K.N.Mehra

The State of Rajasthan

Jagannadhadas J.

February 12,

SUPREME COURT REPORTS [1957]

in the appellant's situation should be sent back to jail to serve out the rest of the sentence.

We have ascertained from the Advocate appeanng for the Government that the appellant has already served a sentence of 11 months and 27 days. Learned counsel for the appellant has also informed us that the appellant was in judicial custody for about eleven months as an under-trial prisoner. In view of all the circumstances of the case, we agree that the interests of justice do not call for his being sent back to jail.

While, therefore, maintaining the conviction of the appellant, K. N. Mehra, we reduce the sentence of imprisonment against him to the period already undergone.

The sentence of fine and the sentence of imprisonment in default thereof shall stand.

With this modification, in sentence, the appeal is dismissed.

Appeal dismissed, and sentence modified.

HANSRAJ MOOLJI

ti.

THE STATE OF BOMBAY

[BHAGWATJ, JAGANNADHADAS, )AFER IMAM,

 GovINDA MENON and j. L. KAPUR, JJ.J

Ordinance, duration of-Promulgaiion under the Emergency ProvisionJ-Declaration of ter1nination of emergency-Scope and effect-Operation of Ordinance after end of emergency-Government of India Act, 1935 (25 & 26 Geo. 5 Ch. 42). Sch. 9 s. 72-India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. 6 Ch. 33), ss. 1 (3), J-High Denomination Bank Not('s (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946), ss. 4. 7.

Under s. 72 of the 9th Sch. of the Government of India Act, 1935 : "The Governor-General may, in cases of en1ergency, make and promulgate ordinances ... and any ordinance so 1nadc shall, for the space of not more than six months from its pron1ulgation, have the like force of la\.V as an Act passed by the Indian Legislature . .. "; s. I ( ~) of the India and Burma ( E1nergency Provisions) Act, 1940, provided that s. 72 of the Government of India Act, 1935, shall as respects Ordinances made during the period beginning with Tune 27, 1940, the <late of the passing of that Act, and ending \.Vith such date as His Majesty may by Order in Council declare to be the end of the emergency, have effect as if

...

the words "for the space of not more than six months from its 1957 Promulgation" were omitted.

H .. ansrqi Moo!;• The appellant was prosecuted for having on July 11, 1953, contravened the provisions of s. 4 of the High Denomination Bank Notes (Demonetisation) Ordinance, 1946.

The Ordinance was promulgated by the Governor-General of India on January 12, 1946, but on April 1, 1946, an Order in Council was published in the Gazette of India Extraordinary whereby the period of emergency referred to in the India and Burma (Emergency Provisions) Act, 1940, was declared to have ended on April 1, 1946.

It was contended for the appellant that the Ordinance in question was not in operation on the date when the offence was alleged to have been committed and that therefore the prosecution was not maintainable, because ( 1) the Ordinance had been promulgated in exercise of 'the emergency powers and that it lapsed ipso facto on April 1, 1946, when the declaration was made that the emergency was at an end; and (2) s. 72 of the 9th Sch. of the Government of India Act, 1935, having been restored with effect from April 1, 1946, one must look to its terms as they originally stood, to justify the continuance of the Ordinance after April 1, 1946.

Held, that the deletion of the words "for the space of not more than six months from its promulgation" from s. 72 of the 9th Sch. of the Government of India Act, 1935, by s. 1 ( 3) of the India and Burma (Emergency Provisions) Act, 1940, had the effect of equating Ordinances which were promulgated between June 27, 1940, and April I, 1946, with Acts passed by the Indian Legislature without ari.y limitation of timt" as regards their duration, and therefrre continuing in force until they were repealed.

Though after April 1, 1946, s. 72 of the 9th Sch. of the Government of India Act, 1935, was restored in its original form, the continuance of the Ordinance in question after that date had to be determined having regard to the terms of the section as they stood on the date of such promulgation, as there was nothing to justify retrospective operation of the section so restored.

/. K. Gas Plant Manufacturing Co. (Rampttr) Ltd. and others

v. King Emperor, [ 1947] F.C.R. 141, relied on.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 93 of 1956.

Appeal by special leave from the judgment and order dated the April 14, 1955, of the Bombay High Court in Criminal Appeal No. 156 of 1955 and Criminal Revision Application No. 435 of 1955 arising out of Judgment dated the January 3, 1955, of the Court of

v, The State oj Bombay

Hansraj Moolji v.

T /i, State ef

Bombay

the Additional Chief Presidency Magistrate, Bombay, m Case No. 9/p of 1954.

Purshottam Tricumdas, /. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant.

C. K. Daphtary, Solicitor-General of India, Porus A. Mehta and R. H. Dhebar, for the respondent.

1957. February 12.

The Judgment of the Court was delivered by

BHAGWATI J.-This appeal with special leave under Art. 136 of the Constitution raises the question whether the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) promulgated by the Governor-General of India on January 12, 1946, was in operation on July 11, 1953, when the offence under s. 7 read with s. 4 thereof was committed by the appellant herein.

The appellant who was the accused No. 1 before the Additional Chief Presidency Magistrate's Court, Bombay, was charged along with the accused. Nos. 2, 3, 5 and 6 with having on or about July 11, 1953, transferred by sale 10 High Denomination Bank Notes of the Denomination of Rs. 1,000 each to one Velji Lakhamshi Joshi for Rs. 1,800 at the rate of Rs. 180 per note and thus contravened the provisions of s. 4 of the Ordinance and committed an offence punishable under s. 7 of the Ordinance read with s. 109 of the Indian Penal Code.

A preliminary objection was urged by the . learned counsel for the appellant that the said Ordinance was not in operation at the date when . the. offence was alleged to have been committed and that therefore the prosecution was not maintainable.

This objection was overruled by the learned Presidency Magistr:ite and the trial ended in the conviction of the appellant along with the co-accused of the offence with which they had been charged.

The appellant was sentenced to pay a fine of Rs. 8,000 and in default suffer six .. months' rigorous imprisonment . and the co-accused of the appellant were awarded varying sentences of fine with which however we are not concerned.

The appellant took an appeal to the High Court of Judicature at Bombay being Criminal Appeal No. 156

...

of 1955.

The State of Bombay, the respondent herein, also filed an application for enhancement of the sentence, being Criminal Revision Application No. 435 of 1955.

The co-accused of the appellant had also filed appeals against their convictions and sentences of fine imposed upon them and all these appeals wd the application of the respondent were heard together by a Division Bench of the High Court. The High Court agreed with the learned Presidency Magistrate in regard to the finding of fact and held that the appellant had in fact transferred by the sale 10 High Denomination Bank Notes of Rs. 1,000 each to the possession of Velji Lakhamshi and his act fell within the prohibition enacted in s. 4 of the Ordinance.

The High Court also overruled the contentions which were urged before it in regard to the Ordinance having lapsed and ceased to be in operation before July 11, 1953, . the date on which the offence was alleged to have been committed.

It accordingly confirmed the conviction recorded against the appellant by the learned Additional Chief Presidency Magistrate.

In regard to the sentence the High Court saw no ground for enhancing the same and confirmed the sentence of fine of Rs. 8,000 and in default six months' rigorous imprisonment which had been awarded by the learned Presidency Magistrate to the appellant.

The appellant applied to the High Court for a certificate under Art. 134( 1) ( c) of the Constitution.

The said application was however dismissed by the High Court with the result that he applied for and obtained from this Court special leave under Art. 136 of the Constitution.

