S.C.R.

SUPREME COURT REPORTS

A. V. FERNANDEZ

THE STATE OF KERALA

(BHAGWATI,

JAGANNADHADAS,-

JAFEK IMAM,

GovINDA MENON and J. L. KAPUR JJ.)

Sales Tax-Assessment-Gross and net turnover-Purchase of copra-Sale of oil both inside and outside the State-Deductions -Assessable turnover-Constitution of India, Art. 28(r..Travancore- Cochin General Sales Tax Act, 1125 (Act Xi of 1125 M.E.), ss. 2(i) (k), 3, 2(r..Travancore-Cochin General Saks Tax Rules, 1950, "· 7(k), 20(2).

The business of the appellant consisted in the purchase of copra, manufacture of cocoanut oil and cake therefrom and sale of oil and cake to parties inside the State of Travancore-Cochin and sale of oil to parties outside the State.

Before the coming into force of the Constitution of India, under the provisions of the Travancore-Cochin General Sales Tax Act, 1125, and the rules made thereunder, for the pus poses of assessment to sales tax, the appellant was entitled to include in his gross turnover the total value of the oil sold by him whether inside the State or outside the State and to deduct therefrom the whole of the value of the copra purchased by him.

Sub.iequently, in 1951, the Act was amended by the addition of s. 26 which, inter alia, provided : "Notwithstanding anything contained in this Act. . . . a tax on tl:ie sale or purchase of any goods shall not, after the 31st day ot March, 1951, be imposed where such sale or purchase takes place in the course of inter-State trade .... ".

For the year 1951-1952, the Saks Tax Officer assessed the appellant to sales tax on a net assessable turnover by taking the value of the whole of the copra purchased by him, adding thereto the respective values of tile oil and the cake sold inside the State and deducting only the value of the copra corresponding to the oil sold inside the State. It was contended for the appellant that in the calculation of the net tusnover, he was entitled to include the total value of the oil sold

by him, both inside and outside the State, and deduct thuefrom the total value of the copra purchased by him, and further that, under the crriding provision of the Act under s. 26, he was entitled to have th value of the oil sold outside the State clcch 1 ctcd.

Held, that the calculation made by the Sales Tax Officer of the net tll&nover was correct.

The non-obstante provision contained in s. 26 of the Act has the effect of taking transactions relating to inter.State trarle out of the purview of the Act and they arc cxduded in the calculation

A.pn1 2.

1957 of the gross turnover as well_ as the ner turnover on v.'hich sales tax can be assessed.

A. V. Fmiamk<

Asrvani Kumar Ghosh v. Arabinda Bose, (1953) S.C.R. I, T~ Stale of K1rala relied 011.

BhagwaJi J.

CIVIL APPELLATE JupJSDICTION : Civil Appeal No. 232 of 1955.

Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated November 24, 1954, of the former Travancore-Cochin High Coun in Original Petition No. 53 of 1954.

T. N. St<brama11ia Iyer and R .. Ga11apathy Iyer. for the appellant.

K. S. Krishnaswamy Iyengar and Sardar Bahadt<r, for the respondent.

1957. April 2. The Judgment of the Court was delivered by

BHAGWATI J.-This appeal with a certificate of fitness under Art. 132(1) of the Comtitution is directed against the order of the High Court of Travancore- Cochin dismissing the Original Petition No. 53 of 1954 filed bv the appellant under Art. 226 for quashing the order of the Sales Tax Officer, 2nd Circle, Quilon, assessing him to sales tax on a net assessable turno1cr of Rs. 7,54,144-8-4 for the year 1951-52 (!st April, 1951 to 31st March, 1952) and for issuing proper directions to the Sales Tax Authorities to assess the same according to law.

The appellant is a registered manufacturer of cocoanut oil and cake who has obtained a certificate of registration in Form VI as per sub-r. (i) of r. 20 of the Travancore-Cochin General Sales Tax Rules, 1950. The business of the appellant for the purposes of th.is appeal consisted in the purchase of copra, manufacture of cocoanut oil and cake and sale of the sarne to parties inside the State of Travancore-Cochin and sale of the oil to parties outside the State.

In the year 1951-52, the appellant purchased copra of the value of Rs. 7,16,048-1-4 and after manufacturing oil therefrom in his oil mills he sold the oil partly in the State and partly outside the State and the cake

entirely within the State. The total value of the oil sold was Rs. 6,76,719-0-11 out of which the sales outside the State were of the value of Rs. 3,67,816-10-1 and the value of the cake sold in the State was Rs. 67,155-15-5, The total gross turnover of the appellant was thus Rs. 14,59,923-1-8 and he claimed to deduct therefrom the whole of the purchase price of the copra under r. 7 ( 1) ( k) read with r. 20. The net turnover according to him was therefore only Rs. 7,43,875-0-4 and he claimed to deduct out of this a further sum of Rs. 3,67,816-10-1 being the sale price of oil in 1nter-State transactions which could not be taxed under Art. 286 of the Constitution, thus showing a net assessable turnover of only Rs. 3,76,058-6-3.

The Sales Tax Officer, 2nd Circle, Quilon, however, fixed the net assessable turnover of the appellant at Rs. 7,54,144-8-4.

He took the purchase value of the copra at Rs. 7,16,048-1-4 but added thereto Rs. 3,08,902-6-10 and Rs. 67,155-15-5 being the respecti1e Yalues of the oil and the cake sold inside the State, excluding the sale price of inter-State sales of oil, namely, Rs. 3,67,816-10-1, from such computation.

Having thus excluded the sale price of inter-State sales of oil, he deducted only the value of the copra corresponding ro the oil sold inside the State namely, Rs. 335,216-0-0, as against the sum of Rs. 7,16,048-1-4 deducted by the appellant.

He added a sum of Rs. 3385-0-3 being the price of gum sold by the appellant and deducted a further sum of Rs. 6.130-15-6 bring the saks tax collected bv him. He thus arrived at the net assessable turnover. of Rs. 7,54,144-8-4 and assessed the appellant for sales tax on the same.

The appellant preferred an appeal to the Assistant Sales Tax Commissioner (S.T.A. No. 1480 of 1953-54) who dismissed the same by his order dated May 10, 1954_ A further petitioq to the Government for redress met with the same fate and the appellant thereupon filed the petition in the High Court of Travancore- Cochin being O.P. No.

53. of 1954 with the result indicated above.

The decision of this appeal turns on the construction of the rebant provisions of the Travancore-Cochin

A. V. Fernandez

Tlit State of Kerala

Bfaagwcti ].

LV.Fematuk~

Tlw State of Kerala

BiuzgtJJati J.

SUPTI.EME COURT REPORTS [1957]

General Sales Tax Act, 1125 (Act XI of 1125 M.E.) and the Travancore-Cochin General Sales Tax Rules, 1950, made thereunder which may be conveniently set out here.

The preamble to the Act stated that it was enacted to provide for the levy of a general tax on the sale of goods in the United State of Travancore and Cochin.

Section 2(j) defined a "sale" as under: "Sale" with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration ............... .

Explanation (2)-Notwithstanding anything to the contrary in the Sale of Goods Act for the time being in force, the sale or purchase of any goods shall be deemed for the purpose of the Act, to have taken place in the United State wherever the contract of sale or purchase might have been made."

Section 2 ( k) defined "turnover" as "the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or honicultural produce grown by rumself or grown on any land in wruch he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from ms turnover."

An explanation was added to this definition which is, however, not material for our purpose.

Section 3 was the charging section and it provided for levy of taxes on sales of goods in the terms following :-

" (I) Subject to the provisions of tills Act;-

(a) every dealer shall pay for each year a tax on ms total turnover for such year; and (b) the tax shall be calculated at the rate of three pies for every Indian rupee in such turnover ................. .

(3) A dealer whose total turnover in any year is less than ten thousand Indian rupees shall not be liable to pay any tax for that year under sub-section (I) or sub-&cction (2).

(4) For the purposes o£ this section and the other provisions of this Act turnover shall be determined in accordance with such rules as may be prescn"bed.

(5) The taxes under sub-sections (1) and (2) shall be assessed, levied, and collected in such manner and in such instalments, if any, as may be prescribed.

Provided that :-(i) in respect of the same transaction of sale, the buyer or the seller but not both, as determined by such rules as may be prescribed, shall be taxed; (ii) where a dealer has been taxed in respect of the purchase of any goods in accordance with the rules referred to in clause (i) of this proviso, he shall not be taxed again in respect of any sale of such goods effected by him."

Section 4 enacted that the provisions of the charging section shall not apply to the sale of electrical energy and any goods other than arrack and foreign liquor on which duty is or may be levied under the Travancore or Cochin Abkari Act, or the Travancote or Cochin Opium Act.

Section 24 conferred upon the Government power to make rules to carry out the purposes of the Act.

The Act as originally enacted received the assent of the Rajpramukh on January 5, 1950. After the advent of the Constitution, however, the Act was amended by the Travancore-Cochin General Sales Tax (Amendment) Act, 1951, and s. 26 was added thereto which ran as under :

"Notwithstanding anything contained m this Act:- ( a) a tax on the sale or purchase of goods shall not be imposed under this Act (i) where such sale or purchase takes place outside the State of Travancore- Cochin; or (ii) where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territory of India; (b) a tax on the sale or purchase of any goods shall not, after the 31st day of March, 1951, be imposed where such sale or purchase takes pla:ce rn the course of inter-State trade or commerce except in so far as Parliament may by law otherwise provide~ {2) The explanation to

A. V. Fernandez

Th< Stlfl• of Kl!l'al11

Bitagwati].

