S.C.R.

SUPREME COURT REPORTS 295

There was some question raised before us as to whether the private complainants could be allowed to participate in these proceedings at the various stages. Nothing that we have said is intended to indicate that the private complainant has a locus standi.

It is unfortunate that this prosecution which is still pending at its very early stages has got to be proceeded with against all the rest of the accused, after the lapse of nearly three years from the date of the murder. It is to be hoped that the proceedings which must follow will be speeded up.

Appeals allowed.

THE ST ATE OF ASSAM

A. N. KIDW Al, COMMISSIONER OF HILLS

DIVISION AND APPEALS, SHILLONG.

(with connected appeals) [ s. R. DAS c. J., BHAGWATI, VENKATARAMA AYYAR,

B. P. S1NHA and S. K. DAs JJ.]

Revenue Tribunal, 11ansfe1 of powers of-Enactment authorising Provincial Government to appoint Appellate Authority- Legality-lf an excessive delegation of legislative power-Notification by Government making such appointment-Validity- Repugnancy-Assam Revenue T1-ibunal (Transfer of Powers) Act, 1948 (Assam IV of 1948), s. 3(3)-Government of India Act, !93S

(25 & 26 Geo. 5. Ch. 42), s. 296-Eastern Bengal and Assam fa:cise Act (Eastern Bengal and Assam 1 of 1910), s~ 9 (2).

These appeals by the State of Assam and some other parties from a number of judgments of the High Court of Assam, passed under Art. 226 of the Constitution, quashing certain orders of the Appellate Authority appointed by the Governor of Assam by a Notification under s. 3(3) of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, dated July 5, 1955, raised the common question of the vires of that section and the validity of the Notification by which the Commissioner of Hills Division. and Appeals was appointed the Appellate Authority. In 1955 rival claimants applied for the grant of licenses and settlement of country spirit shops for -the year 1956-57 and parties dissatisfied with the orders of the Deputy Commissioner :µid those of the 5-100 S. C. Indi~/59 .

. 1957

Thi St611 of Biluir

Ram Nares/!

Pandey

]agannatl.hatl.as J.

January, SI.

The St alt of Assam

A. N. Kidwai

Excise Commissioner in appeals therefrom, appealed to the Appellate Authority whose orders were, as stated, quashed by the High Court.

Under the Eastern Bengal and Assam Excise Act, 1910, the Board which was the final appellate authority meant the Provincial Government and ministers, who were necessarily members of the Legislature, functioned as the Board.

Section 296 of the Government of India Act, 1935, by sub-s. (I) put a ban on the members of the Legislature from functioning as the Board and by sub-s. (2) empowered the Governor to constitute a tribunal to exercise the same jurisdiction until the Legislature made other provisions in that behalf.

The Government of Assam constituted a single member tribunal, called at first the Board and later on the Assam Revenue Tribunal, which functioned till the passing of the Assam l{evenue Tribunal Act, 1946, empo\\·~:- ing the Provincial Governn1ent to constitute the Assam Revenue Tribunal consisting of three members.

In 1948 the High Cot!rt of Assam was established and shortly thereafter was passed tne Assam H.evenue Tribunal (Transfer of Power~) Act, 1948. abolishing the Assam Revenue Tribunal and conferring its jurisdiction on the High Court and the authority to be appointed by the Provincial Government under s. 3(3) of the Act. The High Court in disposing of the \Vrit petitions cook the view that s. 296(2) ot the Government of India Act placed a 1nandate on the Provin;:i.:1!

Legislature to constitute the tribunal which it failed to do and that s. 3(3) of the Assam Revenue Tribunal (Transfer of Powers) Act, I 948, constituteJ an excessive delegation of the legislative power conferred on the Legislature by the Government of India Act, 1935, and that the sai<l Notification was repugnant to s. 9 <>f the Eastern Bengal and Assam Excise Act, 1910, and, therefore, s. 3(3) of the impugned Act and the Notification were void and the Appel_late Authority not having been lawfully constituted its orders were nullities~

Hdd, that s. 3(3) of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, and the Notification issued by the Provincial Governn1ent thereunder were not void.

The purpose of s. 296(2) of the G.ivernment of India Ac:, 1935, simply was to authorise the Governors of certain provinces to constitute an appellate tribunal and to prescribe a timelimit upto which such tribunal was to function and not to impose either an obligation on the Provincial Legislatures to set up one or to compel them to restrict their pov;•ers of legislation under the Act.

Even assuming that it did impose such an -obligation, it 111ust be held to have been in substance fully discharged by the Assam Legislature by the enactment of s. 3(3) of the .A.ssam Revenue Tribunal {Transfer_. of Powers) Act, 1948.

What the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, intended to do \V:ts to transfer the O'.)\\ters tnd jurisdiction hitherto exercised by the 1\ssam R•:\cnu'e Tril.:unal

; to the High Court and to the authority to be appointed by the 1957 Provincial overnment, and the relevat provisions of te- ct The Sia" rif Assam make it quite clear that the Assam Legislature had applied its v. mind and clearly determined that such powers and jurisdiction A. N. Xiduldi should be distributed between the two.

Sub-section ( 3) of s. 3 of the Act, although not quite happily drafted, leaves no doubt that the Legislature itself constituted the appellate authority mentioned therein and what was left to cthe Provincial Government was to select the personnel thereof, conformably to the usual practice of Indian Legislatures, and, consequently, it could not be said that there was an excessive delegation of legislativ power to the Government : The word "appointed" does not necessarily mean alreadv appointed, it may also mean "to i>e appointed" at any futur~ time.

The impagned Act was in no way repugnant to the Eastern Bengal and Assam Excise Act, 1910, as modified by s. 296 of the Government of India Act, 1935, and there was no impropriety in the Commissioner of Hills Division and Appeals, assuming that he was the same as the Commissioner of a Division, being .appointed as the Authority to entertain appeals from the Excise Commissioner. Nor could the possibility of an appeal from the decision of any other Commissioner of a Division coming up before him affect the validity of the Notification, and it could not be held to be repugnant to s. 9(2) of that Act.

C1v1L

APPELLATE JuRISDICTION : Civii Appeals Nos. 346 to 363 of 1956.

Appeals under Article 132(1) of the Constitution of India from the Judgment and order dated May 23. 1956, of the Assam High Court in Civil Rules Nos. 26. 31, 32 and 33 of 1956 and the Judgment and Order dated June 12, 1956, of the said High Court in Civi' Rules Nos. 45, 48, 49, 64, 65, 69, 71, 82 and 85 of 1956.

S. M. Lahiri, Advocate-General of Assam, A. V.

Vishwanatha Sastri and Naunit Lal, for the appellant in Appeals Nos. 346 to 358. ·

A. V. Vishwanatha Sastri, Fakhruddin Ali Ahmed and Naunit Lal, for the appellant in Appeal No. 359 N. C. Chatterjee, Fakhruddin Ali Ahmed and Narmit Lal, for the appellants in Appeals Nos. 360 and 361.

Fakhruddin Ali Ahmed and Naunit Lal, for the appellants in Appeals Nos. 362 and 363.

Thi Stat1 of .Assam

•• A. N. JridUUJi

C. K. Daphtary, Solicitor-Gneral of India, R. Chaudhuri, S. N. Andley, Rameshwar Nath, /. B. Dadachanii, P. L. Vohra and S. C. Das, for the respondents Nos . 1 & 2 in Appeals Nos. 346 and 359, and for respondent No. 1 in Appeal No. 347.

P. R. Das, R. Chaudhuri, S. N. Andley, Rameshwar Nath, /. B. Dadachanji, P. L. Vohra and S. C. Das, for respondent No. 1 in Appeals Nos. 349, 350, 352, 353, 355, 356, 358, 360, 361 and 362, for respondent No. 5 in Appeals Nos. 351, 357, 361' and 363 and for respondent No. 6 in Appeal No. 356.

K. P. Gupta, for respondent No. 1 in Appeals Nos. 357 and 363.

1957. January 31. The Judgment of the Court was delivered by

DAs C.J.-This judgment will dispose of the above noted 18 several Civil Appeals filed in this Court on certificate of fitness granted by the High Court of Assam under Art. 132 of the Constitution of India.

The appeals Nos. 346, 347, 348, 349 and 359 are directed against the judgment of the said High Court passed on May 23, 1956, in Civil Rules Nos. 26, 31, 32 and 33 of 1956 issued by the said High Court on several petitions filed under Art. 226 of the Constitution. The rest of the appeals arise out of nine other Civil Rules issued in nine other similar writ applications, which were disposed of by the judgment pronounced by the said High Court on June 12, 1956, which simply followed its previous judgment dated May 23, 1956.

Each of these appeals raises the question of the vires of s. 3(3) of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948 (Assam Act No. 4 of 1948) which is hereinafter referred to as "the 1948 Act" and of the validity of the notification No. Rex. 184/52/39 issued by the Governor of Assam on July 5, 1955, in exercise of powers conferred on him by sub-s. (3) of s. 3 of the said Act appointing the Commissioner of Hills Division and Appeals as the appellate authority under the 1948 Act.

All the appeals were accordingly heard together.

In order to correctly appreciate the question raised before us it is necessary at this stage to refer to certain relevant statutory provmons and rules.

In 1910 wa~ passed the Eastern Bengal and Assam Excise Act, 1910

(E.B. and Assam Act 1 of 1910) which is hereinafter callc<l "the 1910 Act." It is an Act to consolidate anJ amend the law in force in Eastern Bengal and Assam relating to the import, export, transport, manufacture, sale and possession of intoxicant liquor and intm•icant drugs. Sub-section (2) of s. as amended and adapted, defines "Board" as meaning the Provincial Government of Assam.

Chapter II cf the Act deals with establishments and control. Section 8 makes provision for the appointment of officers and the conferment, withdrawal and delegation of powers on them. Section 9 of the Act, which is of importance, was as follows : 9(1) In all proceedings under this Act, the Excise Commissroner and the Commissioner of the Division shall be subject to the control of the Board, and the Collector shall be subject to the control of the .Excise Commissioner :ind the Board, and shall also, in such cases :md such :natters as the Provincial Government may specify, be subject to the control of the Commissioner of the Division.

(2) Orders passed under this Act or under any rule made hereunder shall be appealable as follows in manner prescribed by such rules as the Provincial Government may make in this behalf- ( a) to the District Collector, any order passed by a Collector other than the District Collector ;

(b) to the Excise Commissioner or, in such cases and such matters as the Provincial Government mav specify, to the Commissioner of the Divisions, any order - passed by the District Collector ; and ( c) to the Board, any order passed by the Excise Commissioner or by the Commissioner of a Division.

