S.C.R.

SUPREME COURT REPORTS

BID! SUPPLY CO.

THE UNION OF INDIA AND OTHERS.

[S. R. DAS, C.J., VIVIAN BOSE, BHAGWATI, JAGAN-

NADHADAS and B. P. SINHA, JJ.]

Constitution of India, Art. 14-Ifl, dian Income Tax Act, 1922 (XI oJ 1922), ss.5(7-A), 64(5)(b) as amended lYy Indian Income Tax (Amendment) Act, 1940 (Act XL of 1940)-Whether ultra. vires the Constitution-Transfer, Order of-B'll Central Board of Revenue under s. 5( 7-A)-Transferring assusment proceeding of petitioner from Calcutta to Ranchi-Without notice to petitioner and without giving it opportunity to make representation against such decision-Constitutionality of-Assessee, rights of-Under s. 64 of the Act.

The petitioner-a. registered firm-has its head-office in Calcutta. where its books of account a.re kept a.nd ma.inta.ined a.nd where it he.s its banking account, the members of the firm being citizens of India. Since its inception the firm has a.11 a.long been assessed to income-tax by the Inoome-Ta.x Officer, District III, Ca.lcutta..

The assessments for the yea.rs 1948-49 a.nd 1949-50 were ma.de by the Income Tax Officer, District III, Calcutta.. Notices under s. 22(2) of the Income Ta.x Act were issued to the petitioner by the Income- Tax Officer, District ill, Calcutta. to submit returns for the yea.rs 1950-51, 1951-52, 1952-53, 1953-54a.nd1954-55. The Income Ta.x Officer, District ill, Calcutta. ma.de assessment for the yea.r 1950-51 on 18-12-1954 being sa.tisfied tha.t the principa.l place of business of the petitioner wa.s in Ca.Icutta..

On the 25th Ja.nua.ry 1955 the petitioner received a. letter from the Income-Ta.x Officer, District ill, Calcutta. that in }>Ursua.nee to orders de.tad 13th December 1954 under s. 5(7-A) of the Income- Ta.x Act its assessment records were tra.nsferred from that office to the Income Ta.x Officer, Specie.I Circle, Ranchi with whom the petitioner wa.s to correspond in future rega.rding its a.ssessment v.roceed • ings. The order sta.ted tha.t the Central Boa.rd of Revenue 'hereby transfers the case of'' the petitioner. The petitionBr ha.d no previ ous notice of the intention of the IncomeTa.x a.uthorities to tra.ns!er the a.ssessment proceedings from Ca.lcutta. to Ba.nchi nor ha.d it a.n opportunity to ma.ke a.ny representa.tion a.gs.inst su<lh decision. When • ca.lied upon to submit its return for the assessment year 1955·56 the petitioner by a.n a.pplica.tion under Art. 32 of the Costitution con

tended that sub-section (7-A) of s. 5 of the India.n Inoom-Ta.x Act, 1922 a.nd the order of tra.nsfer ma.de thereunder were unconstitu tiona.l in that they infringed the funds.mental rights guaranteed to the petitioner under Arts. U, 19(I)(g) and 31 of the Constitution.

S. 64 of the Indian IncomeTa.x Act makes provisions for detiermining the place of assessment. Sub-section (1) of that section provides

March 20

1956 that where _a.n assessee carried on a business, profession or vocation at any place he shall be assessed by the Income-Tax Officer of that Bidi Suj>Jly Co. area in which that place is situate or where the business, profession, . v . or vocation is carried on at more than one place by the Income Tax The Umon °1 Ind•a Officer of the area in which the principal place of business, profes

and othe1's sion or vocation is situate. In all other cases, according to sub section (2), an assessee shall be assessed by the Income-Tax Officer of the area in which he resides. If any question arises as to the place of assessment such question shall be decided, after giving the assessee an opportunity to/represent his views, by the Commissioner or Commissioners concerned or in case of disagreement between them by the Boardof Revenue. The section is imperative in terms and gives a valuable right to the assessee.

By amending the Indian Income-Tax Act 1922 by the Indian Income-Tax (Amendment) Act, 1940 (Act XL of 1940) by adding to clause (b) of sub-section (5}ofs. 64 the words "in consequence of any transfer made under sub-section (7 A) of s. 5" and by adding sub section (7-A) to s. 5 the benefit conferred by the provisions of sub section (1) and sub-section (2) of s. 64 is taken away and is to be deemed not to have existed at any time as regards the assessee with regard to whom a transfer is made under sub-section (7A) of s. 5.

Held that as under s. 22(2) of the Act, the notice and the return are to be confined to a particnlar assessment year, sub-section (7-A} of s. 5 contemplates the transfer of such a. "case" i.e. the assessment case for a particular year. The provision that such a transfer may be made "at any stage of the proceedings" obviously postulates proceedings actually pending and "stage" refers to a point in bet ween the commencement and ending of those proceedings. Fnnher the transfer contemplated by the sub-section is the transfer of a particnlar case actually pending before an Income-Tax Ollicer of one place to the Income-Tax Officer of another _place.

Accordingly such an omnibus whol-1e order of transfer dated 13th December 1954 as was made in the present case is not contemplated by the sub-section and therefore the impugned order of transfer which was expressed in gener&I terms without any reference to any particular case and without any limitation ae to time was beyond the competence of the Central Board of Revenue and the petitioner was still entitled to the benefit of the Provisions of sub sections (1) and (2) of s. 64.

The impugned order is discriminatory against the petitioner and violates the fundamental right guaranteed to it by Art.14 of the • Constitution in-as-much as the income-tax authorities by an execn tive order unsupported by law picked out the present petitioner and transferred all his cases by an omnibus order unlimited in point of time, which order is ce.lcnla.ted to infti~ considerable inconvenience a.nd harassment on the petitioner.

BOBE J. Section 5(7A) of the Indian Income-Tu Act is ullra vires Art. 14 of the Constitution and so is s. 64(5)(b) in so far as it

....

makes an order under s. 5(7-A) as it now exists, inviolate. 1956

The power of transfer can only be conferred if it is hedged Bid i supply Co. round with reasonable restrictions, the absence or existence of which cau in the last instance be determined by the courts; and the exer- The Unio: of India cise of the power must be in conformity with the rules of natural and others justice, that is to say, the parties affected must be heard when that is reasonably possible, and the reasons for the order must be reduced, however briefly, to writing so that men may know that the powers conferred on these quasi judicial bodies are being justly and properly exercised .

Chiranjit Lal Chowdhury v. The Union 1Jf India ([1950] S.C.R. 860), Budhan Chowdhry and others v. The State of Bihar ([1955] 1 S.C.R. 1045), Dayaldas Kushirann v. Commissioner of Income-Tax Central (I.L.R. [1940] Born. 650; [1940] 8-I.T.R. 139), Eshugbai Eleko's case (L, R. [1931] A.C. 662), .The State of West Bengal v. Anwar Ali Sarkar ([1952] S.C.R. 284), Ram Prasad Narayan Saki and Another v. The State of Bihar and Others ([1953] S.C.R. 1129); Bowman's case ([1917) A.C. 406), Coal Control case ([1954] S.C.R. 803), State of Madras v. v. G. Row ([1952] S.C.R. 597), and Liversi<lge v. Sir John Anderson ([1942] A.C. 206), referred to.

ORIGINAL JURISDICTION: Petition No. 271 of 1955.

Under article 32 of the Constitution for the enforcement of fundamental rights.

S. 0. Isaacs (D. N. Mukerji, with him) for the petitioner.

M. 0. Setalvad,' Attorney-General for India, (B.

Sen and R.H. Dhebar, with him) for the respondents.

1956. March 20.

DAS C.J.-This is an application under article 32 of the Constitution praying for an appropriate writ and order restraining the Income-tax Officer, Special Circle, Ranchi (respondent No. 3) from taking up and proceeding with the assssment of the petitioner to income-tax and other ancillary reliefs.

The facts shortly are as follows:- The petitioner is a firm carrying on business as manufacturer and seller of Bidi. In 1948 it was registered as a firm under the Indian Partnership Act.