A._v. Fema11dl.!

Tht State of Ktrtda

BhagwatiJ.

clause (1) of Art. 286 of the Constitution of India shall apply for the interpretation of sub-clause (i) of clause

(a) of sub-section (1)."

The Travancore-Cochin General Sales Tax Rules, 1950, which were made by the Government under the rule-making power conferred upon it by sub-ss. 4 & 5 of s. 3 read with s. 24 of the Act laid down inter alia the provisions in regard to the determination of th~ total turnover of a dealer which was liable to be taxed. Rule 4 provided for the determination of the gross turnover :

"(l) Save as provided in sub-rule (2) the gross turnover of a dealer for the purposes of these rules shall be the amount for which goods are sold by him.

(2) In the case of the undermentioned goods the gross turnover of a dealer for the purposes of these rules shall be the amount for which the goods are bought by him.

(a) Cocoanut, copra, ground-nut and its kernel.

(b) Cashew, and its kernel.

Rule 7 provided that the tax or taxes under s. 3 or 5 or the notification or notifications under s. 6 shall be levied on the net turnover of a dealer. It further provided that in determining the net turnover, the amounts specified in els. (a) to (k) were, subject to the conditions specified therein, to be deducted from the gross turnover.

Clause (k) is relevant for our purpose. It specified :·- "all amounts which a registered manufacturer nf cocoanut and/or groundnut oil and cake may be entitled to deduct from his gross turnover under Rule 20 subject to the conditions specified m the rule." Rule 20 so far as it is material for our purpose provided:

"l. Any dealer who manufactures cocoanut/ groundnut oil and cake from cocoanut and/or copra or groundnut and/or/kernel purchased by him may on application to the assessing authority having jurisdiction over the area in which he carries on his business,

S.C.R.

SUPREME CGHJR'l' REPQRTS 843

be registered as a manufacturer of cocoanut/groundnut oil and cake and a certificate issued in Form VI.

2. Every such manufacturer shall be entitled to a deduction under clause (k) of sub-rule (i) of rule 7 equal to the value of the cocoanut and/or copra or groundnut a:nd/or kernel purchased and converted .by him into oil and cake provided that the amount for which the oil is sold is included in his turnover."

It is not necessary to refer to any other rule for the purposes of this appeal.

The main controversy between the parties centres on the method of calculation of the net turnover. The appellant contends that in the caiculation of such net turnover he is entitled to include the total value of the oil sold by him, viz., Rs. 6,76;719-C>-11, irrespective of the fact whether these sales were effected inside the State or outside the State and deduct therefrom the total value of copra purchased by him from which the whole quantity of oil sold by him was manufactured, viz., Rs. 7,16,048-1-4. The resultant figure, according to him, represents the net assessable turnover on which the Sales Tax Authorities would be entitled to

tsSess him to sales tax if the position in law was as is stood before the .amendment of the Act by the Travancore-Cochin General Sales Tax (Amendment) Act, • 1951.

He next contends that s •. 26 which was added to the Act by the Trav.mcore-Cochin General Sales Tax (Amendment) Act, 1951, prohibits the levy amongst others of a tax on the sale or purchase .of goods where such sale or purchase takes place in the course of inter-State trade or commerce. This is an overriding provision which, it is contended, entitled him to deduct the value of the oil sold outside the State, viz., Rs. 3,67,816.l(}.1, from the assessable turnover arrived at as above. The result of this mode of calculation is that he claims to deduct from the gross turnover the whole of the purcha5e ptice of copra, viz.1

Rs. 7,16,048-1-4 and not the purchase price of copra which can be allocated to his sales of oil inside fhe State.

The Sales Ta)(: Authorities, on the other hand, conterd that the appellant is not entitled to take into

.t. V. Fernantla

Y>: The State ofKeroJd

Bhagwati J.

A.I'.~ ....

Tn, Stab •f Xtml•

B /oagra"1i J.

computation at all his sales of oil outside the State and is also not entitled to deduct from his gross turnover the purchase price of copra allocated to the oil sold to persons outside the State. They claim to lift the whole of these sales of oil outside the State inclusive of the purchase price of the copra which can be allocated to them out of the calculations of the net turnover because of the provisions of s. 26 set out above, relying upon the non-obstante provision contained therein, viz., "Not•Nithstanding anything contained in this Act, a tax on the sale or purchase of goods shall not be imposed under this Act where such sale or purchase takes place in the course of inter-State trade or commerce."

We have to decide which of these calculations of the net turnover is correct having regard to the relevant provmons of the Act and the rules made thereunder.

The definition of "sale" contained in s. 2(j) is wide enough to include the sales of oil manufactured by the appellant whether these sales are effected inside the State or outside the State. The definition of "turnover" contained in s. 2(k) of the Act also makes no distinction between the sales inside the State and outside the State. The "turnover" is there defined as the aggregate amount for which goods are either bought or sold by a dealer and that definition comprises within its scope both these types of sales whether inside the State or outside the State. This turnover of a dealer is under s. 3, sub-s. ( 4) to be determined in accordance with such rules as may be prescribed.

Rule 4 made by the Government under the rulemaking power prescribes that the gross turnover of a dealer for the purposes of the rules shall be the amount for which the goods are sold by him. This rule also does not make any distinction between sales inside the State or outside the State. After having thus provided for the inclusion of all sales within the gross turnover. r. 7 provides that the tax or taxes under s. 3 (which is the c11arging section) shall be levied on the net turnover of a Jcaler. 3uch net turnover is to be arrived at aftei deducting from the gross turnover various.

S.C.R.

SUPREME COU~T REPORTS 845

amounts specified in els. (a) to (k) thereof and cl. (k) provides that a registered manufacturer of cocoanut and/or groundnut oil and cake will be entitled to deduct from his gross turnover such amounts as are mentioned in r. 20 subject to the conditions specified therein. The deduction under r. 20 is available to a dealer who manufactures cocoanut/ groundnut oil and cake from cocoanut and/or copra or groundnut and/or kernel purchased by him anq he is entitled to deduct the vah.Je of the cocoanut and/or copra or groundnut and/or kernel purchased and converted by him into oil and cake provided that the amount for which the oil is sold is included in his turnover. Here also we find no distinction made between sales inside the State or outside he State.

On a prim a f acie reading of these provlSlons contained in the Act and the rules made thereunder it would appear that a manufacturer of cocoanut or groundr:ut oil and cake would be entitled to include in his gross turnover thr: total value of the oil sold by him whether inside the State or outside the State and to deduct from such gross turnover the whole of the value of the copra purcha:; ed by him and converted into oil and cake irrespective of the fact whether such oil or cake was sold by him inside the State or outside the State.

The onlv thing which he had to do under r. 20, sub-r.

(2) was to include the amount for which the oil is sold in his turnover and he would then under r. 7(1)(k) be entitled tc, deduct from his gross turnover the whole of the price of the copra purchased and converted by him into oil and cake, again irrespective of the fact whether the same had been sold by him inside the State or outside the State.

This was certainly the position as it obtained prior to the addition of the s. 26 to the Act by the Travancore-Cochin General Sales Tax (Amendment) Act, 1951.

We have, therefore, to consider what is the impact of s. 26 on the other provisions of the Act and the rules made thereunder.

The High Court decided against the appellant observing that the definitions given in s. (2)(j) and (k) of the Act applied only in the absence of "anything

.d. V. Forna.uftr.

"· Th# Stau of Kera/a

Bli8gwati ].

A. V. Fernattdli

v. 1"M State oj K"aJa

Bhagwati ,1.

repugnant in the su\Jitct or context", and on a perusal of the relevant provmions of the Act and the rules made thereunder, it was of opinion that these definitions were clearly inapplicable for the following reasons :

"There can be no doubt that what has been intended is a taxation of copra at the purchase point and the avoidance of sales tax in respect of the oil extracted by a registered manufacturer from such copra to the extent of the value of the copra used for the said manufacture in all those cases where but for the concession he would have been liable to pay both the purchase tax on copra and the sales tax on oil under the Travancore-Cochin General Sales Tax Act, 1125.

In other words, the object is the avoidance of a double taxation by the State, one at the purchase point of copra and the other at the sale point of oil, and it is impossible to invoke the definition and say that the concession will be available to a registered manufacturer even in those cases where only one and not both the taxes can be realized from him under the provisions of the Act."

The answer given by the learned counsel tor the appellant to the above reasoning was that in fiscal statutes what you have got to look to is not the spirit of the statute but the letter of the law; and if you could not bring a particular tax within the letter of the law, the subject could not be made liable for the same.

Our attention was drawn in this . connection to the observations of Lord Rmse! of Killowen in lrzland Revenue Commissioners v. Duke of Westminster( 1 ) :

"I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if in accordance with a Couit's view of what it considers the sub•tance of the tramaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not mxable by inference or by

analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case." As Lord Cairns said many years ago in Partington v.

The Attorney General(') :-"As I understand the

(!) [1936] A. C. 1, 04.

(•) (1869) 4 ILL. 100, 102.

S.C.R.