(3) In GJses not provided for by clauses (a), (b) am\ ( c) of sub-section (2), orders passed under this Act or under rules m:i.de hereunder shall be appeabble in such cases and to such authorities as the Provincial G@vernment may declare by rules made in this behalf.

The Slat. of Auam

A.N. Kiawai

Du C. ].

7'A. Storr of Atsam

A. N. Kidwai

DllrC. J.

( 4) The Board, the Excise Commissioner, the Commissioner of the Division (in such cases and such matters as the Provincial Government may specify), or the District Collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he may think fit.

Chapter III deals with import, export and transport of intoxicants.

Manufacture, possession and sale of intoxicants are dealt with in Chapter IV. Section 18' prohibits the sale of intoxicants except under the authority and in accordance with the terms and conditions of a licence granted by the Collector or the Excise Commissioner in that behalf and makes certain provisions by way of exception to .such prohibition.

Chapter V provides for the imposition of duties and fees, either generally or for any specified local area, on any excisable article imported, exported, transported or manufactured under any licence granted "Under s. 15 or s. 16 of the Act and the method of levy of such duty. Chapter VI makes provision for the form and the conditions of grant of licences, permits and passes.

Section 28 of this chapter makes it obligatory on the Collector to take such measures as may best enable him to ascertain local public opinion in regard to the licensing and location of shops. Section 29 makes provision for the cancellation or suspension of licences, permits or passes. Under s. 32 no person to whom a licence has been granted shall have any claim to the renewal of such licence or any claim to compensation on the determination thereof. Chapter VII lays down general provisions. . Included in that chapter is s. 36, which confers power on the Provincial Government to make rules for the purpose of carrying out the provisions of the Act or any other law for the time befog in force relating to the Excise Revenue. Under sub-s. (2) els. (g), (h) and (i) of this section specific power is given to the Provincial Government to make rules regulating the periods for which and the persons to whom licences for the sale of any intoxicant may be granted, prescribing the procedure to be followed and the matters to be ascettained before any

licence for such sale is granted and laying down, in the case of any intoxicant, the manner in which the duty on such article shall be levied. . Prevention, detection and investigation of offences are dealt with in chapter VIII. Chapter IX provides for penalties and procedure.

In exercise of the powers conferred on it by s. 36 the Provincial Government of Assam have made elaborate rules.

Part IV of the rules deals with licences, settlements and fees, duration and number of licences, location of shops, ascertainment of local public opinion, the procedure for settlement, prohibition on grant of retail licence to certain persons, grant of licence and so on and so forth. A perusal of the Act and rules will make it clear that no person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors, such control and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue.

Then came the Government of India Act, 1935. It wa:; brought into operation on April 1, 1937. Section 296 of the Act, on which the main controversy in these appeals turns, before its adaptation ran as follows:- 296 ( 1) No member of the Federal or a Provincial Legislat1re shall be a member of any tribunal in British India having jurisdiction to entertain appeals or revise decisions in revenue cases.

(2) If in any Province any such jurisdiction as aforesaid was, immediately before . the commencement of Part III of this Act, vested in the Local Government, the Governor shall constitute a tribunal, consisting of such person or persons as he, exercising his individual judgment, may think fit to exercise the same juridiction until other provision in that behalf is made by Act of the Provincial Legislature.

(3) There shall be paid to the members of any tri'ounal .constituted under the last preceding subsection, such salaries and allowances as the Governor exercising his individual judgment may determine, and

Tiii State of Auant

A..N. KitiuJ.i

Das C. J.

1957 those salaries . and allowances . shall be charged on the Th• Sta" of Assam revenues of ihe Prnvirice. v.

A.'N. Kidwai '-· Das c. 'y.

It will be recalled that under s. 9 of the 1910 Act the Board, which by, s. 3(2) thereof meant the Provincial Government, was the final appellate authority. The Provincial Government wzs composed of ministers who were necessarily members of the Legislature.

In fact, in Assam the ministers used to function as the Board and exercised the final appellate authority under s. 9 of the 1910 Act .. The policy of Parliament was that such practice must be discontinued and hence it introduced a prohibition against it by sub-s. ( 1) of s. 296 quoted above.

The intention of Parliament was not, however, to do away with .the right of final appeal but to preserve it.

The ban imposed by sub-s. (I) prevented the K1ard, meaning the Provincial Government, from functioning as the final appellate authority under the 1910 Act. Therefore, . some provision had to be made to set up some other boi\y to exercise that appellate power.

Accordingly Parliament, by sub-s. (2) of s. 296, empowered the Governor of those provinces where the appel\aie authority was, prior to the commencement of that Act, vested in the Provincial Government, to constitute a tribunal to exercise the same jurisdiction.

The tribunal so constituted by the Governor was to exercise jurisdiction until otfier provision in that behalf was made . by the Legislature.

In exercise of powers conferred on him by sub-s. (2) of that section the Governor of Assam constituted a single member Tribunal called at ilrst the Board and later as the Assam Revenue Tribunal. From time to time the personnel of this tribunal was changed by notifications issued in that behalf. The Assam Revenue Tribunal so constituted by the Governor functioned until 1946, when the Assam Revenue Tribunal Act, 1946 (Assam Act II of

1946) hereinafter referred to as "the 1946 Act'" was passed.

Suh-section (I) of s. 3 of the 1946 Act provided that the r.ovincial Government should constitute a tribunal ta -be called the Assam Revenue Tribunal consisrmg oh~. President and two members. Sub-section (2)

fixed their period of service as five years. The qualifications of the President and the members were prescribed by sub-s. (3) and provision was made by sub-s: ( 4) for filling up of vacancies.

Sub-section (5) provided that the President and the non-official members should be paid such salary as might be prescribed, i.e., prescribed by rules made under the Act.

Powers and functions of the tribunal were defined by ss. 5 and 6 of the Act. Sub-section (2) of s. 5 conferred on the tribunal jurisdiction to entertain appeals and revise the decisions in all revenue cases arising under the provisions of the enactments specified in the schedule in which such jurisdiction was ves1td in the Provincial GoYernment immediately before the Act. The schedule set out nine enactments.

Section 7 prohibited any further appeal or revision against any order passed by the tribunal.

Section 8, however, conferred on the tribunal power to review its own orders. Section 9 abolished the Assam Revenue Tribunal constituted by the Governor and provided that all appeals and applications for revision pending before the said tribunal should be deemed to have been instituted before the tribunal constituted under this Act and directed the same to be decided by this tribunal as if thev were instituted before it. In exercise of powers so coferred on it the Provincial Government constituted a three member tribunal to exercise the final appellate :rnthority ..

Thus, broadly speaking, under the 1910 Act up to March 31. 1937, appeals lay under s. 9 from the Deputy Commissioner to the Excise Commissioner and from the latter to the Board, that is to sav, the Provincial Government. On and from April 1, °1937, when the Government of India Act, 1935 came into force up to June 1946 when the 1946 Act was passed appeals lay from the Deputy Commissioner to the Excise Commissioner and from the latter to the one member tribunal constituted by the Governor of Assam and after the enactment of the 1946 Act, which abolished the Governor's tribunal, appeals lay from the Deputy Commissioner to the Excise Commissioner and from

.r h• Stal• of Assam v.

A.N. Kidwai

Dase. J.

1957 the latter to the three members tribunal constituted

Till Slah of Assam under the 1946 Act. v.

A.I(. Kidwai

Dase.].

On April 5, 1948, a High Court was established for the province of Assam. On April 6, 1948, the Assam Revenue Tribunal (Transfer of Powers) Act, 1948 (Assam IV of 1948), received the assent of the Governor of Assam. It was published in the official gazette on April 8, 1948, and was brought into force on the same day by a notification issued by the Provincial Government under s. 1 (3). Section 3 of this 1948 Act runs as follows : 3 ( 1) Subject t"' the provisions of sub-section (3) of this section the Assam High Court shall exercise such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediatdy before the first day of April,. 1937 under any law for the time being in force.

(2) In particular and without prejudice to the generality of the foregoing provision the Assam High Court shall have jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in Schedule A in which such jurisdiction was vested in the Provincial Government immediately before the first day of April 1937, and ( 3) Without prejudice to the foregoing provisions the authority appointed by general or special order of the Provincial Government shall exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in Schedule B as is exercised now by the Revenue Tribunal and was vested in the Provincial Government before the first day of April 1937, and ( 4) The Assam High Court and the authority appointed by Provincial Government shall have jurisdiction to entertain appeals and revise decisiOns within the field of jurisdiction respectively transferred by this Act to the Assam High Court and the authority appointed by the Provincial Government in cases specified in section 7(2).

The drafting of this section is indeed curious, for while sub-s. (1) starts with the words of reservation

namely 'subject to the provisions of sub-s. (3) of this section' and sub-s. (2) is without prejudice to the generality of sub-s. ( 1 ), sub-s. (3) is expressed to be "without prejudice to the foregoing provisions'', that is to say the provisions of sub-ss. (1) and (2). Section 5 prohibits any appeal or revision against any orders passed by the Assam High Court or the "authority referred to in s. 3 (3)" in exercise of its powers of appeal or revision under the Act. Section 6 confers power on the Assam High Court or the "authority referred to in: s. 3(3)" to revic:w its own decision or order under certain conditions. Section 7 provides for the abolition of the Assam Revenue Tribunal and the disposal of pending cases before the same. It runs as follows :

"7 (1) From the date on which this Act comes into force- The Assam Revenue Tribunal shall be deemed to have been abolished ; and the President and members , thereof shall be deemed to have relinquished their posts as President and members of the Tribunal. ·

(2) The appeals and applications for revision pending before the said Tribunal on the date on which this Act comes into force shall be deemed to have been instituted before the Assam High Court or the authority referred to in s. 3 (3) according to the field of jurisdic~ tion transferred by this Act to the High Court and the aforesaid authority respectively and shall be decided as if they were instituted before the Assam High Court or the authority as the case may be."

It is difficult to appreciate the propriety of the use of the word 'deemed' in sub-s. ( 1) of s. 7 and this vagueness has given rise to some argument before us which will be dealt with later on. Section 8 confers po; wer on the Assam High Court to make rules by . notification in the official gazette consistent with the

provisions of this Act for carrying out the purpose of this Act and like power is conferred on the Provincial Government to make rules for the guidancl." of the authority appointed by it "as contemplated bv s. 3(3) ". The Act contains two schedules. Scheduie A contains five enactments, namely, the first four and the ninth enactment referred to in the schedule of the

T h1 Stale of Am1m

A. N. Kidu111.i

DasC. J.

T ht St aft of Assam v.

A. N. Kidwai

Dase. J.

1946 Act, and sch. B contains the remaining four enactments of the schedule to the 1946 Act. Under s. 3 the appeals ancl revisions arising out of the enactments specified in sch. A are to be dealt with by the High Court and those arising out of the enactments speci lied in sch. B are to be dealt with by the authority appointed by general or special order of the Provincial Government.