It has its head office in Calcutta, where its books of account are said to be kept and maintained and

where it is said to have its banking account. It has its factories near Chakradharpur in the State of Bihar Bidi Supply Co.

v. but it has no banking account there. The members

Th• Union of India of the firm are citizens of India.

and others It is said that since its inception the firm has all

Das C.J. along been assessed to income-tax by the Income-tax Officer, District III, Calcutta. Thus assessments for the years 1948-49 and 1949-50 were made by the Incometax Officer, District III, Calcutta. Notices under section 22(2) of the Income-tax Act were issued to the petitioner on different dates by the Incometax Officer, District III, Calcutta, calling upon the petitioner to submit returns for the assessment years 1950-51, 1951-52, 1952-53, 1953-54 and 1954-55, the notice for the last mentioned year being dated 23rd August 1954. In compliance with these notices the petitioner duly submitted its returns for those respective years to the Income-tax Officer, District III, Calcutta. In the course of assessment proceedings for the year 1950-51 a question was raised regarding the location of the principal place of business of the petitioner. Eventually the income-tax authorities seem to have been satisfied that it was in Calcutta and on 18th December 1954 the Income-tax. Officer, District III, Calcutta, made assessment for the year 1950-51.

On the 25th January, 1955 the petitioner received a letter from the Income-tax Officer, District III, Calcutta informing it "that in pursuance to orders under section 5(7-A) uf the Income-tax Act your assessment records are transferred from this office to the Income-tax Officer, Special Circle, Ranchi with whom you may correspond in future regarding your assessment proceedings". The order referred to in the above communication was as follows:- No. 55(70)IT/54.

Central Board of Revenue.

New Delhi, dated the 13th December, 1954.

ORDER.

No. 87. Under sub-section (7-A) of section 5 of the Indian Income-tax Act, 1922 (XI of 1922) the Central Board of Revenue hereby transfers

the case of Biri Supply Company, 3/1, Madan 1956 Street, Calcutta from the Income-tax Officer, Billi Supply co.

District III(l) Calcutta to the Income-tax Officer, v.

Special Circle, Ranchi.

The Union of India Sd. (K.B.Deb), 11ndother1 Under Secretary, Daa c.;.

Central Board of Revenue.

It is alleged and not denied by the respondent that the petitioner had no previous notice of the intention of the Income-tax authorities to transfer the assessment proceedings from Calcutta to Ranchi nor had it any opportunity to make any representation against such decision. Thereafter on the 2nd May 1955 the Income-tax Officer, Special Circle, Ranchi called upon the petitioner to submit its return for the assessment year 1955-56. It is then that the present petition was filed under article 32 of the Constitution challenging the validity of the Order of transfer dated the 13th December 1954 and the law under which such order was purported to have been made. The contention is that sub-section (7-A) of section 5 of the Indian Income-tax Act, 1922 and the said Order of transfer made thereunder are unconstitutional in that they infringe the fundamental rights guaranteed to the petitioner by articles 14, 19(l)(g) and 31 of the Constitution. Article 14 of the Constitution enjojns that the State shall not deny to any person equality bef0i:e the law or the equal protection of the laws within the territories of India.

The expression "the State" used in Part III of the Constitution which deals with fundamental :tights includes, unless the context otherwise requires, the Government and Parliament of India and the Government and the legislatures of each of the States and all loqal or other authorities within the territor; y of India or under the control C>t-'the Government of India. The scope and effect of article 14, in so far as it protects all persons against discriminatory and hostile legislation, have been discussed and explained by this court in a series of cases beginning with Ohiranjit Lal Chowdhury v. The Union

1956 of India(') and ending with Budhan Chowdhry and

8 . s others v. The State of Bihar(0). In the last mentioned

•d• uJ>Ply Co. case a Full Bench of this court summarised the result

The uni:;, of India of the earlier decisions on this point in the words

and others following:-

"It is now well-established that while article 14 Das O.J. forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like.

What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure".

We have, therefore, to approach the problem posed before us bearing in mind the above principles laid down by this court in so far as they may be applicable to the facts of the present case.

Turning now to the Indian Income-tax Act, 1922 we find that section 64 makes provision for determining the place of assessment. By sub-section (1), where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of that area in which that place is situate or where the business, profession, or vocation is carried on at more than one place by the Incometax Officer of the area in which the principal place of business, profession or vocation is situate. In all other cases, according to sub-section (2), an assessee shall be assessed by the Income-tax Officer of the area in in which he resides. If any question arises as to the

(1) [1950] 8.0.R. 869.

place of assessment such question shall be decided, 1956 after giving the assesse~ a.n opportunity. to. represent Bidi supply co. his views by the Comm1ss10ner or Comm1ss10ners conv. cerned or in case of disagreement between them by The Union of India.

the Board of Revenue (sub-section (3)). It is quite and others clear from the aforesaid provisions of section 64 that the Legislature considered the question of the place of assessment to be of some importance to the assessee.

The provisions. of section 64 of the Indian Income- . tax .. Act, 1922 ctme up for discussion before the Bombay High Court in Dayaldas Kushiram v. Commissioner of Income-tax, Oentral(1). At pages 657 to 658 Beaumont, C.J. observed as follows:

"In my opinion section 64 was intended to ensure that as far as practicable an assessee should be assessed locally, and the area to which an Incometax Officer is appointed must, so far as the exigencies of tax collection allow, bear some reasonable relation to the place where the assessee carried on business or resides. There is no evidence that there was any difficulty in restricting the area to which the Incometax Officer, Section II (Central), was appointed to something much narrower than the Bombay Presidency, Sind and Baluchistan. Therefore, in my opinion, Income-tax Officer, Section II (Central), is not the Income-tax Officer of the area in which the applicant's place of business is situate, and as there is such an officer in existence, namely, the Officer of Ward C, Section II, in my• opinion, it is only the latter officer who can assess the assessee".

Kania, J. (as he then was) said at pages 660-661:

"A plain reading of the section shows that the same is imperative in terms. It also gives to the assessee a valuable right. He is entitled to tell the taxing authorities that he shall not be called upon to attend at different places and thus upset his business". It will be noticed from the above passages that the learned judges treated the provisions of section 64 more as a question of right than as a matter of convenience only. It was for the above decision that the

(1) I.L.R. [1940) Bom. 650; [1940] 8 I.T.R. 130.

Das C.J.

1956 Indian Income-tax Act, 1922 was amended by the

B"d" 5 #I c Indian Income-tax (Amendment) Act, 1940 (Act XL ' ' "v. Y o. of 1940), by adding to clause (b) of sub-section (5) of

Th• u .. 1on of 1 .. d1a section 64 the words "in consequence of any transfer

a .. dothm made under sub-section (7-A) of section 5" and by adding sub-section (7-A) to section 5. The relevant portion of sub-section (5) of section 64 so amended reads as under:-

Das C.J.

"( 5) The provisions of sub-section (l) and subsection (2) shall not apply and shall be deemed never. at any time to have applied to any assessee-

(a) ················································································

(b) where by any direction given or any distribution or allocation of work made by the Commissioner of Income-tax under sub-section (5) of section 5, or in consequence of any transfer made under sub-section

(7-A) of section 5, a particular Income-tax Officer has been charged with the function of assessing that assessee, or

(c) .................. , ........................................................... . ..

It is thus clear from this amendment that the benefit conferred by the provisions ohub-section (1) and sub- . section (2) are taken away and is to be deemed and not to have existed at any time as regards the assessee with regard to whom a transfer order is made under sub-section ('7-A) of section 5. In order, however, to deprive a particular assessee of the benefits of sub-sections (I} and (2) of section 64, there must be a valid order under section 5(7-A) and he will lose the benefit only to the extent to which that right is taken away by a valid order made under sub-section (7-A} of section 5. This takes us to the new subsection (7-A) of section 5. .

Sub-section (7-A) of section 5 runs as follows:-

"(7-A) The Commissioner of Income-tax may , transfer any case from one Income-tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Incometax Officer to another. Such transfer may be made at any stage of the proceedings, and shall not render

necessary the reissue of any notice already issued by 1956 the Income-tax Officer from whom the case is transnas .,,,,,1 c fe d " i I "r,- ; JI O, rre . v.

