S.C.R.

SUPREME COURT REPORTS 663

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

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

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

Appeal dismissed.

V. C. K. BUS SERVICE LTD.

ti.

THE

REGIONAL

TRANSPORT

AUTHORITY,

COIMBATORE.

VENKATARAMA AYYAR. s. K. DAS AND

GAJENDRAGADKAR JJ.)

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

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

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

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

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

Nisar Ali

The State of Uttar Pradesh

Kapur].

'95'/

February 19.

'957

V. C. K. Bus Strviet

Ltd.

The Regional

Transport il.utlwrity, Coimbator1

permit, he applied for and got a renewal of the permit from the Regional Transport Authority under s. 58 of the Act.

The High Court finally dis1nissed the applic:ition for a writ of certiorari and the question arose as to the validity of tbe renewal of the pennit in view of the High Court's decision. ]'he 1natter was raised before the High Court once again by proceedings under Art. 226 of the Constitution and the High Court held that the r.:-newal having been obtained on the basis of a pern1it which had been subsequently cancelled, it c-oul<l not be regarded as a frc!:h permit, that when the original permit \Vas set asi<le, it 111ust be taken to be non est for all purposes, and that thr renc\val must therefore be held to be a nullity. The appellant appealed to the Supreme Court.

Held: (1) Under the provisions of the Motor Vehicles Act, 1949, and the rules framed thereunder, a rene\\.al is a continuation of the original pennit. \Vhen the original permit \Vas rent\\'ed in favoui of the appellant it v.as subject to the Jecision of the High Court in the proceedings under Art. 226 of the Constitution which \vere then pending and, therefore, 'vhen the order granting' the original permit \Vas finally set aside the renewed permit becan1e void.

Anjiah \', Regional 1ransport Officer, Guntul', 1956 i\ndhra Law Ti1nes, 347, disapproved.

(2) When the appellant applied for a renewal of his permit under s. 58 of the .-\ct and not merely for a fresh permit the order of the Regional Transport A'.Jthority granting the renewal rnust be held to ha\'e been made subject to the implied condition that the right of the appeilant to the original permit is recognized by the High Court and that accordingly, in the ever1t that had happened, the reOC\\'cd pc:nnit ceased to be effective.

Veerappa Pill..1i v. Ran1a11 &, Ram.a; Ltd., (1952) S.C.R. 583, explained and Jistinguished.

CIVIL APPELLATE JuRISDICTION: Civil Appeals Nos. 323 and 324 of 1956.

Appeal from the judgment and orders dated April 27, and July 13, 1956, of the Madras High Court in Writ Appeals Nos. 42 and 88 of 1956 arising out of the orders dated March 2.3, and July 9, 1956, of the said High Court in Writ Petitions Nos. 333 and 564 of 1956.

A.V. Viswanatha Sastri, /. B.

Dadachanji, S.

Andley and Rameshwar Nath for the appellant.

C. K. Daphtary, Solicitor-General of India, R. Ganpathy Iyer and R. Gopalkrislman, for respondents Nos. 3 and 4.

1957. February 19. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These are appeals against the judgment of the High Court of Ma<lras on a certificate given under Art. 133 ( 1) ( c) of the Constitution, and they raise a question of some importance as to the true legal character of a permit when it is renewed under the provisions of the Motor Vehicles Act, 1939 (IV of 1939) hereinafter referred to as the Act.

In order to appreciate the contentions of the parties, it is necessary to state the material facts leading up to the present dispute.

Towards the end of 1952, the appropriate authorities under the Act decided to grant two additional permits for stage carriages in the Ondipudur-Agricultural College route in the town of Coimbatore in the State of Madras, ancj invited applications therefore under s. 57 of the Act.

There were as many as 39 applicants, and by his order dated December 3, 1952, the Regional Transport Authority granted one permit to applicant No. 24, the Thondamuthur Trading Company Ltd., and another to applicant No. 30, the V.C.K.

Bus Service.

There were appeals by some of the unsuccessful applicants to the Central Road Traffic Board, which by its order dated February 19, 1953, set aside the order of the Regional Transport Authority and granted the permits, one to Stanes Transports Ltd., and another to Thirumalaiswami Goundar.

Revisions were preferred against this order by the aggrieved applicants under s. 64-A of the Act, and by its order dated July 9, 1953, the Government confirmed the grant of the permit to Stanes Transports Ltd., but set aside the permit given to Thirumalaiswami Goundar, and granted it instead to Annamalai Bus Transport Ltd.

Thereupon, applicants Nos. 24 and 30 moved the High Court of Madras under Art. 226 for a writ of certiorari to quash the order of the Central Road Traffic Board dated February 19, 1953 and of the Governmrnt dated July 9, 1953; but the applications were dismissed by Rajagopala Ayyangar J. on March 8, 1954.

Against the orders of dismissal, Writ Appeals Nos. 31 and 32 of 1954 were preferred, and they were

V. C. K. Bus Service

Ltd. v.

The Regional

Transport

Authoriry, Coimbatore

Venkalarama

Ayyar J.

V. C. K. Bus Sernic.

Ltd.

Tht Regional

Tra, isport Authority, Coimbatore

f'o1!ataramt1

A_Y.7ar J.

dismissed by Rajamannar C.

J. and Panchapakesa Ayyar J. on March 21, 1956. It should be mentioned that the operation of the order dated February 19, 1953 was stayed pending the disposal of the revision under s. 64-A and the writ proceedings in the High Court, with the result that both Thondamuthur Trading Company Ltd. and V.C.K. Bus Service which had been granted permits by the Regional Transport Authority on December 3, 1952, continued to run their buses notwithstanding cancellation of those permits on February 19, 1953.

It should also be mentioned that in June 1954 the business of the V.C.K. Bus Service which was the grantee of one of the permits under the order of the Regional Transport Authority dated Decemher 3, 1952, was taken over by a Company called the V.C.K.

Bus Service Ltd., which i's the appellant before us, and by an order of the Regional Transport Authority dated July 7, 1954, it was recognised as the transferee of the permit granted to V.C.K. Bus Service.

To continue the narrative, the permit which was the subject-matter of the litigation aforesaid was for a period of one year and a half, and it expired on June 30, 1954.

Before its expiry,• the appellant applied on April 15, 1954, for a renewal thereof for a period of three years.

This application was duly notified under s. 57, and objections to the grant were preferred by both Stanes Transports Ltd., and Annamalai Bus Transport Ltd. On September 5, 1954, the Regional Transport Authority granted a permit to the appellant for a period of one year from July 1, 1954 to June 30, 1955, obviously in the expectation that Writ Appeals Nos. 31 and 32 of 1954 would by then have been decided.

On March 19, 1955, the appellant again applied for a renewal of the permit, and that was also notified under s. 57, and no objections having been filed to the grant thereof, the Regional Transport Authority by his order dated June 23, 1955, renewed the permit for a period of three years from July 1, 1955 to June 30, 1958.

It is this permit that forms the subject-matter of the present litigation.

It has been already stated that Writ Appeals 31 and 32 of 1954 were dismissed on March 21, Nos. 1956.

Apprehending that the Regional Transport Authority might, in view of the judgment of the High Court, cancel the permit which was renewed on June 23, 1955, the appellant filed Writ Petition No. 333 of 1956 for a Writ of Prohibition restraining the Regional Transport A'.uthority from cancelling the permit, and that was dismissed by Rajagopala Ayyangar J. on the ground that when the original permit was set aside, the renewal thereof fell to the ground.

The appellant filed Writ Appeal No. 42 of 1956 against this order, and that was heard hy Rajamannar C.

J. and Panchapakesa Ayyar J. who by their judgment dated April 27, 1956, held, following a previous decisio11 of that Court' in K. M 11t/11tvadivelu v. Regional Transport Officer(') that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it could not be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be 11011 est for all purposes, and that the renewal must therefore be held to be a nullity.

In the result, they dismissed rhe appeal, but granted a certificate under Art. 133(1)(c), observing that the case raised a point of general importance, which was stated by them in these terms :

"When an application for renewal of a permit is made and granted and eventually it is held that the original permit was itself wrongly granted, does the renewed permit subsist for the period for which it was renewed, or does it automatically cease to be in force when it is finally decided that the original permit was not granted validly ?'' This matter now comes before us in Civil Appeal No. 323 of 1956.