In exercise of powers conferred on it by s. 3 (3) of the 1948 Act the Provincial Government from time to time issued notifications appointing persons to exercise the power of the appellate authority. When the Act came into force on April 8, 1948, the Revenue Secretary was appointed the appellate authority.

Curiouslv enough, however, on June 15, 1948, the Minister of Excise to the Government of Assam was appointed as the appellate authority. This was promptly challenged as a flagrant violation of the provisions of s. 296 ( 1) of the Government of India Act, 1935, and was ultimately declared to be invalid by the Assam High Court.

Thereafter fresh notifications were issued on September 15, 1952, and May 11, 1955, each superseding the immediately previous notification.

On June 2, 1955, a new post called the Commissioner of Hills Divisions and Appeals was . created and Notification No.

Rex. 184/52/39 was issued on July 5, 1955, whereby the Commissioner of Hills Divisions and Appeals was appointed as the appellate authority after cancellatio!' of the preceding notification dated the May 11, 1955.

In 1955 arose the question of granting licence and settlements of country spirit shops in different areas for the year 1956-57. Rival claimants submitted their respective applications. The Deputy Commissioner on the advice of the Advisory Committee made orders for settlements in favour of certain persons.

Appeals were. promptly pteferred by the disappointed claimants to the Excise Commissioner.

The Excise Commissioner in some cases upheld the orders of the Deputy Commissioner and in some cases reversed his orders and directed licence to issue to some other claimants. The party dissatisfied with the order of the Excise Commissioner went up on further appeal to the appellate

authority constituted by the last mentioned Notification of the Provincial Government. In some cases the appellate authority upheld the orders of the Excise Commissioner, in some cases it reversed the same and restored the orders of the Deputy Commissioner and in some cases it reversed the orders of the Excise Commissioner and did not restore the orders of the Deputy Commissioner hut made orders for the grant of licences to third parties who were also claimants for such licences. Parties dissatisfied with the order made by the appellate authority filed petitions under Art. 226 of the Constitution of India for appropriate writs quashing the orders of the Appellate A11thority and the several Civil Rules hereinbefore referred to were issued to the respondents to show cause why the writs prayed for should not be issued. Civil Rules Nos. 26, 31, 32 and 33, all of 1956, were taken up for hearing together by the High Court.

At the hearing before the High Court three points were raised on behalf of the petitioners, namely :

(1) That s. 3(3) of the 1948 Act was bad, because

(a) it was repugnant to s. 2% (2) and (b) it conferred essential legislative power on the Provincial Government and amounted to excessive delegation of legislative power ;

(2) that Notification No. Rex. 184/52/39 issued on July 5, 1955, was repugnant to the whole scheme and policy of s. 9 of the 1910 Act ; and

(3) that assuming that s. 3(3) of the 1948 Act was valid the power of the Provincial Government to appoint an appellate authority came to an end once the authority had been appointed.

On the first point the High Court took the view that s. 296(2) placed an obligation on the Provincial Legislature to constitute a tribunal but the Provincial Legislature failed to carry out this positive wandate and left the constitution of the appellate authority to the Provincial Government in violation of the obligation enjoined upon it by s. 296(2). This reading of s. 296(2) later on was further emphasized and appears to have been the central theme running throughout the judgment of the High Court. The High Court also

Th• State of ,1ssam

v. -.....

A.N. Kidwsi - Dase.].-

The Sta11 of .Assam

A.N. Kidwai

D"' C. J.

took the view that, apart from s. 296(2), s. 3(3) of the 1948 Act constituted an excessive delegation of legislative power conferred on the Provincial Legislature by ss. 99 and 100 of the Government of India Act, 1935, read with entries 2, 31 and 40 of list II of the Seventh schedule thereto. The High Court also upheld the petitioner's contention that the Notification dated July 5, 1955, was repugnant to s. 9 of the 1910 Act. In the view the High Court took on the first two points it did not express any opinion on the third point.

In the result the High Court held thats. 3(3) of the 1948 Act and the said Notification were void and that the appellate authority which heard the revenue appeals had not been validly or lawfully constituted and that, therefore, its decisions were nullities. The High Court accordingly .issued appropriate writs quashing the said orders. The other Civil Rules came up for hearing later on and were disposed of by another judgment of the High Court pronounced on June 12, 1946, which simply followed its earlier decision and accordingly the High Court issued similar writs quashing the said orders. The State of Assam as well as some of the parties have come up on appeal with the requisite certificate from the High Court as hereinbefore mentioned.

The main attack on the part of the State of Assam was directed against the High Court's view that s. 3(3) of the 1948 Act was void on the two grounds referred to in the judgment. As already indicated the principal theme running throughout that judgment was that s. 296(2) of the Government of India Act, 1935 had placed an obligation on the Provincial Legislature to constitute a tribunal. We are unable to accept this reading of that section. The purpose of s. 296 was to deal with courts of appeal in revenue cases.

By sub-s. ( 1) it imposed a ban on the members of the Federal or Provincial Legislature and prohibited them from becoming members of any tribunal in British India having jurisdiction to entertain appeals or revise .decisions in revenue cases. It appears that in some o!

the provinces such jurisdiction was, immediately before the commencement of Part III of the Government of

India Act, vested in the local government, which in effect meant ministers, who of necessity had to be members of the Legislature. Having imposed the ban and at the same time intending that the right of final appeal should be maintained, Parliament had to make provision for preserving this right of final appeal in those provinces in which such jurisdiction was, immdiately befo:-e the commencement of Part III of the Act, vested in the local Government. Accordingly Parliament authorised the Governor to constitute a tribunal consisting of such person or persons as he, exercising his individual judgment, might think fit, to exercise the same jurisdiction. In ss. 99 and 100 read with the several entries in List II Parliament had already authorised the Provincial Legislatures to make laws with respect to the jurisdiction and powers of all courts except the Federal Court (entry 2), Intoxicating and Narcotic Drugs (entry 31) and Duties of Excise

(Emr· 40). Evidently Parliament did not intend that the power to constitute a tribunai so conferred on Proviricial Legislatures of thme provinces in which appellate jurisdiction was, at the date of that Act, vested in the local government should be affected or whittled down by the constitution of a tribunal by the Governor under sub-s. (2) and accordingly it provided that the tribunal constituted by the Governor to exercise the appellate jurisdiction should continue "until other provision in that behalf" was made by the Act of the Provincial Legislature. The concluding clause in the section clearly indicated the point of time up to which the Governor's tribunal was to function. The purpose of the section was clearly not to impose any restriction on the legislative power conferred on the Provincial Legislatures by ss. 99 and 100 read with the aforesaid entries in list II of the Seventh schedule.

Sub-section (2) of s. 296 imposed no compulsion whatever on the Provincial Leislature to make "other provision in that behalf'. Indeed no provision in that behalf was made by the Assam Legislature until it enacted •he 1946 Act. We arc unable, with great respect, to read into 5. 296(2) any mandate requiring the Provincial Legislature to make

Thi Slall ef Assam

\I • .d. N. Kidwoi

Dase.].

Tiu Stall. of bsam . v. ; f. N. Kidwal -· DuC. J.

11.lY provision. On the contrary it was left entirely t<> the Provincial Legislature in the provines referred t<> therein to make or not to make any law under the entries referred to above and the only effective provision of that sub-section was to authorise the Governor ro constitute a tribunal and to fix a terminus a quo up to which the Governor's tribunal could continue t<> function.

Learned counsel appearing for the respondents have not sought to support the extreme construction put upon s. 2%(2) by the High Court. They have, however, pointed out that the Governor's tribunal was to continue until other provision "in that behalf" was made by the Provincial Legislature and contended that some meaning must be given to the words "in that behalf". They argued that those words related back and referred to the constitution . of the tribunal by the Governor, that. so read the meaning of the subsection plainly was that the Governor's tribunal was to continue to function until the Provincial Legislature made other provision for the constitution of a tribunal of its own. They conceded that the power of the Provincial Legislature to constitute a tribunal was not derived from s. 2% (2) but was conferred on it by ss. 99 and 100 read with the relevant entries in List II of the Seventh schedule, but they contended that the provision that until in exercise of those powers the Provincial Legislature constituted a tribunal the Governor's tribunal would continue clearly indicated that the Governor's tribunal was to be a temporary body and this circumstance impliedly imposed on the Provincial Legislature an obligation requiring it to exercise its power only for constituting a tribunal We are unable to accept this contentions. The Governor was empowered to constitute a tribunal to exercise the same jurisdiction as was, immediately before the commencement of Part III of the Government of India Act, 1935, vested in the Provincial Government. The tribunal so constituted by the Governor was to function until other provision was made "in that behalf'. The words "in that behai£" need not necessarily relate back to the constitution of a tribunal. Learned counsel

for the appellants suggest that the words "other provision in that behalf" may grammatically refer to what preceded immediately, namely, to the exercise of the same jurisdiction. In other words they contend that the sub-section means that the Governor's tribunal would continue to exercise the jurisdiction until other provision in that behalf, that is to say, other provision for or with respect to the exercise of the same jurisdiction was made by Act of the Provincial Legislature.

It is pointed out that the construction suggested by learned counsel for the respondents would lead us to the conclusion that the intendment of the concluding part of the sub-section was to impose a fetter on the legislative powers of the Provincial Legislatures of those provinces referred to in the sub-section so that they could constitute a tribunal if they ever wanted to exercise their legislative powers under the entries mentioned above but could make no other provision with respect to the exercise of such jurisdiction as was beililg exercised by the Provincial Government at the commencement of the Government of India Act, 1935.

On this construction the Legislatures of those provinces only would be prevented from abolishing the right of final appeal, while other provinces in which the appellate jurisdiction was not, at the date of the commencement of Part III of the Government of India Act, 1935, being exercised by the local government would be free to abolish the right of final appeal. A construction which leads to such a result should, thev contend, be avoided, if possible.

The criticisms advanced against the construction put upon s. 296 (2) by the High Court which has been pressed upon us in a slightly modified form as hereinbcfore mentioned do not appear to us to be wholly untenable or devoid of substance. We need not, however, base our decision on those considerations, for on a plain reading of s. 2% (2) its purpose clearly was to authorise the Governors of certain provinces to consitute a tribunal and to prescribe a time limit up to which the tribunal so constituted by him was to exercise the appellate jurisdiction.

Bevond this the sub-section was not intended to go. It was not concerned with the legislative

fi-100 s. CT. Tncii~/59

19!!7

Tiu: Stall of~.4JS1J111

v. ,4..N.Kitlwoi

DllJ C. ].