The sub-section in terms makes provisions for the The Union of India transfer of a "case". Under the Indian Income-tax and others Act, 1922 a case is started when the Income-tax Officer issues a n, otiee under section 22(2) of the Act calling upon the assessee to file hs return of his total income and total world income during the previous year and then the assessee submits his return in the prescribed form. It is quite clear from the section that the notice and the return are to be confined to a particular assessment year and the sub-section contemplates the transfer of such a "case", i.e., the assessment case for a particular year. The provision that such a transfer may be made "at any stage of the proceedings" obviously postulates proceedings actually pending and "stage" refers to a point in between the commencement and ending of those proceedings. Further the provision that such transfer shall not render necessary the reissue of notice already issued by the Income-tax Officer from whom the case is transferred quite clearly indicates that the transfer contemplated by the sub-section is the transfer of a particular case actually pending before an Income-Tax Officer of one place to the Income-Tax Officer of another place. The fact that in this case the Income-tax Officer, Special Circle, Ranchi issued fresh notice under section 22(2) quite clearly shows

that he did not understand that any particular pending case of this assessee had been transferred to him.

Evidently he thought that the assessment of the petitioner's income, generally and as a whole, had been transferred to him and that it was, therefore, for him to initiate a case, i.e., assessment proceedings for a particular year. In our judgment such an omnibus wholesale order of transfer is not contemplated by the sub-section. It is implicit in the sub-section that the Commissioner of Income-Tax or the Central Board of Revenue, as the case may be, should before making an order of transfer of any case apply his or its mind to the necessity or desirability of the transfer

Das C.J.

7956 of that particular case. The fact that it is necessary or desirable to transfer a case of assessment of a Bi.-li supply Co. 1 1 v. particu ar assessee for any particu ar year does not The Union of India necessarily indicate that it is equally" necessary or

"''d others desirable to transfer another assessment case of that assessee for any other assessment year. We are accord- Das C.J. ingly of the opinion that the impugned order of transfer, which was expressed in general terms without any reference to a.ny particular case and without any limitation as to time, was beyond the competence of the Central Board of Revenue. We did not understand the learned AttorneyGerieral to contend that such was not the correct interpretation of the sub-section.

We do not consider it necessary, for the purpose of this ca.se, to pause to consider whether the constitutionality of sub-section (7-A) of section 5 can be supported on the principle of any reasonable classification laid down by this court or whether the Act lays down any principle for guiding or regulating the exercise of discretion by the Commissioner or Board of Revenue or whether the sub-section confers an unguided and arbitrary power on those authorities to pick and choose individual assessee and place that assessee at a disadvantage in comparison with other assessees. It is enough for the purpose of this case to say that the omnibus order made in this case is not contemplated or sanctioned by sub-section (7-A) and that, therefore, the petitioner is still entitled to the benefit of the provisions of sub-sections

(1) and (2) of section 64.

All assessees are entitled to the benefit of those provisions except where a particular case or cases of a particular assessee for a particular year or years is or are transferred under sub-section (7-A) of section 5, assuming that section to be valid and if a particular case or cases is or are transferred his right under section 64 still remains as regards his other case or cases.

As said by Lord Atkin in Eshugbai Eleko's case(') the executive can only act in pursuance of the powers given to it by law and it cannot interfere with the liberty, property

ll) IJ.R. [1931) A.O. 6G21 670.

and rights of the subject except on the condition that 1956 it can support the legality of its action before the Bidi suppzy co. court. Here there was no such order of transfer as v. is contemplated or sanctioned by sub-section (7-A) The Union of Tndia of section 5 and, therefore, the present assessee still and others has the right, along with all other Bidi merchants carrying on business in Calcutta, to have his assessment proceedings before the Income-tax Officer of the area in which his place of business is situate. The income-tax authorities have by an executive order, unsupported by law, picked out this petitioner and transferred all his cases by an omnibus order unlimited in point of time. This order is calculated to inflict considerable inconvenience and harassment on the petitioner. Its books of account will have to be pro duced before the Income-tax Officer, Special Circle, Ranchi-a place hundreds of miles from Calcutta, which is its place of business. Its partners or principal officers will have to be away from the head office for a considerable period neglecting the main business of the firm.

There may be no suitable place where they can put up during that period. There will certainly be extra expenditure to be incurred by it by way of railway fare, freight and hotel expenses.

Therefore the reality of the discrimination cannot be gainsaid. In the circumstances this substantial discrimination has been inflicted on the petitioner by an executive fiat which is not founded on any law and no question of reasonable classification for purposes of legislation can arise. Here "the State" which includes its Income-tax department has by an illegal order denied to the petitioner, as compared with other Bidi merchants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately complain of an infraction of his fun dam en tal right under article 14 of the Constitution.

It has further been urged that this order indirectly affects the petitioner's fundamental right under article l9(I)(f) and article 31.

There can be no gainsaying the fact that the order purports to deprive the petitioner of its right under section 64 to which

DasC.J.

1956 it would otherwise be entitled. The order of transfer . . is certainly calculated to inflict considerable incon- 8'J' Supply Co. . d h t t th t"t" h . v vemence an arassmen o e pe 1 1oner as eremr~. union.of India before mentioned. But in the view we have taken

and others on the construction of sub-section (7-A) of section 5

Das C.J. and the petitioner's rights under article 14, it is not necessary for us, on this occasion, to express any opinion on the contention that the inconvenience and harassment referred to above constitute an imposition of such an interference as amounts to an unwarranted restriction on the petitioner's rights under article 19(l)(g} or a violation of his rights under article 31.

For the reasons stated above this petition must be allowed. Accordingly the impugned order is set aside and an injunction is issued in terms of prayer ( c) of the petition. The petitioner is entitled to the costs of this applicatio";.

BOSE J.-I agree with my Lord the Chief Justice that this petition should be allowed but for different reasons. In my opinion, sections 5(7-A) and 64(5)(b) of the Indian Income-tax Act are themselves ultra vires article 14 of the Constitution and not merely the order of the Central Board of Revenue.

The only question is whether these sections contravene article 14. Despite the constant endeavour of Judges to define the limits of this law, I am unable to deduce any clear cut principle from the oftrepeated formula of classification. As I have said in another case, even the learned Judges who propound that theory and endeavour to work it out are driven to concede that classification in itself is not enough for the simple reason that anything can be classified and every discriminatory action must of necessity fall into some category of classification, for classification is nothing more than dividing off one group of things from another; and unless some difference or distinction is made in a given case no question under article 14 can arise. It is just a question of framing a set of rules.

It is elementary that no two things are exactly

alike and it is equally obvious many things have features that are common. Once the lines of demar-

Bidi Supply Co. cation are fixed, the resultant grouping is capable of v. objective determination but the fixing of the lines is The Union of India necessarily arbitrary and to say that governments and others and legislatures may classify is to invest them with a naked and arbitrary power to discriminate as they please. Faced with the inexorable logic of this position, the learned Judges who apply this test are forced to hedge it round with conditions which, to my mind, add nothing to the clarity of the law. I will pass over the limitations with which the classification test is now judicially surrounded, namely that it must be "reasonable'', it must not be "discriminatory" or "arbitrary'', it must not b~ "hostile"; there must be no "substantial discrimination" and so forth, and will proceed at once to a rule that is supposed to set the matter at rest. The rule is taken from the American decisions and was stated thus in The State of West Bengal v. Anwar Ali Sarl:ar(i);

"In order to pass the test, two conditions must be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act".

Mukherjea, J. (as he then was) said at page 321 ibid that

"the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation. to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid".

In another case, Ram Prasad Narayan Saki and Another v. The State of Bihar and Others(9), the same learned Judge said at page 1139-

"but such selection or differentiation must not be arbitrary and should rest upon a rational basis, having regard to the object which the legislature has in view".

(1) [1952) S.O.R. 284, 334.

(2) [1958) S.O.R. 1129.

Bose].