After the High Court delivered its judgment in Writ Appeal No. 42 of 1956 on April 27, 1956, the respondents herein, viz., Stanes Transports Ltd. and Annam:ilai Bus Transport Ltd., :ipplied to the Regional Tramport Authority to grant them permits in accordance with the decisions of the High Court, and on fay 5, 1956, the Regional Tr:insport Authority cancelled the permit granted by him on June 23, 1955, in farnur

(1) A.LR, 1956 !\fad. q3,

I', C, K Bus Sertiu

Ltd,

Tk Rcgio11a/

Transport Authority, Coimbatore

i enkatarmna

A)yar].

V. C. K. Bus Stroiu

Ltd. v.

T ht Rttional

Transport

.Authorit)", Coimbatort

V tnkatarama

Ayya, J.

of the appellant, and granted permits instead to the respondents.

Thereupon, the appellant filed Writ Petition No. 554 of 1956 for a writ of certiorari to quash the onle1 dated May 5, 1956, on the grounds which had been put forward in Writ Petition No. 333 of 1956 and Writ Appeal No. 42 of 1956.

That petition was dismissed by Rajagopalan J. on July 9, 1956, and the Writ Appeal No. 88 of 1956 filed against that order was dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on July 13, 1956.

Leave to appeal against that judgment was also given under Art. 133 ( 1) ( c ), as the subject-matter thereof was the same as that of Writ Appeal No. 42 of 1956 in respect of which leave had already been granted.

Civil Appeal No. 324 of 1956 relates to this matter.

Thus, both the appeals relate to the same matter, and raise the same point for determination.

Mr. A. V. Viswanatha Sastri, learned counsel who appeared in support of the appeals, contends that the view taken by the learned Judges of the High Court that when a permit is set aside by higher authorities, it should be treatell as wholly non-exi.\tent, and that, in consequence, a renewal thereof must be held to be void, is not sound, that on a correct interpretation of ss. 57 and 58, a renewal is practically in the nature of a new grant, that the permit which was granted to the appellant for the period July l, 1955 to June 30, 1958, though styled a renewal, was in substance a fresh permit, and that the fact that the old permit was set aside -did not therefore affect the right of the appellant under this permit.

He also argues that the Act and the rules framed thereunder contain elaborate provi-. sions as to when a permit could be cancelled, forming in themselves a complete code on the subject, that the cancellation of the original permit is not one of the grounds on which a renewed permit could be set aside, and that the order of the Regional Transport Authority dated May 5, ~1956, was therefore ultra vires.

The contention of the learned Solicitor-General for the respondents is that when a permit is renewed, the renewal is, on a true. construction of the provisions of the Act, in substance .. as in name a cdntinuation of the

previous permit, and that, in conseque!lce, when the grant of a permit is set aside by a higher authority, the renewal thereof must also stand automatically set aside, and that further even if a renewed permit is not to be regarded as a continuation of the original permit, seeing that it is granted on the basis of that permit it should be held to be subject to an implied term that it should cease if the original permit is cancelled.

The two points that arise for decision on these contentions are : ( 1) when a permit is renewed, is it a continuation of the original permit, or is it, in fact, a new one ? and

(2) if a renewed permit is not a continuation of the original permit, is the grant of it subject to the implied condition that it is liable to be cancelled, if the original permit is cancelled?

On the first question, it is necessary to refer to certain provisions of the Act material thereto.

Section 57 prescribes the procedure to be followed in the grant of stage carriage permits.

Under sub-s. (2), applications therefor have to be made not less than six weeks before the date appointed by the Regional Transport Authority therefor. Sub-section (3) requires that they should be published in the prescribed manner, and provision is made for representations being made in connection therewith.

When any representation is so received, sub-s. (5) provides that the person making it is to be given an opportunity of being heard thereon in person or by a duly authorised representative, and that the application for permit is to be disposed of at a public hearing.

Section 58 deals with renewals, and is as follows: ( 1) "A permit other than a temporary permit issue<l under section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit : Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe.

V. C: K. Bus Servia

Ltd. v.

The Regional

Transport Authority, Coimbatore

V tnkatarama

A)yar ].

19.37

V. C. K. Bus S1nia

Ltd.

T Ju Rr[iumil

Tra11:.Jpo11

Autf; oril)', Coiinbatou

i'enkatnrmnt1

Ayyar ].

SCPREME COURT REPORTS f1957J

(2) A permit mav be rwewed on an application made and dispo, cd of as if it were an application for a permit :

Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits."

The contention of the learned counsel for the appellant based on s. 58 (2) is that under the Act an application for renewal is to be dealt with exactly as an application for a new permit, that it is to be notified under s. 57 and representations have to be called for in connection therewith and considered at a public hearing, that though the grant of the previous permit furnishes a ground of preference, it is subject to the limitation that the other conditions are equal and is thus only one of several factors to he taken into account, and that therefore when a renewal is actually granted, it is on an independent consideration of the merits and it cannot be distinguished from a fresh grant.

It was further argued that the proviso to s. 58(2) meant little, because it wa' well established that the g'rJnt of a permit was not a matter of right, . and the authorities under the Act would be acting within their powers if they refu>ed an application for renewal and granted a fresh permit to a new apiilicant. It was also contended that though the statute spoke of a renewal of a permit, that expression did not accurately bring out the true position, became in legal terminology, renewal imports that the t:ansaction which is renewed, as for example, a lease. i, to operate for a further period but on the same terms. hut that when a permit was renewed,. it was open to the authorities to impose new conditions, to alter the period during which it was to operate and generally to modify its terms. and that therefore the use of the word "renewal" should not lead to the inference that it was the original permit that was being continued.

There is force in these contentions, but there are other provisions bearing on this question, and when they are reviewed as a whole, it is abundantly clear that the intention of the legislature was to treat a renewal as a continuation of the previous permit.

start with, s. 58(1) enacts that a permit sh::ill be effective for the period specified therein, but this is qualified by the words "without renewal".

Therefore, when there is a renewal, the effective period is not the original period specified, bu_t the period up to which the renewal is granted.

That indicates that the life of a renewed permit is one and continuous.

The matter is placed bevond doubt when we turn to the rules which have

been framed under the Act.

Rule 184 ( 1) provides that when a renewal is granted, it shall be endorsed on the permit itself, and Form No. 33, which 1s prescribed therefor is as follows :

"This permit is hereby renewed up to the ..... . day of. ..... 19 ...... ".

Thus, \hat is renewed is "this permit".

In this connection, reference must be made to the definition of "permit" in s. 2(2) of the Act as "the document issued by a Provincial or Regional Transport Authorit:/'.

Rule 185 is very material for the purpose of the present rfocussion, and it runs as follows : ''If an application for the renewal of a permit has been made in accordance with these rules and the preocribcd fee paid hy the prescribed date, the permit shall continue to he effective until orders are passed on the application or until the expiry of three months from the <late of receipt of the application whichever is earlier.

If orders on the application are not passed within three months from the date of receipt of the application, the permit-holder shall be entitled ro have the permit renewed by the Transport Authority for the period specified. in the application or for one year whichever is less and the Transport Authority sha 11 call upon the permit-holder to produce the registration certificate or certificates and Part B or Parts A and R of the permit, as the case may be, ancl endorse the renewal in Parts A and B of the permit accordingly and return them to the permit holder".

Under this rule, when an application for renewal is made, the permit already granted is to be in forcr until an order is passed thereon, and what is more important, if no order is passed within three months,

19.'\7

V. C. J;. Bu-. Srrvfrt

Ltd. v.

Th<" Rrgiona/

T ran~Oort

Authoit"· CuimhatO..e

Venkatarama

Ayyar ].

1957 r. C. K. Bus Service

Ltd. v.

Th, Rtgiona!

Tran.:.port

Authorjty, Coimbatore

V enkatarama

Ay;•a, J.

the permit hccomes automatically renewed for the period mentioned in the rule.

This goes a long way to support the contention of the respondents that on the scheme of the Act, renewal is a continuation of the original permit.

It should also be mentioned that the rules provide for different forms for an application for fresh permit ; md one for renewal, and the fee to be paid along with those applications is also different.

A reading of the relevant provisions of the Act and of the rules leads indubitablv to the conclusion that a renewal is a continuation of the permit previously granted.