T 11' <Stall of !-41,..,

v. , f, J(, IridlHi

DOJ C. J.

powers of the Provincial Legislatures which had already been prescribed by ss. 99 and 100 read with List II of the Seventh schedule. It imposed no compulsion on the Provincial Legislatures to make any law or to impose any restriction whatever on the legislative powers of the Provincial Legislatures.

The critical concluding clause in sub-s.

(2) only fixed a terminus a quo and did nothing further. Even assuming that the construction suggested by learned counsel for the respondents were to be accepted, namely, that s. 296 (2) Imposed an obligation on the Provincial Legislature to constitute a tribunal, we take the view, for reasons to be presently stated, that that obligation has in substance been fully discharged by s. 3(3) of the 1948 Act and this leads us to a consideration of the second point founded on the doctrine of delegation of power.

It was said that apart from the questions whether s. 296 (2) contained a mandate and whether the Provincial Legislature had obeyed the same, s. 3 (3) of the 1948 Ac, t must be struck down on the ground that the Provincial Legislature had not exercised its essential legislative functions, under ss. 99 and 100 read with the aforesaid entries but had delegated it to the Provincial Government without laying down any policy or principle to guide the latter in exercising the same.

Reference was made to the 1946 Act and it was urged that that Act prima facie carried out the obligations placed upon the legislature by s; 296 (2) and that apart from that question that Act laid down the policy and principle, namely, the number of members of the tribunal, their qualifications, functions, and term of their office and remuneration and that the only authority which the legislature by that Act delegated to the Provincial Government was to select the personnel of the tribunal. In comparison it was pointed out that the 1948 Act did not lay down any legislative policy or principle by which the Provincial Government was to he guided in the exercise of the delegated power.

By doing so the Provincial Legislature had in effect abdicated its function and madt the Provincial Government a parallel legislative authority to constitute a

tribunal. In short, as stated by the High Court, the x957 legislature told the Provincial Government " you , -- . th t "b 1 d } l"l t d fT11e State of Assam appomt e n una as an w ien you i rn ms ea o v. my doing so." The legislature, it was contended, A. N. J(idwai could not in this way part with its essential legislative functions.

Elaborate arguments were advanced Das c. J. before us as to the permissible limit of delegation of legislative power and reference was made to numerous authorities English, American and Indian, ranging from Burah's case (1) to In re, Delhi Laws Act, 1912 (2)

and finally to Raj Narain Singh v. The Chairman,

Patna Administration Committee (5). In the view we have taken of the true meaning and effect of the 1948 Act it is, however, not necessary for us to embark upon a discussion on the baffling subject of delegation of legislative powers and the permissible limits thereof as to which there is considerable scope for divergence of opinion.

In order to correctly interpret the 1948 Act one has to have a clear conception of the circumstances in which and the purpose for which that statute came to be enacted. It will be recalled that there was the 1910 Act dealing with the excise law in force in Eastern Bengal and Assam. That Act set out a. hierarchy of appellate authority as will appear from s. 9(2) of that Act hereinbefore quoted.

Then came the Government of India Act, 1935, s. 296(2) of which authorised the Governor to constitute a tribunal to exercise the appellate jurisdiction tha~ was, immediately before the commencement of that Act, being exercised by the Provincial Government.

The Governor's tribunal was to exercise such jurisdiction until the Provincial Legislature made other provision with re~, pect thereto.

By the 1946 Act the Assam Legislature made other provision for the exercise of the fina.l ' appellate powers by the tribunal constituted by the Provincial Government in exercise of the powers conferred on it by s. 3 of that Act. Jurisdiction was conferred on the Tribunal to entertain appeals and revise decisions in all revenue cases arising under the

I. (r87S] L. R. 5 I. A. r78. 3 [1955] 1 s. c. R. 290.

2. [1951] S. C. R. 747

z957 provisions of the nine enactments specified in the

Th S -., A schedule thereto, and in all cases which stood trans- ' tale o, ssam . v ferred to the Tribunal from the Assam Revenue A. N. Kidwai Tribunal constituted by the Governor as specified in s. 9.

The High Court of Assam had just been Das c. J. established on April 5, 1948. The purpose of the 1948 Act, as recited in its preamble, was to transfer the powers and jurisdiction exercised by the revenue tribunal to the Assam High Court and to an authority appointed by general or special order of the Provincial Government. Section 3, which has been quoted above, constitute.d the Assam High Court as the appellate authority for exercising such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediately before April 1, 1937, and in particular in all revenue cases arising under the provisions of the enactments specified in sch. A to the Act. - By sub-s. (3) of s. 3 power was conferred on the Authority appointed by general or special order of the Provincial Government to exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of enactments specified in sch. B to the Act as was then exercised by the revenue tribunal and was vested in the Provincial Government before April 1, 1937.

Turning to the schedules to the Act it will be noticed that the first four and the ninth item of the schedule to the 1946 Act have been set out in sch. A to the 1948 Act and items 5 to 8 of the sehedule to the 1946 Act have been assigned to sch. B to the 194$ Act. By s. 7 of the 1948 Act the Assam Revenue Tribunal is to be deemed to have been abolished and the President and the members thereof are to be deemed to have relinquished their posts as President and members of the tribunal. Sub-section (2) of that section transfers the appeals and applications for revision pending before the Assam Revenue Tribunal to the Assam High Court or the authority referred to in s. 3(3) according -to the field of jurisdiction transferred by the 1948 Act to the High Court and the aforesaid authority respectively and directs that the High Court and the aforesaid authority should decide such appeals

and applications for revision as if they were instituted z957 before the Assam High Court or the authority as the Th 51 ,-1

A . . e a10 ssam case may be.

Sect10n 8 confers rule makmg power v. on, amongst others, the Provincial Government for A. N. Kidwai the guidance of the Authority appointed by it as contemplated by s. 3(3).

Reading the relevant Das c. J. provisions of the Act it is quite clear that the Assam Legislature had applied its mind and determined that the Assam Revenue Tribunal constituted under the 1946 Act should be abolished; that the Legislature applied its mind and further determined that the jurisdiction and powers of the Assam Revenue Tribunal should be distributed between two bodies, namely, those specified in schedule A should go to the High Court and those specified in schedule B to the Authority referred to in s. 3(3). At one stage of the arguments an endeavour was made to find out a rational basis of the distribution of the appellate powers between the two bodies. _It was stated that the appeals or revisions in which Government was interested were sent to the High Court. A reference to the enactments in the schedules does not bear out this basis of distribution, for the Government may quite clearly be interested in appeals and revisions arising under the Assam Forest Regulation, which is assigned to schedule B as item (iii) thereof. It was also said that the appeals and revisions with respect to revenue matters have been assigned to the High Court. But some of the enactments specified in sch.

B relate to revenue. It is, therefore, futile to try and ascertain a logical basis for the distribution of the appellate authority between the two bodies. Nor do we think that it is necessary at all to divine any rational basis for such distribution. It is enough to say that the legislature in its wisdom and in the interest of smooth administration has thought fit to assign some of the appellate and revisional powers exercised by the Assam Revenue Tribunal to the High Court and the rest to the Authority referred to in s. 3(3).

Two alternative arguments have been advanced before us on the assumption that the Assam Legislature was labouring under some mistake or misapprehension.

'957 In the first place it was urged that the legislature was

- 1 under the mistaken belief that the tribunal set up e Slate o Assam h

6 A h h b l" h d " h under t e 194 ct t oug a o is e ior t e purpose A. N.idwai of that Act remained nevertheless as an existing triburnl for the purpose of the 1948 Act. This argument Das c. J. is founded on the inartistic use of the word "deemed" ins. 7(1) of the 1948 Act. But this argument cannot hold good for a moment in view of subS. (2) of that section, whereby the appeals and applications for revision pending before the Assam Revenue Tribunal on and from the date of the 1948 Act were to be deemed to have been instituted before the Assam High Court or the Authority referred to in s. 3(3) and the Assam High Court or the said Authority was directed to decide such appeals and applications as if they were instituted before the Assam High Court or the Authority as the case might be. This shows that the Assam High Court and the Authority are, therefore, bodies quite different from the old Assam Revenue Tribunal. Therefore, it cannot possibly be argu<id that the old 1946 Act tribunal, notwithstanding its abolition, continued to exist for the purpose of the 1948 Act, for sub-s. (2) of s. 7 quite clearly authorised the High

Court and the Authority referred to in s. 3(3) but not the 1946 Act Tribunal to decide the appeals and applications for revision, which were pending before the old Assam Revenue Tribunal.

The alternative argument was that the legislature in enacting the 1948 Act proceeded on the basis that the power to set up a tribunal resided in the Provincial Government and not in the legislature and that, therefore, the 1948 Act did not purport to be an Act for constituting an appellate tribunal but that the purpose of the Act was only to distribute the appellate i•oWers as recited in its pr<iamble. It was argued tht1t by this Act the legislature did not itself constitute a tribunal nor authorise the Provincial Government to set up a tribunal. It was further contended that assuming that the legislature had authorised the Provincial Government to set up a tribunal then there had been an excess of delegation of legislative power.

We are unable to accept the correctness of this alternative

....

argument.

There is no particular form of' expression that is necessary for constituting a tribunal.

The Assam High Court was undoubtedly an existing tribunal, but apart from s. 3(1) and (2), that High Court was not an appellate authority having jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in schedule A to the Act. It is the 1948 Act which, by sub-ss. (1) and (2) of s. 3, constitutes the Assam High Court as the appellate authority for exercising such. jurisdiction and this it has done by simply saying that the Assam High Court shall exercise such jurisdiction or the . Assam High Court shall have jurisdiction to entertain appeals and to revise decisions.

If the language of sub-ss. (1) and (2) of s. 3 is sufficient to constitute the Assam High Court as an appellate authority why does not the language of sub-s. (3) of the same section amount to the constitution of the Authority referred to therein as the appellate authority to exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in schedule B thereto ?

The sub-section has undoubtedly been very inartistically and inaptly drafted. The intention of the framers of the sub-section, however, appears to be quite clear that the legislature itself applied its mind and constituted an appellate authority. If that were not so then after the abolition of the Assam Revenue Tribunal, which took effect on the date of the Act, there would result a vacuum as regards the exercise of jurisdiction to entertain appeals and revisions under the provisions of the enactments specified in schedule B and there would be no authority to deal with the pending appeals and revisions or future appeals and revisions arising under those several enactments. It is further to be noticed that the sub-section uses the word "appointed" and not "constituted". The word "appointed" is inappropriate to signify the constitution of any authority but is quite proper to signify the selection of the personnel of the already constituted authority to exercise the appellate powers of that authority. In order to give a rational meaning to the

T 114 Slat1 of Assam

v • . A . .N. Xitfwai

Dase. J.