1956 Ivor Jennings puts it another way:

"Among equals the law shall be equal and shall Bidi s"!'ply co. be equally administered and that like shall be treated . l'k ,, The Union of India a. 1 e .

a"d others With the utmost respect all this seems to me to break down on a precise analysis, for even among BoseJ. equals a large discretion is left to judges in the matter of punishment, and to the police and to the State whether to prosecute or not and to a host of officials whether to grant or withhold a permit or a licence.

In the end, having talked learnedly round and around the article we are no wiser than when we started and in the end come back to its simple phrasing-

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India''.

The truth is that it is impossible to be precise, for we are dealing with intangibles and though the results are clear it is impossible to pin the thought down to any precise analysis. Article 14 sets out, to my mind, an attitude of mind, a way of life; rather than a precise rule of law. It embodies a general awareness in the consciousness of the people at large of something that , exists and which is very real but which cannot be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that, and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else; one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is not the law that alters but the changing conditions of the times and article 14 narrows down to a question of fact which must be determined by the highest Judges in the land as each case arises. (See on this point Lord Sumner's line of reasoning in Bowman's case(')). Always there is in these cases a clash of conflicting claims and it is the core of the judicial process to arrive at an accommodation between them. Anybody can decide a question if only a single principle

(1) [1917] A.C. 406, 466, 467.

is in issue. The heart of the difficulty is that there 1956 is hardly any question that comes before the Courts Bidi suppty co. that does not entail more than one so-called principle. v.

As Judge Leonard Hand of the United States Court The Union of India of Appeals said of the American Constitutionand others "The words a judge must construe are empty vessels into which he can pour anything he will".

These rules are useful guides in some cases but they do not, in my opinion, go to the root of the matter; nor am I alone in so thinking though my approach is more direct and fundamental than is usual. Patanjali Sastri, C.J. said in The State of West Bengal v. Anwar Ali Sarlcar(1) that the reported decisions "underline the futility of wordy formulation of so-called 'tests' in solving problems presented by concrete cases".

I endeavoured to point out in my judgment in Anwar Ali Sarlcar's case(1) at page 361 that one can conceive of classifications that conform to all these rules and yet which are bad: classifications made in the utmost good faith; classifications that are scientific and rational, that will have direct and reasonable relation to the object sought to be achieved and yet which are bad because despite all that the object itself cannot be allowed on the ground that it offends article 14. In such a case, the object itself must be struck down and not the mere classification which, after all, is only a means of attaining the end desired; and that, in my judgment, is precisely the point here.

It is the very point that Fazl Ali J. made in Anwar Ali Sarkar's case(1) at pages 309-310:

. "It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be levelled at all, it can be levelled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimina-

(1) [1952) S.C.R. 284, 297.

Bose J.

1955 tion is quite evident one cannot challenge the Act

Bidi supply co. simply because it is couched in general terms; and one v. canndt also challenge the act of the executive auth- Th• Union of In4ia ority whose duty it is to administer th~ Act, becallSe

andothm that authority will say:-! am not to blame as I am

Bos•J. acting under the Act. It is clear that if the argument were to be accepted, article I 4 could be easily defeated. I think the fallacy of the' argument lies in overlooking the fact that the 'insidious piscrimination complained of is incorporated in the Act itself', it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it".

Nor, in the past, has this Court hesitated to strike down the Act or Order itself when it confers unrestricted power as here .. That was what. happened in the Coal Control Case('); the Order itself was struck down and not the executive action taken by virtue of the unrestricted powers conferred l:iy that law. See page 813 where it was said-

"The Order commits to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chooses. and there is nothing in the Order which would ensure a proper execution of the power or operate as a check upon iiijustice that might result from improper execution of the same".

So also in the State of Madras v. V. G. Row("). It is true that these were cases under article 19 and not 14 of the Constitution but the principle is the same.

I need not multiply instances.

What is the position here? Here.is an Act that fixes a certain venue for assessment in section 64. That is the normal law of the land for these purposes.

The language in sub-sections (I) and (2) is mandatory: "he shaU be assessed".

If there is doubt or dispute about the correct venue, it can only be decided after hearing the party concerned. Then come the provisions for transfer.

Now it is, I think, necessary that there should be powers of transfer and the mere conferral of such

(1) [195'] s.c.B. 803..

(2) [1962] S.C.B. 697.

powers would not offend article 14. But, put at its 1956 lowest, it is anomalous that when similar powers are Bidi SttJ>Ply co. conferred on the High Courts and even on this Court v. under, for example, the Code of Criminal Procedure, The Union of India

they should be hedged round with limitations, whereand others as, when it comes to a Commissioner of Income-tax - or the Central Board of Revenue, no limitations BoseJ. whatever are placed upon them. Section 526 of the Criminal Procedure Code confers only limited powers of transfer on the High Court and article 136 empowers this Court to intervene should those powers be exceeded by the High Court and should this Cout in its discretion feel that that has led, or is likely to lead, to hardship and injustice or to a miscarriage of justice; and in the case of this Court a right to transfer is conferred under section 527 only when that is "expedient in the interests of justice". Section 24 of the Civil Procedure Code is wider but that was a law made before the Constitution and, in any case, suc.h an order would be open to review by this Court and in a suitable case, should the High Court act arbitrarily or along non-judicial lines, such as directing a transfer without recording reasons and without hearing the parties concerned when it is possible to afford them a hearing, the matter would be set right here.

There is a big difference between investing a judicial authority with such powers and other non-judicial bodies because judges must act in accordance with a recognised procedure and obey the laws of natural justice unless there is express indication to the contrary in the .statute.

What is the position here? There is no hearing, no reasons are recorded: just peremptory orders transferring the case from one place to another without any warning; and the power given by the Act is to transfer from one end of India to the other; nor is that power unused. We have before us in this Court a case pending in which a transfer has been ordered from Calcutta in West Bengal to Ambala in the Punjab.

After all, for whose benefit was the Constitution enacted? What was the point of making all this

7956 pother about fundamental rights? I am clear that the

8 .d. 5 /Pl Co Constitution is not fc~ the exclusive benefit of gov-

' ' :. Y • ernments and States; it is not only for lawyers and The Union of India politicians and officials and those highly placed. It

and others also exists for the common man, for the poor and the humble, for those who have businesses at stake, for Bose]. the "butcher, the baker and the candlestick maker".

It lays down for this land "a rule of law" as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all.

I make no apology for turning to older democracies and drawing inspiration from them, for though our law is an amalgam drawn from many sources, its firmest foundations are rooted in the freedoms of other lands where men are free in the democratic sense of the term. England has no fundamental rights as such and its Parliament is supreme but the liberty • of the subject is guarded there as jealously as the supremacy of Parliament.

The heart and core of a democracy lies in the judicial process, and that means independent and fearless judges fre~ from executive control brought up in judicial traditions and trained to judicial ways of working and thinking. The main bulwarks of liberty and freedom lie there and it is clear to me that uncontrolled powers of discrimination in matters that seriously affect the lives and properties of people cannot be left to executive or quasi executive bodies even if they exercise quasi judicial functions because they are then invested with.an authority that even Parliament does not possess. Under the Constitution, Acts of Parliament are subject to judicial review particularly when they are said to infringe fundamen ta! rights, therefore, if under the Constitution Parliament itself has not uncontrolled freedom of action, it is evident that it cannot invest lesser authorities with that power. If the legislature itself had done here what the Cental Board of Revenue

has done and had passed an Act in the bald terms of 1956 the o.rder mde here transferring. the . case. of his Bidi supply co. petitioner, pwked out from others m a hke s1tuat10n, v. from one State to another, or from one end of India The Union of India to the other, without specifying any object and withand others out giving any reason, it would, in my judgment, have been bad. I am unable to see how the position is bettered because the Central Board of Revenue has done this ad not Parliament.

I quote Mukherjea J. (as he then was) in a case which is not in point here but in a passage whose language seems apt to the present position.