The fact that the grant of renewal is not a matter of course, or that it is oprn to the authorities to impose fresh conditions at the time of renewal does not, when the permit is in fact renewed, alter its character as a renewal.

We shall now consider the authorities cited by learned counsel for the appellant as supporting the view that a renewal under the Act is in the same position as a fresh permit.

In Mahabir Motor Co. v.

Bilzar State('), the point for decision was whether an appeal lay under s. 64 (f) against an order granting a renewal of a permit.

The contention before the Court was that the Act made a distinction between the grant of a permit and a renewal thereof, and that as s. 64 (f) provided only for an appeal against an order granting a permit, no appeal lay against an order granting a renewal.

In repelling this contention the Court observed:

"Both grant and renewal stand more or less on the same footing by reason of ss. 47, 57 and 58 of the Motor Vehicles Act. ....... ".

This observation has reference to the procedure to be followed in the renewal of a permit and the right of appeal given under s. 64 as part of that procedure.

It has no bearing on the character of a permit when it is renewed.

Another decision on which the appellant strongly relied is Anjiah v. Regional Tra11sport Officer, Gu11t11r(' ). There, the facts were that an order of suspension had been passed for breach of one of the

(1) f1956J l.L.R. 34 Patna 429.

(~) [1956) An<lhra Law Tin1es 347.

conditions of the permit.

The correctness of the order was challenged before higher authorities, but without success.

Meantime, the period fixed in the permit had expired, and it had been renewed.

The question was whether the period of suspension could be enforced against the renewed permit. It was held by the Andhra High Cou_rt that it could not be, because the renewal was, in essence, a new permit and not a mere continuance of the old one.

The reason for this decision was thus stated in the judgment :

"There is no right of renewal as such and when a permit is renewed, there is no right either, on the part of the permit-holder to insist upon the continuance of the old terms.

It would be undesirable that there should be any such restrictions upon the right of the authorities to grant the permit to anybody they choose or subjecF to any conditions that they think it to be necessary to impose, provided that they are acting all the time in the public interest and subject to the provisions of the Motor Vehicles Act and the Rules made thereunder." These considerations, though not without force, cannot, in our opinion, outweight the inference to be drawn from 1:he other provisions to which we have made reference and for the reasons already given, we are unable to agree with this decision.

In the view that we have taken that under the provisions of the Act and the rules, a renewal is a continuation of the original permit, there can be no doubt as to what the rights of the appellant are.

When the proprietor of V. C. K. Bus Service was granted a permit by the Regional Transport. Authority on December 3, 1952, that grant was subject to the result of the decision of the higher authorities.

On September 5, 1954, when the permit was renewed in favour of the appellant, that was subject to the decision of the High Court in Writ Appeal No. 32 of 1954, which was then pending.

When the renewed permit dated September 5, 1954, was again renewed on June 23, 1955, that was likewise subject to the result of the decision in Writ Appeal No. 32 of 1954.

When the High Court by its judgment dated March 6-79 S, C, India/59

V. C. K. Bus Smie1

Ltd.

Tk&gjMipl

Tronsporl

hori(y, Coimbator1

VenkataratQO

AJ.)'ar J.

Y. -C. K. Bus Se,,, k.

Ltd.

Tiii Rtgi<na/

Transpcrt Authoril;,, Coimb01or1

Y1nkatarama

AY.)'ar ].

21, 1956, passed in the said Writ Appeal upheld the cancellation of the permit which had been granted by the Regional Transport Authority on December 3, 1952 to V. C. K. Bus Service, the permit renewed on June 23, 1955, became ineffective at least as from that date.

The Regional Transpon Authority was therefore right in treating it as having become void, and granting by his order dated May 5, 1956, permits to the respondents.

The second question arises on the alternative contention advanced by the respondents that even if the renewal is to be regarded, not as a continuation of the original permit but as an independent grant, it must be held to have been sul:iject to an implied condition that if the original permit is ultimately set aside, the renewal thereof should come to an end.

Mr. Sastri, learned counsel for the appellant, disputes the correctness of this contention.

He argues that when there is a document . embodying the terms of a contract, it is not permissible to imply therein a condition, if thatwill contradict or vary any terms contained in it, that to read into the permit a condition that it is to cease if the decision of the High Court went against the appellant, would be to modify the terms contained therein that it is to be effective upto June 30, 1958, and that it could not therefore be implied.

He also relies on the following observation of Lord Parker in F. A. Tamplin Steamship Company Limited v. Anglo- Mexican Petroleum Products Company Limited('):

"This principle is one of contract law, depending on some term or condition to be implied in the contract itself and not on something entirely dehors the contract which brings the contract' to an end.

It is, of course, impossible to imply in a contract any term or condition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions." It is undoubted law that when the terms of a contract or grant are reduced to writing, no condition can be implied therein, which will be inconsistent with its express terms.

But th~ contention of the respondents

(1) [1916) • A.C. 397, tn

involves no conflict with this principle.

They do not seek to obtain any modification or alteration of the terms of the permit, leaving it to operate subject to such modification or alteration.

They want that the whole permit with all its terms as to duration and otherwise should be held to have become inoperative.

What they are pleading i5 a condition subsequent on the happening of which the permit will cease, and to that situation the observation quoted above has no application.

Reference may be made in this connection to . the following observation occurring later in the speech of Lord Parker in F. A, Tamplin Steamshp

Company Limite{l v. Anglo-Mexican Petroleum Products Company, Limite'd (supra) :

"Moreover, some conditions can be more readily implied than others.

Speaking generally, it seems to me _easier to imply a condition precedent defeating a contract before its execution has commenced than a condition subsequent defeating the contract when it is part performed." Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original pen; nit was negatived by the High Court.

That brings us on to the question of fact, whether on an examination of the permit and of the circumstances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it.

The r-ermit granted to the V. C. K.

Bus Service on December 3, 1952, had been cancelled on February 19, 1953, and it was only by reason of the stay orders that the bus was permitted to run.

When the appllant applied for renewal on April 15, 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated July 9, 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from July 1, 1954 to June 30, 1955.

It is: true that

195?'

V. Cc 1'. Bus Servi&1

Ltd.

-v.

Tr .. &givnal

Transport Authority, Coimbator1 - Ymkataramn

AY.Yar J.

Y. C. IC. Bus Sm;,.

Lit!.

T Iv Reginal

T 14n1port AMlhorily, Coi""'4tort

when the appellant applied again for renewal on March 19, 1955, the respondents did not raise objection thereto, but as the appeals in the High Court were still pending, they had good reason to believe that the renewal would not affect whatever rights might be declared in their favour by the High Court.

As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on June 23, 1955, it is impossible to resist the conclusion that he really intended to renew the permit only subject to the decision of the High Court.

It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal, and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under Rule 134-A read with s. 58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must hav•: considered that that was implicit in the fact of its being only a renewal.

That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.

But it is argued for the appellant on the strength of the decision in Veerappa Pillai v.

Raman & Raman Ltd.( 1) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional.

We do not read that decision as authority for any such broad contention. There, the question related to five permits, which had been originally granted to one Balasubramania.

Raman and Raman Ltd. obta1ried a transfer of the relative buses, and applied to the fransport authorities for transfer of the permits to itself.

Then, Veerappa having subsequently obtained a transfer of the same buses frnm Balasubramania,

(1) [1950) S.C.R. 583.

applied to have the permits transferred in his name.

On October 3, 1944, he also instituted a suit in the Sub.

Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on May 2, 1946.

Raman and Raman Ltd. appealed against this decision to the Madras High Court, which by its judgment dated September 2, 1949, reversed the decree of the Sub-Court and held that it was entitled to the buses.

While these proceedings were. going on, the transport authorities suspended on March 28; 1944, the permits which had been granted to B; ilambramania an<l instead, they were issuing temporary permits from time to time to Veerappa, who had been appointed receiver m the suit in the Sub-Court, Kumbakonam.

On March 29, 1949, the Government decided to disc'.:>ntinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits, to Veerappa. Then on October i4, 1949, Veerappa applied for renewal of _these permanent permits, and that was granted by the Regional Transport Authority on January 3, 1950.

The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Raman and Raman Ltd., that had obtained a valid title to the buses.

This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all' the facts, his decision was not liable to be questioned in proceedings under Art. 226.

It should be noted that the renewal which was granted on January 3, 1950, was of permanent permits granted in pursuance of the order of the Government dated March 29, 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa.