SUPREME COURT REPORT..S

S47 \ principle of all fiscal legislation it is this : if the person sought to be taxed comes wi.thi.n the letter of the law he must be taxel'l, however gn:at the hardship .may appear to the judicial mind to be. On the .other had, if the Crown, seeking to recover the! t~, cannot bnng the subject within the letter of the law, the subjct is free, however apparently within the spirit of the law the case might otherwise appear to be."

The passage was quoted with approval by the Privy Council in the Bank of Chettinail v. Income Tax Commissioner(') and the Privy Council registered its protest against the suggestion that 'in revenue cases "the substance of the matter" may be regarded as distinguished from the strict legal position. (See also F. L. Smith & Co. v. F. Greenwood(2)) It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the, case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contehded by the Sales Tax Authorities.

It may be noted at the outset that the main bulk of the Sales Tax Acts enacted by the various Provincial Legislatures was enacted before the Constitution.

There were on the Statute Book various Sales Tax Acts enacted by the Provincial Legislatures; viz., Bihar Sales Tax Act, 1947, Bengal Finance (Sales Tax) Act, 1941, Madhya Pradesh Sales Tax Act, 1947, Madras Sales Tax Act, 1939, Mysore Sales Tax Act, 1948, Orissa Sales Tax Act, 1947, East Punjab Generl Sales Tax Act, 1948, and clie Uttar Pradesh Sales Tax Act,

(1) A.'I. R. (1940) P. C. 183.

(2) VIII T. C. 193, 2o6.

A, V. Ftrnilndt~

T Ill Stale of K wal(J

B/iagwati ].

A. V. Fernanthi:

The Stale 6f KeraJ.a

BhagwatiJ.

SUPREME COURT REPORTS [1957] I 1948,-all of which levied sales tax on a more or less uniform basis bringing within their ken not only the sales which were actually effected within the territory but also sales where adopting the nexus theory even one of the ingredients of sale was found to have taken place within the territory.

The Assam Sales Tax Act, 1947, and the Hyderabad General Sales Tax Act, 1950, also followed the same pattern. When the Constitution came to be inaugurated on January 26, 1950, Art. 286(2) laid down restrictions on the State Legislatures to enact laws imposing or authorising the imposition of tax on the sale or purchase of goods in certain cases therein specified, so that after January 26, 1950, no State could impose a tax on the sale or purchase of goods falling within these categories. The

Sales .Tax Acts enacted by the various Provincial Legislatures had, therefore, to be brought in line with this provision of the Comtitution and various expedients were devised by the State Legislatures in order to effectuate this object.

This object was sought to be achieved in the main bulk of the Sales Tax Acts by adding towards the end of the Acts sections like s. 26 of the Travancore- Cochin General Sales Tax Act, 1125, incorporating therein the terms of Ar 286 of the Constitution. The non-obstante provision was thus enacted in the main bulk of the Sales Tax Acts which laid down : "Notwithstanding anything contained in this Act the tax on the sales or purchase of goods shall not be imposed under this Act where .............. (and the provisions of Art. 286 were in terms incorporated therein)."

A different expedient was adopted in the Assam Sales Tax Act, 1947 and the Hyderabad General Sales Tax Act, 1950. The Assam Sales Tax Act, 1947, had incorporated therein an addition to the charging section (section 3 of the Act) and s. 3 (1-A) which was inserted by s. 3 of the Assam Sales Tax (Amendment) Act, 1947 (Assam Act IV of 1951) was to the following effect :

"Nothing in sub-section (1) shall, except in cases covered by the first proviso to sub-section (12) of section ?, of th:s Act be deemed to render any dealer

liable to tax on the sale of goods where such sale takes place : ( 1) outside the State of Assam; .

(2) in the course of the import o~ the goods. mto, or export of the goods out of, the terntory of India; or

(3) in the course of inter-State trade or commece except in so far as Parliament may by law otherwise provide."

The Hyderabad General Sales Tax Act, 1950 had a similar provision incorporated in its definition of sale given in s. 2(k) of the Act. The Explanation (2) which was substitution for the original Explanation (2) by s. 2 of the Hyderabad General Sales Tax (Amrndrr.cnt) Act, 1950 (Hyderabad -Act XXXIr of 1950) read as under: Explanation (2)-"Notwithstanding anything to the contrary in any other law for the time being in force, a transfer of goods in respect of which no tax can be imposed by reason of the provision contained m Article 286 of the Constitution, shall no!: be deemed to be "sale" within the meaning of this clat:se."

A further expedient which was adopted in this connection may be noted in r. 5 of the Bombay Sales Tax Rules, 1952, enacted under the Bombay Saks Tax Act, 1952-(Bombay Act XXIV of 1952), which authorised the deduction of certain sales coming within Art. 286 of the Constitution while calculating the taxable turnover of a dealer.

We are not called upon to express any opm10n as to whether the incorporation of the provisions of Art. 286 of the Constitution in the charging section as it was done in the Assam Sales Tax Act, 1947, or in the definition of "sale" as it was done in the Hyderabad Grneral Sales Tax Act, 1950, or even in the rules in regard to the calculation of taxable turnover as it was done in the Bombay Sales Tax Rules, 1952, had the effect of

king the sales falling withi°: the categories 5pecified m Art. 286 out of the purview of the respective Sales Tax Acts, so that they would not be included at all within the calculation of the net turnover on which only the sales tax could be levied.

What was done in the instant case before us as in the bulk of the Sales

A. V. F1rnmu/4

Tli• Stak of .Kerak

Bhap; ati].

A. V.

Fernand#~ v.

The State of K1rala

Bhagwati J.

Tax Acts above noted was the incorporation of those prov1S1ons of Art. 286 of tk Constitution therein by adding a non-obstante provision at the end of the respective Sales Tax Acts in the manner above indicated. The definition of "sale" was not amended nor was the charging section. The rules as to the calculation of the net turnover also remained the same, without any deduction in regard to sales coming within Art. 286 of the Constitution being incorporated therein, with the result that the Sales Tax Authorities founded themselves upon the non-obstante provision incorporated in the Act by the addition of s. 26 therein by the Travancore-Cochin General Sales Tax (Amendment) Act, 1951.

What, then, is the effect of this non-obstante provision? This Court in Aswani Kumar Ghosh v. Ara bind a Bose(' ) made the following observations in connection with the non-obstante clause :

"lt should first be ascertained what the enacting p; rrt of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment." The same ratio applies to the construction of the nonobstante provision contained in s. 26 of the Act with reference to all the other provisions of the Act that preceded the same.

In our opinion, s. 26 of the Act, i1, cases falling within the categories specified under Art. 286 of the Constitution has the effect of setting at nought and of obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provisions contained in the charging section and the provisions contained in r. 20(2) and other provrsrons which are incidental to the process of levying such tax.

So far as sales falling within the categories specified in Art. 286 of the Constitution and the corresponding s. 26 of the Act are concerned, they are, as it were,

(1) f1953] S.C.R. I, 21, 22.

taken out of the purview of the Act and no effect is to be given to those provisions which would otherwise have been applicable if s. 26 had not been added to the Act. If these provisions of the Act and the rules made thereunder do not apply to the sales falling within those categories, the value thereof cannot be included in the turnover of the dealer and no question woulci arise of the applicability of r. 7 (l)(k) and r. 20(2) at all to these cases.

The amount for which the oil is sold in inter-State trade or commerce would not be lawfully included in the turnover of the dealer and if the amount for which such oil is sold cannot thus be included in his turnover no occasion would arise for the deduction under r. 7(1)(k) of the value of the cocoanut and/or copra or groundnut and/or kernel purchased and converted by the dealer into such oil and cake.

A distinction was sought to be made between the inclusion of the value of such oil in the turnover of the dealer for the purpose of assessment and the levy of tax thereupon. It was urged that the inclusion of such oil in the turnover for the purpose of assessment was quite distinct from the liability for tax which was the only thing prohibited by s. 26 of the Act and therefore the value of such oil could be lawfully included in the turnover involving as a necessary consequence the deduction of the value of the copra purchased by the dealer and converted by him into such oil from such turnover, the resultant turnover being the net turnover for the purposes of assessment, the value of the oil sold in the course of inter-State trade or commerce being further deducted therefrom by reason of the operation of s. 26 of the Act, thus making in effect a distinction between assessable turnover and the taxable turnover.

Reliance was placed in support of this position on the observations of this Court in Messrs. Chatturam Hori/ram Ltd. v. Commissioner of Income-Tax, Bihar and Orissa(1 ) :

"As has been pointed out by the Federal Court in Chatturam v.

Cl.T., Bihar( 2 ) (quoting from the

(I) [1955] 2 S.C.R. 290, 297,

(2) [1947] F.C.R.116, 126.

2~0 S. C. India/59.

A. V. Fernandez

Tht State of Kerala

Bhagwati J.

I95i

A. V. Fernandel:

The State of Kuala

BIJagwati J.

judgment of Lord Dunedin in Whitney v. Commissioners of Inland Revenue (1) 'there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what person in respect of what property are liable.

Next, there is the assessment.

Liability does not depend on assessment. That, ex-hypothesi, has already been fixed.

But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay'.''

The appelbnt, however, forgets that the three stages in the imposition of a tax which are laid down here predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to tax, imposed under the terms of the taxing statute, then follo\v the provisions in rcgJrd to the asscssrnent of such liability. If there is no liability to tax there cannot be any assessment either.