The decision of this appeal turns on the construction of s. 72 of the 9th Sch. of the Government of India Act, 1935 (25 and 26 Geo. 5 ch. 42) and s. 1(3) of the India and Burma (Emergency Provisions) Act, 1940 (3 and- 4 Geo. 6 ch. 33).

Section 72 of the 9th sch. of the Government of India Act, 1935, read as follows :

"The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good Government of British India or any part thereof and any ordinance so made shall, for the

Hansraj Moolji v.

The State of

Bombay

Bhagwati].

Hansraj Moolji v.

The Statt of Bombay

Bhagwati J.

space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; hut ihe power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws ; and any ordinance made under this section is subject to the like disal!owance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Acts."

Section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, ran as under :

"Section seventy-two of the Government of India Act, (which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor-General power to make Ordinances in cases of emergency) shall, as respects Ordinances made during the period. specified in section three of this Act, have effect as if the words "for the space of not more than six months from its promulgation" were omitted ; and, notwithstanding the provision in the said section seventy-two that the power of making Ordinances thereunder is subject to the like restrictions as the power of the Indian Legislature to make laws- ( a) Ordinances may, during the said period, be made under that section affecting the Army Act, the Air Force Act, or the Naval Discipline Act ; and

(b) Section one hundred and eleven of the Government of India Act, 1935 (which exempts certain British subjects from certain Indian Laws) shall not apply to any ordinance made under the said section seventy-two during that period."

Section 3 referred to hcreinabove was in the terms following:

"The period referred to in the preceding sections is the neriod bcginnirn~ with the tlate of the passing of this Ac't and en:1ing With such d~1te as 1-Iis J\1:1jcsty 111ay by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act."

The India and Burma (Emergency Provisions) Act, 1940, was passed on June 27. 1940, and was an Act to

-' I

make emergency provisions with respect to Government of India and Burma.

On April 1, 1946, was published in the Gazette of India Extraordinary His Majesty's Order in Council called "The India and Burma (Termination of Emergency) Order, 1946". By the said order the period of emergency referred to in s. 3 of the India and Burma (Emergency Provisions) Act, 1940, was declared to have ended on April 1, 1946.

The period specified in s. 3 of the said Act thus extended from June 27, 1940, to April 1, 1946.

The Ordinance in question was promulgated on January 12, 1946, and was therefore within the said period_

The argument which was addressed before us by the learned counsel for the appellant based on these provisions was (a) that as soon as the declaration that the emergency was at an end was made on April 1, 1946, the original position was restored and the Ordinance in question which had been promulgated in exercise of the emergency powers ipso facto lapsed when the emergency was declared to have ended, (b) that, in the alternative, s. 72 of the 9th Sch. of the Government of India Act, 1935, having hem thus restored with effect from April 1, 1946, one must look to its terms as they originally stood to justify the continuance of the ordinance in question after April 1, 1946, whensoever it may have been promulgated.

It will be useful at this stage to see what was the scheme provided in the Government of India Act, 1935, for enacting legislative measures.

It may be noted that the Act envisaged the establishment of the Federation of India. Part II, ch. 3 provided for the constitution of the Federal Legislature which was to consist of two chambers known respectively as the Council of States and the House of Assembly.

The normal legislative procedure required a bill to be passed by both the Chambers of the Federal Legislature and assented to by the Governor-General.

There was a distribution of legislative powers between the Federal Legislature and the Prmi!1cial Legislatures and the Federal Legislature was invested with the power to make laws for the whole or any part of British India or for any Federated State with respect to any of the matters enumerated

Hansraj llfoolji

The State of Bombay

Bhagwati].

Hansraj Moolji

The State of Bombay

Bhagwati ].

in the Federal Legislative List and any of the matters enumerated in the Concurrent Legislative List. Power was however given to the Federal Legislature, if the Governor-General in his discretion declared by a "Proclamation of Emergency" that a grave emergency existed whereby the security of India was threatened, whether by war or internal disturbance, to make laws for a Province or apy part thereof with respect to any of the matters enumerated in the Provincial Legislative List. These were the powers of the Federal Legislature to enact legislative measures.

The Governor-General was, however, conferred certain legislative powers in Part II, ch. 4. Power was conferred upon him to promulgate Ordinances if at any time when the Federal Legislature was not in session he was satisfied that circumstances existed which rendered it necessary for him to take immediate action.

Ordinances thus promulgated were to have the same force and effect as Acts of the Federal Legislature assented to by the Governor-General.

But every such Ordinance would cease to operate at the expiration of six months from the re-assembly of the Legislature.

Similar power was conferred upon the Governor-General to promulgate Ordinances if at any time he was satisfied that circumstances existed which rendered it necessary for him to take immediate action for the purpose of enabling him satisfactorily to discharge his functions in so far as he. was required in the exercise thereof to

ct in his discretion or to exercise his individual judgment.

Such Ordinances also were to have the same force and effect as the Acts of the Federal Legislature assented to by the Governor-General and were to continue in operation for such period not exceeding six months as may be specified therein but could by subsequent Ordinances be extended for a further period not exceeding six months.

Power was also conferred upon the Governor-General if at any time it appeared to him that for the purpose of enabling him satisfactorily to discharge his functions in so far as he was required in the exercise thereof to act in his discretion or to exerrne his individual judgment it was essential that provision should be made by legislation, to enact

Governor-General's Act which when enacted were to have the same force and effect as Acts of the Federal Legislature assented to by the Governor- General.

These were the special legislative powers conferred upon the Governor-General which could be exercised by him when the normal legislative procedure could not be resorted to.

It is worthy of note however that howsoever and under whatever circumstances the legislative powe.rs vested in the Governor-General were exercised by him, the Governor-General's Acts thus enacted and the Ordinances thus promulgated were equated with the Acts of the Federal Legislature assented to by the Governor-General.

Part XIII enacted Transitional Provisions. A period of time was bound to elaose between the commencement of Part III of the- Act which related to the Governor's Provinces and the establishment of the Federation and s. 317 of the Act continued in force certain provisions of the Government of India Act with amendments consequential on the provisions of the Act set out in the 9th Sch. thereof until the establishment of the Federation.

Section 72 above quoted formed part of the 9th Sch. under the caption "Indian Legislature" and conferred upon the Governor-Gt:neral power to make and promulgate Ordinances for the peace and good Government of British India or any part thereof in cases of emergency.

Ordinances thus promulgated by the Governor-General in exercise of the power thus conferred upon him were to continue in operation for the space of not more than six months from the date of their promulgation and were to have the like force of law as Acts passed by the Indian Legislature. They were also equated with the Acts passed by the Indian Legislature by having resort to the normal legislative procedure set out in the Government of India Act.

Even though the 'Governor-Generai's Acts and the Ordinances promulgated by him were thus equated with the Acts passed by the Federal Legislature or the Indian Legislature as the case may be, the period of duration thereof had to be determined.

Every statute for which no time 1s limited 1s 4-79 S. C. lndia/59.

1"957

HanJTaj Moo!fi

TheStah of

.B0mbay

Bhagwati].

Hat1t1aj Mool.fi

Tiit Stale ef

Bombay

Bhagwati J.

called a. perpetual Act, and its duration is prima facie perpetuaI.

It continues rn force until it is repealed. (Vide Craies on Statute Law, 5th Ed. p. 374 ; Halsbury's Laws of England, Hailsham Ed., Vol. XXXI, p. 511, para 664.) If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a Temporary Act. This result would follow not only from the terms of the Act itself but also from the fact that it was intended only as a temporary measure.