The quot:ttion is from Ram Prasad Narayan Sahi v. The

State of Bihar(1):

"It is impossible to conceive of a worse form of discrimination than the one which differentiates a particular individual from all his fellow subjects and visits him with a disability which is not imposed upon anybody else and against which even the right of complaint is taken away" and again,

"It is true that the presumption is in favour of the constitutionality of a legislative enactment and it has to be presumed that a Legislature understands and correctly appreciates the needs of its own people.

But when on the face of a statute there is no classification at all, and no attempt has been made to select any individual or group with reference to any differentiating attribute peculiar to that individual or group and not possessed by others, this presumption is of little or no assistance".

In the case of Liversidge v. Sir John Anderson(2) the learned Law Lords were at great pains to see whether the British Parliament had in fact left the matter under consideration there to the subjective satisfaction of a Secretary of State. 'fhere was no doubt that the British Parliament could do so because it is supreme and its action is not fettered by a written constitution; but the encroachment on the liberty of the subject was so great that the House of Lords was reluctant to reach the conclusion which it ulti-

(1) [1953] S.C.R. 1129, 1143.

(2) [1942] A.C. 20G.

Bose J.

1956 mately did by a majority, that that had in fact been done; and one of the learned Law Lords, Lord Atkin, Bidi S"pply Co.

Q v. read a powerful dissenting opinion. ne of his criti- Th• Union of India cisms at page 226 was that the order of detention

and others was made

"by an executive minister and not by any kind BoseJ. of judicial officer; it is not made after any inquiry as to facts to which the subject is part~ it cannot be reversed on any appeal.. .......... It is an absolute power which, so far as I know, has never been given before to the executive".

In my opinion, that is the very point here.

In England the power can be conferred but, because it so vitally affects the liberty of the subject, the judges there fight against any interpretation that would lead to that conclusion and in the end reach it only when compelled to do so for overwhelming reasons.

In India the fundamental freedoms conferred by the Constitution are guarded with equally jealous care and it seems to me that the whole point of having this Chapter on Fundamental Rights is to ensure that the .very things that the English judges fight against in their courts will not happen here.

Io England the task of the judges is to see whether their Parliament has conferred those wide powers; in India our task is to see whether the Constitution has done so. In England the conferral of those powers is never conceded unless Parliament uses clear, express and unambiguous words.

In our EJonstitution I find an absence of any such clarity; on the contrary, the whole trend of the Constitution points the other way. .

If an executive authority or a quasi judicial body, or even Parliament itself, were to be given the right to determine these matters to their subjective satisfaction, there would be no point in these fundamental rights, for the courts would then be powerless to interfere and determine whether those rights have been infringed. The whole point of the chapter is to place a limitation on the powers of all these bodies, including Parliament, save in its constituent capacity.

Therefore, no power resting on the subjective satisfaction of any of these bodies can ever be conferred; the satisfaction must always be objective in the sense

Bidi Supply Co. in which Lord Atkin explained so that its exercise is v. open to judicial review.

The Union of India In my opinion, the power of transfer can .only be and others conferred if it is hedged round with reasonable restrictions, the absence or existence of which can in the last instance be determined by the courts; and the exercise of the power must be in conformity with the rules of natural justice, that is to say, the parties affected must be heard when that is reasonably possible, and the reasons for the order must be reduced, however briefly, to writing so that men may know that the powers conferred on these quasi judicial bodies are being justly and properly exercised.

In a democracy functioning under the Rule of Law it is not enough to do justice or to do the right thing; justice must be seen to be done and a satisfaction and sense of security engendered in the minds of the people at large in place of a vague uneasiness that Star Chambers are arising in this land. We have received a rich heritage from a very variegated past.

But it is a treasure which can only be kept at the cost of ceaseless and watchful guarding. There is no room for complacency, for in the absence of constant vigilance we run the risk of, losing it. "It can happen here."

I would hold for these reasons, and in particular for the reason given: by Fazl Ali J. in the passage from one of his judgments quoted above, that section 5(7-A) is ultra vires article 14 of the Constitution and so is , section 64(5)(b) in so far as it makes an order under section 5(7-A) as it now exists, inviolate.

I would allow the petition.

Bose J.

REPORTS

BID! SUPPLY CO

THE UNION OF INDIA AND OTHERS

S. R. DAS, C.J.

VIVIAN BOSE

BHAGWATI

B. P. SINHA, JJ.

Constitution of India

Art. 14

Income Tax Act, 1922

ss.5(7-A), 64(5)(b)

s. 5( 7-A)

s. 64

Calcutta

s. 22(2)

s. 5(7-A)

Art. 32

s. 5

S. 64

s. 5

s. 5

s. 64

s. 5

s. 22(2)

s. 5

13th December 1954

s. 64

Section 5(7A)

Art. 14

s. 64(5)(b)

s. 5(7-A)

[1955] 1 S.C.R. 1045

Eshugbai Eleko

Bowman

article 32

S. 0

D. N. Mukerji

B.

Sen

R.H. Dhebar

DAS C.J.-This

article 32

Indian Partnership Act

Chakradharpur

Union of India

section 22(2)

Income-tax Act

23rd August 1954

18th December 1954

25th January, 1955

section 5(7-A)

Income-tax Act

Ranchi

Central Board of Revenue.

New Delhi

section 5

Indian Income-tax Act, 1922

Central Board of Revenue

2nd May 1955

article 32

section 5

Indian Income-tax Act, 1922

articles 14, 19(l)(g) and 31

Article 14

Parliament of India

Government of India

article 14

article 14

article 14

section 64

section 64

section 64

Bombay High Court

Beaumont

section 64

Bombay Presidency

Sind

Baluchistan

Kania

section 64

Indian Income-tax Act, 1922

section 64

section 5

section 5

section 64

section 5

section 5

section 5

section 64

section 5(7-A)

section 5

section 5

section 5

Commissioner of Income-tax

Indian Income-tax and others Act, 1922

section 22(2)

section 22(2)

Union of India

section 5

section 64

section 5

section 64

Atkin

Union of Tndia

section 5

article 14

article 31

section 64

section 5

article 14

BOSE

sections 5(7-A) and 64(5)(b)

Income-tax Act

article 14

Central Board of Revenue

article 14

article 14

Mukherjea

Ivor Jennings

Article 14

article 14

Sumner

Leonard Hand

United States Court

Union of India of Appeals

Patanjali Sastri

Anwar Ali Sarlcar

article 14

Fazl Ali

Anwar Ali Sarkar

Bose

article 19

section 64

article 14

Code of Criminal Procedure

Section 526

article 136

section 527

Section 24

West Bengal

Ambala

Punjab

England

Parliament

Cental Board of Revenue

British Parliament

Bidi Supply Co.

Union of India

section 5(7-A)

article 14

section 64(5)(b)

section 5(7-A)


Ajwil S

SUPREME COURT REPORTS

SUKHA AND OTHERS

ti.

THE STATE OF RAJASTHAN.

[VIVIAN BosE, JAGANNADHADAS a.nd

CHANDRASEKHARA AIYAR, JJ.]

[1956]

Unlawful Assembly- 11Common intention" and "Common object" -Distinction-Duty of a Court of fact-Indian Penal Code (Act XLV of 1860), ss. 8!,, 149.

Common intention reqnired by s. 34 of the Indian Penal Code and common object set out under s. 149, though they sometimes overlap, are used in different senses and should be kept distinct. In a case under s. 149 there need not be a prior concert and meeting of minds, it is enough that each has the same object in view and their number is five or more and they a.ct a.s an assembly to achieve that object.

When a crowd assembles and there is e.n uproar and people are killed and injured, it is only natural for others to rush to the scene with whatever arms they can snatch. Some may have an unlawful motive but others may not, and in such circumstances it is impossible to say that they were all motivated by a common intention with prior concert. What a court of fact should do in such a case is to find from the evidence which of them individually had an unlaw ful object in view, or having originally a lawful object in view developed it later on into an unlawful one and if it finds that there were five or more such persons who acted together there would be an un lawful assembly.

Consequently, in a case where there were circumsta.nces from which the courts of fact could deduce that an unlawful object developed with more than fi"e to share it after the fighting started and they were satisfied that it did, there was no reason why their con current decisions should be set aside.