There can be no questi1>n of implying thereafter a condition that they were subject to the decision of the Court.

Moreover, the renewal was granted on January 3, 1950, after the litigation had ended on September 2, 1949, and any attack on that order could only be by

19~7

v. c. x. Bw Smlict

/; fi. v.

T!Y Stci01!Gl

Trtw~ ~. c.imballWf

V...,.,_11

..W•J

fg57

V. C. Ii. H?U Strvic1

Ltd.

" Tht Re-gionttl

Transport Au.tlwritJ Coimbatore

VuJoatarama

Ayy11r].·

February 1 g,

way of appeal against it, and that had not been done.

We are of opinion that the decision in Veerappa Pillai

v. Raman & Raman Ltd. ( 1 ) is of no assistance to the appellant.

In the result, we affitm the decision of the High Court bot,'1 on the gr.ound th3t the renewal dated June 23, 1955, is a continuation of the permit granted on December 3, 1952, and must fall to the ground when that stood finally set aside by the judgment of the High Court in Writ Appeal No. 32 of 1954 dated March 21, 1956, and on the ground that it was an implied condition of that renewal that it was to be subject to the decision of the High Court in that appeal, and that in the event which had happened, it had ceased to be effective.

These appeals fail, and are dismissed with costs in Civil Appeal No. 323 of 1956.

Apf!eals dismissed ..

ASGARALI. NAZARALI SINGAPORA WALLA

THE STATE OF BOMBAY

(BHAGWATI,

]AGANNADHAOAS,

JAFER

IMAM,

GOVINDA MENON and J. L. KAPUR JJ.)

Crirninal trial-Enactment providinK for speedy trial-Specified offences made tn'able only by Special fudges empotvcred td atvard heavier sentences-If violates equality' befo1'e the larv-Pendency of-

C.'iminal !.Aw Amendment Act, (XLVI of 1952)-Constitution of India, Art. 14.

The appeilant and four others were being tried before the Presidency Magistrate, Bombay for charges under s. 161 read with 116 and further read with s. 109 or s. 114 of the Indian Penal Code.

During the pendency of the trial the Criminal Law Amendment Act, 1952 (XLVI of 1952) was enacted by Parliament and came into force on July 28, 1952. The Act provided for , the trial of all offences punishable unc!er ss. 161, 165 or 165-A, of the Indian Penal Code, or sub-s. (2) of s. 5, of the Prevention of Corruption Act, 1947 exclusively by Special Judges and directed the transfer of all such trials pending on the date of the coming

(1) [1952] S.C.R. 583.

V. C. K. BUS SERVICE LTD

VENKATARAMA AYYAR. s. K. DAS

GAJENDRAGADKAR JJ.

Motor Vehicles Act

ss. 57, 58

Motor Vehicles Act

Central Road Traffic Board

State of Uttar Pradesh

s. 58

Art. 226

Supreme Court

Art. 226

s. 58

Madras High Court

A.V. Viswanatha Sastri

B.

Dadachanji

S.

Andley

Rameshwar Nath

C. K. Daphtary

R. Ganpathy Iyer

R. Gopalkrislman

High Court of Ma<lras

Art. 133

Motor Vehicles Act, 1939

Coimbatore

Madras

s. 57

December 3, 1952

Thondamuthur Trading Company Ltd.

V.C.K.

Bus Service

February 19, 1953

Stanes Transports Ltd.

Thirumalaiswami Goundar

s. 64

July 9, 1953

Annamalai Bus Transport Ltd.

High Court of Madras

Art. 226

Rajagopala Ayyangar

March 8, 1954

Rajamannar C.

Panchapakesa Ayyar

s. 64

V.C.K. Bus Service

Decemher 3, 1952

V.C.K.

Bus Service Ltd.

July 7, 1954

June 30, 1954

s. 57

September 5, 1954

July 1, 1954

June 30, 1955

March 19, 1955

s. 57

June 23, 1955

July 1, 1955

June 30, 1958

April 27, 1956

Art. 133(1)(c)

Annam:ilai Bus Transport Ltd.

tnkatarama

Ayya

Rajagopalan

Rajamannar

July 13, 1956

Art. 133

A. V. Viswanatha Sastri

ss. 57 and 58

July l, 1955

May 5, ~1956

Section 57

Section 58

section 62

K. Bus Servia

Ltd.

s. 58

s. 57

s. 58(2)

s. 58(1)

s. 2(2)

s. 64

s. 64

ss. 47, 57 and 58

Motor Vehicles Act

s. 64

Andhra High Cou_rt that

Motor Vehicles Act

V. C. K. Bus Service

V. C. K. Bus

May 5, 1956

Sastri

Parker

V. C. K.

April 15, 1954

s. 58

Balasubramania

Raman and Raman Ltd.

Veerappa

Balasubramania

October 3, 1944

Sub.

Court, Kumbakonam

Raman and Raman Ltd.

May 2, 1946

2, 1949

March 28; 1944

Sub-Court, Kumbakonam

March 29, 1949

October i4, 1949

January 3, 1950

Art. 226

September 2, 1949

V. C. Ii

March 21, 1956

ASGARALI. NAZARALI SINGAPORA WALLA

STATE OF BOMBAY

AGANNADHAOAS

JAFER

IMAM

GOVINDA MENON

J. L. KAPUR

Aw Amendment Act

Constitution of India

Art. 14

Presidency Magistrate, Bombay

s. 161 read with 116

s. 109

s. 114

Indian Penal Code

28, 1952

ss. 161, 165

Indian Penal Code

s. 5

Prevention of Corruption Act, 1947


fg57

V. C. Ii. H?U Strvic1

Ltd.

" Tht Re-gionttl

Transport Au.tlwritJ Coimbatore

VuJoatarama

Ayy11r].·

February 1 g,

SUPREME COURT REPORTS (i957]

way of appeal against it, and that had not been done.

We are of opinion that the decision in Veerappa Pillai

v. Raman & Raman Ltd. ( 1 ) is of no assistance to the appellant.

In the result, we affitm the decision of the High Court bot,'1 on the gr.ound th3t the renewal dated June 23, 1955, is a continuation of the permit granted on December 3, 1952, and must fall to the ground when that stood finally set aside by the judgment of the High Court in Writ Appeal No. 32 of 1954 dated March 21, 1956, and on the ground that it was an implied condition of that renewal that it was to be subject to the decision of the High Court in that appeal, and that in the event which had happened, it had ceased to be effective.

These appeals fail, and are dismissed with costs in Civil Appeal No. 323 of 1956.

Apf!eals dismissed ..

ASGARALI. NAZARALI SINGAPORA WALLA

THE STATE OF BOMBAY

(BHAGWATI,

]AGANNADHAOAS,

JAFER

IMAM,

GOVINDA MENON and J. L. KAPUR JJ.)

Crirninal trial-Enactment providinK for speedy trial-Specified offences made tn'able only by Special fudges empotvcred td atvard heavier sentences-If violates equality' befo1'e the larv-Pendency of-

C.'iminal !.Aw Amendment Act, (XLVI of 1952)-Constitution of India, Art. 14.

The appeilant and four others were being tried before the Presidency Magistrate, Bombay for charges under s. 161 read with 116 and further read with s. 109 or s. 114 of the Indian Penal Code.

During the pendency of the trial the Criminal Law Amendment Act, 1952 (XLVI of 1952) was enacted by Parliament and came into force on July 28, 1952. The Act provided for , the trial of all offences punishable unc!er ss. 161, 165 or 165-A, of the Indian Penal Code, or sub-s. (2) of s. 5, of the Prevention of Corruption Act, 1947 exclusively by Special Judges and directed the transfer of all such trials pending on the date of the coming

(1) [1952] S.C.R. 583.

S.C.R.

SUPREME COURT lU:PORTS 679

into force of the Act to. Special Judges.

The Presidency Magistrate continued the trial and acquitted the appellant.

Upon appeal by the State Government, the High Court held that from the date of the commencement of the Act the Presidency Magistrate lost all jurisdiction to continµe the trial and . ordered a retrial by the Special. Judge.

It was contended that the Act was void as it violated Art. 14 f the C:onstitution :\_nd consequently could not affect the jurisdicuon of the Presidency Magistrate to continue the trial.

Held, that the Act did not violate Art. 14 of the Constitution.

