.lly without any interval of time, or, as held in some of the American authorities, should be performed at one and the same time as the other.

But even in America, the preponderance of judicial opinion does not favour this construction.

In Corpus Juris, Volume 26, page 998 the position is thus stated:

•>Although the term has received a strict construction, ordinarily it is not to be strictly construed, but should receive a liberal or reasonable construction. Some regard must be had to the nature of the act or thing to be performed and the circumstances of the case".

In England, there is a long catena of decisions interpreting the word "forthwith" occurring in statutes, rules and contracts, and their trend has been to construe it liberally. As early as 1767, discussing the meaning of the word 'immediately'-and the word "forthwith'.' has been held to have the same significance-Lord Hardwicke observed in Rex v. Francis(1):

"But then the word immediately, is strorrgly insisted on, as a word which excludes all mesne acts and time; and therefore, that this taking away the money must necessarily be in the presence of Cox.

(1) Cuu. 165; 94 E.R. 1129, 1133.

K eshav N ilka1t: h

Joglekar v.

The Commissiomr of Police, Greater Bombay

Vmkatarama

AyyarJ.

But all the nine Judges held this word immediately,

K<Sha• Nilkanth to be of so loose a signification, and not to imply Joglekar necessarily, that the money was taken away in Cox's

v. presence. For this word does neither in its use and The Commissioner application, nor in its grammatical construction, of Police, Greater exclude all mesne acts or time' ........ But it is more

Bombay necessary and proper in this case, to consider the

Ve"katarama signification of this word in the legal way. And it is plain, that in this acceptation, it is not understood to exclude mesne acts or time ........ And on the Statute Hue and Cry, 27 Eliz. c. 13, s. 11, where the words with as much convenient speed as may be, are made use of, all the precedents have expressed tliese words, by the word immediate, as may be seen in the books.

The last case which I shall mention on this point, is that of the writs of habeas corpus, issuing out of this Court, which are most frequently made returnable immediately; and in this case the word is never understood either to exclude mesne acts or time, but only means, with convenient speed ........ ".

Ayyar J.

In Reg. v. The Justices of Worcester('), where the question was as to the meaning of the word "forthwith" in section 50 of 6 Will. IV, Coleridge, J. ob-

~ served:

"I agree that this word 'forthwith' is not to receive a strict construction like the word 'immediately', so that whatever follows, must be done immediately after that which has been done before. By referring to section 50, it seems that whatever is to be done under it, ought to be done without any unreasonable delay.

I think that the word 'forthwith' there used, must be considered as having that meaning".

The meaning of the word "immediately" came up for consideration in Thompson v. Gibson(2). Holding that it was not to be construed literally, Lord Abinger C. B. observed:

"If they" (acts of Parliament) "could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see,

11) [1889) 7 Dow!. Pr. Cas. 789-791: 54 R.R. 902 (903).

(2) [1841] 8 '!. & W. 282: 151 E.R. 1045, 1047.

upon this act of Parliament, that it was the intention 7956 of the legislature that not a single moment's interval I<eshav Nilka"tl' should take place before the granting of the certificate, Joglekar I should think myself bound to defer to that declared v. intention. But it is admitted that this cannot be its Tha Con1missionar interpretation; we are therefore to see hQw, con- 0/ Police, Greater sistently with common sense and the prineiples of Bot11ba:v justice, the words 'immediately afterwa1ds' are to be Vmlwtara:na construed. If they do not mean that it is to be done Ayyar J. the very instant afterwards, do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within such reasonable time as will exclude the danger of intervening facts operating upon the mind of the Judge, so as to disturb the impression made upon it by the evidence in the cause".

In agreeing with this opinion, Alderson, B. expressly approved of the decision of Lord Hardwicke in Rex.v.

Francis(1).

This construction of the word 'immediately' was adopted in Page v. Pearce(2), Lord Abinger C. B. observing:

"It has already been decided, and necessarily so, that the words 'immediately afterwards' in the statute, cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but 'within a reasonable time?' .... " ./ In The Queen v. The Justices of Berkshire(3), where the point was as to the meaning of "forthwith" in section 52 of 35 & 36 Viet., Chapter 94, Cockburn C. J. observed:

"The question is substantially one of fact. It is impossible to lay down any hard and fast rule as to what is the meaning of the word 'immediately', in all cases. The words 'forthwith' and 'immediately' have the same meaning.

They are stronger than the expression 'within a reasonable time', and imply prompt, vigorous action, without any delay, and whether there h!'.'.s been such action is a question of fact, having regard to the circumstances of the particular case".

(l} Cun. 165: 94 E.R. 1129, 1183.

(2) [1841] 8 M. & W. 677 (678): 151 E.R. 1~11 (1212).

(S) [1878-79] 4 Q.B.D. 469 (471).