This court will be slow to entertain a question of prejudice when details are not furnished; also, the fact that the objection was not taken at an early stage will be taken into account.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 133 of 1955.

Appeal by special leave from the judgment and order dated the 10th January 1955 of the High Court of Judicature at Jodhpur in Criminal Appeals Nos. 57 & 83 of 1953 a.rising out of the judgment and order dated the 26th May 1953 of the Court of

Sessions Judge at Merta in Criminal Original Case

No. 1 of 1952.

Jai Gopal Sethi, K. R. Krishnaswami and K. R.

Ohaw1hry for the appellants.

Porus A. Mehta and P. G. Gokhale, for the respondent.

1956. April 5.

The Judgment of the Court was delivered by BosE J.-Four persons were killed about ll p.m. on the night of the 21st July 1951 and a number of others injured. This was said to be the result of a riot that occurred in the village Dhankoli. Thirty six persons were committed for trial. Of these, two died during the course of the proceedings. The remainder were all charged under section 325/149 of the Indian Penal Code and eleven were also charged under section 302/149.

The learned Sessions Judge acquitted twenty five of the charge under section 325/149 and convicted nine. He acquitted all the eleven who were charged under section 302/149 but convicted nine of them under section 325/149.

The State did not appeal against the acquittals of the twenty five under section 325/149 nor did it appeal against the acquittals of two of the eleven who were charged under section 302/149 but it appealed against the acquittals of the remaining nine who had been convicted under section 325/149. These nine convicts also appealed. The High Court therefore had two appeals before it, one against the acquittals of nine persons under section 302/149 and the other by the same persons against their convictions under section 325/149.

The High Court dismissed the appeal of the convicts and allowed that of the State. The convictions of these nine persons were accordingly altered to ones under section 302/149 of the Indian Penal Code and the lesser sentence of transportation was given to each.

It is admitted on both sides that there was bad

Sukha and others v.

The State of Rajasthan

Sukha and others

The State of Rajasthan

Bose}.

blood in the village Dhankoli between a caste known as Baories on one side and three other castes of the village namely, Jats, Dhobis and Khaties on the other.

The case for the prosecution is that this was due to a dispute over a field that belonged to some of the Jats. There were some court proceedings about the field in which ParS!ia (one of the Baories who was killed) had appeared against the Jats. The accused Sukha, Gumana, Begla and Govinda were in particular interested in this field and so bore a grudge against Parsia.

The defence also allege enmity. Their case is that the enmity is due to the fact that the villagers decided not to employ the Baories for watch and ward work in the village as they suspected that the Baories were responsible for certain thefts that had occurred there.

The other castes in the village therefore did this work themselves by turns. This was resented by the Baories and the allegation is that the Baories were responsible for the fight and attacked some of the others in the village and that that led to a fight; but none of the appellants was concerned with it.

From this point it will be convenient to divide the narrative into a series of numbered steps.

I. On the day in question, two of the Baories, Chhotiya and Parsia, had been to. a neighbouring village to bid at an auction where the field, which according to the prosecution engendered the dispute, was being sold.

They returned to their village about 11 p.m. and ran into the accused Sukha and Gumana (both Jats). They were challenged and when they disclosed who they were, Sukha and Gumana cried out "kill them. They had gone for the auction of the field." On that Sukha fired a gun which he had with him and hit Parsia on the legs. Parsia fell down and Gumana hit him over the head with a sword. He also hit Chhotiya over the head with a sword and Chhotiya also fell down. 2.

Parsia and Chhotiya at once cried out for help and their cries, coupled with the sound of the gun fire, brought a number of persons to the scene. The

number varies widely. Chhotia (P.W. 8) says 30 to 35, Ruga (P.W. 1) says 50 or 60, Bedu (P.W. 2) puts it at 30 or 40 and so does Lachhuri (P.W. 10), while Ladia (P.W. 11) thinks there were as many as 100 to

150.

There are other estimates too, mostly in the neighbourhood of 30 to 40, but the exact number does not matter because it is evident that a crowd assembled. Those who did the attacking are said to have been about 30 or 40 but it is clearly proved that several Baories were there and that some of them were assaulted.

The point of stressing these facts is to bring out the fact that most of the persons there did not assemble for an unlawful purpose and so did not form an unlawful assembly. The problem is to" sort out those who formed an unlawful assembly from those who did not. Mr. Sethi argued that there is no evidence to support a finding that there was an unlawful assembly because it is impossible to determine who came to attack and who did not. But we will deal with this later. For the present, we will conti~ nue our narrative outlining the prosecution case.

3. After the gun was fired and Parsia and Chhotiya struck down, a large number of persons rushed to the scene and, among them, some 30 or 40 were armed with various kinds of weapons. Of these, Kamla, Balia, Todia and Bhawana (all Jats) had pharsies, Gumana, GovindaandJodhiya (alsoJats) had swords and the rest (Jats, Dhobis and Khaties) had lathis.

These persons also attacked Chhotiya and Parsia. 4.

The cries of Chhotiya and Parsia attracted Mana, Govinda, Pemla, Ram buxa and Gangli and some others. These persons are Baories. This crowd of 30 or 40 turned on Mana and Govinda and attacked them. Sukha then fired his gun a second time and hit Mana on his left hand.

5. In the meanwhile, Ganesh and his wife Seruri (Baories) arrived and said "don't beat, don't beat".

Sukha and Gumana said that they should also be beaten and thereupon these 30 or 40 persons .started to beat them too and they fell down. 6.

After this, Parsia's wife Lachhuri came there

Sukh a and others

The State of Rajasthan

Bose].

Sukha and othef's

The State of

Rajaslhan

Bose J.

and some 10 or 11 persons out of the original 30 or40 started to chase her. But she ran away and managed to escape with only a slight beating. 7.

While this was happening, the five Baories who had been felled to the ground (Parsia, Ganesh, Mana, Govinda and Seruri) started to cry out.

The ten or eleven who had chased Lachhuri came back and on hearing the cries of these five on the ground, Sukha and Gumana said that they were crying and should be killed outright. On that these eleven persons divided into three groups and attacked the five on the ground as follows: Parsia was beaten by Sukha (with a pharsi), Jeewana (dangri) and Chokla (dangri).

Mana and Govinda were beaten by Gumana (sword), Balia (pharsi) and Jankiya and Naraina (lathis).

Ganesh was beaten by Bhawana (dangri), Govinda. (sword), Kumla (pha.rsi) and Begla. (dangri).

All four died on the spot.

The accused were charged as follows.

One group consisting of 25 persons were charged under section 325/149 of the Indian Penal Code for intentionally beating, along with the other accused, 1.

Chhotiya.

2. Seruri

3. Parsia 4.

Mana

5. Govinda and 6.

Ganesh.

At a later stage, the following sentence was added to the charge:

"which you inflicted as a member of an unlawful assembly in prosecution of its common intention".

These twenty five were acquitted and we a.re not concerned with them except to note that they were not concerned with that part of the occurrence which we have set out as steps 6 and 7 above.

The charge against the remaining eleven can be divided into two parts. Under the first, each, except Sukha, is charged with beating the Baories Parsia, Mana, Govinda, Ganesh, Chhotiya, Seruri, etc. "a.long

with other accused".

Five of the eleven are said to

have beaten them with "swords and lathis"; another five "with lathis, etc." while the eleventh, Sukha, is said to have fired at Parsia and Mana "as a result of which they fell down". Then each charge continues-

" and when all had fallen down as a result of these injuries".

After that the charges divide off into three groups: One group charges (1) Gumana, (2) Naraina, (3) Balia and (4) Jankiya with beating Govinda and Mana, "who were groaning, with lathis with intent to kill them till they were actually killed". The next group charges (1) Jeewana, (2) Sukha and (3) Chokhla with hitting Parsia with lathi blows "with intent to murder him till he died". The third group charges (1) Begla,

(2) Govinda, (3) Kumla and (4) Bhawana with assaulting Ganesh with lathis with intent to murder till he died.

The following sentence was also added in the end of each of these charges:

"And you did this as a member of an unlawful assembly in prosecution of its common intention".