The Legislature classified the offences punishable under ss. 161, 165 or 165-A of the Indian Penal Code or sub-s. 2 of s. 5 of the Prevention of Corruption Act, 1947 in one group or category. They were offences relating to bribery or corruption by public servants and were appropriately classified in, one group of category.

The classification was founded on an intelligible differentia which distinguished the offenders thus grouped together from those left out of the group. This intelligible differentia had rational relation to the object sought to be achieved by the Act, the object being to provide for speedier trials of the said offences.

Bribery and corruption having been rampant nd the need for weeding them out having been urgently felt, it was necessary to enact thr measure for the purpose of eliminating all possible delay in bringing the offenders to book.

The State of Bombay v. F.

N. Balsara, (1951)

S.C.R. 682, Budhan Chowdhry and othe1s _v. The State of Bihar, ( 1955) S.C.R. 1945 an<l edar Nath Baioria '" The State of West Bengal, (1954) S.C.R. 30, applied.

There is no doubt that the case of the appellant was not concluded and was pending before the Presidency Magistrate on July 28, 1952, the date of the commencement of the Act.

The fact that .the Special Judge was not appointed until September 26, 1952, on which date the arguments for the prosecution and the defence were concluded did not affect the position.

Even if it be assumed that the Act did not effectively commence until the Special Judge was appointed by the notification of September 26, 1952, which came into effect immediately after the midnight of September 25, 1952, the trial of the appellant could not be said to have concluded before that, for a trial is not complete until either the sentence has been passed or the accused has been ordered to be discharged.

CRIMINAL

APPELLATE

}URISDICTION : Criminal Appeal No. 149 of 1954.

Appeal by special leave from the judgment and order dated October 20, 1953, of the Bombay High Court in Criminal Appeal No. 349 of 1953.

As1uali N u.orali

SintaJlorawalla .v.

Till Stat• of

Bomb41

Ngar4Ji N ar.arali

Sintapotawalla

T/,, Slateof

Bombtg

Bha,(toati J.

S. A. Desai and /. N. Shroff, for the appellant.

Porus A. Mehta and R.H. Dhebar, for the respondent. .

1957. February 19.

The Judgment of the Court was delivered by

BHAGWATI J.-This appeal with special leave under Art. 136 of the Constitution is directed against a judgment of the High Court of Judicature at Bombay setting aside the acquittal of the appellant by the Court of the Presidency M'lgistrate, 19, Court, Bombay and ordering his re-trid by the Court of the Special Judge, Greater Bombay in accordance with the provisions of the Criminal Law Amendment Act, 1952 (Act XL VI of 1952).

The appellant was accused No. 3 in the Court of the learned Presidency Magistrate.

Accused No. 1 was the Mehta in the employ of a firm called Messrs.

M. M. Baxabhoy & Co., accused No. 2 was the manager of the said firm.

The appellant, and accused Nos. 4 and 5 were Receivers of the firm in litigation in regard to it.

They were all charged with offences under s. 161 read with s. 116 and further read either with s. 109 or s. 114 of the Indian Penal COde for offering to one Jibhai Chhotalal Barot, a sub-inspector of police attached to the Anti-Corruption Branch of the C. I. D. the sum of Rs. 1,25,000 as illegal gratification other than legal remuneration as a motive or reward for his showing favour to the accused and to the firm M/s. M. M. Baxabhoy & Co., in the exercise of his official functions.

The offence was alleged to have been committed on July 28, 1950, and the accused were charge-sheeted on June 16, 1951 ; the trial commenced on July 14, 1951 and charges were framed on September 27, 1951. 40 witnesses were examined and 226 documents were exhibited in the course of the trial, and the prosecution closed its case on July 15, 1952.

During the course of the trial the Criminal Law Amendment Act, 1952 (XL VI of 1952) hereinafter called the impugned Act was enacted by Parliament

on July 28, 1952, being an Act further to amend the Indian Penal Code and the Code of Criminal Procedure, 1898 and to provide for a more speedy tri1l of certain offences, viz., offences punishable under s. 161, s. 165 or s. 165A of the Indian Penal Code or s:Jb-s. 2 of s. 5 of the Prevention of Corruption Act, 1947 (Act II of 1947) and any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified above.

The learned Presidency Magistrate proceeded with the trial and after the examination of the appellant under s. 342 of the Code of Criminal Procedure, the appellant filed his written statement on August 14, 1952.

The addresses commenced thereafter.

The prosecution commenced its address on August 26, 1952, ending it on September 5, 1952. The defence thertafter addressed the learned Magistrate.

In the meantime on September 23, 1952, the Gorernment of Bombay by a notification appointed a Special Judge to try offences specified above and this appointment was notifie, d in the Official Gazette on September 26, 1952.

The defence concluded its address on September 26, 1952 and the learned Presidency Magistrate delivered his judgment on September 29, 1952, whereby he convicted the Accused Nos. 1 and 2 of the offences with which they were charged and sentenced them each to nine months rigorous imprisonment and a fine of Rs. 1,000 in default 6 months' rigorous imprisonment.

He however acquitted the appellant and the accused Nos. 4 and 5 of these offences.

The accused No. 2 carried an appeal before the High Court of Bombay being Criminal Appeal No. 1304 of 1952.

The State of Bombay also thereupon filed an appea~ against the acquittal of the appellant and accused Nos. 4 and 5 being Criminal Appeal No. 349 of 1953.

In the memorandum of appeal in Criminal Appeal No. 349 of 1953 a point was taken that the leanml Presidency Magistrate had 110 jurisdiction to continue the trial and acquit the appellant and accused Nos. 4 and 5 as the same was ousted by the impugned Act. It was contended that since the date the said Act came into force the Special Judge alone

Asgarali Naara/i Sing.1pvrowa//a

\' The siate of Bombay

Bhagwati ].

itJ1arali Nr.z.arali

Singaporawillla v.

The Sttde of

Bomba..1

Bagwali J.

had jurisdiction to try the accused for the offence under s. 161 read with s. 116 of the Indian Penal Code, that the duty of the learned Presidency Magistrate was to transfer this case to the Court of the Special Judge for Greater Bombay, spec; aJly appointed to try such offences by the impug~1"<l Act and that the order of acquittal of the appe!'ant and accused Nos. 4 and 5 was therefore erroneous in law bting without jurisdiction.

Both these Criminal Appeals came up for hearing before a Bench of the Bombay High Court consisting of BavaJckar & Vyas TJ.

These appeals were heard only on the preliminary point as to the 1urisdiction of the learned Presidency Magistrate to try and decide the case.

In reply to the paint as to jurisdiction which had been taken by -the State of Bombay, the appellant and the accused Nos. 4 and 5 urged that the provisions of the impugned Act were violative of the principle of equal protection of laws contained in Art. 14 of the Constitution and therefore the impugned Act was ultra vires the Constitution.

If that was so, it was contended, the learned Presidency Magistrate had jurisdiction to continue the trial in spite of the commencement of the impugned Act and the order of acquittal of the appellant and accused Nos. 4 and 5 recorded by him was correct.

The learned judges of the High Court rejected this contention of the appellant and held that the impugned Act was intra vires and that the fearned Presidency Magistrate had no jurisdiction to try the case after the commencement of the impugned Act.

The learned Magistrate's order convicting the accused No. 2 and acquitting the appellant and the accmed Nos. 4 and 5 complained of by the State of Bombay was accordingly set aside.

Thi: High Court ordered a re-trial of the appellant and the other accused by the Court of the Special Judge, Greater Bombay, and remanded the case for disposal according to law.

The appellant applied to the High Court for a certificate under Art. 134 (I) ( c) of the Constitution which was however refused.

The appellant tb.ereafter -

applied for and obtained from this Court special leave to appeal against the judgment and or<ler passed by the J:-!.igh Court. This is how the appeal has come up for hearing and final disposal before_ us.

It will be convenient at this stage to set out the relevant provisions of the impugned Act.

As already noted the preamble to the Act stated that it was an Act further to amend the Indian Penal Code and the Code of Criminal Procedure, 1898, and to provide for a more speedy trial of certain offences.