' 1957

Thi State of Assam

A.N. Kidwai

Das C. ].

whole Act one is driven to the conclusion that by subs. (3) the legislature itself constituted the authority and only left it to the Provincial Government to appoint persons to man that authority and to perform the duties of that authority. It appears to be the usual practice of Indian legislatures , to constitute authorities in this manner. In support of such legislative practice reference may be made to the following enactments :

1. The Central Board of Revenue Act, 1924 (Act No. IV of 1924), Section 2.

2. The Indian Boilers Act, 1923 (Act V of 1923), Section 20.

3. Bengal Board of Revenue Act, 1913, Sections 3 and 4.

4. The Motor Vehicles Act, 1939 (Act IV of 1939), Section 64.

5. The Factories Act, 1948 (Act LXIII of 1948), Section Hl7.

6. Schedule Districts Act (XIV of 1874), Section 6.

7. Essential Supplies (Temporary Powers) Act, 1946, Section 4.

8. Assam Act XVII of 1947 (Sales Tax Act), Section 30.

9. Bombay Act V of 1946 (Sales Tax Act), Section 21.

10. Bengal Raw Jute Taxation Act (XI of 1941), Section 21.

11. Extra Provincial Jurisdiction Act, 1947 (Central Act XL VII of 1947), Sections 3 and 4.

12. Garo Hills Regulation 1 of 1882, Section 6.

13. Assam Reouisition and Control of Vehicles Act (Act XXXII of 1950), section 9.

14. Assam Adhiars Protection and Regulation Act, 1948 (Act XII of 1948), Section 9.

15. Assam Forest Product Acquisition Act (XXXI of 1950), Section 7.

"Appointed" does not necessarily mean already appointed. It may also mean "to be appointed" at any future time. When a person is appointed by the Provincial Government after the date of the Act, he may immediately thereafter be well described as a person appointed by the Provincial Government.

It is next suggested that even if the legislature itself constituted the authority it, nevertheless, delegated essential legislative functions with respect to the appointment of members, for the legislature had not laid down any policy or principle as to the number, qualification, remuneration or period of service of persons to be appointed to perform the duties of the tribunal. We do not think that there is any force in this contention. Section 296(2) of the Government of India Act, 1935, itself, which authorised the Governor to constitute a tribunal did not . indicate any qualification for the eligibility of the persons to be appointed as members of the tribunal. It is clear that the tribunal was to sit in appeal over the decision of the Excise Commissioner and that by itself gives some indication that the person or persons to be appointed to the tribunal shot.Id have the requisite capacity and competency to deal with appeals from such high officials. We do not consider that there has been an excessive delegation of legislative power.

It was finally urged that the intentim1 of the legislature in enacting the impugned Act was to give effect, inter alia, to the provisions of the Excise Act and that there was nothing in any portion of the impugned Act to indicate that the intention of the legislature was to effect the repeal of the provisions of s. 9 of the 1910 Act. There was no question, it was said, of any implied repeal of any portion of s. 9. This argument overlooks the fact that in Assam the "Board" meant the Provincial Government.

Section 296 (1) debarred the members of the legislature, which included the ministers, from exercising any appellate authority and s. 296(2) authorised the Governor to constitute a tribunal to exercise the appellate jurisdiction which was being exercised by the Provincial Government immediately before the commencement of the Government of India Act, 1935. Therefore, the jurisdiction of the Board meaning the Provincial Government under s. 9 of the 1910 Act was taken away and vested first in the Governor's tribunal and thereafter in the Assam Revenue Tribunal constituted tmder the 1946 Act, and this appellate jurisdiction was

The Statt of Assam v.

A.N. Ki4wai

Das C. ].

Tiii Stat• of A11om

A. N. Kidwai

Dase. J.

by the 1948 Act distributed between the Assam High Court and the authority referred to in s. 3 (3) of the last mentioned Act. There is, in the circumstances, nothing in the impugned Act which is repugnant to s. 9 (2) as modified by s. 296 of the Government of India Act,

1935. It was next pointed out that the Excise Commissioner and the Commissioner of a Division had. almost co-ordinate powers under the . scheme of s. 9, that the powers of the Commissioner of a Pivi- . sion were more restri.cted as they related only to matters specified by the Provincial Government and that there was no provision in s. 9 for any appeal to the Commissioner of a Division against the orders of the Excise Commissioner. This is true enough, but the "Board" meaning the Provincial Government had been superseded by s. 296(2) of the .Government of India Act, 1935, whereby the Assam Revenue Tribunal was constituted by the Governor as the authority to entertain appeals and revisions from the Excise Commissioner. The Governor's tribunal was replaced by the Assam Revenue Tribunal constituted under the 1946, Act, which in its turn was replaced by two authorities, namely, the Assam High Court and the Authority referred to in s. 3(3) of the 1948 Act. We see no impropriety in the Commissioner of Hills Division and Appeals, assuming that he is the same as the Commissioner of a Division, being appointed as the authority to entertain appeals from the Excise Commissioner. It is true that appeal from the decision of the Commissioner of a Division in matters specified by the Provincial . Government lay initially to the Board and thereafter to the Governor's tribunal and then to the Assam Revenue Tribunal and finally to the tribunal referred to in. s. 3(3) of the 1948 Act. The possibility of an appeal from the de.cision of the Commissioner of a Division coming up before. the authority referred to .in s. 3 (3) cannot in our opinion affect the validity of the Notification whereby the Commissioner of Hills Division and Appeals was appointed as the authority contemplated by s. 3 (3). At the highest it may be that the Commissioner of Hills Division and Appeals exercising the powers of the authority referred

to under s. 3 (3) may be disqualified from entertaining appeals from his own order, but that does not affect his power. to entertain appeals from the Excise Commissioner.

Even that situation will not arise, for under r. 341 of the Excise Rules appeals arising out of cases decided in the excluded areas by the Commissioner of Hills Division and Appeals would go to the Governor. Jn any event there does not appear to be any rc:pugnancy between the Notification and the so called principle or policy of s. 9 of the 1910 Act as regards the . hearing of appeals from the decisions of the Excise Commissioner. In our opinion there is no substance in this point.

No other point of law or fact has been urged before us. In our opinion for reasons stated above the judgments of the High Court appealed from should be set aside and those of the appellate authority should be restored. All the appeals are accordingly allowed. The controversy, it .seems to us, arose by reason of the inartistic drafting of the relevant enactment and in the premises, although the State of Assam has succeeded in the appeals filed by. it, we make no order as to costs in its favour in any of the appeals filed bv it. The successful appellants in the other appeals will get the costs of their respective appeals from the respondents in those appeals including the State of Assam.

, Appeals allowed.

DHARMANANDPANT

ti.

STATE OF UTTAR PRADESH

[JAGANNADHADAS, .JA.FER IMAM, GOY.JNDA MENON and

J. L. KAPUR, JJ.J .

Criminal ;.ial-Examiation of prosecution u•itnesses on commissiorz-Propriety-Procedure-Code of Criminal Procedure, ss. 503 and 506.

As a general rule in criminal proceedings, the important witnesses on whose testimony the case against the accused has to be

establih:d must be cxamied in Court and usually the issuing of comm1ss1on should be restricted to formal witnesses or to such

The Stale of Assam

y • .4..N. Kidt11ai

Dase.].

A. N. KIDWAl, COMMISSIONER OF HILLS DIVISION AND APPEALS, SHILLONG

s. R. DAS

BHAGWATI

s. 3(3)

Government of India Act

s. 296

by the State of Assam

High Court of Assam

Art. 226

Assam

s. 3(3)

July 5, 1955

Ram Nares/

A. N. Kidwai

Eastern Bengal and Assam Excise Act, 1910

Section 296

Government of India Act, 1935

Government of Assam

Assam Revenue Tribunal

Tribunal Act, 1946

High Cot!rt of Assam

s. 3(3)

s. 296(2)

s. 3(3)

s. 9

s. 3(3)

s. 3(3)

s. 296(2)

Assam Legislature

s. 3(3)

A. N. Xiduldi

s. 3

s. 296

Government of India Act, 1935

s. 9(2)

Article 132(1)

Constitution of India

S. M. Lahiri

A. V.

Vishwanatha Sastri

Naunit Lal

A. V. Vishwanatha Sastri

Fakhruddin Ali Ahmed

N. C. Chatterjee

Narmit Lal

A. N. JridUUJi

C. K. Daphtary

R. Chaudhuri

S. N. Andley

Rameshwar Nath

B. Dadachanii

P. L. Vohra

S. C. Das

P. R. Das

R. Chaudhuri

S. N. Andley

Rameshwar Nath

B. Dadachanji

P. L. Vohra

S. C. Das

K. P. Gupta

Art. 132

Constitution of India

Art. 226

June 12, 1956

May 23, 1956

s. 3(3)

s. 3

Chapter II cf the Act

Section 8

Section 9

Slat. of Auam

A.N. Kiawai

Section 18

s. 15

s. 16

Section 28

Section 29

s. 32

s. 36

s. 36

Provincial Government of Assam

Then came the Government of India Act, 1935

April 1, 1937

Section 296

Then came the Government of India Act, 1935

Then came the Government of India Act, 1935

Part III of this Act

A..N. KitiuJ.i

s. 9

s. 3(2)

s. 9

Parliament

s. 296

s. 296

Assam Revenue Tribunal

Assam Revenue Tribunal Act, 1946

Assam Act II of

s. 3

ss. 5 and 6

s. 5

Section 7

Section 8

Section 9

March 31. 1937

s. 9

April 1, °1937

Government of India Act, 1935

April 5, 1948

April 6, 1948

April 8, 1948

s. 1

Section 3

Assam High Court

section 7(2)

Section 5

s. 3

Section 6

s. 3(3)

Section 7

s. 3

s. 7

Section 8

s. 3(3)

A. N. Kidu111.i

s. 3

s. 3

June 15, 1948

s. 296

Government of India Act, 1935

September 15, 1952

May 11, 1955

June 2, 1955

Art. 226

Constitution of India

s. 3(3)

s. 2

s. 9

s. 3(3)

s. 296(2)

s. 296(2)

s. 296(2)

A.N. Kidwai

s. 296(2)

s. 3(3)

ss. 99 and 100

Government of India Act, 1935

s. 9

June 12, 1946

s. 3(3)

s. 296(2)

Government of India Act, 1935

s. 296

British India

India Act

Part III of the Act

ss. 99 and 100

ss. 99 and 100

s. 296

s. 2

s. 2

ss. 99 and 100

s. 296

s. 2

N.Kitlwoi

ss. 99 and 100

s. 296

s. 3(3)

s. 296

s. 3

ss. 99 and 100

A. N. J(idwai

Burah

Delhi Laws Act, 1912

Bengal

s. 9(2)

s. 296(2)

s. 3

s. 9

Section 3

s. 3

s. 7

s. 3(3)

Provincial Government for A. N. Kidwai

s. 3(3)

s. 3(3)

s. 3(3)

A. N.idwai

'957 In the first place it was urged that the legislature was
1 under the mistaken belief that the tribunal set up e Slate o Assam h

6 A h h b l" h d " h under t e 194 ct t oug a o is e ior t e purpose A. N.idwai of that Act remained nevertheless as an existing triburnl for the purpose of the 1948 Act.