This ratio has also been applied to emergency measures which continue during the subsistence of the emergency but lapse with the cessation thereof. It was therefore contended that Ordinances promulgated under the emergency powers vested in the Governor-General would be in operation during the period of emergency but would cease to be in operation once the emergency was declared to have ended.

In the instar1t case before us the Ordinance in question was promulgated in exercise of the emergency powers vested in the Governor- General under s. 72 of the 9th Sch. of the Government of India Act, 1935, and it was urged that the Ordinance thus promulgated would cease to be in operation after the emergency was declared to have ended on April I, 1946, by the India and Burma (Termination of Emergency) Order, 1946, in spite of the words of limitation "for the space of not more than six months from its promulgation" having been omitted from s. 72 by s. 1(3) of the India and Burma (Emergency Provisions) Act, 1940.

Reliance was placed in support of this contention on the observations of Vardachariar C. J. in King Emperor v. Benoari !.All Sharma and others( 1 ) : "Legislation by Ordinance has no doubt been given the same effect as ordinary legislation and the ambit as• to the subject-matter is the same in both cases.

But there are two fundamental points of difference which have a material bearing oil the present question : One is that by the very terms of s. 72 of the Ninth Schedule to the Constitution Act, the operation of the Ordinance is limited to :\ period of

(1) [1943] F.C.R. 96, 137.

six months (and even now it is only temporary, though the particular limit has bee~ removed), and secondly, it is avowedly the c:xercise of a special power intended to meet an emergency."

Zafrulla Khan J. also had expressed himself to the same effect in King Emperor v. Sibnath Banerjee( 1 ) :

"The legislature can at :my time enact a measure and such measure can remain in force without any limit of time ; but the extrcise of the Orclinancemaking power is limited in two ways (i) by the limitation as to the circumstances in which it can be exercised, :md (ii) by the limitation as to the time during which any measure rn enacted can remam m operation.

The existence of an emergency 1s a condition precedent to the exercise of the power.

The fact that the Court cannot go behind a declaration of emergency made by the Ordinance-making authority cannot affect this question.

The power was intended to be availed of and could be availed of only in an emergency, whereas ordinary legislation is not governed by any such limitation.

Similarly, an Ordinance is necessarily of limited duration, whether under s. 72 or under the terms of tl1e India and Burma (Emergency Provisions) Act of 1940."

An argument was accordingly addressed before us that even though the Ordinance in question had been promulgated during the period pecified in s. 3 of the India and Burma (Emergency Provisions) Act, 1940, viz., between June 27, 1940, and April l, 1946, and s. 72 of the 9th Sch. of the Government of India Act, 1935, was to be read with the omission of the words "for the space of not more than six months from its promulgation" therefrom, rhe effect of such omission was not to continue the duration of rhe Ordinance in question in any event beyond April 1, 1946.

The Ordinance lapsed or ceased to be in operation on the declaration having been made on April 1, 1946, that the emergency had ended.

This argument however ignores the fact that whatever Governor-General's Act were enacted or

(•) [1944] F.C.R. I, 12.

Hansrqj Mou/ji

\ .

The Stale of

Bombti)I

Bhagwat J.

!957

Hanmy Moolji

TMStdte of

Bo~'!1

B/w.gwati ] •

Ordinances promulgated by him in exercise of his special legislative powers or in exercise of the emergency power conferred upon him by s. 72 of the 9th Sch. of the Government of India Act, 1935, were all equated with the Acts of the Federal Legislature or the Indian Legislature, as the case may be, assented to by the Governor-General.

If there was a limitation to be found in the Acts or the Ordinances themselves in regard to the duration thereof the same was to prevail.

But if no time was limited in the enactment itself for its duration it was to continue in force until it was repealed.

If by the operation of s. I (3) of the India and Burma (Emergency Provisions) Act, 1940, the words "for the space of not more than six months from its promulgation" were omitted from s. 72 during the period specified in s. 3 of that Act viz., June 27, 1940 to April 1, 1946, there was no limitation of the period of duration of the Ordinance in question and the Ordinance having the like force of law as an Act passed by the Indian Legislature without any limitation on its duration was to continue in force until it was repealed.

The emergency under which the Governor-General was invested with the power to n; iake and promulgate Ordinances for the peace and good government of British India or any part thereof under 5. 72 was the condition of the exercise of such power by the Governor-General and did not impose any limitation on the duration of the Ordinances thus promulgated.

For determining the , duration of such Ordinances one had to look to the substantive provisions of s. 72 which in terms enacted and laid down the limitation of "not more than six months from its promulgation" on the life of the .Ordinance. If these words had not been omitted by s. I ( 3) of the India and Burma (Emergency Provisions) Act, 1940, the Ordinances thus promulgated would have been of a duration of not more than six months from their promulgation.

Once these words were omitted by s. 1(3) of the India and Burma (Emergency Provisions) Act, 1940, s. 72 of the 9th Sch. of the Government of India Act, 1935, would read as under :-

S.C.R.

Sul'REME COURT REPORTS 645

"The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof and any ordinance so made shall. ........ . have the like force of law as an Act passed by the Indian Legislature ; but the power of making ordinances under this section is subject to the like restrictions as the power of the lndian Legislature to make laws ; and the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act."

The effect of the deletion of these words from s. 72 leaving the section to be read as above had the necessary effect of equating the Ordinances which were promulgated between June 27, 1940, and April 1, 1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration.

Ordinances thus promulgated were perpetual in duration and continued in force until they were repealed.

This position was considered by the Federal Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. and others v. King Emperor( 1 ) where Spens

C. J. observed:-

"These Ordinances were made under the: powers conferred on the Governor-General by s. 72 of the Ninth Schedule to the Constitution Act, as amended by the India and Burma (Emergencv Provisions) Act, 1940 (3 & 4 Geo. 6, Ch. 33). Under the said s. 72, as it originally stood, Ordinances were limited to an effective: life of six months onlv from the date of promulgation.

Sub-section (3) of 's. 1 of the said Act, however, provided that in respect of Ordinances made under s. 72 during the period specified in .~. 3 of the: Act, s. 72 should have effect if the words "for the space of not more than six months from its promulgation" were omitted.

The period specified in s. 3 of the: Act is "the period beginning with the date of the: passing of this Act and ending with such date: as His Majesty may by Order in Council declare to be: the end of the: emergency which was the occasion of the passing of this Act." The: date of the passing of the

(1) [1947] F.C.R. 1<.1, 161.

Han11i Maolji

v The State •I

Bomba.,

Bb4g111llh ] .

Hansr4j Moolji

v, ThLSlale ef

BDmhay

BMgwafi ].

said Act was the 27th June, 1940, and the emergency was not notified to have come to an end on the 1st April, 1946.

It was contended on behalf of the appellants that the true construction to be given to s. 72 as so amended was in effect to substitute in s. 72 in respect of the duration of an Ordinance, the period specified in s. 3 of the Act for the original six months' period and that accordingly on the expiration of that period, viz., on the !st April, 1946, Ordinances made after the passing of the Act automatically came to an end.

It was not made very clear how one could arrive at such a construction.

It appears to be based on the suggestion that the power to promulgate an Ordinance under s. 72 was by the section confined to the existence of an emergency, Cf : the wads in the sub-section "in cases of emergency'', and that the Act was intituled an Act to make emergency provision with respect to the Government of India and Burma and defined the period of emergency.