Sales or purchases i:-. respect of which there is no liability to tax imposed by the .statute cannot al all be included in the calculation 0f turnmTr for the purpose of assessment an<l the exact sum \\'hich the <lealer 1s liable to pay must be ascertained without any reference whatever to the

'iJillC.

There is a broad distil1ction between the provisions containecl in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other.

In the former case, but for the pro\1s1ons as regards the exemptions or refund or rebate of tax, the sales or purchases would haH: to be included in the gross turno\'er of the dealer because the\· are prima facie liable to tax an<l the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on "'hich the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether.

The Legislation cannot enact a la\\' imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition

(!) [19261 A. C. 37.

S.C.R.

SUPllEME COURT REPORTS 853

of tax.

If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.

If this distinction is borne in mind, it is clear that s. 26 of the Act enacts a provision with regard to nonliability of these transactions to tax and these transactions were therefore taken out of the purview of the Act.

We are therefore of opinion that the non-obstante provision contained in s. 26 of the Act has the effect of taking these transactions out of the purview of the Act with the result that the dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder.

This position is not at all affected by the prov1S1on with regard to registration and submissions of returns of the sales tax by the dealers under the Act.

The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealer's turnover.

Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding provision enacted in the Act, as above.

We are, therefore, of opinion that the conclusion reached by the High Court was correct; the calculations of the net turnover made by the Sales Tax Authorities were also correct; and this appeal must stand dismissed with costs.

Appeal dismissed.

A. V. Fmiandtt:

TJi. State of Kerala

Bhagwati ].

A. V. FERNANDEZ

THE STATE OF KERALA

BHAGWATI

JAGANNADHADAS

JAFEK IMAM

GovINDA MENON

L. KAPUR JJ.

Constitution of India

ss. 2(i)

Travancore-Cochin

Constitution of India

s. 26

31st day ot March, 1951

s. 26

s. 26

BhagwaJi

Article 132(1)

Constitution of India

T. N. St<brama11ia Iyer

R .. Ga11apathy Iyer

K. S. Krishnaswamy Iyengar

Sardar Bahadt

BHAGWATI

Art. 132(1)

High Court of Travancore- Cochin

Art. 226

Art. 286

Sales Tax Officer, 2nd Circle, Quilon

Assistant Sales Tax Commissioner

May 10, 1954

BiuzgtJJati

General Sales Tax Act, 1125

Section 2(j)

United State

Section 2

Section 3

Section 4

Section 24

Rajpramukh

January 5, 1950

s. 26

Travancore- Cochin

India

31st day of March, 1951

Parliament

A. V. Fernandez

State of Ktrtda

Art. 286

Constitution of India

ss. 4 & 5

s. 3

s. 24

s. 3

s. 6

State ofKeroJd

Bhagwati

s. 26

s. 2(j)

s. 2(k)

s. 3

s. 3

s. 26

s. 26

State

Killowen

Cairns

Bihar Sales Tax Act, 1947

Madhya Pradesh Sales Tax Act, 1947

Madras Sales Tax Act, 1939

Mysore Sales Tax Act, 1948

Orissa Sales Tax Act, 1947

East Punjab Generl Sales Tax Act, 1948

Uttar Pradesh Sales Tax Act

V. Ftrnilndt~

Assam Sales Tax Act, 1947

Hyderabad General Sales Tax Act, 1950

January 26, 1950

Art. 286(2)

s. 26

Art. 286

Assam Sales Tax Act, 1947

Hyderabad General Sales Tax Act, 1950

Assam Sales Tax Act, 1947

section 3

s. 3

s. 3

Assam Act IV of 1951

Assam

Hyderabad General Sales Tax Act, 1950

s. 2(k)

s. 2

Article 286

Bombay Sales Tax Rules, 1952

Bombay Saks Tax Act, 1952

Bombay Act XXIV of 1952

Art. 286

Art. 286

Hyderabad Grneral Sales Tax Act, 1950

Bombay Sales Tax Rules, 1952

Art. 286

Sales Tax Act

Bhagwati

A. V.

Fernand~ v.

The State of K1rala

Bhagwati J.

Tax Acts above noted was the incorporation of those prov1S1ons of Art.

Art. 286

Art. 286

s. 26

s. 26

s. 26

Art. 286

Art. 286

s. 26

s. 26

s. 26

s. 26

[1955] 2 S.C.R. 290

A. V. Fernandez

State of Kerala

A. V. Fernandel

State of Kuala

BIJagwati

Dunedin

s. 26

s. 26

Art. 286

Art. 286

A. V. Fmiandtt

State of Kerala


SUPREME COURT REPORTS

BHAGWANDAS

ti.

THE STATE OF RAJASTHAN

(BHAGWATI and J. L. KAPUR JJ.)

[1957]

Appeal against acquittal-JV hen High Court may interfere-· Dying declaration-Value of-Expert evidence-Discrediting by reference to text books-Practice-Appreciation of evidence-Inter /erence by Supreme Court.

The l-Iigh Court should not set asi<lc an acquittal unless there are "subst:intial and compelling" reasons for doing so.

St1ra7pal Singh v. State, (1912) S.C.R. 193, A7mcr Singh '" The State of P11n7ab, (1953) S.C.R. 418, Aher Raia Khima '"The State of Saurashtra, (1955) 2 S.C.R. 1285, followed.

It is not a satisfactory way of disposing of the evi<lence of Jn expert witness to discredit it by reference to text books unless the passages \vhich are sought to discredit his opinion are put to hiin.

Sunder/al v. The State of Madhya Pradesh, A.LR. (1954) S.C. 28, followed.

Although the Supreme CouTt will not interfere with the findings of the High Court because its conclusions on the e\i<lence as to the guilt or innocence oi the ai.:LuscJ Jifler from that oi Lhe High Court, yet \vhcrc the evidence is such that no tribunal could legitin1ate\y infer fron1 it that the accused is guilty the Supreme Court \voul<l set aside the conviction.

Stephen Seneviratne v. 'The King, A.LR. ( 1936) tl.c:. 289, relied on.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 50 of 1957.

Appeal by special leave from the judgment and order dated January 27, 1956, of the Rajasthan High Court at Jodhpur in Criminal Appeal No. 119 of 1954 arising out of the judgment and order dated March 23, 1954, of the Court of the Sessions Judge at Ganganagar in Original Criminal Case No. 74 of 1953.

Moh an Behari Lal, for the appellant.

Kan Singh and T. M. Sen, for the respondent.

1957. April 2. The Judgment of the Court was delivered by

KAPUR J.-Bhagwandas and Netram are two brothers who along with Mt. Rameshwari, a daughter •

of the former, were tried by the Sessions Judge of Ganganagar for an offence under s. 302 of the Indian Penal Code but were acquitted. On appeal to the High Court of Rajasthan, the order of acquittal of Bhagwandas and Netram was reversed and they were convicted under s. 302 read with s. 34 and sentenced to transportation for life. The order as to Mt. Rameshwari was affirmed and she was acquitted. The convicted persons have obtained Special Leave. to appeal under Art. 136 of the Constitution.

The appeal is founded on two grounds : (I) that there was no evidence against the appellants sufficient to warrant a conviction and (2) that there were no compelling reasons for reversal of the judgment of acquittal.

According to the prosecution the canal after a temporary closure restarted flowing on May 5, 1953.

And although it was not his turn of water the deceased Shivlal was allowed to take the water to irrigate his fields.

On May 6 the canal was flowing to its full capacity and Shivlal was to take his turn of water which was of 6 hours duration from 8 a.m. to 2 p.m. but he watered his lands from 8 a.m. to 10-30 a.m. because the village diggi (pond) which was empty had to be filled up. Mirab Ram Karan P.W. 1 with the consent of Shivlal diverted the water for the purpose of filling up the diggi, promising him (Shivlal) to get him the rest of his turn of water, i.e., for 3! hours after the diggi had been filled up. The diggi was filled up by 1 p. m. on the 7th. Shivlal then wanted to divert the water into his field but Bhagwandas prevented him from doing so claiming the tum to be his.

According to Ram Karan Mirab P. W.1 the turn of Bhagwandas was after Surta whose turn was next to that of Shivlal.

As Shivlal was prevented from taking his turn of water he started walking towards the village saying that he would go and speak to Mirab. Bhagwandas thereupon shouted that "the enemy was going" and hit Shivlal on the head with a kassi.

Netram then hit Shivlal with lathi as a result of which he fell down and then both beat Shivlal, and

Bhagwan Das v.

The State of

Rajasthans

Kapur J.

Bhagwan Das

.v.

Tk State of

Ra}asthan

Kapw ].

Mt. R:imeshwari also, it was alleged, joined in this beating with a wooden handle of a kassi.

This occurrence was witnessed by Hazari P. W. 3 who was grazing his camels in the field . of Surta. He went up to the place where the beating was going on and shouted to the assailants who "went away" leaving their kassi behind. Hazari found Shivlal seriously injured and unconscious. He sprinkled some water on his face which revived Shivlal and the latter asked Hazari to take him to the Thana but Hazari he! ped him to walk up to the Khala (threshing floor) of Hukma which was at a short distance from that place. Hazari P. 'vV. 3 has stated that the left Shivlal

with Jora, Jagmal, Bhogar, Begaram and Binja, and on their asking him he (Hazari) told them what he had seen.

Shivlal was then taken to Raisinghnagar by Bhaggu and J agmal on a she-camel to the shop of Gyani Ram P. W. 4.