Das

s. 3(3)

s. 7

s. 3(3)

s. 3(1)

s. 3

s. 3

A . .N. Xitfwai

Central Board of Revenue Act, 1924

Section 2

Indian Boilers Act, 1923

Section 20

Bengal Board of Revenue Act, 1913

Sections 3 and 4

Motor Vehicles Act, 1939

Section 64

Factories Act, 1948

Schedule Districts Act

Section 6

Section 4

Assam Act XVII of 1947

Sales Tax Act

Section 30

Bombay Act V of 1946

Sales Tax Act

Section 21

Bengal Raw Jute Taxation Act

Section 21

Extra Provincial Jurisdiction Act, 1947

Sections 3 and 4

Garo Hills Regulation

Section 6

section 9

Assam Reouisition and Control of Vehicles Act

Section 9

Assam Forest Product Acquisition Act

Section 7

Section 296(2)

Government of India Act, 1935

s. 9

s. 9

Section 296

s. 296(2)

s. 9

s. 3

s. 9

s. 296

Government of India Act

s. 9

s. 9

s. 296(2)

Government of India Act, 1935

s. 3(3)

s. 3(3)

s. 3

s. 3

s. 3

s. 9

State of Assam

DHARMANANDPANT

STATE OF UTTAR PRADESH

.JA.FER IMAM

GOY.JNDA MENON

J. L. KAPUR

Code of Criminal Procedure

ss. 503 and 506


S.C.R.

SUPREME COURT REPORTS 321

to under s. 3 (3) may be disqualified from entertaining appeals from his own order, but that does not affect his power. to entertain appeals from the Excise Commissioner.

Even that situation will not arise, for under r. 341 of the Excise Rules appeals arising out of cases decided in the excluded areas by the Commissioner of Hills Division and Appeals would go to the Governor. Jn any event there does not appear to be any rc:pugnancy between the Notification and the so called principle or policy of s. 9 of the 1910 Act as regards the . hearing of appeals from the decisions of the Excise Commissioner. In our opinion there is no substance in this point.

No other point of law or fact has been urged before us. In our opinion for reasons stated above the judgments of the High Court appealed from should be set aside and those of the appellate authority should be restored. All the appeals are accordingly allowed. The controversy, it .seems to us, arose by reason of the inartistic drafting of the relevant enactment and in the premises, although the State of Assam has succeeded in the appeals filed by. it, we make no order as to costs in its favour in any of the appeals filed bv it. The successful appellants in the other appeals will get the costs of their respective appeals from the respondents in those appeals including the State of Assam.

, Appeals allowed.

DHARMANANDPANT

ti.

STATE OF UTTAR PRADESH

[JAGANNADHADAS, .JA.FER IMAM, GOY.JNDA MENON and

J. L. KAPUR, JJ.J .

Criminal ;.ial-Examiation of prosecution u•itnesses on commissiorz-Propriety-Procedure-Code of Criminal Procedure, ss. 503 and 506.

As a general rule in criminal proceedings, the important witnesses on whose testimony the case against the accused has to be

establih:d must be cxamied in Court and usually the issuing of comm1ss1on should be restricted to formal witnesses or to such

The Stale of Assam

y • .4..N. Kidt11ai

Dase.].

Dharmanand Pant

Statt of Uttar

Pradesh

witnesses \vho cannot be produced without unreasonable delay or inconvenience.

The evidence against the accused should be recorded in his presence and in open Court so that the accused m3y have an opportunity to effectively cross examine the witnesses and the presiding officer may have the advantage and opportunity of hearing the witnesses and of noting their derneanour.

Witnesses should not be examined on commission except in extreme cases of delay, expense or incpnvenience and in particular the examination through interrogatories should be resorted to only in unavoidable cases.

Before the amendment of s. 503, Code of Criminal Procedure, by s. 97, Code of Criminal Procedure (Amendment) Act, (26 of 1955), no magistrate other than a District :Magistrate or a Presid ency Magistrate could issue a commission, and if any subordinate Magistrate found it necessary to have a witness examined on cornmission, he had to apply to the District Magistrate who would either issue the commission or reject the application.

Therefore in a case where important witnesses had been exa1nined on commission through interrogatories, and the orrler for the examination on commission had been passed by the trying magistrate and not by the District Magistrate, the Court set aside the conviction and sentence and ordered a retrial.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 50 of 1955.

Appeal by special leave from the judgment and order dated June 7, 1954, of the Allahabad High Court in Criminal Appeal No. 1115 of 1952 arising out of the judgment and order dated April 14, 1952, of the Court of the Judicial Officer II and Magistrate 1st Class at Almora in Criminal Case No. 271/19 of 1950.

S. P. Sinha and P. K. Chatterjee, for the appellant.

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

1957. January 39. The Judgment of the Court was delivered by

GDv1NDA MENON J.-The police charge sheet dated November 13, 1949, which originated the proceedings out of which this appeal has arisen, was to the effect that the appellant, the Head Clerk of the Civil Surgeon's office at Almora, misappropriated a sum of money entrusted to him during a portion of the period he was functioning as Head Clerk.

Though the charge-sheet did not specifically state the exact amount misappropriated, the matter was cleared up

...

when the charge against him under s. 409, Indian Penal Code, was framed, namely, that between September 26, 1947, and February 11, 1948, he in his capacity as a public servant, having been entrusted with Rs. 1,118-10-9, committed criminal breach of trust in respect of that amount. This is also evident from the amounts detailed in column 3 of question 2 that had been put to him by the learned trial Magistrate. The trial court found that on account of the improper and unsatisfactory state of affairs in which the accounts were kept in the Civil Surgeon's office, for which not only the accused but two successive Civil Surgeons were responsible, no offence has been brought home to the accused and, therefore, he was acquitted. The State preferred an appeal to the High Court of Allahabad which by its judgment dated June 7, 1954, set aside the acquittal, found the accused guilty of an offence under s. 409 of the Indian Penal Code, and sentenced him to rigorous imprisonment for a period of three months. On an application to this court for special leave under Art. 136 ( 1) ( c) of the Constitution, the same was granted by the order dated July 30, 1954, and it is in pursuance to the special leave so granted that the appeal is before us.

It will be useful and necessary to give a brief resume of the events which led up to the order of the High Court of Allahabad, referred to above. The alleged misappropnat1on was detected some time in March, 1948, when Messrs May & Baker Ltd., sent a reminder to the Civil Surgeon, Almora, to the effect that certain bills of theirs were unpaid and outst:mding.

Thereupon the then Civil Surgeon, Dr. Kar, enquired into the matter and found that the appellant, who was Head Clerk when he took charge, was on leave. On sending an intimation to the appellant to submit an explanation, the latter sent a letter Exhibit P. 8 on March 5, 1948, containing certain statements which the prosecution alleges showed that the appellant was guilty of criminal misappropriation.

Thereafter, according to the prosecution, the money alleged to have been misappropriated was recovered from the appellant and paid in March, 1948, to the

Dharmanaltd Pal

St1J11 of Uttar

Pradesh

Govinda M1no11J.

Dharmanand Pant

State of Uttar

Pradesh - Govinda Mtnon J.

. firms whose bills were outstanding but which had been shown as having been paid in the accounts. The matter was put into the hands of the police for investigation only in June, 1949, when the Deputy Commissioner of Almora ordered the Deputy Superintendent of Police to look into the matter. After investigation, a charge-sheet was filed on November 13, 1949, and the case was finally submitted by the S. P. 0. Almora, on July 10, 1950, and was received in rourt some time later, the exact date of which does not appear from the records.

A case was registered in the court of the S. D. M. Almora, on August 7, 1950, against the accused under s. 409 of the Indian Penal Code.

Thereafter, witness were summoned but no witness seem, to have been examined for some time.

The order-sheet dated November 7, 1950, shows that when the file was submitted, the S. P. 0, the accused and Advocates appeared in court, but as the necessary papers had to be requisitioned from the Accountant- General's office, the case was adjourned to November 14, 1950, and the S. P. O, was directed to file by that date a list of documents to be requisitioned. Nothing seems to have been done on November 14, 1950, and the matter was . postponed to November 30, 1950,. and on that date the District Government Counsel, engaged in the case; . stated that the ·· documents in the Accountant-General's office would have to be summon-. ed and examined. As the Magistrate was of opinion that it was an indefinite thing,. he consigned the fik under s. 249 of the Criminal Procedure Code, to the record . room with the direction that it would be. taken out when the documents were available. It has not been explained before us how s. 249 of the Criminal Procedure Code could be applied to a case like this, nor is it applicable to cases falling under the Chapter dealing in the warrant cases ; but one thing is clear that after November 30, 1950, the case seems to have been dropped for a fairly long time. Evidently the prosecution was not ready . and might not probably have been serious. Thereafter on June 4, 1951, the · District Government Counsel applied . to the S. o, M. for summoning some witnesses for examination on

June 15, 1951, and the same was ordered.

The proceedings were then transferred to the Judicial Officer, Almora, who began the examination of witnesses on June 16, 1951. He examined P. W. I

(Shib Lal Tewari) on June 16, 1951, P. W. 2 (Bishun Singh) on August 21, 1951, P. W. 3 (Mohan Singh) on the same date, P. W. 4 (Shiv Lal Sah) and P. W. 5 (D. N. Pandey) on October 25, 1951, and Hira Lal (P. W. 6) on November 10, 1951. In the meantime on September 1, 1951, the District Government counsel :applied to the court for examining three witnesses on behalf of the prosecution, namely Dr. D. M. Kar, Sri R. P. Kapoor and D. N. Pandey and the Magistrate directed summonses to issue to them on the same date.

It is seen from the records that on September 7, 1951, the Magistrate received a letter from the Civil Surgeon at Allahabad, that the Magistrate's certificate is necessary under s. 507(2) of the Criminal Procedure

Ccxle and s. 33 of the Evidence Act to the effect that it is necessary that the personal attendance of .the medical officer is desirable and that a commission should not issue for examination for those witnesses.