Unless therefore the construction contended for by the appellants was accepted no period would be provided for the continuance of these Ordinances, and that could not have been the intention of the legislature, as the ordinance-making power of the Governor-General was recognised as temporary only.

In our opinion, the emergency on the happening of which an Ordinance can be promulgated is separate and distinct from and must not be confused with the emergency which occasioned tht: passing of the Act and the clear efjert of the words of the Act on s. 72 is that Ordinances promulgated under that sub-section during the period specified in s. 3 of the Act arr, subject to no time limit as regards their existence and validity, unless imposed by the Ordinances themselves, or other amending or repealing lt:gislation, whether by Ordinance or otherwise. In our judgment, it is clear that the second Lahore Tribunal did not cease to exist or to have jurisdiction in the case under appeal by reason of the expiration on the !st April, 1946, of the period specified in s. 3 of the Act in question." In our opinion, the above observations of Spens C. J. enunciate the correct position.

The Ordinance in

question having been promulgated during the period between June 27, 1940, and April 1, 1946, was perpetual in duration and continued in force until it was repealed. Our attention has not been drawn to any subsequent Ordinance or Act of the Indian Legislature amending or repealing the said Ordinance with the result that it continues to be in force and was in operation on July 11, 1953, the date on which the offence in question was committed by the appellant.

This position was recognized in the Adaptation of Laws Order, 1950, issued under the Constitution of India. In the Second Schedule to the said Order were contained several Central Ordinances enacted between 1940 and 1946 including the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) where in s. 11 thereof the words "Part A States and Part C States" were to be substituted for "the provinces".

It is not necessary to refer to the other Ordinances appearing in this compilation but suffice it to say that in respect of all the Ordinances which were thus promulgated by the Governor-General in exercise of the power conferred upon him under s. 72 of the 9th Sch. of the Government of India Act, 1935, the continuance thereof even after April 1, 1946, was predicated and the adaptations prescribed in the Adaptation of Laws Order, 1950, issued under the Constitution of India were made applicable thereto.

This position is further supported by referring to the relevant provisions of the Reserve Bank of India Act, 1934 (II of 1934). Section 26 of that Act provided:-

"(1) Subject to the provisions of sub-section (2), every bank note shall be legal tender at any place in India in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government.

(2) On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the bank and to such extent as may be specified in the notification.

Haruraj M'*fl ,., The St au, ef

Bombay

Bhagwali J.

Htmiraj Moolji

TMSiak of

Bombay

Bhagwali].

Under s. 1(2) of the Act as it stood, the Act extended to whole of India excepting the State of Jammu and Kashmir.

The High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) declared that Denomination Notes of the denominational value of Rs. 500, Rs. 1,000 or Rs. 10,000 ceased to be legal tender in payment or on account at any place in British India on the expiry of January 12, 1946. The Ordinance hadng continued in operation even after the declaration of the emei; gency having come to an end was made on April 1, 1946, the said notes continued to be ineffective as legal tender in India, though the position in Jammu and Kashmir in regard to the same could not be affected by reason of the Reserve Bank of India Act, 1934, not having been made applicable to the State of Jammu and Kashmir as stated above.

On September 25, 1956, however, the Jammu and Kashmir (Extension of Laws) Act, 1956 (LXII of 1956) being an Act to provide for the extension of certain laws to the State of Jammu and Kashmir was passed by the Parliament.

In the Schedule to that Act was contained the Reserve Bank of India Act, 1934 (II of 1934).

The words "except the State of Jammu and Kashmir" were omitted from s. l, sub-s. (2) and s. 26A was added after s. 26 of the Act.

Section 26A provides :- "Notwithstanding anything contained in section 26, no bank note of the denominational value of five hundred rupees, one 1housand rupees or ten thousand rupees issued before the 13th day of January, 1946, shall be legal tender in payment or on account for the amount expressed therein."

The law in the State of Jammu and Kashmir with regard to these High Denomination Bank Notes issued before January 13, 1946, was thus brought into line with the law as it obtained in the rest of lnclia.

This would certainly have not been clone but for the acceptance of the pnsition that the Ordinance in question continued in operation even after April 1, 1946, and was m operation right throughout even after April 1, 1946.

The alternative argument addressed before us by the learned counsel for the appellant need not detain us at all, for the simple reason that reading s. 72 in the manner suggested would be tantamount to giving a retrospective effect to the section as it originally stood in regard to Ordinances which had been promulgated between June 27, 1940, and April 1, 1946.

There is nothing to justify such retrospective operation.

As regards such Ordinances the period of their duration had to be determined having regard to the provisions of s. 72 as they stood with the omission of the words "for the space of not more than six months from its promulgation" therefrom during the period specified in s. 3 of the India and Burma (Emergency Provisions) Act, 1940, and the Ordinance in question was therefore not limited to the space of not more than six months from the date of its promulgation but was perpetual in its duration with the result that it continues in operation until it is repealed.

There is no warrant for reading the provisions of s. 72 with the omitted words restored to their original position after April l, 1946, while determining the duration of the Ordinances which had been promulgated betweeµ June 27, 1940, and April 1, 1946.

Both the contmtions 'Jrged by the learned counsel for the appellant before us having thus failed, it follows that the High Denomination Bank Notes (Demonetization) Ordinance, 1946 (Ordinance No. III of 1946) was -in operation on July 11, 1953, the date on which the .offence was committed by the appellant and the appellant was rightly convicted by both the courts below.

The appeal will accordingly stand dismissed.

Appeal dismissed.

Hansr11.i Moolji

The Slate of

Bombq

BhaiwatiJ.

State of Rajasthan

K.N.Mehra

The State of Rajasthan

Jagannadhadas J.

February 12,

in the appellant's situation should be sent back to jail to serve out the rest of the sentence.

Jagannadhadas J.

HANSRAJ MOOLJI

THE STATE OF BOMBAY

AFER IMAM

GovINDA MENON

L. KAPUR, JJ

s. 72

ss. 1

ss. 4

s. 72

Government of India Act, 1935

s. 72

Government of India Act, 1935

July 11, 1953

s. 4

April 1, 1946

s. 72

Government of India Act, 1935

s. 72

Government of India Act, 1935

s. 1

June 27, 1940

April I, 1946

s. 72

Government of India Act, 1935

1947] F.C.R. 141

Purshottam Tricumdas

B. Dadachanji

S. N. Andley

Rameshwar Nath

C. K. Daphtary

Porus A. Mehta

R. H. Dhebar

BHAGWATI

Art. 136

January 12, 1946

s. 7

s. 4

Velji Lakhamshi Joshi

s. 4

s. 7

s. 109

Indian Penal Code

High Court of Judicature at Bombay

State of Bombay

Velji Lakhamshi

s. 4

Art. 134( 1)

Art. 136

s. 72

Government of India Act, 1935

s. 1(3)

Section 72

Government of India Act, 1935

Bhagwati

Section 1

Army Act

Air Force Act

Section 3

June 27. 1940

Government of India

1940, and was an Act to
' I

make emergency provisions with respect to Government of India and Burma.