There Shivlal told Gyani Ram also that Bhagwandas, Netram and Rameshwari had assaulted him because of the water dispute and also asked Gyani -Ram to send for his son Ram Pratap and his Artya (Commission Agent) Ishardas. Ram Pratap came at about 6 p. m.

Shivlal repeated the story to him and was then taken to the hospital by J agmal, Bhaggu and others.

At the hospital he was treated by the doctor P. W. 11 but died the following day

(8th) at 8-15 a. m.

The First Information Report was based on a written report Ex. P-1 by Ram Pratap s/o Shivlal.

It was recorded on May 7 at about 7-30 p.m. The prosecution supported their case by the evidence of two eye witnesses, dying declarations made to 3 persons and on the recovery of the kassi. They produced two eye witnesses Begaram. P.W. 2 and Hazari P.W. 3.

The dying declarations were made to three persons first to Jora P. W. 7, later to Gyaniram P. W. 4 at his shop and lastly to Ram Pratap P. W. 5 who arrived at the shop at 6 p. m.

If the dying declaration was made to this witness it must have been at that time.

According to the doctor's evidence Shivlal was unconscious when he was brought to the hospital at 5 p. m. He h<id 15 injuries on his body, out of which

injury No. 1 was with a sharp-edged weapon and injury No. 2 with a blunt weapon and both these injuries were grievous and were "individually and collectively fatal sufficient to cause death."

The learned Sessions Judge disbelieved the whole evidence and acquitted the accused.

He was of the opinion that the evidence produced by the prosecution was not "free from suspicion and not sufficient to convict them".

Begaram P. W. 2 was disbelieved both by the Sessions Judge and the High Court. The learned Sessions Judge described Hazari as a "facile fluent liar" but his testimony was accepted by the High Court.

Both courts rejected the statement of Ram Pratap but the statements of Gyaniram and Jara were accepted by the High Court although they were rejected by the Sessions Judge.

The High Court has relied upon the testimony of one eye witness Hazari P. W. 3 and two witnesses before whom Shivlal is alleged to have made two dying declarations.

There are apparent contradictions between the testimony of Hazari and Bega.

The learned High Court Judges disposed of this by saying that Bega's presence

"on the spot is open to grave doubts. As such it is, in our opinion, not proper to contradict the statement of a man who was present ort the spot by using the statement of another man who was in all probability not there."

The learned Judges have made the following significant observation in regard to Hazari :

"It seems to us that Hazari had said this because the prosecution was producing Bega, and he must have been asked to say that Bega was also present. So far as the story of Hazari about the incident itself is concerned, nothing has been brought out in his crossexamination to throw doubts on this part of his statement."

They also pointed out, but attached no importance, to other contradictions in the statements of Hazari made before the trial court and before the PoliCe. If as observed by the learned Judges of the High Court Hazari had mentioned the presence of Bega metel;

Bhagwan IJas

TM State of Rajashan

Kapur J.

Bhagwan Dru

Tht State oj

.Rajasthan

Kapur J.

because the latter was to be produced as a prosecution witness and because he (Hazari) had been asked to mention it, then it would detract so materially from his reliability that it would be dangerous to accept his testimony as being of any great value which is still more diminished by the finding as to the innocence of Mt. Rameshwari.

The other piece of evidence which the prosecution relied upon was the two dying declarations made by Shivlal to Gyaniram P. W. 4 and fora P. W. 7. Besides the infirmities which the testimony of these two witnesses (Gyaniram P. W. 4 and Jora P. W. 1) suffered from due to material contradictions in their respective statements mad"'. at various stages of the case and which have been pointed out by the learned Se, sions Judge who said about Gyaniram :

"In such a state of affairs I refuse to put any weight and value to the statement of Gyaniram ....... .

. . . . . . . . . . . . . . . . . . . . . . . . . . " their evidence cannot be a surf foundation for maintaining the conviction if the statement of Hazari the sole eye witness is disregarded, as it must be disregarded in this case; because ordinarily a dying declaration of the kind which the prosecution has relied upon is by itself i!1Suflicient for sustaining a conviction on a charge of murder.

The learned Sessions Judge was of the opinion that the evidence of the doctor P. W. 11 madethe story that Shivlal could walk for a little distance upto the Kliala of Hukma or was able to talk so as to make a dying declaration, improbable.

But the learned Judges of the High Court disposed of this matter by saying that the doctor was comparatively young and that his statement was not in accord with the op11110n expressed in books on Medical J urisprudcnce by authors like Modi and Lyon. But it cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of disposing of the evidence of an expert unless the passages which are sought to discredit his opinion are put to him. This Court in S undarlal v. The State of Madhya Pradesh( 1 ) disapproved of Judges drawing

(I) A.LR. 195{ S. C. 2H.

conclusions adverse to the accused by relying upon such passages in the absence of their being put . to medical witnesses. The learned Judges of the High

Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness of the two dying declarations nor could the statement of the deceased alleged to have been made in the circumstances of this case be considered sufficient to support the conviction of the accused. The recovery of the kassi is a wholly neutral circumstance because it has not been proved that it belonged to Bhagwandas.

Although this Court will not interfere with the findings of the High Court because its conclusions on the evidence as to the guilt or innocence of the accused differ from that of the High Court, yet where the evidence is such that no Tribunal could legitimately infer from it that the accused is guilty this court would set aside the conviction. The Judicial Committee of the Privy Council in Stephen Seneviratne v. The King(1)

in setting aside an order of conviction said :

" ........ there are here no grounds on the evidence, taken as a whole, upon which any Tribunal could properly, as a matter of legitimate inference, arrive at a conclusion that the appellant was guilty ...... "

In our view the evidence in the present case is of such quality and no legitimate inference of guilt of the accused could properly be drawn.

The second point on which the judgment of the High Court is assailed is the lack of compelling reasons for setting aside the judgment of acquittal. ..

This court has held that the High Court should not set aside an acquittal unless there are "substantial and compelling" reasons for doing so. Surajpal Singh

v. State(2), Ajmer Singh v. The State of Punjab( 3 ), Ahcr Raja Khima v. The State of Saurashtra( 4 ). The judgment of the High Court does not disclose any such reasons justifying interference with the findings of the trial Court.

(1) A.I.R. 1936 P.C. 289, 299.

(2) [1952] S.C.R. 193, 201.

(3) [1953] s.c.R. 418, 423.

(4) [1955] 2 S.C.R. 1285.

Bhagwan D111

•• Tht Stau of Rajasthar.

Kapur Ji

Bhagwan Das

The State of Rajasthan

Kapur ].

April 5.

We would, therefore, allow this appeal, set aside the judgment of the Rajasthan High Court, restore that of the Sessions Judge and order the acquittal of the accused.

Appeal allowed.

RAMJI LAL MODI

THE STATE OF U.P.

(S. R. DA5 C.J., JAFER IMAM, S. K. DAs, GoVINDA

MEN0"1 and A. K. SARKAR JJ.)

Insult to Religion-f_, atu making such insult an offence-Conrtitutional validity-If violates freedo1n of speech and express;.011lndian Penal Code (Act XLV of 1860), s. 295A-Constitm1011 of fodio, Arts. 19(1)(a), J9(2), 25, 26.

This \Vas a petition challenging the constitutional validity of s. 29'5.\ of the Jndi; in Penal Code and for quashing the pcfitioner's con\"iction thereunder for publishing an article in a 1-:ionthly rnag:.izinc of \Vhich he \Vas the printer, publisher and the editor.

It \',"ls contended on his behalf that the impugned section infringed his fundamental right to freedom of speech and expression conferred by Art. l~(l )(a) of the Constitution and \Vas not a hnv i1npsing reasonable restrictions on the right in the interests of public order under d. (2) of Art. 19, which alone could have afforded a justification for it.

field, that s. 295A of the Indian Penal Code was well with the protection of cl. (2) of Art. 19 of the Constitution and its validity \Vas beyond question.

The expression "in the interests of" occurring in the amended

cl. (2) of Art. J 9 had the effect of making the protection afforded.. by that clause very wide and a law not directly desigr.ed to maintain public order would well be within its protection if such acti\•ites as it penalised had a tendency to cause public disorder.

Debi Soron v. The State of Bihar, A.LR. ( 1954) Pat. 254, referred to.

It was absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract cl. (2) of Art. 19 in view of the provisions of Arts. 25 and 26 of the constitution which, while guaranteeing freedom of religion, expressly made it subject to public order.

BHAGWANDAS

THE STATE OF RAJASTHAN

BHAGWATI

L. KAPUR JJ.

Supreme Court

(1955) 2 S.C.R. 1285

Supreme CouTt

Moh an Behari Lal

Kan Singh

T. M. Sen

KAPUR J.-Bhagwandas

Netram

Rameshwari

Ganganagar

s. 302

Indian Penal Code

High Court of Rajasthan

Bhagwandas

s. 302

s. 34

Art. 136

May 5, 1953

Shivlal

Mirab Ram Karan

Bhagwandas

Ram Karan Mirab

Surta

Mirab. Bhagwandas

Hazari

Hazari

Hukma

Hazari

Jora

Jagmal

Bhogar

Begaram

Binja

Raisinghnagar

Bhaggu

J agmal

Gyani Ram

Gyani Ram

Gyani -Ram to

Ram Pratap

Ishardas. Ram Pratap

Begaram

Jora

Gyaniram

Ram Pratap

Gyaniram

Jara

Bega

Bhagwan IJas

State of Rajashan

Bhagwan Dru

.Rajasthan

Kapur

Modi

Lyon

Surajpal Singh

[1955] 2 S.C.R. 1285

State of Rajasthan

Kapur

RAMJI LAL MODI

STATE OF U.P.