1956 The same construction has been put on the word "forthwith" occurring in contracts. In Hudson and J(1Js!iav Nilkanth

Jogfokar others v. Hill and others(') which was a case of charterv. party, it was observed at page 280: Th• Com"'i"ioner '"Forthwith' means without unreasonable delay. of Police, Greater The difference between undertaking to do something

Bomby 'forthwith' and within a specified time is familiar to

Vmkatara"'a , everyone conversant with law. To do a thing 'forth-

Ayyar J. with' is to do it as soon as is reasonably convenient".

In Reg. v. Price("), it was held by the Privy Council that the word "forthwith" in a bail bond meant within a reasonable time from the service of notice.

On these authorities, it may be taken, an act which is to be done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay.

But it is argued by Mr. N. C. Chatterjee that the view taken in the above decisions as to the meaning of the word "forthwith" has been abandoned in the later decisions, and that under the law as it stands, when an act has to be performed forthwith in relation to another, what has to be decided is not whether it was done within a reasonable llime, but whether it was done so closely upon the other as to form together one continuous act. He relied in support of this opinion on the decision in Re Muscovitch("), affirming that in Re Muscovitch('). That was a decision on rule 132 of the Bankruptcy Rules, which provided that "Upon entering an appeal, a copy of the -, notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from".

The facts were that the appeal was lodged in time on 25-10-1938 but the notice was served on 28-10-1938, and it was found that there was "no satisfactory reason or no reason at all, why there was any delay in the matter" (Re Muscovitch(')). On that, it was held that the requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an act is done after an interval of time and there is no explanation forthcoming for

(1) [1874] 48 L.J. C.P. 278 (280).

(2) 8 Moore P.O. 203: 14 E.R. 78,

{3\ [1939] 1 A.E.R. 135.

(4) [1988] 4 A.E.R. 570.

the delay, it cannot be held to have been done "forthwith". That is made clear by Sir Wilfrid Greene 1\1. R. in the following passage in Re Muscovitch(1) at page 139:

"Having regard to the construction which was put upon the word 'forthwith' which is peremptory, and admits of no interval of time between the entry of the appeal and the sending of the notice save such as may be imposed by circumstances which cannot be avoided, I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule".

Reliance is also placed for the petitioners on the decision in Ex parte Lamb: In re Southam(9), which was

follow~ in Re Muscovitch(1).

There, construing the word "forthwith" in rule 144 of the Bankruptcy Rules, 1870, which corresponds to rule 132, which was the subject of interpretation in Re Muscovitch(1), Jessel M. R. observed at page 173:

"I think that the word 'forthwith' must be construed according to the circumstances in which it is used. Where, as in Hyde v. Watts( 8), there is a covenant to insure a man's life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done 'forthwith' can be done without delay, it ought to be so done".

In that case also, the learned Judges found that the delay was not explained. And the observation of Lush L. J. in the same case was that "the word 'forthwith' has not a fixed and an absolute meaning; it must be construed with reference to the objects of the rule and the circumstances of the case".

There is nothing in the decisions in Re Muscovitch(1) and Ex parte Lamb: In re 8outham(2) which can be considered as marking a departure from the construction put on the word "forthwith" in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition, and that any delay in the matter should be satisfactorily explained.

(1) [193~] 1 A.E.R. 18~

(2) [1881-B2J 19 Ch. D. 169.

(3) 12 llI & w. 254.

Keshav Nillwnth

Joglckar v.

The Commissiomr

of PoUct, Greater

Bombay

Venkatarama

AyyarJ.

Keshav N ilkanth

Joglekar

The Commissioner

of Police, Greater

B::,, nbay

V<!nkatarama

AyyarJ.

It is argued for the petitioners that even if the construction put on the word "forthwith" in the above decisions is accepted as correct, it must, in any event, yield to any contrary intention expressed in the statute, and that the provisions of the Act afforded clear indication of such an intention. It is contended that the :egislature while providing in section 7 that the grpunds should be communicated to the detenu "as sobn as may be" has enacted that the report under section 3(3) should be sent "forthwith", that the use of two different expressions in the two sections is a clear indication that they do not mean the same thing, that as the words "as soon as may be" import that the act might be performed in a reasonable time, the word "forthwith" which is more peremptory must be construed as excluding it.

The decisions in Emperor v. Phuchai(') and in K. U.

Kulkarni v. Ganpat Teli(') were quoted in support of the position that when two different expressions are used in different parts of the same clause or section, they should be construed as used in different senses.

We agree that "forthwith" in section 3(3) cannot mean the same thing as "as soon as may be" in section 7, and that the former is more peremptory than the latter. The diffrrence between the two expressions lies, in our opinion, in this that while under section 7 the time that is allowed to the authority to send the communication to the detenu is wbat is reasonabl.v convenient, under section 3(3) what is allowed is only the period during which he could not, without any fault of his own, send the report. Under section 7 the question is whether the time taken for communicating the grounds is reasonably requisite.

Under section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided.

(1) I.L.R. 50 All. 909: A.I.R. 1929 All. SS.

(2) I.L.R. [1942] Bom. 287: A.I~· 1912 Bom 191.