The letter further stated that if a commission could be arranged, the same may be arranged to record the evidence of D. M. Kar at Allahabad. Neither the counsel for the appellant here, nor Mr. Mathur for the State of Uttar Pradesh, has been able to explain to us -as to how the sections referred to in the letter of the Civil Surgeon are in any . way applicable. We find ·-another letter from the Accountant-General of Uttar Pradesh . dated September 14, 1951, which was in reply to a letter dated September .3. 1951, to the effect that R. P. Kapoor, ·. the senior auditor of the Accountant- General's office, had been directed to attend coun on September 19, 1951, but he was not authorised to give evidence from the unpublished records of the Accountant-General's office for which privilege was claimed under s. 123 of the Evidence Act. On October 16, 1951, the appellant put in an application to the Magistrate stating that the case had been going on since March, 1948, and on account of the long drawnout proceedings he was greatly . harassed and requested

Dliarmanand Pal

Slal1 of Uuar

Pradesh

Govilllla Minon J,

DAarmartand Pant v.

State of Uttar

Pradesh

Gouinda Minon ].

that the matter may be decided quickly. In this state of circumstances, the District Government counsel put in an application on October 26, 1951, stating that permission may be given to examine three witnesses oh commission.

Nevertheless, it also stated that the case had been pending for a long time. The petition further referred to the fact that the presence of Dr. D. M. Kar and R. P. Kapoor in court was necessary. The Magistrate on the same date passed an order that commission be issued to examine these witnesse5. On October 29, 1951, the prosecution submitted interrogatories for the examination of Dr.

B. R. Jain and Srimati Malti Devi Joshi. On November 14, 1951, the prosecution submitted the interrogat<>- ries for the examination of Sri. G. R. K. Tandan, Sri Lakshmi Shankar, Sri Biswahath and M. N. Dube.

With regard to Dr. D. M.

Kar, the interrogatories were filed in court on November 10,

1951. On November 12, 1951, the accused put in an application objecting to questions Nos. 5, 6 and 9 to be put to Dr. D. M. Kar, on the ground that they are leading questions which cannot be put in examination-in-chief and stating further that the appearance of Dr. D. M.

Kar and Sri Kapoor for recording their evidence in person before the court is necessary and their crossexamination in court be arranged for the purpose. If that was not possible, the cross-interrogatories attached to the petition may be sent along with the interrogatories.

The learned Magistrate on that application made an order that the questions should be modified in a different language than what they have been put.

The cross-interrogatories to these witnesses were filed on subsequent dates the details of which it is unnecessary to mention. We find from the record an application by the prosecution with an order thereon dated November 14, 1951, to the effect that in addition to the important witne<Ses for whose examination on commission an application had been made, four more witnesses should be examined in person.

The reason given by the prosecution was that the accused was anxious for an early judgment and hence the request for examining the witnesses. The prosecution

reiterated that the four witnesses mentioned therein may be summoned and examined in person. On this the Magistrate passed th~ following order :-

"On the last date of hearing it was settled that all the remaining P.Ws. would be examined on .commission, and on that understanding the questions for Sri Kapoor were also supplied today.

But if the prosecutiofl wants that Sri Kapoor's evidence is so very necessary, I give only one opportunity to call him to court for one occasion. He should be telegraphically informed to be present on 30-11-1951, and if he cannot be available for any reason, then the interrogatories prepared by him be sent at once. This case is hanging on, since a very long time. Only Sri R. P. Kapoor can be called on the next day of hearing. For all the witnesses commission may be issued as they are being far away from Almora."

The result of these proceedings was that, among others, the important witnesses such as the two Civil Surgeons during whose period the alleged misappropriation took place, as well as the auditor, were examined on commission by interrogatories, even though the prosecution-as also the accused were anxious that at least the most important of them should be examined in court. The cross-interrogatories submitted by the accused deal with the points raised in the questions put in examination-in-chief.

The interrogatories were answered by the witnesses before the officer to whom the commission was issued and it is as the result of the evidence so taken that the accused has been convicted.

As stated in the judgment of the High Court the defence of the accused was that the undisbursed amounts were kept in the safe in the office and wer'e disbursed on later occasions though the cash books showed that the disbursements were earlier. In short, !he case comes to this, that even though in the cash books there have been entries of disbursements on particular dates, the actual disbursements took place later and during the intervening period the money remained in the safe itself without the appellant having had any dominion or possession over the same.

If that is so, no question of criminal misappropriation 7-100 S.C.India./59

Dharmanand Pant v.

Stat1 of Uttar

Pradesh

Govinda Menon J.

Dharmanand Pant v.

Slate of Uttar

Pradesh

Govinda Menon ].

would arise. The learned Judges of the High Court comidered this defence as unacceptable and in view of the admissions contained in Ex. P. 8, they came to the conclusion that there has been a temporary misappropriation of the amounts. In the view which we take in consequence of the arguments advanced before this court and the facts above noticed from the reco.rd, it has become unnecessary and in fact inexpedient to express any opinion regarding the truth or otherwi,, e on either the prosecution version or the defence ca>e.

At the stage at which the important witnesses for the prosecution were directed to be examined by interrogatories on commission, it was evident that the plea of the acclised could not have been before the court and no assumption can be made as to how the case was going to get shaped later on.

The question is whether in a prosecution like this where the Head Clerk of a Civil Surgeon's office is being arraigned for criminal breach of trust of sums during a particular period, and especially where the misappropriation, if any, could have been found out much earlier if the superior officers had been prompt in checking the registers and doing the duties assigned to them under the rules and regulations governing the office, it can be said that the trial is in strict consonance with established rules . of practice . and not in" violation of the same, ·.where the .. important witnesses' testimony has been obtained outside the court, which has to deal with and determine the case.

It is an established and cardinal principle of Criminal jurisprudence obtainable. i.n. all systems. •of. bw that.· in criminal proceedings the evidence against the accused should be recorded. in his presence and in open court so that the accused may be enabled to challenge such parts of the statement which he wishes to challenge and the presiding officer may have the advantage and opportunity of hearing the . witness in person, noting his demeanour and finding out for himself on such observation whether what the witness deposes is true or otherwise.. There is also the further a<lvantage so far

as the accused is concerned of testing the truth or otherwise of the deponent's testimony by cross-examination

in a public place like a court and which may develop from point to point effectively with reference to the answers that a witness gives. But where on account of particular , reasons it is not possible to get the presence of the witness in court, the Criminal Procedure Code provi<les for. examination on commission which can be direct examination by counsel for the prosecution. and cross-examination by the accused or his counsel. Section 503, as it stood before the .amendment of 1955, provided that where in the course of an inquiry, trial or other proceeding under the Code, it appears to a High Court, court of Sessions, District Magistrate or Presidency Magistrate, that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, such court or Magistrate may dispense with such attendance and issue a commission for the examination of the witness in accordance with the provisions of that Chapter.

Sub-section (2) provided that if in the course of an inquiry,. trial or other proc:eeding under the Code before any Magistrate; other than a District Magistrate or

Presidency Magistrate, it appears that a commission ought to be issued for the examination cif a witness whose evidence is necessary for the ends of justice and that the attendance of such witness cannot be

prduq:d without an amount of . delay, expense or . inconvenience which, under the circumstances of the case, would be unreasonable, such Magistrate shall apply to the District Mgistrate stating the reasons for the application ; and the District Magistrate may either issue a commission or reject the application. One of the methods provided for the examination of witnesses on commission is contained in s. 506, of the Criminal Procedure Code, which is as follows:

(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court or Magistrate directing the commission may think relevant to the issue, and it shall be lawful for the

Dharmanand Paat

State of Uttar

Prad<Jh

Govinda Menon J.

Dharmanand Pant v.

State of Uttar

PradtJh l Govinda Menon J.

Magistrate, Court, or officer to whom the commission is directed, or to whom the duty of executing it is. delegated, to examine the witness upon such interrogatories ;

(2) Any such party may appear before such Magistrate, court or officer by pleader, or if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the said witness. By the Code of Criminal Procedure (Amendment) Act, XXVI of 1955, in s. 97, for the words 'District Magistrate or the Presidency Magistrate' in sub-s. (I) of s. 503 the words 'any Magistrate' were substituted and sub-s. (2) was omitted but a proviso was added to sub-s. (I) which in the circumstances of this case is unnecessary to refer to. The result of the amendment is that before the enactment of s. 97 of Act XXVI of 1955 no Magistrate other than a District Magistrate or a Presidency Magistrate could issue a commission and if any such subordinate Magistrate finds it expedient, necessary or essential to have a witness examined on commission, he has to apply to the District Magistrate who will either issue the commission himself or reject the application. The District Magistrate in issuing the commission, or rejecting the request is acting judicially and his orders are subject to supervision and control by the appellate or revisional court.

On the , assumption that the commission was regularly set up by an order of the District Magistrate as contemplated by the above provisions, the question is as to whether there was sufficient justification for deviating from the normal practice of examining witnesses in court. We have not been shown that the attendance of the two Civil Surgeons, as well as the auditor and the other witness, could not have been procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, could be unreasonable, and nobody has suggested that the two officers who had held the post of Civil Surgeon of Almora, lived at any other place than in Uttar Pradesh, and there is not even a suggestion of gross inconvenience or delay and expense unreasonable in the circumstances which would justify their being

kept out of court. If the Magistrate had issued summonses to these witnesses and found that it was diffi- cult to procure their attendance in the normal course of things, then he could have adopted the procedure of waiving the attendance in c-ourt. Some attempt should have been made to find out whether the normal practice would not have been followed and it is only after the impossibility of such a process is ascertained that a commission should have been issued. The mere fact that the proceedings have got protracted for an extraordinary length of time for reasons which do not appear dearly on the record, but giving room for the impression that the higher officers concerned were not prepared to take the matter seriously in view of the amount having been made up-can by itself be no ground for issuing a commission ; that is, at best only delay in the disposal of the case, and not delay in obtaining the evidence of the witness in court. There appears no possible justification on the record for the issue of the commission and much more so for the 'issue of mere interrogatories.

The issuing of a commission under the Code of Civil Procedure is governed by ss. 75-78 and 0. XXVI, r. 1 of which lays down the cases in which a court may issue a commission to examine a witness. Ordinarily when a person resides within the local limits of the jurisdiction of the court and is not exempted under the Code from attending court or who is on account of sickness or infirmity, unable to attend the court, he should be examined in court. Under the Civil Procedure Code ss. 75-78 and 0. XXVI, r. 4, a witness mav be examined on commission if he is a resident beyond the local limits of its jurisdiction, or a person who is about to leave such limits before the date on which he is to be examined in court, or any person in the service of the Government who cannot in the opinion of the court attend without detriment to his public duties.

No such limitations have been imposed for the examination of witnesses on commission under the Code of Criminal Procedure. But that by itself should make the presiding officer observe greater care and caution in issuing a commission to examine a witness, for, as

Dharmanand Panl v.

Stall of Uttsr

Pradesh

Govinda Menon ].