S. R. DA5 C.J.

JAFER IMAM

S. K. DAs

K. SARKAR

Penal Code

s. 295A

Arts. 19(1)(a)

s. 29

Penal Code

Art. 19

s. 295A

Indian Penal Code

Art. 19

Art. 19

Arts. 25 and 26


Bhagwan Das

The State of Rajasthan

Kapur ].

April 5.

SUPREME COURT REPORTS [1957]

We would, therefore, allow this appeal, set aside the judgment of the Rajasthan High Court, restore that of the Sessions Judge and order the acquittal of the accused.

Appeal allowed.

RAMJI LAL MODI

THE STATE OF U.P.

(S. R. DA5 C.J., JAFER IMAM, S. K. DAs, GoVINDA

MEN0"1 and A. K. SARKAR JJ.)

Insult to Religion-f_, atu making such insult an offence-Conrtitutional validity-If violates freedo1n of speech and express;.011lndian Penal Code (Act XLV of 1860), s. 295A-Constitm1011 of fodio, Arts. 19(1)(a), J9(2), 25, 26.

This \Vas a petition challenging the constitutional validity of s. 29'5.\ of the Jndi; in Penal Code and for quashing the pcfitioner's con\"iction thereunder for publishing an article in a 1-:ionthly rnag:.izinc of \Vhich he \Vas the printer, publisher and the editor.

It \',"ls contended on his behalf that the impugned section infringed his fundamental right to freedom of speech and expression conferred by Art. l~(l )(a) of the Constitution and \Vas not a hnv i1npsing reasonable restrictions on the right in the interests of public order under d. (2) of Art. 19, which alone could have afforded a justification for it.

field, that s. 295A of the Indian Penal Code was well with the protection of cl. (2) of Art. 19 of the Constitution and its validity \Vas beyond question.

The expression "in the interests of" occurring in the amended

cl. (2) of Art. J 9 had the effect of making the protection afforded.. by that clause very wide and a law not directly desigr.ed to maintain public order would well be within its protection if such acti\•ites as it penalised had a tendency to cause public disorder.

Debi Soron v. The State of Bihar, A.LR. ( 1954) Pat. 254, referred to.

It was absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract cl. (2) of Art. 19 in view of the provisions of Arts. 25 and 26 of the constitution which, while guaranteeing freedom of religion, expressly made it subject to public order.

Nor, having regard to the language and ingredients of s. 295A of the Indian Penal Code, could it be contended that the restnctions imposed by it _could be used for purposes other than those falling within the limits of the Constitution.

Romesh Thappa1 v. The State of Madras, (1950) S.C.R. 594; Brij Bushan v. The State of Delhi, (1950) S.C.R. 605 and Chintaman Rao v. The State of Madhya Pradesh, (1950) S.C.R. 759, held , inapplicable.

ORIGINAL

CRIMINAL JuRrsDrcnoN : Petition No. 252 of 1956.

Petition under Article 32 of the Constitution for the enforcement of fundamental rights.

Veda Vyasa, S. K. Kapur and Ganpat Rai, for the petitioner.

G. C. Mathur and C. P. Lal, for the respondent.

1957. April 5. The Judgment of the Court was deliverd by DAs C.J.-This is a petition fiied under Art. 32. of the Constitution of India praying for a declaration that s. 295A of the Indian Penal Code is ultra vires and unconstitutional and for a writ in the nature of certiorari quashi11g the petitioner's .mnviction under that section and for ancillary reliefs.

The material facts lie within a narrow compass. The petitioner is the editor, printer and publisher of a monthly magazine called Gaurakshak. The magazine is devoted to cow protection. In July or August, 1954, a Hindi Daily newspaper named 'Amrit Patrika' of Allahabad printed and published an article or a cartoon about a donkey on which an agitation -was started by the muslims of Uttar Pradesh. The editor and printer and publisher of 'Amrit Patrika' were prosecuted by the State, but they have been eventually acquitted by the High Court of Allahabad.

In the meantime, in its issue for the month of Kartik Samvat 2009, corresponding to November, 1952, an article was published in the petitioner's magazine 'Gaurakshak.' On December 12, 1952, the State Government ordered the prosecution of the petitioner on the basis of the said article._ Accordingly on June 8, 1953, a complaint was filed in •he court of the District Magistrate, Kanpur,

Ramji Lal Modi v.

The State of U.P,

DasC, J.

Ramji Lal Modi v.

The State of U.P.

DasC.j.

by the Senior Superintendent of Police, Kanpur, against the petitioner for offences under ss. 153A and 295A of the Indian l>enal Code. The Magistrate by his order dated August 5, 1953, charged the petitioner under ss. 153A and 295A and committed the petitioner to the Sessions Court of Kanpur for trial. The petitioner pleaded not guilty. The learned Sessions Judge, by his judgment dated November 16, 1953, acquitted the petitioner of the charge under s. 153A but convicted him under s. 295A and sentenced him to 18 months rigorous imprisonment and a fine of Rs. 2,000 and, in default of payment of the fine, to further rigorous imprisonment of 4 months. The petitioner filed an appeal to the High Court at Allahabad. The learned Single Judge, by his judgment dated October 25, 1956. held that the article was published with the deliberate and malicious intention of outraging the religious feelings of muslims and that the petitioner was guilty under s. 295A of the Indian Penal Code. The learned Judge, however, reduced the sentence of imprisonment to 12 months and the fine from Rs. 2,000 to Rs. 250 only. An application for certificate to appeal to this Court under Arts. 132 and 134 having been rejected by the High Court on October 30, 1956, the petitioner moved this Court for special leave to appeal from the judgment of the Allahabad High Court dated October 25, 1956.

The petitioner also on December 5, 1956, presented the present petition under Art. 32 for the reliefs mentioned above. The petitioner also made an application in this Court along with the writ petition for stay of the sentence passed on him. On December 18, 1956, both the stay application and the petition for special leave were dismissed by this Court. The petition under Art. 32 has now come up for hearing.

Presumably the petitioner has surrendered and is undergoing the sentence of imprisonment.

Learned counsel appearing in support of this petition urges that s. 295A of the Indian Penal Code is ultra vires and void inasmuch as it interferes with the pertitioner's right to freedom of speech :rnd expression guaranteed to him as a citizen of India by Art. 19( l) (a) of our Constitution. The contention is that this section

tcannot be supported as a law imposing reasonable restnct1ons on the exercise of the right conferred by Art. 19(1) (a) as provided in cl. (2) of the said Article.

Learned counsel says that the interest of public order is the only thing in cl. (2) which may possibly be relied upon by the State as affording a justification for its claim for the validity of the impugned section. A law interfering with the freedom of speech and expression and imposing a punishment for its breach may, says counsel, be "in the interests of public order" only if the likelihood of public disorder is made an ingredient of the offence and the prevention of public disorder is a matter of proximate ancl not remote consideration.

Learned counsel points out that insulting the religion or the religious beliefs of a class of citizens of India may not lead to public disorder in all cases although it may do so in some case. Therefore, where a law purports, as the impugned section does, to authorise ' the imposition of restriction on the exercise of the fundamental right to freedom of speech and expression in language wide enough to cover restrictions both within and without the limitation of constitutionally permissible legislative action affecting such right, the court should not uphold it even in so far as it may be applied within the constitutionally permissible limits as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must, according to learned counsel, be held to be wholly unconstitutional and void.

Reference has been made to the cases of Ramesh Thappar v. The State of Madras( 1 ) and Brii Rushan v. The State of Delhi( 2 ).

In Ramesh Thappar's case, in exercise of powers conferred on him by s. 9(1-A) of the Madras Maintenance of Public Order Act, 1949, the Governor of Madras, being satisfied that for the purpose of securing public safety and the maintenance of public order it was necessary so to do, prohibited the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled 'Cross Roads', an English Weekly published at Bombay. < 1) 1950 s.c.R. 594.

(2) 1950 s.c.R. 605.

Ramji Lal Modi v.

Tk Mate of U.P.

DasC.J.

RanVi Lal Modi v.

Tire State of U.P

DtU C. J.

The impugaed section-s. 9(1-A)-was a law enacted for the purpose of securing the public safety and tht maintenance of public order. 'Public order' was said to be an expression of wide connotation and to signify that state of tranquillity which prevailed among the members of a political society as a result of the internal regulation enforced by the Government which they had established. 'Public safety' used in that section was taken as part of the wider concept of 'public order'.

Clause (2) of Art. 19, as it stood then, protected a law relating, inter alia, to a matter which undermined the securitv of or tended to overthrow the State.

Some breach. of public safety or pubHc order may conceivalily undermine the security of or tend to overthrow the State, but equally conceivably many breaches of public sofety or public order may not have that tendency. Therefore, a law which imposes restrictions on the freedom of speech and expression for preventing a breach of public safety or public order which may not undermine the security of the State or tend to o\erthrow the State cannot claim the protection of cl. (2) of Art. 19.

Section 9(1-A) was challenged as it embraced both species of activities referred to above and as . the section was not sever th' whole section was held to be bad.