Section 5 of the Act inserted sub-s. (2-B) in s. 337 of the Code of Criminal Procedure, 1898 and provided that in every case where the offence is punishable under s. 161 or s. 165 or s. 165-A of the Indian Penal Code or sub-s. (2) of section 5 of the Prevention of Corruption Act, 1947, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . then notwithstanding anything contained in sub-s. (2-A), the Magistrate shall, without making any further enquiry, send the case for trial to the Court of the Special Judge appointed under the impugned Act.

This amendment was to remain in force for a period of two years from the commencement of the impugned Act, but was subsequently incorporated in the Code of Criminal Procedure, 1898, as s. 337 (2-B) by s. 59 (b) of the Code of Criminal Procedure Amendment Act, 1955 (Act XXVI of 1955).

Section 6 of the Act provided for the appointment of Special Judges and empowered the State Governments by notific:ition in the Official Gazette to appoint as many Special Judges as may be necessary for such area or ;_lfeas as may be specified in the notification to try the following offences, namely :

(a) an offence punishable under s. 161, s. 165 or s. 165-A of the Indian Penal Code or sub-s. (2) of s. 5 of the Prevention of Corruption Act, 1947 ; and

(b) any conspir.acy to commit or any attempt to commit or any abetment of the offeaces specified m

cl. (a) above.

Section 6 (2) laid down the qualifications . for the appointment of a Special Judge and provided that a person shall not be qualified for appointment as a Special Judge under this Act unless he was or had been

As1ara/i Naara/i Singaporau, al/a

Th' Stal< of

Bombay •

Blin:wati J.

Aslatali N azarali

Singaporawalla

Th• Stau ef

Bomba)

Bhagwati ].

a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions J uJge under the Code of Criminal Procedure, 1898.

Section 7 of the Act is important and provided that notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law the offences specified in sub-s. ( l) of s. 6 shall be triable by special judges only.

Section 7(2) further provided that when trying any case, a Special Judge may also try any offence other than an offence specified in s. 6 with which the accused may, under the Code of Criminal Procedure, 1898 be charged at the same trial.

The procedure and powers of special judges were laid down in s. 6 of the Act.

A Special Judge was empowered to take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, he was to follow the procedure prescribed by the Code of Criminal Procedure, 1898 for the trial of warrant cases by magistrates.

A Special Judge was also empowered to tender a pardon to any person suppQsed to hal'e been directly or indirectly concerned in, or privy to, an offence on condition of his making a iull and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as a principal or abetter, in the commission thereof.

Save as above the provisions of the Criminal Procedure Code, 1898 were so far as they were not inconsistent with the Act made applicable to the proceedings before a Special Judge ; and for the purposes of the said provisions, the Court of the Special Judge was deemed to be a Court of Sessions trying cases without a jury or without the aid of assessors.

A Special Judge was empowered to pass upon any person convicted by him any sentence authorised by Jaw for the punishment of the offences of which such person was convicted.

Section 9 qf the , Act provided for appeal and revision and the High Court was to exercise as far as applicable all the powers conferred by Chapters

XXXI and XXXII of the Code of Crimihal Procedure, 1898 on the High Court, as if the Court of the Special Judge were a Court of Sessions trying cases without a jury within the local limits of the jurisdiction of the High Court.

Section 10 is also important and provided for the transfer of certain cases pending before magistrates.

It was laid down that all cases triable by a Special Judge under s. 7, which immediately beiore the commencement of the Act, were pending before any Magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases.

It is clear from the provisions of the impugned Act set out hereinabove that the intention of the legislature in enacting the same was to amend the Indian Penal Code and the Code f Crimjnal Procedure, 1898 with a view to provide for a more speedy trial of offences punishable under ss. 161, 165 or 165-A, of the Indian Penal Code or sub-s. (2) of s. 5 of the Prevention of Corruption Act, 1947.

Special Judges of the status of a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge were to be appointed for the purpose of trying these offences and these offences were made triable only by these Special Judges.

Not only were the special judges invested with the exclusive jurisdiction to try these offences but they were also empowered while trying any case involving these offences to try any offence other than those offences with which the accused may, under the Code of Criminal Procedure, 1898 be charged at the same trial. Committal proceedings were also done away with and the special Judges were empowered to t; ike cognizance of these offences without the accused being committed to them for trial and were empowered to try the accused persons

f the same by following the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by magistrates.

The courts of the Special Judges were deemed to be courts of Sessions trying cases without a• jury or without the aid of assessors and were also empowered to pass upon the persons convicted by them of any offence any sentence authorised by law for the punishment of such offences.

The powers of appeal and revision vested in the Hig_h Court were to be exercised as if the courts of Special Judges were the courts of sessions trying cases without a jury or without the aid of assessors within the local limits

Asgara/i N a:r.arali

Sin1aporawal/a

T lu State of

Bombay

Bhagwati J.

.1hgarali Nat.arali Singaparawalla v.

Tht State of

Bombay

Bhagwati J.

of the jurisdiction of the High Court.

The procedure for trial before the Special Judges was thus assimilated to that obtaining in the case of trial of the accused by the courts of sessions.

Having thus provided for the trial by Special Judges of these offences which would be triable by them after the commencement of the imimgned Act, the Act further provided for a transfer of cases falling within that category but pending before the magistrates.

It may be noted that the other provisions of the Act were prospective in operation and could not affect pending cases as such.

Provision had tl.i.erefore to be made for divesting the magistrates who hacl already taken cognizance of these cases, of jurisdiction to try the same any further and for the transfer of such pending cases to the special judges who were appointed under the Act.

The cases which were pending before the courts of sessions did not require to he so transferred because they would be tried by the procedure obtaining in the courts of sessions and nothing further required to be done.

The cases which were pending before the Magistrates however required to be transferred to the Special Judges because otherwise the Magistrates would continue to try the same and would have to commit them to the courts of sessions, they them.selves being unable to mete out the enhanced punishment which could be meted out to the accused on conviction.

The Committal proceedings were sought to be eliminated by the impugned Act and the Special Judges were empowered to try these cases as if they were courts of sessions trying cases without a jury or without the aid of assessors.

It was therefore provi<krl that cases falling under this category which were pending before the magistrates should on the commencement of the impugned Act be forwarded for trial to the special judges having .iurisJiction over such cases.

This provision was made -when these cases triable by the Special Judges under s. 7 of the Act were pending before the magistrates and the magistrates trying the same were ipso facto divested of the jurisdiction to try the same any further, the Special Judges appointed under the Act having been invested with exclusive

jurisdiction to try the same after the commencement of the Act.

If this was the position under the impugned Act it followed without anything more that the instant case which was pending before the learned Presidency Magistrate on July 28, 1952, which was the date of the commencement of the Act, could not proceed any further before him. By the operation of s. 7 of the impugned Act, the learned Presidency Magistrates was divested of jurisdiction to try it and whatever proceedings were continued before him after July. 28, 1952, were without jurisdiction and void.

The examination of the appellant under s. 342 of the Code of Criminal Procedure and the further proceedings by way of filing of the written statement and the ' arguments addressed by the prosecution as well as the defence were all without jurisdiction and so were the orders of conviction of the acused Nos. 1 and 2 and the acquittal of the appellant and the accused Nos. 4 and 5.

It was however contended by the learned counsel for the appellant before us that the provisions of the impugned Act were violative of the fundamental right enshrined in Art. 14 of th~ Constitution and were therefore ultra vires.

The respondents on the other hand urged that there was no classification at all and even if there was one, it was based on intelligible differentia and had a rational relation to the object sought to be achieved.

The provisions of the impugned Act in substance amended the Indian Penal Code and the Code of Criminal Procedure, 1898 pro tanto making the specified offences triable by special judges and all persons who committed these offences became punishable by higher sentences and were subjected to procedure for trial of warrant cases, the courts of the special judges being deemed to be courts of sessions trying cases without a jury or without the aid of assessors.

It can therefore be legitimately llrged that there was no classification at all, the provisions thus enacted being equally applicable to all citizens alike without any discrimination whatever.

Asgarali N aarali

Singaporawalla v.

The State of Bombay

Bhagwali J.

Asgarali Naarali

Singaporawalla v.

Tiu Stale of Bombay

Ehagwoli J.

SUPREME COURT REPQRTS [1957]

The matter was however argued before the High Court and also before us on the basis that the offenders who committed these specified offences formed a group or category by themselves and were classified as distinct from the offenders who committed the other offences under the Indian Penal Code. Vv e do not want to express any opm10n as to whether there is any classification discernible within the provisions of the impugned Act, but will proceed to deal with this aspect of the question on the assumption that there was such a classification intended to be made by the Legislature while en.acting the impugned Act.