Burma

s. 3

s. 3

s. 72

Government of India Act, 1935

Federation of India

British India

India

s. 317

Section 72

s. 72

Government of India Act, 1935

s. 72

s. 1(3)

Vardachariar

s. 72

Ninth Schedule

[1943] F.C.R. 96

Zafrulla Khan

s. 72

s. 3

April l, 1946

s. 72

Government of India Act, 1935

Bhagwat

Hanmy Moolji

s. 72

Government of India Act, 1935

s. 72

s. 3

s. 72

s. 1(3)

s. 72

Government of India Act, 1935

s. 72

Spens

s. 72

Ninth Schedule

s. 72

s. 1

s. 72

s. 72

s. 3

[1947] F.C.R. 1

s. 72

s. 72

s. 3

st April, 1946

s. 72

s. 72

s. 3

s. 3

Constitution of India

Second Schedule

s. 11

s. 72

Government of India Act, 1935

Constitution of India

Reserve Bank of India Act, 1934

Section 26

Central Government

Central Board

Haruraj M'*fl ,

Htmiraj Moolji

s. 1(2)

State of Jammu and Kashmir

Reserve Bank of India Act, 1934

State of

September 25, 1956

Parliament

State of Jammu and Kashmir

s. 26A

s. 26

Section 26A

section 26

13th day of January, 1946

January 13, 1946

s. 72

s. 72

s. 3

s. 72

Moolji


SUPREME COURT REPORTS

BAIJ NATH PRASAD TRIPATHI

THE STATE OF BHOPAL

(and connected petition)

[1957l

(S. R. DAS C.J., VENKATARAMA AY'lAR, B. P. SINHA,

S. K. DAs and GAJENDRi .. GADI'-Ak JJ.)

C1iminal trial-Prosecut:'on for offences under s. 161 of the !11dian Penal Code and s. 5 of the Prevention of Corruption Act- Proceedings quashed fur waut of proper sanction-Fresh sanction- Second trial for same offences-IVhether barred-Constitution of India,.

Art. 20 (2)-Code of Criminal Procedure, s. 403.

The accused was tried and convicted by a Special Judge for offences under s. 161 of the Indian Penal Code and s. 5 of the Prevention of Corruption Act.

On appeal the whole proceedings. were quashed as being ab initio invalid for want of proper sanction.

The authorities accorded fresh sanction and directed the accused to be tried by a Special Judge for the same offences.

It wascontended by the accused that the second trial was barred by Art. 20 (2) of the Constitution of India and by s. 40.~ of the Code of Criminal Procedure.

Held. that the trial was not barred. Art. 20 (2) had no application in the case. 'fhe accused was not being prosecuted and ptinished for the sa1ne offence more than once, the earlier proceedings h.J.ving been held to be null and void.

The accused was not tried in the earlier proceedings by a Court of competent jurisdiction,.. nor was there any conviction or acquittal in force within the 1neaninq of s. 403(1) of the Code to stand as a bar against the trial: for the sa1ne offence.

Yusofalli Mui/a v. The King, A.LR. (1949) P. C. 264, Basdea Agtrrwalla v. King-Emperor, (1945) F.C.R. 93 and Budha Mal v.

State of Delhi, Criminal Appeal No. 17 of 1952, decided on October 3, 1952, followed.

ORIGINAL JuRrso1cTION : Petition No. 115 of 1956, and Petition No. 132 of 1956.

Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.

B. D. Sharma, for the petitioners,

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

1957. February 13.

The Judgment of the Court was delivered by

S. K. DAs J.-These two _petitions for the issue of appropriate writs restraining the respondents from prosecuting and trying the two petitioners on certain criminal charges in circumstances to be presently stated, raise the same question of law and have been heard together. This judgment will govern them both.

Baij Nath Prasad Tripathi, petitioner in Petition No. 115 of 1956, was a Sub-Inspector of Police in the then State of Bhopal.

He was prosecuted in the Court of Shri B. K. Puranik, Special Judge, Bhopal, and convicted of offences under s. 161, Indian Penal Code, and s. 5 of the Prevention of Corruption Act, 1947. He was sentenced to nine months' rigorous imprisonment on each count.

He preferred an appeal against the conviction and sentences to the Judicial Commissioner of Bhopal.

The Judicial Commissioner held by his judgment dated March 7, 1956, that no sanction according to law had been given for the prosecution of the petitioner and the Special Judge had no jurisdiction to take cognizance of the case ;, the trial was accordingly ab initia invalid and liable to be quashed. He accordingly set aside the conviction and quashed the entire proceedings before the Special Judge. He then observed: "The parties would thus be relegatecf to the position as if no legal charge-sheet had been submitted against the appellant." On April 4, 1956, the Chief Commissioner of Bhopal passed an order under s. 7(2) of the Criminal Law Amendment Act, 1952, (No. XL VI of

1952) that the petitioner shall be tried by Shri S. N. Shrivastava, Special Judge, Bhopal, for certain offences under the Prevention of Corruption Act read with s. 161, Indian Penal Code. The case of the petitioner is that he cannot be prosecuted and tried again for the same offences under the aforesaid order of April 1, 1956.

Sudhakar Dube, petitioner in Petition No. 132 of 1956, was also a Sub-Inspector of Police in the then State of Bhopal. He was also prosecuted in the Court of Shri B. K. Puranik, Special Judge, Bhopal, on a

Bdij }{ ath Prasad

Tripa; hi

"· The Stale of Bhoal

S. K. Dar].

l95i

Baij N atA Prasad

Tripalbi

Tiii Slat• of Bhop.i

S. K.D.,].

charge of having accepted illegal gratification for showing official favour to one Panna Lal.

The learned Special Judge by an order dated January 10, 1956, came to the conclusion tbat no legal sanction for the prosecution of the petitioner had been given by the competent authority and the sanctiop given by the Inspector- General of Police was not valid in law; he therefore held that the whole trial was null and void and he could not take cognizance of the offene<s in question.

Accordingly he quashed the proceedings.

On February

7. 1956, the Chief Secretary to the Government of Bhopal accorded fresh sanction for the prosecution of the petitioner for offences under s. 161, Indian Penal Code,, and s. 5 of the Prevention of Corruption Act.

The petitioner then moved this Court for appropriate writs restraining the respondents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid.

On behalf of both the petitioners the contention is that by reason of cl. (2) of Art. 20 of the Constitution and s. 403 of the Code of Criminal Procedure, the petitioners cannot now be tried for the offences in question.

It is necessary to read here some of the relevant sections bearing on the point at issue.

Section 6 of the Criminal Law Amendment Act, 1952 (prior to the amendment made in 1955), so far as is relevant for our purpose, is in these terms :

"6. (1) The State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely:-

(a) an offence punishable under section 161, section 165, or section 165-A of the Indian Penal Code (Act XLV of 1860), or sub-section (2) of section 5 of the Pre, ention of Corruption Act, 1947 (II of 1947) ;

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a)".

Sub-section ( 1) of s. 7 of the same Act lays down :

"7. (I) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in

any other law the offences specified in sub-section ( 1) of section 6 shall be triable by special Judges only".

The same section also states that when trying any case, a special Judge may also try any offence other than an offence specified in s. 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.

It is not necessary for our purpose to read the other sections of the Criminal Law Amendment Act, 1952.

We then go to the Prevention of Corruption Act, 1947, section 6 whereof is relevant for our purpose.

That section is in these terms:

"6. (1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under sub-section (2) of section 5 of this Act, alleged to have been committed by a public servant exce; it with the previous sanction,- ( a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government ........ , [of the] Central Government ;

(b) in the case of a person who is employed in connection with the affairs of [a State] and is not removable from his office save by or with the sanction of the State Government. ............. , [of the] State Government ; ( c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (I) should be given by the Centra: or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."

It is under this section that sanction was necessary for the prosecution of the petitioners.