In Brij Bushan's case (supra) the validity of s. 7(1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi, came up for consideration.

Thit section provided th3t ('t1•e Provincial Government or any uthority authorised !)y it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may, by order in writing addressed to the . printer, publisher or editor, require that anv matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny".

It was held by this Court (Fazl Ali f. dissenting) that inasmuch as the section authorised the imposition of restrictions on the fundamental right to freedom of speech and expression guaranteed by Art. 19(1) (a) for the purposes of preventing activities prejudicial to

public safety and maintenance of public order, it was not a law solely relating to a matter which undermined the security of or tended to overthrow the State within the meaning of cl. (2) of Art. 19 as it then stood. The principles laid down in Rome sh T hap par's case were applied to this case and the law was held to be void.

The case of Chintaman Rao v. The State of Madhya Pradesh(1) has also been relied upon in support of the

contention that where the language employed in the Statute is wide enough to cover restrictions on a fundamental right both within and without the limits of constitutionally permissible legislative action affecting the right and the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, the law must be held to be wholly void .

. After this Court decided the cases of Romesh Thappar

(supra) an<l Brij Bushan (supra), cl. (2) of Art. 19 of the Constitution was amen<led. Clause (2), as amende<l, protects a law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by sub-cl. (a) of cl. (1) of Art. 19 "in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." The question for our consideration is whether the impugned section can be properly said to be a law imposing reasonable restrictions on the exercise of the fundamental right to freedom of speech and expression in the interests of public order. It will be noticed that the language employed in the amended clause is "in the interests of" :ind not "for the maintenance of".

As one of us i'ointed out in Debi Soron v. The State of Bihar( 2 ), the expression "in the interests of" makes the ambit of the protection very wide.

A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order.

It is pointed our that s. 295A has been included in chapter XV of the Indian Penal Code which deals with

(I) 1950 S.C.R.F59.

(2) A.l.R. 1954 Patna 254.

Ramji Lal M,, J;

T"4 Stat1 1/ U.P.

Das C. 7.

Rarriii Lal Modi v.

The State of U.P.

DasC.]·

offences relating to religion and not in chapter VIII which deals with offences against the public tranquillity and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of cl. (2) of Art. 19. A reference to Arts. 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order.

These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed hy them in the interests of public order.

Learned counsel then shifted his ground and formulated his objection in a slightly different way.

Insults to the religion or the religious beliefs of a class of citizens of India may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and, therefore, a law which imposes restrictions on the citizem' freed om of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as those

which mav not. The law in so far as it covers the first variety my be said to have been enacted in the interests of public order within the meaning of cl. (2) ot Art. 19, but in so far as it covers the remaining variety will not' fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section,

to accede to this argument. In the first place cl. (2) of Art. 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interests of" public order. which is much wider than "for maintenance of" public order.

If, therefore, certain activities have a tendency to cause public disorder. a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction "in the interests of public order" although in some cases those activities may not actually lead to a breach of public order. In the next place s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the reiigious beliefs of a class of citizens but it penalises onlv those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section.

It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such acti\'ities, is well within the protection of cl. (2) of Arr. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19( 1 )(a). Having regard to the ingredients of the offence created bv the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution.

In other words, the language employed in the section is not wide enough to cover restriction_ both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(l)(a) and consequently, the question of severability does not

3-8() S. C. Indial59

Ramji Lal Modi v.

The Stale of U.P.

Das C.J.

19~7

Ramji Lai Modi v.

Tht State of U.P.

Das C. J.

April 5

arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.

For the reasons stated above, the impugned section falls well within the protection of cl. (2) of Art. 19 and this application must, therefore, be dismissed.

' Application dismissed.

THE ST A TE OF MAD HY A PRADESH

fl.

VEERESHW AR RAO AGNIHOTRY (S. R. DAs C.J., JAFER IMAM, S. K. DAs, GoVINDA

MENON and A. I).. SARKAR JJ.)

Autrefois acquit-Trial for offences under s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act- Acquittal of charge under s. 5(2)-Whether conviction under s. 409 barred-Code of Criminal Procedure s. 403-Constitution of India Art. 20(2 )-General Clauses Act s. 26.

'fhe accused was tried by a Special Judge for offences under s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act.

He was convicted under s. 409 but the Judge held that the accused could not be tried under s. 5(2) as there had been no investigation by a police officer not below the rank of a Deputy Superintendent of Police.

Upon appeal by the accused against the conviction under s. 409, the High Court applying the doctrine of autrefois acquit held that the order of the Judge in respect of the charge under s. 5(2) was tantamount to an acquittal for that offence and on the same facts no conviction coul<l be had under s. 409 :

Held, that the offences under s. 409 of the Indian Penal Code and under s. 5(2) of the Prevention of Corruption Act were distinct and separate and there could be no objection to a trial and convic tion under s. 409 even if the accused had been acquitted under s. 5(2).

Om Prakash Gupta v. The State of U.P., [1957) S.C.R.423, applied.

Section 403( I) of the Code of Criminal Procedure has no application where there is only one trial for several offences, of some of which the accused person is acquitted though convicted of one.

Article 20 of the Constitution also docs not apply where the accused had not already been\ tried and acquittl"'r' for the same offence in an earlier trial.

Bhagwan Das

LAL MODI

THE STATE OF U

JAFER IMAM

A. K. SARKAR JJ.

Penal Code

s. 295A

Arts. 19(1)(a)

s. 29

Penal Code

Art. 19

s. 295A

Indian Penal Code

Art. 19

Art. 19

Arts. 25 and 26

s. 295A

Indian Penal Code

Article 32

Veda Vyasa

S. K. Kapur

Ganpat Rai

G. C. Mathur

C. P. Lal

Art. 32

Constitution of India

s. 295A

Indian Penal Code

Amrit Patrika

Allahabad

Uttar Pradesh

High Court of Allahabad

December 12, 1952

ss. 153A and 295A

ss. 153A and 295A

Sessions Court of Kanpur

s. 153A

s. 295A

High Court at Allahabad

October 25, 1956

s. 295A

Indian Penal Code

Arts. 132 and 134

October 30, 1956

Allahabad High Court

December 5, 1956

Art. 32

December 18, 1956

Art. 32

s. 295A

Indian Penal Code

Art. 19( l)

Art. 19(1)

Ramesh Thappar

s. 9(1-A)

s. 9(1-A)

Art. 19

Art. 19

Section 9(1-A)

Brij Bushan

s. 7(1)

East Punjab Public Safety Act, 1949

Delhi

Fazl Ali

Art. 19(1)

Art. 19

Rome

Romesh Thappar

Art. 19

Art. 19

s. 295A

XV of the Indian Penal Code

Ramji Lal

Art. 19

Arts. 25 and 26

Art. 19

Art. 19

s. 295A

Art. 19( 1 )(a)

Art. 19(l)(a)

arise

Art. 19

GoVINDA

MENON

SARKAR

Autrefois

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 5(2)

s. 409

Code of Criminal Procedure

s. 403

Constitution of India

Art. 20(2 )

General Clauses Act

s. 26

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

s. 5(2)

s. 409

s. 5(2)

s. 409

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

s. 5(2)

Section 403( I)

Code of Criminal Procedure

Article 20


19~7

Ramji Lai Modi v.

Tht State of U.P.

Das C. J.

April 5

SUPREME COURT REPORTS (1957]

arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.

For the reasons stated above, the impugned section falls well within the protection of cl. (2) of Art. 19 and this application must, therefore, be dismissed.

' Application dismissed.

THE ST A TE OF MAD HY A PRADESH

fl.

VEERESHW AR RAO AGNIHOTRY (S. R. DAs C.J., JAFER IMAM, S. K. DAs, GoVINDA

MENON and A. I).. SARKAR JJ.)

Autrefois acquit-Trial for offences under s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act- Acquittal of charge under s. 5(2)-Whether conviction under s. 409 barred-Code of Criminal Procedure s. 403-Constitution of India Art. 20(2 )-General Clauses Act s. 26.

'fhe accused was tried by a Special Judge for offences under s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act.

He was convicted under s. 409 but the Judge held that the accused could not be tried under s. 5(2) as there had been no investigation by a police officer not below the rank of a Deputy Superintendent of Police.

Upon appeal by the accused against the conviction under s. 409, the High Court applying the doctrine of autrefois acquit held that the order of the Judge in respect of the charge under s. 5(2) was tantamount to an acquittal for that offence and on the same facts no conviction coul<l be had under s. 409 :

Held, that the offences under s. 409 of the Indian Penal Code and under s. 5(2) of the Prevention of Corruption Act were distinct and separate and there could be no objection to a trial and convic tion under s. 409 even if the accused had been acquitted under s. 5(2).

Om Prakash Gupta v. The State of U.P., [1957) S.C.R.423, applied.

Section 403( I) of the Code of Criminal Procedure has no application where there is only one trial for several offences, of some of which the accused person is acquitted though convicted of one.

Article 20 of the Constitution also docs not apply where the accused had not already been\ tried and acquittl"'r' for the same offence in an earlier trial.

Where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them will not prevent the conviction on the other.

CRIMINAL

APPELLATE JuRisDICTION: Criminal appeals Nos. 130 and 131 of 1954.

Appeals by special leave from th~ judgment and order dated September 11, 1953, of the former Madhya Bharat High Court in Appeals Nos. 42 and 43 of 1953.