The principles underlying Art. 14 of the Constitution have been completely thrashed out in the several decisions of this Court ere this.

The earliest pronouncement of this Court on the meaning and scope of Art. 14 was made in the case of Chiranjit Lal Chowdhury v.

The Union of India(').

The principles enunciated 111 that case were summarized by Faz! Ali J. as follows m The State of Bombay v. F. N. Balsara('):

"(1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understinds and correctly appreciates the needs of its own people, that its law are. directed to problems made manifest by experience and its discriminations are based on adequate grounds.

(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.

(3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.

(4) The principle doe.< not take away from the State the power of classifying persons for legitimate

purposes.

(1) [1g50] S.C.R. p. 869.

(2) [t951] S.C.R. 680, at p. 7o8.

(5) Every classification 1s m some degree likely to produce some inequality, and mere production of inequalit}C is not enough.

(6) If a law deals equally with members of a welldefined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.

(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."

The latest pronouncement on this topic is to be found in the judgment of this Court in the case of Budhan Chaudhry and Others v. The State of Bihar(1) where it was observed as follows :

"The provisions of Art. 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal Chowdhury v.

The Union of India (supra), The State of Bombay v. F. N.

Balsara (supra), The State of West Bengal v. Anwar Ali SarkarC'), Kathi Raning Rawat v.

The State of Saurashtra( 3), Lachmandas Kewalram Ahuja v. The State of Bombay ( ~), Syed Qasirn Razvi v. The State of H yderabad ( 5) and Habeeb Mohamad v. The State of Hyderabad(6 ).

It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question.

It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification .for the purposes of legislation.

In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that clifferentia must have. a rational relation to the ohject sought to be achieved

(1) [1955] 1 S.C.R. 1045 at p 10+8.

(2) [,1952] S.C.R. 284.

(3) [1952) S.C.R. 435. 7-79 S. C, India/59

Ci) [1952] S.C.R. 710. (Sl [1953] S.C.R. 589.

(6) [1953] S.C.R. 661.

Asgarali N aarali

Singaporawal/o v.

The State of

Bomba7

Bhagwati].

.AJ1arati Na:arali

Singaporawalla

Th~ Stat1 of

&mba:J

BhazawaJi ].

by the statute in question.

The classification may be founded on a different base, namely, geographical, or according to objects or occupations or the like.

What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

It is also well-established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure".

We have to scrutinize the provisions of the impugned Act in the light of the principles enunciated above.

The first question which we have to address to ourselves is whether there is in the impugned Act a reasonable classification for the purposes of legislation. • It we look to the provisions of the impugned Act closely it would appear that the legislature classified the offences punishable under ss. 161, 165 or 165-A of the Indian Penal Code or sub-s. 2 of s. 5 of the Prevention of Corruption Act, 1947 in one group or category.

They were offences relating to bribery or corruption by public servants and were thus appropriately classified in one group or category.

The classification was founded on an intelligible differentia which distinguished the offenders thus grouped together from those left out of the group.

The persons who committed these offences of bribery or corruption would form a class by themselves quite distinct from those offen11ers who could be dealt with by the normal provisions contained in the Indian Penal Code or the Code of Criminal Procedure, 1898 and if the offenders falling within this group or category were thus singled out for special treatme, n.t, there would be no question of any discriminatory treatment being meted out to them as compared with other offenders who did not fall within the same group or category and who continued to be treated under the normal procedure.

The next question to consider is whether this differentia had a rational relation to the object sought to be ac; hieved by the impugned Act. The preamble of the Act showed that it was enacted for providing a more speedy trial of certain offences.

An argument was however addressed before us based on certain

observations of Mahajan J. (as he then was) at page 314, and Mukherjea J. (as he then was) at p. 328 in Anwar Ali Sarkar's Case( 1 ) quoted at page 43 by Patanjali Sastri C.J. in the case of Kedar Nath Baioria

v. The State of West Bengal ( 2 ) that the speedier trial of offences could not afford a reasonable basis for such classification.

Standing by themselves these passages might lend support to the contention urged before us by the learned counsel for the appellant.

It must be noted, howevei;, that this ratio was not held to be conclusive by this Court in Kedar Nath Bajoria's Case( 1 )

where this Court held :

" ( 1) That when a law like the present one is impugned on the ground that it contravenes art. 14 of the Constitution the real issue to be decided is whether, having regard to the underlying purpose and policy of tl1e Act as disclosed by its title, preamble and provisions, the classification of the offences for the trial of which the Special Court is set up and a special procedure is bid down can be said to be unreasonable or arbitrary and therefore violative of the equal protection clause ;

(2) having regard to the fact that the types of offences specified in the Schedule to the Act were very common and widely prevalent during the post war period and has to be checked effectively and speedily tried, the legislation in que; tion must be regarded as having been based on a perfo:tly intelligent principle vf classification, having a clear and reasonable relation to the object sought to be achic1ed, and it did not in any way contravene art. 14 of tbe Constitution."

In the instant case, bribery :ind corruptio1t having been rJmpant and th<' need for weeding them out having been urgently fdt, it was necessary to enact measures for tbe pu rpo'e of elimimting all possible deby in bringing the offenders to book.

It was with that tnd i11 \ iew that provisions were enacted in the impugned Act for speedier trial of the said offences by the appointment of special judges who were invested 1\ith exclusive jurisdiction to try the same and were also empowered to take cognizance thereof without the

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

(2) (195i] S.C, R. 30. flg

Astarali N azarali

Singaporawal!a

v, TM State of Bombay

BhagwatiJ.

Asgarali NtJJ:atali

Sinzaporawalla

TllL Slate of

Boml>tJ.1

8hapali J.

accused being committed to them for trial, and follow the procedure prescribed for the trial of warrant cases by magistrates.

The proceedings before the Special Judges were thus assimilated to those before the courts of sessions for trying cases without a jury or without the aid of assessors and the powers of appeal and revision invested in the High Court were also similarly circumscribed.

All these provisions had the necessary effect of bringing about a speedier trial of these offences and it cannot be denied that this intelligible differentia _ had rational relation to the object sought to be achieved by the impugned Act.

Both these conditions were thus fulfilled and it could not be urged that the provisions of the impugned Act were in any manner violative of art. 14 of the .COnstitution.

It wa! next contended that even if the impugned Act was intra vires, the lerned Presidency Magistrate trying the case of the appellant was not divested of jurisdiction to try the same after the commencement of the impugned Act and the acquittal of the appellant recorded by him could not be set aside.

Reliance was placed upon s. 10 of the impugned Act in support of this contention.

It was urged that even though the case related to the offence mentioned ins. 6(1) of the Act and was thus triable exclusively by the Special Judge, no Special Judge was appointed by the State Government by notification in the Official Gazette until September 26, 1952, that the arguments were concluded and the trial c3me to an end also on September 26, 1952 and the only thing which remained to be done thereafter was the pronouncement of the judgment by the learned Presidency Magistrate and that therefore even . though the case may be deemed to have been pending before the learned Magistrate there was no occasion for forwarding the same for trial to the Special Judge appointed by the State Government on September 26, 1952.

We do not accept this contention.

It cannot be denied that on July 28, 1952, the date of the commencement of the impugned Act the case of the appellant was pending before the learned Presidency Magistrate.

On that day .the prosecution had closed its case and

the appellant had not yet been called upon to enter upon his defence.

The examination of the appellant under s. 342 of the Code of Criminal Procedure took place after th!i.t date.

The appellant filed his written .statement on August 14, 1952 and the addresses by the prosecution as well as the defence continued right up to September 26, 1952.

The word "pending" is thus defined in Stroud's Judicial Dictionary, 3rd Edition, Vol. III, p. 2141 :

 PENDING :-(1) A legal proceeding is "pending" as soon as commenced and until it is concluded, i.e., so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein.

Similar are the observations of Jessel, M. R. fo re Clagttt's Estate, Fordham v. Clagett ( 1):

"What is the meaning of the word "pending" ?

In my opinion. it includes every insolvency in which any proceeding can by any possibility be taken.

That I think j5 the meaning of the word "pending" ..... .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . A cause is said to be pc:nding in a Court of justice when any proceeding can be taken in it.