There has been some confusion in both the Sessions Court and the High Court between "common intention" and "common object". It is true the two sometimes overlap but they are used in different senses in law and should be kept distinct. In a case of unlawful assembly or riot we are concerned with a common object. However, we are satisfied that that has not caused any prejudice.

But the reason why we have set out these charges at some length is because counsel for the appellants argued that the prosecution case is that there were two separate assemblies, one of twenty five persons to beat six specific persons and another of eleven to kill them in three groups.

He argued that the twenty five who constituted the first assembly have all been acquitted; that the only material from which an unlawful assembly can be inferred in the other case is the instigation of Sukha and Gumana for a second time after they had returned from chasing Lachhuri. That story, he said, has been disbelieved, so all must be acquitted.

It will be necessary at this stage to set out the

Sukha and othef's

The State of Rajasthan

Bose/.

1956 findings of the two lower courts.

The learned Ses- - sions Judge starts by rejecting the evidence of Ruga Sukhaandothers (P.W. 1), Bodu (P.W. 2) and Bhagwatia (P.W. 3) on

The s~:te of the question of identification of any of the accused Rajasthan and the evidence of Arjun (P.W. 4) about the conspiracy to beat up the Baories. But he finds that the Bose J. evidence of the Baori witnesses, Chhotiya (P.W. 8), Lachhuri (P.W. 10), Ladia (P.W. 11), Seruri (P.W. 12), Gangli (P.W. 13) and Pemla (P.W. 14) is consistent "so far as these 11 accused are concerned regarding their beating 4 persons to death and causing injuries to Lachhuri, Ganesh's wife, Seruri and Cbbotiya". Later, be states-"From the evidence of these Baori witnesses,. .............. .it is found that these eleven accused were involved in the beating of the injured persons. Whether they formed part of a bigger assembly is not now material because I have already discussed the cases of other accused and given them benefit of doubt. These eleven accused even amongst themselves being more than five in number could be regarded as members of an unlawful assembly".

But the learned Judge only accepted this story in part. HebelievedCbbotiya (P.W. 8), Seruri (P.W. 12), Gangli (P.W. 13) and Pemla (P.W. 14) in so far as they stated that Sukba bad a gun and that Sukba used it against Parsia and Mana, but be did not accept the evidence of Chbotiya (P.W. 8) in so far as he said that Gumana hit Chbotiya with a sword. He also rejected the prosecution version that the incidents occurred in two parts, first with a bigger assembly that beat all the accused and next with a smaller one that ran after Lachhuri and beat her and then returned to beat the others to death at the instigat.ion of Sukha and Gumana.

On this part of the case, the learned Sessions Judge found that

"whatever beating was done was done immediately after the scuffle between Cbhotiya and Parsia and Sukha and Gumana and Gumana and Naraina, and those accused who had arrived on the spot.

Nobody instigated anybody". (Para 103).

It was argued on behalf of the defence that the learned Sessions Judge discarded the evidence about

instigation in toto. Counsel for the State, however, contended that this passage refers to the second instigation which is said to have been given after the eleven had chased and beaten Lachhuri and returned to finish off the others who were lying on the ground.

We think that is right.

In paragraph 101 of his judgment the learned Sessions Judge set out the fact that the prosecution witnesses divide the incidents into two parts: one in which a larger assembly beat all the injured persons and the other in which eleven killed the four deceased persons at the instigation of Sukha and Gumana.

In paragraph 102 he set out reasons why he was not able to believe this story. The first was because

"Ladia (P.W. 11) did not state in his statement before the police that after beating Lachhuri, when ten or eleven persons had returned then at the instigation of Sukha and Gumana the injured were again beaten to death".

Then, after setting out four more rea::; ons, the learned Judge reached the conclusion just enumerated in paragraph 103.

In paragraph 117 he said-

"Leaving Begla and Govinda, I am fully convinced that Sukha, Gumana, Naraina, Kumla, Balia, Jeewana, Chokhla, Bhawana Khati and Jankiya did commit rioting with the common object of beating the Baories".

In paragraph 118 he said-

"I am not convinced that the intention of all these accused was to murder the whole lot of Baories ............ "

In para 119-"The accused did give sound beating to the injured".

He concluded that no common object to kill could be deduced but held that a common object to beat was olear.

As he was unable to determine which accused gave the fatal blows he convicted all under section 302 read with section 149 of the Indian Penal Code.

We think it is clear from this judgment, read as a whole, that the learned Sessions Judge disbelieved

Sukha and others v.

The State of Rajasthat1

Bose j.

Sukha and others

The State of

l?.ajastliau

Bose J,

the story of instigation at any stage because if he had believed even the first instigation, a common object to kill would have emerged.

We are unfortunately not able to obtain much assi.stance from the judgment of the learned High Court Judges. They have not analysed the evidence and have not reached clear findings about a common object due in some measure to the fact that they d~ not appear to have appreciated the difference between a common object and a common intention.

They hold that six witnesses can be relied on to the extent that "the villagers were armed with guns, swords, farsies and lathis". They do not believe all that these witnesses say because they hold

"Though, therefore, we do not believe that these eleven persons deliberately murdered the four injured Baories who were lying there saying that they should be killed, there is no doubt in our minds that these eleven persons.who have all been mentioned by these six witnesses were certainly seen taking more active part in this incident".

Then they hold- . "We are, therefore, satisfied on the statements of these witnesses that the incident took place in the main as stated by them and that the prosecution has given the right version of the affair".

Next, they hold that the fact that a large number of villagers, including the nine appellants, turned up armed with various weapons immediately they heard the quarrel between Chhotiya and Parsia on the one aide and Gumana on the other

"shows that there must have been some consultation from before and that these persons arrived in prosecution of the common ubject ............ ".

And they add this reason:

"There is also the evidence o.f the prosecution witnesses that as the Baories came, some one or the other of these accused incited the rest of the villagers to beat up the Baories".

From this they conclude that there was an unlawful assembly with the common object of beating up the Baories.

This is very unsatisfactory. The learned Judges were dealing with an appeal against an acquittal and though they have allowed the appeal they liave not been specific about which part of the evidence they rely on in support of their findings, nor do their conclusions follow logically from the premises on which they are based.

Take, for example, the finding about prior consultation. In the first place, no prior consultation is required when a common object is in question. The essence of the distinction between common object and common intention lies there. In the next place, the six witnesses, who are relied on, say that a crowd of 30 or 40 persons assembled. Among that crowd were Baories because three Baories (other than Parsia and Chhotiya) were killed and others injured. It is also evident that some of these Baories must have had some sort of weapons because three of the accused had slight injuries on their prson and one a fracture. The evidence discloses that there had been thefts in the village. The uproar occurred at 11 in the night.

In those circumstances, it would be natural for the villagers to rush to the scene and arm themselves with whatever came to hand. Some may have been motivated by an unlawful motive but many would not, and to deduce a common intention with prior concert in such circumstances is impossible. A common object is different and courts of fa.ct are entitled to conclude on the evidence that has been accepted that some of those who rushed to the scene went there with the object of beating up persons whom they thought to be thieves and not merely to apprehend them or defend their properties; in other words, that some of those persons individually had an unlawful object in view. If each had the same object, then their 9bject would be common and if there were five or more with this object, then they would form an unlawful assembly without any prior concert among themselves.

Next, take the High Court's finding about incitement. They have rejected the version given by the prosecution wjtnesses because they hold that the

Sukha and oti1ers

The State of•

Rajasthan

Bose}.

Sukha and others

•• The State of Rajasthan

Bo1eJ.

story about the second beating is an improvement and also because they disbelieve the evidence that indicates that these eleven persons deliberately murdered the four injured Baories.

But the only evidence about incitement is that Sukha and Gumana called on the-others to kill Barsia, and later to kill the others. The incitement was quite clearly to kill and not merely to beat. If this is rejected, then there is no evidence about incitement, so we are left in the dark to know what the learned Judges based their conclusion on. That has left us with the task of finding whether there is, or could be, any proper basis for these convictions.