It was contended that as section 7 required that 1956 the communication should be made not later than 5 Keshav Nilkauth days from the date of the order, and as section 3(3) Joglekar was more peremptory than section 7 in that it rev. quired that the report should be made forthwith, the The Comissio11cr period allowable under section 3(3) could not exceed 01 Police, Greater 5 days, and that as in these cases the reports were Bombay sent 8 days later, they could not be held to have been Venkatarama sent forthwith. This argument mixes up two different Ayyar J. matters C?ntained in section 7. The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be'', which must, by its very nature, be indefinite depending on the facts and circumstances of the case. It will be as erroneous to read 5 days lnto the period allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under section 3(3) into the period which is allowable under the expression "forthwith". The result then is that the report sent by the Commissioner to the State on 21-1-1956 could be held to have been sent "forthwith" as required by section 3(3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.

We must now examine the facts from t.he above standpoint. The Commissioner of Police has filed an affidavit explaining why the reports were not sent till 21st January 1956, though the orders themselves had been made as early as 13th January 1956. Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there had been considerable agitation for the establishment 0f a Samyuktha Maharashtra with the city of Bombay included in it. An action committee had been set up on 15-11-1955 for the purpose, and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki.

The final decision on the question was expected to be taken and announced in the middle of January 1956, and the atmosphere was highly surcharged.

It was in this situation that the Commis-

Kcshav Nilkanth Joglekar v.

Tlte Co1nmissioner of Police, Greater

Bombay

Venkatarama

Ayyar J.

sioner decided to take action under section 3(2) of the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13-1-1956.

In his affidavit, the Commissioner states that he decided first "to locate the persons against whom orders of detention were made by me on the 13th January 1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders".

Then the affidavit goes on to state:

"It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense, pregnant with danger on the 13th January 1956, and continued to be so till 16th January 1956, and actual rioting occurred during that night and those riots continued till 22nd January 1956.

I and my staff were kept extremely busy all thoroughout in maintaining law and order and simultaneously taking steps to round up miscreants.

In this unusual and tense situation, it was not possible to make a report earlier than the day on which it was made''.

We see no reason for not accepting these statements.

What happened on the 16th and the following days are now matters of history.

The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed.

The Bombay police had a most difficult task to perform in securing ijfe and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them.

The delay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed.

We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of section 3(3) of the Act.

Mr. S. C. Gupta put forward some special conten- 1956 tions on behalf of the petitioners in C.M.Ps. Nos. 109 Kesliav Nilkantli and 110 of 1956.

He contended that as the order Jogiekar originally made against the petitioner in C.M.P. No. v. 109 of 1956 was that he should be detained in Arthur Tiie Co111missio1ur Road Prison, Bombay' the subsequent order of the of Police, Greater Commissioner by which he was detained in Nasik Bombay Prison was without jurisdiction. It is clear from the Venkatarania affidavit of the Commissioner that the petitioner was Ayyar J. not ordered to be detained in Arthur Road. Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road Prison, pending arrangements to transport him to Nasik. It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in f1tturo.

This contention is clearly unsound. What a person is likely to do in futurecanonly be a matter of inference from various circumstances, and his past record will be valuable, and often the only, record on which it ould be made.

It was finally contended that what was allege - against the petitioners was only that they advocated hartal., and that that was not a ground for making an order of detention. But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under section 3(2).

All the contentions urged by the petitioners therefore fail, and these petitions must be dismissed.

KESHA V NILKANTH JOGLEKAR

S. R. DAS C.J.

B. P. SINHA

GovINDA MENON JJ.

ss. 3(3), 7

Section 3(3)

Preventive Detention Act, 1950

s. 3(2)

13th January 1956

Bombay

s. 3(2)

Preventive Detention Act, 1950

20th January 1956

23rd January 1956

s. 3(3)

21st January 1956

s. 3(3)

Preventive Detention Act, 1950

s. 7

s. 7

s. 3(3)

September 17

1956

Article 32

N. C. Chatterjee

Sadhan Chandra Gupta

Janardhan Sharma

C. K. Daphtary

Porus A. Mehta

R. H. Dhebar

article 32

section 3(2)

Detention Act IV of 1950

America

England

Hardwicke

Cox

s. 11

Ayyar

section 50

Coleridge

section 50

Abinger C. B.

Parliament

Alderson

Abinger C. B.

section 52

Cockburn

N. C. Chatterjee

Wilfrid Greene

Bankruptcy Rules, 1870

Jessel M. R.

Lush

Keshav Nillwnth

Joglckar

section 7

section 3(3)

section 3(3)

section 7

section 7

section 3(3)

section 7

section 3(3)

section 7

section 3(3)

section 7

section 3(3)

section 7

section 3(3)

section 3(3)

13th to 21st January 1956

section 3(2)

16th January 1956

22nd January 1956

section 3(3)

S. C. Gupta

Jogiekar

Nasik

section 3(2)