Clause

(2) of Art. 20 of the Constitution, on which the petitioners rel v, states :

Bisij Nath Priullli

TriJiatlti

Tiii Stat. of BllOpiil

S. K.Das].

Baij Nat.~ Prasad

Tripa1hi

The Stale af B!wpal

S. K. Das].

"No person shall be prosecuted and punished for the same offence more than once."

Section 403 (I) of the Code of Criminal Procedure, on which learned counsel for the petitioners has placed the greatest reliance, is in these terms :

"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be triecl again for the same offence, nor on the same facts fc,, any other offence for which a different charge from the one macle against him might have been made under section 236, or for which he might have been convicted under section 237."

Now, it is necessary to state that the point taken by learned counsel for the petitioners is really concluded by three decisions-(a) one of the Privy Council,

(b) another of the Federal Court and ( c) the third of this Court itself.

The Privy Council decision is in Yusofalli Mulla v. The King('); the Federal Court decision in Basdeo Agarwal/a v. King-Emperor( ) ; and the decision of this Court (not yet reported) was given in Bud ha Mal v. State of Del.i ( ') on October 3, 1952.

The Privy Council decision is directly in point, and it was there held that the whole basis of s. 403 ( 1) was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal ; if the Court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained.

So is the decision of this Court where the following observations were made with regard to the point in question :

"Section 403, Criminal Procedure Code, applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar

(1) A.!.R. 1949 P.C. 264.

(2)- [1945] F.C.R. 93.

(3) Criminal Appeal No. 17 of 1952 decided on October 3, 1952.

a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case.

It is quite apparent on this record that in the absence of a valid sanction the trial of the ; ippellant in the first instance was by a magistrate who had no jurisdiction to try him."

After the pronouncements made in the decisions referred to above, it is really unnecessary to embark on a further or fuller discussion of the point raised, except merely to state that we have heard learned counsel for the petitioners who made a vain attempt with a crusading pertinacity worthy of a better cause, to show that the Privy Council decision was wrong and the decision of this Court required reconsideration, and having heard learned counsel in full, we are of the view that the decisions referred to above state the legal position correctly. It is clear beyond any doubt that cl. (2) of Art. 20 of the Constitution has no application in these two cases.

The petitioners are not being prosecuted and punished for the same offence more than once, the earlier proceedings having been held to be null and void.

With regard to s. 403, Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of s. 403 (1) of the Code, to stand as a bar against their trial for the same offences.

Learned counsel for the petitioners invited our attention to ss. 190, 191, 192, 529 and 530 of the Code of Criminal Procedure and . submitted that in certain circumstances the Code drew a distinction between 'jurisdiction' and 'taking cognizance'.

The whole fabric of the argument of learned counsel was founded on this distinction.

Assuming, however, that in certain cases one Magistrate may take C<?gnizance and another Magistrate may try an accused person, it is difficult to appreciate how any Court can try the petitioners of these case~ in the absence of a sanction in view of the mandatory provisions of s; 6 of the Prevention of Corruption Act, 1947.

If no Court can take cognizance of the offence~ in question without a legal sanction, it is obvious

Baij Nath Prasad

Tri, athi

The Stal• of Bhopal

S. K. Das] ..

B1aij }( alh Pr a rod

Tri; tJthi

T lw St•ll of Bhopal

S. Ir. D111 ].

?1a.t o . Court can be said to be a Court of competent 1unsd1ct:Jon to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned counsel for the petitioners relied have really no bearing on the matter.

Section 530 of the Code is really against the contention of learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall be void.

Section 529 ( e) is merely an exception in the matter of taking cognizance of an offence under s. 190, sub-s. (I), els. (a) and (b) ; it has no bearing in a case where sanction is necessary and no sanction m accordance with law has been obtained.

As part of his arguments, learned counsel for the petitioners referred to certain observations made by Braund J. in a decision of the Allahabad High Courr, Basdeo v. Emperor ( 1 ), where the learned Judge drew a distinction between 'taking cognizance' and 'jurisdiction'.

The distinction was drawn in a case where a Magistrate duly empowered to commit cases to the Sessions Court committed an accused person to the Court of Session in disregard of the provisions of s. 254 of the Code of Criminal Procedure, and the question was whether the irregularity so committed rendered the Sessions Courr incompetent to try the case.

The facts there were entirely different from the facts of the present cases and there was no occasion nor necessity , for considering such mandatory prov1s1ons as are contained in s. 6 of the Prevention of Corruption Act.

We do not think that the observations made in that case can be pressed in service in support of the argument of learned counsel for the petitioners in these cases, treating those observations as though they laid down any abstract propositions of law not dependent on the context of the facts in connection with which they were made.

Out of deference to learned counsel for the petitioners, we have indicated and considered very briefly the arguments advanced before us.

As we have said

{1) A.I.R. 1945 All. 340.

before, the point is really concluded by decisions of the highest tribunal, decisions which correctly lay down the law.

The result therefore is that these petitions are devoitl of all merit and must be dismissed.

Petitions dismissed.

NISAR ALI v.

THE ST ATE OF JJTT AR PRADESH (BHAGWATI, B. P. SINHA and J. L. KAPUR

First information repo1t-Repon made by accused-Use of- Burden of proof in criminal , ases-Witness disbelieved as to part of his testimony...:... Whether should be 1ejected in tote>.

A first information report is not a substantive piece of evidence and can onlv be used to corroborate the statement of the maker under s. 157 ~£ the Evidence Act or ID contradict it under s. 145 of that Act.

It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.

It is a cardinal principle of criminal jurisprudence that the innocence of an accused person is presumed till otherwise proved.

It is the duty of the prosecution to prove the guilt of the accused subject to any statutory exception. The maim falsus in uno, falms in omnibus has not received general acceptance in different jurisdictions in India, nor has it come to occupy the status of a rule of law. It is merely a rule of caution.

All that it amounts to is tha~ in such cases the testimony may be disregarded and not that it must be disregarded.

The doctrine merely invoh-es the question of weight of evidence which a court may apply in a given set of circumstances but it is not a mandatory rule of e, idencc.

CtttMINAL

APPELLATE JultlsDICTION : Criminal Appeal No. 150 of 1956.

Appeal by special leave from the Judgment and order dated October 18, 1955, of the Allahabad High Court in Government Appeal No. 60•of 1953 arising out of the judgment and order dated July 8, 1952, of the Court of Sessions Judge at Bareilly in Criminal.

Sessions Trial No. 27 of 1952.

Daul•t Ram Prem and P. C. Agarwa/a, for the appellant. 5-79 S. C. India/59

Baij Nath Prasad

Tripalhi v.

Tht State of Bhopal

S. ti. Dass J.

F1bruary 14.