Now, as we understand the learned Sessions Judge, he has believed the first part of the story which we have set out as step No. 1 except the portion that speaks about an incitement to kill. He finds that there was the meeting between Sukha and Gumana on the one side and Parsi a and Chhotiya on the other.

He says-

"lt can safely be deduced from the incidents as related by th!l witnesses in this case that in the beginning the fighting was between a couple of persons only and on hearing their cries their relatives, friends and relations and other villagers reached the spot and

some of the villagers did beat the Baories".

Pausing there, it is evident that there was no unlawful assembly when the beating started; nor can it be deduced that all the persons who rushed to the scene, whether the number was 30 or 150, formed an unlawful assembly. We therefore have to scan the evidence carefully to see what happened after that. The finding is that the eleven accused who were charged for the murder were all involved in the beating of the injured persons. That satisfies one of the ingredients of rioting, namely the presence of five or more person.a. But that of course is not enough. There must, in addition, be an "assembly" and that assembly must have a "common object" and the object must be "unlawful".

But a common object is different from a common intention in that it does not require prior concert and

a common meeting of minds before the attack, and an unlawful object can develop after the people get there. It is not for us to re-assess the evidence in special leave. All we can say is tha.t there are circumstances from which courts of fact could deduce that an unlawful object developed with more than five to share it once the marpit had started; and as two courts of fact a.re satisfied that it did, there is no reason for us to interfere. Persons who had come there quite lawfully, in the first instance, thinking there were thieves could well have developed an intention to beat up the "thieves" instead of helping to apprehend them or defend their properties; and if five or more shared the object and joined in the beating, then the object of each would become the common object.

This is not to say that all those present were members of that assembly. The presumption of innocence would preclude such a conclusion. Those who rushed to the scene in the circumstances disclosed must be presumed to have gone there for a lawful purpose even if they were armed. The apprehension of marauders who prowl the town at night and the defence of person and property are lawful objects. But when that object is exceeded and persons begin to beat up the suspects the a.ct of beating becomes unlawful, for priva.t.e persons are no more entitled to beat and illtrea.t thieves than a.re the police, especially at a time when there is nothing beyond suspicion against them.

But if five or more exceed the original lawful object

and ea.ch has the same unlawful intention in mind and they act together and join in the beating, then they in themselves form an unlawful assembly. There is no difference in principle between this and a case in which the original object was unlawful. The only difference is that a case like this is more difficult to establish and must be scrutinised with greater care.

But that scrutiny is here and we are satisfied that there is evidence in this case on which courts of fact could base the conclusion that they have reached.

Now, did these eleven persons constitute an assembly or were they there individually without any

Sukha and others

The State of

Raja•than

Bose].

795G

Sukha and others

The State of

Rajastlian

Bose J,

common factor to link them together? That, we think, is easily answered. It is clear that each (barring Sukha and Gumana who were already there) assembled at the spot because of the cries of Parsia and Chhotiya and because of the noise of the fight. That imports a common factor into their meeting and links them together as an assembly. Their object in assembling may have been innocent but the fact that a common factor like this induced them to come together constitutes them into an "assembly" though not, on that evidence alone, into an unlawful assembly.

We next have to see whether any of them had an unlawful object in view. The object of Sukha and Gumana was clearly unlawful. Now the evidence which has been believed shows that the other nine actually joined in the beating and that they did this after Sukha had fired his gun at Parsia and Parsia had fallen to the ground. It also shows that these others turned on Parsia's relations and friends when they came to their support. Therefore, whatever the original object of each may have been, it achieved a unity of purpose the moment the others joined in and continued to assist Sukha and Gumana and helped them to beat up the other Baories who came to Parsia's help. It is not a case of stray sporadic acts but indicates a certain continuity of purpose, each striving to achieve the same end, namely either to help Sukha and Gumana in beating up Parsia and Chhotiya and those who came to help them or to join in the beating for ends of their own. But the commonness of purpose is an inference of fact which courts of fact would be entitled to make. It does not matter whether the others joined in because of an initial instigation or whether, seeing the assault in progress, they joined in on their own account, because so long as each had the object of beating up Parsia and Chhotiya and those who came to their assistance, that would make their object common.

The distinction between the common intention required by section 34 of the Indian Penal Code and the common object set out in section 149 lies just

there. In a case under section 149 there need not be a prior meeting of minds. It is enough that each has the same object in view and that their number is five or more and that they act as an assembly to achieve that object.

All these features are to be found in that part of the evidence which has been believed. Therefore, on these findings which the courts of fact are entitled to reach, the object of the assembly was unlawful, but up to this point the highest common denominator was merely to beat and not to kill. Up to that point, the convictions of the learned Sessions Judge under section 325/149, Indian Penal Code, are unassailable.

The next question is whether, that being the case, the convictions by the High Court under section 302/149 can be upheld.

Neither the Sessions Judge nor the High Court believe that there was any common intention to kill, therefore the convictions for the more serious offence can only be sustained under section 149 if it can be shown (1) that an actual killing of some of the persons attacked was likely to result from the beating which formed the common object and (2) that each person so convicted knew that that might be a likely result.

Now so far as Sukha and Gumana are concerned, there can be no doubt. They started the fight with deadly weapons. Sukha fired at least twice and hit two persons. He himself may not have had an intention to kill and indeed the fact that the wounds are on non-vital parts must be used as a factor in his favour, but any person who carries a fire arm at that hour of the night and uses it and then continues a fight after an excited crowd has assembled and when at least nine of them rush in to join in the beating after his first shot must know either that somebody is likely to deal a fatal blow or at least that the cumulative effect of blows inflicted by a number of persons armed with la this is likely to cause death from shock.

Riots of this kind are common and death frequently results, therefore, not only was a killing a likely consequence of such an assault conducted in this fashion but Sukha and Gumana as men of ordinary intelligence must have known that.

Sukha and others v.

The State of Rajasthau

BoseJ,

Stikha and others v.

The State of Rajasthan

Bose J.

Much the same considerations apply in the case of the other appellants. They rushed in to hit persons who had already been fired on and who had been felled to the ground.

They were in the midst of a crowd which could hardly have been calm and impassive and they joined in with several others to beat them up. Any man of reasonable intelligence would have known that somebody would be likely to be killed in a melee like that.

Therefore, the requisite knowledge can be imputed to them also.

Two questions remain.

One was directed against the reliability of that part of the evidence that has been believed.

The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness' evidence is disbelieved, it is unsafe to act on the rest of his testimony. The answer is equally hackneyed, namely that judges of fact have the right to do this and that this is not a court of appeal when it acts under article 136.

The findings about this are concurrent, so, following our usual practice, we decline to review the evidence.

The other is that the absence of this in the charge occasioned prejudice. We have recently decided that we will be slow to entertain question of prejudice when details are not furnished; also the fact that the objection is not taken at an early stage will be taken into account. There is not a hint of prejudice in the petition filed by the appellants here in the High Court for leave to appeal to this Court; nor was this considered a ground for complaint in the very lengthy and argumentative petition for special leave filed in this Court. The only complaint about prejudice was on the score that there was no proper examination under section 342 of the Criminal Procedure Code. We decline to allow this matter to be raised.

The appeal fails and is dismissed.

SUKHA AND OTHERS

THE STATE OF RAJASTHAN

VIVIAN BosE

JAGANNADHADAS

CHANDRASEKHARA AIYAR, JJ.

ss. 8

s. 34

Indian Penal Code

s. 149

s. 149

Jai Gopal Sethi

K. R. Krishnaswami

K. R.

Ohaw1hry

Porus A. Mehta

P. G. Gokhale

21st July 1951

Dhankoli

section 325

Indian Penal Code

section 302

section 325

section 302

section 325

section 325

section 302

section 325

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section 302

Indian Penal Code

State of Rajasthan

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State of Rajasthan

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Jeewana

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Naraina

Bhawana

Kumla

section 325

Indian Penal Code

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section 302

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Indian Penal Code

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State of•

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Sukha

Barsia

Parsi

Sukha

State of

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Bose J

section 34

Indian Penal Code

section 149

section 149

section 325

Indian Penal Code

section 302

section 149

article 136

section 342