Dharmanand Pant v.

Stall of Uttar

Pradesh

Govinda Menon ].

already stated, it is the inherent right under ordinary circumstances of every accused person to have the evidence against him recorded in open court and in his presence and where any departure from that mode is necessary, the same should be limited . to exceptional cases and the Criminal Procedure Code provides how and where such discretion ought to be exercised. .

As early as i.n the case Queen-Empress v. T. Burke('), it has be.en held that it is not proper to allow the evid- . ence of aii important witness for the. prosecution to be ·.taken on commission on .· the ground . that it would. be inconvenient for the witness to attend court. That ss. 503 and 506 of the Criminal Procedure Code should be used sparingly and only in the clearest possible cases, has been laid down in Mohammad Shafi v. Emperor(').

It is not necessary to refer to case law on the point because the matter is one to be decided on the facts in each case. As a general rule it may be said that the important witnesses on whose testimony the case against the accused person has to be established, must be examined in court and usually the issuing of a commission should be restricted to formal witnesses or such witnesses who could not be produced without an amount of delay or inconvenience unreasonable in thecircumstances of the case. The idea of examining witnesses on commission is primarily intended for getting the evidence of witnesses other than parties principally interested such as a complainant or any person whose testimony is absolutely essential to prove the prosecution case.

In short,· witnesses m a criminal case should not be examined on comm1ss10n except in extreme cases of delay, expense or inconvenience and in particular the procedure by way of interrogatories should be resorted in unavoidable situations. The discretion to be used by the Magistrate is a judicial .one and should not be lightly or arbitrarily exercised. In these circumstances, we have .to note that the evidence of the two Civil Surgeons and that of the auditor would be the foundation for the case against the appellant and that being the case, it seems to us that they ought to have been examined in court. As

(IJ I. L. R, (1884) 6 All. 024.

(2) A.I.R. 1932 Patna 242.

we are of the view that the Magistrate has acted improperly in having the essential witnesses examined o; i commission, we feel that the accused has not had a fair trial.

From. the review of the proceedings outlined above, it also does not appear that · the trying Magistrate . approached the . District Magistrate with an application as contemplated in . s. 503 (2), Criminal Procedure Code.

In response to the request of. . the District ·. standing counsel; . the Magistrate himself directed drat the commission should be issued as desired, on October 26, 1951. . Further by the order dated November 12, 1951, the alleged leading questions ·were ordered. to be modified and presented in a style and diction which would cure the defect of the leading nature of the questions.

The order dated November 14, 1951, does not also show that there was any attempt made to approach . the District Magistrate, for we find in the order-sheet the remarks . of the Magistrate, mentioned above at an earlier stage.

We have ourselves examined the original records called for from the lower courts and the result of our scrutiny comes to this. In continuation of the order made by the trying Magistrate dated October 26, 1951. that commissions will be issued as desired, on November 19, 1951, he has himself issued a commission to examine the witnesses as required under ss. 503 and 506, Criminal Procedure Code. The summons has emanated from the Judicial Officer II, Magistrate 1st Class, Almora, addressed to the District Magistrate, Lucknow, stating 'It was necessary for the purpose of the trial to examine .the person. named in the margin as a witness on behalf of the prosecution and, the District.

Magistrate, Lucknow, is appointed Commissioner with authority under the provisions of ss. 503 and 506 of the Criminal Procedure . Code to . examine and crossexamine the said witness upon . interrogatories, etc.' .

The summons has been submitted to the District Magistrate, Almora, for favour of forwarding the commission to the District Magistrate, Lucknow, for execution. Similarly the summonses to examine other witnesses on commission on the same date have also been

Dharmanand Pant v.

Statt ef Uttar

Pradesh

Govinda Menon J.

Dharmanand Pant

"· Slate of Uttar

Pradtsh

Govinda Menon J.

issued and all of them have been despatched to the District Magistrate, Lucknow, for the purpose of complying with the commission. It is nowhere seen that the District Magistrate of Almora has exercised his independent judgment or judicial discretion as contemplated in the last clause of sub-s. (2) to s. 503, Criminal Procedure Code, as to whether any such commission should issue or not. What the Code contemplates is that the District Magistrate to whom the trying Magistrate submits a request for issuing a commission, should himself issue the commission or reject the application.

It also says that the applying Magistrate should state the reasons for the application. We do not find from the record anything to show that the District Magistrate, Almora, who under the Code ought to be the authority issuing the commission, has complied with the imperative provisions of the Code. All that can be gleaned from the record is that the District Magistrate, Alrnora, has simply acted as a forwarding authority for sending the commission issued by the trying Magistrate.

In the present case, as stated already the District Magistrate, Almora, had the power either to accept the request of the trying Magistrate and issue the commission, or reject the same, and an order made either way should be a judicial one after considering the matter in its entirety. No such thing seems to have been done.

Such being the case, we are constrained to observe that an elementary rule of practice essential for justifying the examination of witnesses on interrogatories has not been conformed to. The point is of vital importance for the reason that if the essential pre-requisite for the validity of the issuing of a commission has not been complied with, the evidence so taken would be improper and could not be used against the accused. This is a defect which goes to the root of the matter and is vital in content.

Thus the entire proceedings are vitiated and the evidence of the witnesses taken on commission will have to be completely eschewed from the record.

We, therefore, allow the appeal and remit the case for retrial, according to law, to the court of first instance in the light of observations made above. It will not be

necessary to re-examine the witnesses who have already been examined m court unless the court thinks it necessary.

Appeal allowed. Case remanded for retrial.

NIEMLA TEXTILE FINISHING MILLS LTD. v.

THE 2No PUNJAB INDUSTRIAL TRIBUNAL

(with connected appeals and petitions) rs. R. DAS C.J., BHAGWATI,

VENKATARAMA

AYYAR, B. P. SINHA and S. K. DAs JJ.]

Industrial Disputes Act, 1947 (XIV of 1947)-Constitutional 1'alidity-Legislative competency-Powers of Industrial Tribunals- Whether Legislative-The Government of India Act, 1935 (25 & 26 Geo. 5, Ch. 42), Sch. VII, List III, Entties 27, 29-Constitution of India, Arts. 14, 19 (1) (f) and (g).

The disputes between the appellants and their workmen were referred to the Industrial Tribunal for adjudication by the appropriate Government, under the provisions of the Industrial

Disputes Act, 1947.

It was contended for the appellants that the reference to the Tribunal was bad because ( l) the Act was ultm vires. the Constitution inasmuch as its provisions are Yiobtive of the fundamental rights enshrined in Art. 14 and Art. 19 (I) ( f) and ( g) of the Constitution, (2) the Industrial Tribunals are legislating in the guise of adjudication, and this amounts to delegation of the powers of legislation which it was not competent to the Central Legislature to do so, and ( 3) the definition of the term "industry" comprises industrial as well as non-industrial concerns and, therefore, the Act was not within the legislative competence of the Central Legislature under Entry 29 of List Ill of the Seventh Schedule to the Government of India Act, 1935.

Held: (1) The Industrial Disputes Act, 1947, 1s not unconstitutional and the provisions of the Act do not contravene Arts. 14 and 19 (l) (£) and (g) of the Constitution.

The basic idea underlying all the provisions of the Act is the 'settlement of industrial disputes and the promotion of industrial peace so that production may not, be interrupted and the <:ommunity in general may be benefited, and the appropriate Government has, therefore, a discretion in the matter of making the reference to one or other of the authorities under the Act and also in the matter of carrying out the various provisions of the Act, including _ the curtailment or extension of the period ot

Dharmanand Pant

State of Uttar

Pradesh

Govinda Almon J.

January 10

s. 3

s. 9

State of Assam

allowed.

DHARMANANDPANT

STATE OF UTTAR PRADESH

JAGANNADHADAS

JA.FER IMAM

GOY.JNDA MENON

J. L. KAPUR

Code of Criminal Procedure

ss. 503 and 506

Dharmanand Pant

s. 503

Code of Criminal Procedure

s. 97

Allahabad High Court

S. P. Sinha

P. K. Chatterjee

G. C. Mathur

C. P. Lal

GDv1NDA MENON

Almora

s. 409

Indian Penal Code

September 26, 1947

February 11, 1948

High Court of Allahabad

June 7, 1954

s. 409

Indian Penal Code

Art. 136

July 30, 1954

Messrs May & Baker Ltd.

Kar

March 5, 1948

Dharmanaltd Pal

Govinda M1no11J.

Dharmanand Pant

State of Uttar

Pradesh

Govinda Mtnon

November 13, 1949

S. P. 0. Almora

July 10, 1950

S. D. M. Almora

August 7, 1950

s. 409

Indian Penal Code

November 7, 1950

November 14, 1950

November 30, 1950

s. 249

s. 249

June 4, 1951

June 15, 1951

June 16, 1951

Shib Lal Tewari

Bishun Singh

August 21, 1951

Mohan Singh

Shiv Lal Sah

D. N. Pandey

October 25, 1951

Hira Lal

November 10, 1951

D. M. Kar

R. P. Kapoor

September 7, 1951

Allahabad

s. 507(2)

s. 33

D. M. Kar

Mathur

State of Uttar Pradesh

September 14, 1951

September .3. 1951

R. P. Kapoor

September 19, 1951

s. 123

October 16, 1951

Dliarmanand Pal

Govilllla Minon

Gouinda Minon

October 26, 1951

October 29, 1951

B. R. Jain

Srimati Malti Devi Joshi

November 14, 1951

G. R. K. Tandan

Lakshmi Shankar

Biswahath

M. N. Dube

D. M.

Kar

November 10,

1951

November 12, 1951

Kapoor

Dharmanand Pant

Govinda Menon

Slate of Uttar

Pradesh

Section 503

s. 506

State of Uttar

s. 97

s. 503

s. 97

Uttar Pradesh

the Code of Civil Procedure

ss. 75

ss. 75

Code of Criminal Procedure

ss. 503 and 506

s. 503

Criminal Procedure Code

November 19, 1951

ss. 503 and 506

Criminal Procedure Code

District Magistrate, Lucknow

Lucknow

ss. 503 and 506

District Magistrate of Almora

s. 503

Criminal Procedure Code

District Magistrate, Almora

District Magistrate, Alrnora

NIEMLA TEXTILE FINISHING MILLS LTD.

PUNJAB INDUSTRIAL TRIBUNAL

R. DAS C.J.

BHAGWATI

VENKATARAMA

AYYAR

B. P. SINHA

S. K. DAs

Industrial Disputes Act, 1947

Constitution of India

Arts. 14, 19

Disputes Act, 1947

Art. 14

Art. 19

Industrial Disputes Act, 1947

Arts. 14 and 19

State of Uttar

Pradesh

Govinda Almon