BAIJ NATH PRASAD TRIPATHI

THE STATE OF BHOPAL

S. R. DAS C.J.

B. P. SINHA

s. 161

Penal Code

s. 5

Prevention of Corruption Act

Constitution of India

Art. 20

Code of Criminal Procedure

s. 403

s. 161

Indian Penal Code

s. 5

Prevention of Corruption Act

Art. 20

Constitution of India

s. 40

Code of Criminal Procedure

Art. 20

s. 403(1)

Yusofalli Mui

(1945) F.C.R. 93

Article 32

Constitution of India

B. D. Sharma

C. K. Daphtary

A. Mehta

R. H. Dhebar

Baij Nath Prasad Tripathi

Bhopal

B. K. Puranik

s. 161

Indian Penal Code

s. 5

Prevention of Corruption Act, 1947

March 7, 1956

April 4, 1956

s. 7(2)

Criminal Law Amendment Act, 1952

S. N. Shrivastava

Prevention of Corruption Act

s. 161

Indian Penal Code

April 1, 1956

Sudhakar Dube

S. K. Dar

Panna Lal

February

7. 1956

s. 161

Indian Penal Code

s. 5

Prevention of Corruption Act

Art. 20

s. 403

Code of Criminal Procedure

Section 6

Criminal Law Amendment Act, 1952

section 161

section 165

section 165

Indian Penal Code

section 5

Corruption Act, 1947

s. 7

Code of Criminal Procedure, 1898

section 6

s. 6

Code of Criminal Procedure, 1898

section 6

section 161

section 165

Indian Penal Code

section 5

Central Government

Art. 20

Bisij Nath Priullli

S. K.Das

S. K. Das

Section 403

Code of Criminal Procedure

section 236

section 237

October 3, 1952

s. 403

Section 403

Criminal Procedure Code

[1945] F.C.R. 93

Art. 20

s. 403

Code of Criminal Procedure

s. 403

ss. 190, 191, 192, 529 and 530

Code of Criminal Procedure

Prevention of Corruption Act, 1947

Baij Nath Prasad

S. K. Das

Section 530

Section 529

s. 190

Braund

Allahabad High Courr, Basdeo v. Emperor

s. 254

Code of Criminal Procedure

s. 6

Prevention of Corruption Act

NISAR ALI

J. L. KAPUR

s. 157

s. 145

India

Ram Prem

P. C. Agarwa


S.C.R.

SUPREME COURT REPORTS 657

before, the point is really concluded by decisions of the highest tribunal, decisions which correctly lay down the law.

The result therefore is that these petitions are devoitl of all merit and must be dismissed.

Petitions dismissed.

NISAR ALI v.

THE ST ATE OF JJTT AR PRADESH (BHAGWATI, B. P. SINHA and J. L. KAPUR

First information repo1t-Repon made by accused-Use of- Burden of proof in criminal , ases-Witness disbelieved as to part of his testimony...:... Whether should be 1ejected in tote>.

A first information report is not a substantive piece of evidence and can onlv be used to corroborate the statement of the maker under s. 157 ~£ the Evidence Act or ID contradict it under s. 145 of that Act.

It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.

It is a cardinal principle of criminal jurisprudence that the innocence of an accused person is presumed till otherwise proved.

It is the duty of the prosecution to prove the guilt of the accused subject to any statutory exception. The maim falsus in uno, falms in omnibus has not received general acceptance in different jurisdictions in India, nor has it come to occupy the status of a rule of law. It is merely a rule of caution.

All that it amounts to is tha~ in such cases the testimony may be disregarded and not that it must be disregarded.

The doctrine merely invoh-es the question of weight of evidence which a court may apply in a given set of circumstances but it is not a mandatory rule of e, idencc.

CtttMINAL

APPELLATE JultlsDICTION : Criminal Appeal No. 150 of 1956.

Appeal by special leave from the Judgment and order dated October 18, 1955, of the Allahabad High Court in Government Appeal No. 60•of 1953 arising out of the judgment and order dated July 8, 1952, of the Court of Sessions Judge at Bareilly in Criminal.

Sessions Trial No. 27 of 1952.

Daul•t Ram Prem and P. C. Agarwa/a, for the appellant. 5-79 S. C. India/59

Baij Nath Prasad

Tripalhi v.

Tht State of Bhopal

S. ti. Dass J.

F1bruary 14.

Nii"ar Ali v Tiu Sl6teof Uttar Pradsh

Ka;.r J.

Cyan Clzand Mathur and C. P. Lal, for the respondtnt.

1957. February 14.

The Judgment of the Court was delivered by

KAPUR /.-The appellant along with one Qudrat Ullah was tried for the murder on one Sabir.

The latter was tried under s. 302 read with s. 114 of the Indian Penal Code for ahetment, and the former under s. 302 I.P .C.

Both the accused were acquitted by the learned Sessions Judge of Bareilly. But the State took an appeal to the Allahabad High Court against the appellant only and the judgment of acquittal in his case was reversed and he was convicted under s. 302 l.P.C. and sentenced to 'transportation for life'.

Against the judgment of the High Court the appellant has brought this appeal hy Special Leave.

The facts which have given rise to the appeal arc that Sabir was murdered on the 11th May, 1951, at about 6-30 p.m.

The First Information Report was made by Qudrat Ullah the other accused at 6-45 p.m. the same day, i.e., within about 15 minutes of the occurrence.

The pcosccution case was shat there was an exchange of abuses between the deceased and the appellant near the shop of the First Informant, Qudrat Ullah.

The cause of the quarrei was that on the evening of the occurrence while Qudrat Ullah was sitting in his shop and the deceased was sitting just' below the shop, the appellant came out of his 'house an<l on seeing him, the deceased asked him as to why he was in such a "dishevelhl condition", which annoyed the appc11ant and gave rise to an exchange of abuses.

On hearinl'l this noise, the prosecution witnesse< arrived at the spot and saw the appellant and the deceased grappling with each othe1".

The appellant is stated to have asked Qudrat Ullah to hand over a knife to him which Qudrat

Ullah did ; this knife is Ex. 'II', with which the appellant stabbed the deceased and then fled away. As a result of the injuries the deceased fell down in front of Qudrat Ullah's shop ; son1e witnesses have stated that he fell on the wooden plank in front of the shop.

Qudrat Ullah picked up the knife which had been

dropped by the appellant, put the deceased in a rickshaw and took him to the hospital from where he went to the Police Station and made the First Information Report.

An objection has been taken to the admissibility of this report as it was made by a person who was a co-accused.

A First Information Report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under s. 157 of the Evidence Act or to contradict it under s. 145 of that Act.

It cannot be used as evidence against the mdker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.

In this case, therefore, it is not evidence.

The Sub-Inspector went to the spot, started investigation and arrested the appellant the same evening at his house. The post-mortem examination of the deceased showed injuries on the person of the deceased and, according to the doctor, death was due to.shock and haemorrhage on account of the punctured wound in the chest, causing injuries to the lungs and thc>se injuries could be caused with a sharp-edged weapon.

The appellarn and the deceased both belong to a sect of Jogis.

Evidence discloses that the deceased and the appellant were quite friendly with each other, and so were the deceased and Qudrat Ullah, who is a butcher and had a shop which is a part of his house.

Adjacent to the shop is the house of the appellant. Eye witnesses of the occurrence were Yad Ali, P.W. 1, Banne, P.W. 2 and Mohd. Ahmed, P.W. 3.

Having been told by the sister of the deceased as to the occurrence, Ashraft, P.W. 4 came to the spot later and found the deceased lying unconscious.

Shakir, P.W. 5, younger brother of the deceased, on arriving near the shop of Qudrat

Ullah heard the appellant and the deceased exchanging abuses, but was not a witness of the assault as just at that time he had gone, at the reque.::t of Qudrat Ullah, to fill his Chillum for the hookka and when he came back he found the deceased lying unconscious and the appellant running away towards his house.

The evidence of Yad Ali, P. W. 1, is that he heard an exchange of abuses between the deceased and the -appellant and when he moved about 4 or 5 paces he

.Nisar Ali

T 1" State •f

Uttar Praduh

Kapur J.

Nisar Ali v.

Tiu State of Uttar Pradesh

Kapur].

saw them grappling with each other.

The appellant had the deceased "in his grip", he asked Qudrat Ullah to hand over a knife to him which the latter did and with it the appellant stabbed the deceased and then went away to his house.