Shiv Dayal and R. H. Dhebar, for the appellant.

B. C. Misra, amicus curiae, for the respondent.

1957. April 5.

The Judgment of the Court was delivered by

GoVINDA MENON J.-The State of Madhya Bharat, which after November 1, 1956, had become merged in the present State of Madhya Pradesh, had obtained special leave from this court on April 11, 1954, ' to appeal against the judgment and order of acquittal passed in favour of the respondent herein, by the High Court of Judicature of Madhya Bharat on September 11, 1953, in two consolidated Criminal Appeals Nos. 42 and 43 of 1953, by the identical appellant before that court. The question for decision in these two appeals is how far the High Court was justified in ordering the acquittal.

the respondent herein was a Tax-Collector in the Municipal Committee of Lashkar, Gwalior, and was prosecuted in the court of the City Magistrate and Additional District Magistrate, Lashkar, firstly by means of a challan dated October 23, 1951, for offences under ss. 468, 477-A and 409 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act. II of 1947, in that he misappropriated a sum of more than Rs. 7,000, entrusted to him in the capacity of Tax- Collector, and during the course of the said transaction committed various offences.

On July 4, 1952, a second complaint was filed against him in the same court under the identical sections for having misappropriated in 1950 a sum of Rs. 3500 in all under similar circumstances. While these two complaints were pending in the trial court, on July 28, 1952, the Criminal

The. State of Madhya Pradesh v.

Veertshwar Rao

gnihotry

Govinda Mnton 11

Law Amendment Act (Act No. 46 of 1952) came into force and by s. 6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub-s. (2) of s. 5 of the Prevention of Corruption Act II of 1947. Section 7 of the same statute laid down that notwithstanding anything contained in the Criminal Procedure Code, or any other law for the time being in force, an offence under s. 5(2) of the Prevention of Corruption Act could be tried only by a Special Judge, appointed under s. 6 of the Criminal Law Amendment Act.

Sub-cl. (b) of s. 7 laid down that when trying a case, triable exclusively by a Special Judge under this statute, he may also try any other offence with which the accused may under the Code of Criminal Procedure be charged at the same trial.

The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under s. 7. which immediately before the commencement of the Act were pending before any Magistrate, shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases.

In accordance with the above-mentioned provisions of the statute, the cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose before whom they were numbered as Case No. 3 of 1953 and No. 6 of 1953. After the pro<ec tion evidence was over, on March 10, 1953, the Special Judge framed charges under all the sections complained against.

By separate judgments dated June 5, 1953, the Special Judge found the respondent guilty of an offence under s. 409 of the Indian Penal Code and sentenced him to rigorous imprisonment for three years. He, however, passed an order of acquittal under ss. 468 and 477-A, of the Indian Penal Code. As regards the charge under s. 5(2) of Act II of 1947, the learned Special Judge wa< of the view that since the provisions of sub-s. ( 4) of s. 5 of the Prevention of Corruption Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub-s. (2)

of s. 5 of the Prevention of Corruption Act without an order of a 1st Class Magistrate, had not been complied with, the foundation for preferring a complaint had not been established and, therefore, there was an illegality which affected the jurisdiction of the court to try the case, the result being that the accused could not be tried for that offence. Such being e case, no formal order of acquittal was passed by the trial court.

Aggrieved by the convictions under s. 409 of the Indian Penal Code, the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that court, and by a common judgment that court applying the doctrine of autrefois acquit held that when once on the same 'facts the trial Judge found that the respondent could not be found guilty of an offence under s. 5(2) of the Prevention of Corruption Act, it was tantamount to an acquittal for that offence in which case no conviction could be had under s. 409 of the Indian Penal Code. The respondent was, therefore, acquitted.

As mentioned already, the State has been granted special leave to appeal against the orders of acquittal.

The correctness of the conclusion of the High Court has been challenged in more ways than one by the appellant's counsel.

Firstly, it is argued that the offence under s. 5(2) of the Prevention of Corruption Act and that under s. 409 of the Indian Penal Code, are not the same, and such being the case, granting that the order of the Special Judge amounted to an acquittal under s. 5(2) of the Prevention of Corruption Act, still that would not bar the conviction of the respondent under s. 409 of the Indian Penal Code.

Secondly, it is pointed out that when at the same trial there are two alternative charges like those with which we are now concerned, acquittal of the accused under one charge is no impediment to his conviction on the other; and lastly it is contended that any defect in the investigation would not amount to an illegality which would invalidate the trial and conviction if the proceedings culminate that way.

The State of Madhya Pradesh

V emshwar Rao

Agni/wiry

Govinda Menon J.

T/,. Stau ef Madhya Pradesh

Veweshwar Rao

Agnihatry

Gouinda Menon],

This court has recently held in Om Prakash Gupta v.

The State of U. P. (1), that the offence of criminal

rr.isconduct punishable under s. 5(2) of the Prevention of Corruption Act II of 1947 is not identical in essence,

import and content with an offence under s. 409 of the Indian Penal Code.

The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implicatio11 or abrogate s. 409 of the Indian Penal Code.

In the common judgment in those appeals the conclusion has been expressed in the following words :-

"Our conclusion, therefore, is that the offence created under s. 5(1)(c) of the Prevention of Corruption Act is clistinct and separate from the one under s. 405 I.P.C. and, therefore, there can be no question of s. 5 ( 1) ( c) repealing s. 405 LP .C."

In view of the above pronouncement, the view taken by the learned JPdge of the High Court that the two offences are one and the same is wrong, and if that is so, there can be no objection to a trial and conviction under s. 409 of the Indian Penal Code, even if the respondent has been acquitted of an offence under s. 5(2) of the Prevention of Corruption Act II of 1947.

Section 403(1) of the Criminal Procedure Code only prohibits a subsequent trial for the same offence, or on the same facts for any other offence for which a different charge from the one made against an accused person might have been made under s. 236 of the Criminal Procedure Code, or for which he might have been convicted under s. 237 when the earlier conviction or acquittal for such an offence remains in force. It is obvious that s. 403(1) has no application to the facts of the present case, where there was only one trial for several offences, of some of which the accused person was acquitted while being convicted of one. On this grounrl alone the order of the High Court is liable to be set aside. The High Court also relied on Art. 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the

(1) [1957] S.C.R. 423.

well-known maxim "Nemo debet bis vexari, si constat curice quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause)" embodied in Art. 20 cannot apply.

The next argument on behalf of the appellant is that where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them, will not prevent the conviction on the other, is also well-founded. Section 26 of the General Clauses Act can be called in aid in support of this proposition.

There is no question of double jeopardy.

Section 26 runs as follows :-

"Provisions as to offences punishable under two or, more enactments: Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same." We ; ire, therefore, of the opinion that the learned Judge's view on this aspect of the case is also unsound.

In view of what has been stated above, it is unnecessary to deal with the last contention of the learned counsel for the appellant except merely to state that the Special Judge had jurisdiction to try the accused person under s. 7 of the Prevention of Corruption Act, 1947.

The result is that the appeals succeed, the order of the High Court acquitting the respondent of an offence under s. 409 of the Indian Penal Code is set aside and the appeals are remanded to the High Court of Madhya Pradesh for re-hearing on the merits.

TM Stale of Madhya Pradesh v.

Yeereshwar Rao

Agnihot')"

Gooinda Menon J.

Das

Art. 19

THE ST A TE OF MAD HY A PRADESH

VEERESHW AR RAO AGNIHOTRY

JAFER IMAM

MENON

A. I).. SARKAR JJ.

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 5(2)

s. 409

Code of Criminal Procedure

s. 403

Constitution of India

Art. 20(2 )

General Clauses Act

s. 26

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

s. 5(2)

s. 409

s. 5(2)

s. 409

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

s. 5(2)

Section 403( I)

Code of Criminal Procedure

Article 20

Shiv Dayal

R. H. Dhebar

B. C. Misra

GoVINDA MENON

State of Madhya Bharat

April 11, 1954

Gwalior

October 23, 1951

ss. 468, 477

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

July 4, 1952

July 28, 1952

Law Amendment Act

s. 6

s. 5

Corruption Act II of 1947

Section 7

s. 5(2)

Prevention of Corruption Act

s. 6

Criminal Law Amendment Act

s. 7

Code of Criminal Procedure

Criminal Law Amendment Act

s. 7

March 10, 1953

June 5, 1953

s. 409

Indian Penal Code

ss. 468 and 477

Indian Penal Code

s. 5(2)

s. 5

Prevention of Corruption Act

s. 5

Prevention of Corruption Act

s. 409

Indian Penal Code

High Court of Madhya Bharat

s. 5(2)

Prevention of Corruption Act

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

Indian Penal Code

State of Madhya Pradesh

Govinda Menon

Gouinda Menon

s. 5(2)

Corruption Act II of 1947

s. 409

Indian Penal Code

s. 409

Indian Penal Code

s. 5(1)(c)

Prevention of Corruption Act

s. 405

I.P.C

s. 5

s. 405

s. 409

Indian Penal Code

s. 5(2)

Corruption Act II of 1947

Section 403(1)

s. 236

s. 237

s. 403(1)

Art. 20

Art. 20

Section 26

General Clauses Act

Section 26

s. 7

Prevention of Corruption Act, 1947

s. 409

Indian Penal Code

High Court of Madhya Pradesh

Gooinda Menon