The statement of Banne is similar and so is the statement of Mohd.

Ahmed, P. W. 3.

This evidence was not accepted by the learned Sessions Judge and he acquitted both the accused.

The State took an appeal only against the appellant which was allowed by the High Court. It held

"We may concede that the eye-witnesses have falsely implicated Qudrat Ullah by deposing that he handed over his knife to the respondent on his demand.

There was no enmity between him and Sabir and he had no motive to get him killed by the respondent.

It does not at all appear probable that after abetting the murder of Sabir he at once took him on a rickshaw to the hospital and from there went at once to the police station and lodged a report against the respondent.

This conduct of Qudrat Ullah is so inconsistent with the part said to have been played by him in the occurrence that we have little hesitation in rejecting the evidence about the part played by him."

The High Court, however, accepted the testimony of the eye-witnesses as against the appellant's guilt and observed :

"We are satisfied that the prosecution has fully established the case against the respondent.

There is not the slightest doubt about his guilt.

The presumption of innocence has been fully rebutted by the prosecution.

The case against him does not become doubtful merely because the learned Sessions fudge said that there was a doubt about his guilt."

The learned Judges also came to the conclusion that the view taken by the learned trial Judge was one "which no reasonable person could have taken.

It was a wholly erroneous view of the evidence which has resulted in gross miscarriage of justice inasmuch as a murderer escapes punishment".

In the circumstances of the case and considering that there was some provocation, the High Court sentenced the appellant to 'transportation for life.'

There is a passage in the Judgment of the High Court which appears to us to be disconsolate and indicative of a wrong approach in deciding the guilt of an accused person.

Although the learned Judges recognised the principle that the onus was not on the accused, yet one of the observations is such that it comes perilous! y near to putting the burden on the accused if it does not actually do so.

The High Court has said:

"The respondent himself did not have the courage to say that he did not find them at the spot. If he were innocent, he must have come out of his house immediately on hearing the noise and must have known who was present there and who was not."

This passage is so destructive of the cardinal principle of criminal jurisprrnknce as to the presumed innocence of an accused person till otherwise proved that it has become necessary to reiterate the rule stated by eminent authorities " .... that it is the duty of the prosecution to prove the prisoner's guilt ..... . subject to any statutory exception." (1)

It was next contended that the witnesses had falsely implicated Qudrat Ullah and because of that the Court should have rejected the testimony of these witnesses as against the appellant also. The well-known maxim f alsus in uno f alsus in omnibus was relied upon by the appellant.

The argument raised was that because the witnesses who had also deposed against Qudrat Ullah by saying that he had handed over the knife to the appellant had not been believed by the Courts below as against him, the High Court should not have accepted the evidence of these witnesses to convict the appellant.

This maxim has not received general acceptance in different jurisdictions in India ; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded anJ not that' it must be disregarded.

One American author has stated :

(1) Woolmington v. The Director of Public Prosecutions, 1935 A. C. 462.

Nisar Ali

Tiu Sta4 of Uttar Pradtsh

Kapur].

Nisar .Ali

Tht Stat1 of Uttar Pradtth

Kapur J,

" .... the maxim is in itself worthless ; first in point of validity ........ and secondly, in point of utility because it merely .tells the jury what they may do in any event, not what they must do or must not do, and therefore, it is a superfluous form of words.

It is also in practice pernicious ...... " ( 1 ) The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called "a mandatory rule of evidence".

Counsel for the appellant drew our attention to a passage from an unreported judgment of the Privy Council, Chaubaria Singh v. Bhttneshwari Prasal Pal.

"The defendants own evidence and that of several of his witnesses is of no use to him. He cannot contend that any court of law can place reliance on the oath of people who have admittedly given false evidence upon the other branches of the case."

This passage is a very slender foundation, if at all, for conferring on the doctrine the status of anything higher than a rule of caution ; md the Privy Council cannot be said to have given their weighty approval to any such controversial rule which has been termed as "worthless", "absolutely false as a maxim of life" and "in practioe pern1c10u," in works of undoubted authority on the law of evidence(').

The High Court was not unmindful of what the witnesses stated as to Qudrat Ullah"s part in the commission of the offence and having taken that into consideration, it said :

"While the learned Sessions Judge wa.-; right in acquitting Qudrat Ullah, he was completely wrong in acquitting the respondent of whose guilt there was not the slightest doubt.

The direct evidence made out a clear case against him and there was no sound reason for disregarding it."

After discnssing the eviden,:e of the witnesses and the discrepancies pointed out hy the appellant the High Cmrt held "there is 11ot the slightest doubt

(1) Wign1ore on Evide11cc Vol. III para Ioog.

(2) '"'igntor{' Vol. III para 1009.

It was because of the above two contentions raised by counsel for the appellant and because it was a case of reversal of a judgment of acquittal that we allowed counsel to go into the evidence which he analysed and drew our attention to its salient features and to the discrepancies in the statements of witnesses and the improbabilities of the case ; but we are satisfied that the learned Judges were justified in coming to the conclusion they did and the view of the trial judge was rightly displaced.

Upon a review of the evidence of the prosecution witnesses we have come to the conclusion that the appellant was rightly convicted.

The appeal is, therefore, dismissed and the judgment of the High . Court is affirmed.

Appeal dismissed.

V. C. K. BUS SERVICE LTD.

ti.

THE

REGIONAL

TRANSPORT

AUTHORITY,

COIMBATORE.

VENKATARAMA AYYAR. s. K. DAS AND

GAJENDRAGADKAR JJ.)

Road Transport-Permit for stage carriage-Renewal-W he th er a continuation of the original permit-Whether subject to implied condition of validity of the original permit-Motor Vehicles Act, 1939 (IV of 1939), ss. 57, 58.

The appellant was granted a permit for stage carriage hy the Regional Transport Authority under the provisions of the Motor Vehicles Act, 1939, but on appeal to the appellate authority, the Central Road Traffic Board, by the unsuccessful applicants the order granting the permit was set aside and the order of the Central Road Traffic Board was appro\'ed hy the Government in re"ision.

The appellant. thereupon. moved the High Court for a writ of certi01'<1ri to quash the proceedings of the Central Road Traffic Board an<l the Gowrnment.

During the pen<lency of these proceedings there was a stay of operation of the order setting aside the grant of the permit to the appellant. with the result that he continued to run his buses notwithstanding the cancellation of his permit.

Before the expiry of the perio<l fixed in the original

Nisar Ali

The State of Uttar Pradesh

Kapur].

'95'/

February 19.

NISAR ALI

THE ST ATE OF JJTT AR PRADESH (BHAGWATI

B. P. SINHA

L. KAPUR

s. 157

s. 145

India

Ram Prem

P. C. Agarwa

Baij Nath Prasad

State of Bhopal

Cyan Clzand Mathur

C. P. Lal

Qudrat Ullah

Sabir

s. 302

s. 114

Indian Penal Code

s. 302

Allahabad High Court

s. 302

11th May, 1951

Qudrat

Ullah

s. 157

s. 145

Yad Ali

Banne

Mohd. Ahmed

Ashraft

Shakir

.Nisar Ali

Mohd.

Ahmed

Nisar Ali

Qudrat Ullah"s

V. C. K. BUS SERVICE LTD

VENKATARAMA AYYAR

K. DAS

GAJENDRAGADKAR

Motor Vehicles Act

ss. 57, 58

Motor Vehicles Act

Central Road Traffic Board

Nisar Ali

The State of Uttar Pradesh