That is the test." There is no doubt therefore that the case of the appellant was not concluded and was pending before the learned Presidency Magistrate at the date of the commencement of the impugned Act.

We were however told that as many as 40 witnesses had been examined and 226 documents exhibited in the course of the trial before the learned Presidency Magistrate and it could not have been intended by the Legislature when enacting s. 10 of the impugned Act that a case where everything had been finished except the addresses and the pronouncement of the judgment should be forwarded for trial before the Special Judge appointed under the Act.

The fallacy underlying this argument is that on July 28, 1952, when the impugned Ac_t came into operation the trial even in the restricted sense of the term had not been concluded.

The prosecution had closed its case but the appellant

(1) (1882) 20 Ch. D. 637 at p. 653.

Asgarali N aurali

Sin1aportiwall•

Tltt Stat1 of

Bombay

t957

Asgarali N ai:arali

Singapora:waalla

The State of

Bomay

BhafWali ].

had yet to enter upon his defence and lead evidence, if any, in reply to the case set up by, the prosecution.

The same was the position even on September 26, 1952, when by a notification in the Official Gazette the Special Judge was appointed having jurisdiction over such cases.

The notification came into operation from the commencement of September 26, 1952, which was immediately after the mid-night of September 25, 1952 and the defence address had n6t concluded by this time but was continued when the learned Presi-· dency Magistrate's Court assembled at 11 a. m. on September 26, 1952 and was concluded thereafter.

The word "trial" is also defined in Stroud's Judicial Dictionaty, 3rd Edition, Vol. IV, at page 3092 : TRIAL: (1) A "trial" is the conclusion, by a competent tribunal, of questions in issue in legal proceedings whether civil or criminal. (2) The "trial" (Criminal Justice Act, 1948 (11 & 12 Geo. 6. C. 58) s. 23 (1) is not complete until sentence has been passed or the offender has been ordered to be discharged (R. v. Grant (1951) 1 K. B .. 500).

The trial of the appellant therefore could not be said to have been concluded on July 28, 1952 and even on the September 26, 1952, assuming for the sake of argument that the effective commencement of the impugned Act could not be said to have come about until the Special Judge was appointed by the State Government bv notification in the Official Gazette.

This contentio~ of the appellant therefore is in any event devoid of substance.

We are aware that in cases like the present one, the provisions containecl in s. 10 of the impugned Act would work to the prejudice of the appellant in that he would be subjected to a re-trial before the Special Judge having jurisdiction over the case involving a re-hearing of the whole casewith 40 witnesses to be examined and 226 documents to be exhibited.

The time which would have to be spent, the anxiety which the appellant would have to undergo, the expenses which he would have to make in the matter of his defence by competent counsel and the possibility which he would have to face of the Special Judge trying the same coming to a conclusion different

' '

S.C.lt

SUPREME COURT REPORTS 695

from the one which was reached by the learned Presidency Magistrate are all considerations which would have made us consider his case very sympathetically and try to find out ways and means whereby he would be saved these troubles and tribulations.

The words of s. 10 of the impugned Act however are very clear and categorical and are not capable of being construed in any other manner except that all cases triable by the Special Jutlgcs which were pending immediately before the commencement of the impugned Act before any magistrate must be forwarded for trial to the Special Judge having jurisdiction over such cases, the magistrates having cognizance of the same and trying them being divested of jurisdiction to proceed further with the trial thereof immediately after the commencement of the Act.

The only persons who were invested with jurisdiction to try these cases after the commencement of the impugned Act were the Special Judges having jurisdiction o\'er the same and whatever was done by the magistrates thereafter was without jurisdiction and void.

The case of the appellant is unfortunate.

For ought we know the Special Judge trying him would acquit him of the offence with which he has been charged in the same manner as the learned Presidency Magistrate himself did, but there is no escape from the fact that he will have to face a re-trial and undergo the expenses and anxiety in defending himself over again.

We have therefore come to the conclusion that the order for re-trial of the appellant made by the High Court was correct and the appeal must be dismissed.

We hope and trust that the re-trial before the Special Judge will be conducted with all possible dispatch and the trial will be concluded as early as possible.

The appeal will accordingly stan<l dismisse<l.

Appeal dismissed.

Asgarali Jla-tarllll

Sin1ap•r0111alla

"· Thi Slate •f

Bomb9

Bhagwali].

March 21, 1956

ASGARALI. NAZARALI SINGAPORA WALLA

THE STATE OF BOMBAY

BHAGWATI

IMAM

GOVINDA MENON

L. KAPUR JJ.

Aw Amendment Act

Constitution of India

Art. 14

Presidency Magistrate, Bombay

s. 161 read with 116

s. 109

s. 114

Indian Penal Code

Parliament

July 28, 1952

ss. 161, 165

Indian Penal Code

s. 5

Prevention of Corruption Act, 1947

Art. 14

Art. 14

ss. 161, 165

Indian Penal Code

s. 2

s. 5

Prevention of Corruption Act, 1947

State of West Bengal

September 25, 1952

As1uali N

S. A. Desai

N. Shroff

Porus A. Mehta

R.H. Dhebar

BHAGWATI

Art. 136

Mehta

M. M. Baxabhoy

s. 161

s. 116

s. 109

s. 114

Indian Penal COde

Jibhai Chhotalal Barot

M. M. Baxabhoy & Co.

July 28, 1950

June 16, 1951

July 14, 1951

September 27, 1951

July 15, 1952

Indian Penal Code

Code of Criminal Procedure, 1898

s. 161

s. 165

s. 165A

Indian Penal Code

s. 2

s. 5

Prevention of Corruption Act, 1947

s. 342

Code of Criminal Procedure

August 14, 1952

Gorernment of Bombay

September 29, 1952

High Court of Bombay

State of Bombay

Asgarali Naara

s. 161

s. 116

Indian Penal Code

Bombay High Court

BavaJckar

Vyas

Art. 14

Art. 134

Indian Penal Code

Code of Criminal Procedure, 1898

Section 5

s. 337

Code of Criminal Procedure, 1898

s. 161

s. 165

s. 165

Indian Penal Code

section 5

Prevention of Corruption Act, 1947

Code of Criminal Procedure, 1898

s. 337

s. 59

Section 6

s. 161

s. 165

s. 165

Indian Penal Code

s. 5

Prevention of Corruption Act, 1947

Section 6

Aslatali N azarali

Singaporawalla

Section 7

Code of Criminal Procedure, 1898

s. 6

Section 7(2)

s. 6

Code of Criminal Procedure, 1898

s. 6

Code of Criminal Procedure, 1898

Section 9

Code of Crimihal Procedure, 1898

Section 10

s. 7

Indian Penal Code

ss. 161, 165

Indian Penal Code

s. 5

Prevention of Corruption Act, 1947

Code of Criminal Procedure, 1898

Code of Criminal Procedure, 1898

Bhagwati

s. 7

s. 7

July. 28, 1952

s. 342

Code of Criminal Procedure

Art. 14

Indian Penal Code

Code of Criminal Procedure, 1898

Bhagwali

Ehagwoli

Indian Penal Code

Art. 14

Art. 14

Faz! Ali

Art. 14

article 14

[1955] 1 S.C.R. 1045

Asgarali N aarali

article 14

ss. 161, 165

Indian Penal Code

s. 2

s. 5

Prevention of Corruption Act, 1947

Indian Penal Code

Code of Criminal Procedure, 1898

Mahajan

Mukherjea

Anwar Ali Sarkar

Patanjali Sastri

Kedar

Kedar Nath Bajoria

art. 14

art. 14

Astarali N azarali

art. 14

s. 10

September 26, 1952

s. 342

Code of Criminal Procedure

Stroud

Jessel

s. 10

Asgarali N aurali

Asgarali N ai:arali

Singapora:waalla

State of

Bomay

BhafWali ].

Criminal Justice Act, 1948

s. 23

s. 10

s. 10


SUPREME COURT REPORTS

RAGHUBANSH LAL

ti.

THE STATE OF U. P.

[1957]

(JAGANNADHADAS,

JAFER

IMAM, Gov1NDA MENON and

J. L. KAPUR JJ.)

Criminal Trial-Knowingly forniing record in incorrect tna1111er -Intention to cause loss or injury-Indian Penal Code, s. 218.

1"hc appellant, being a Patwari, was found to have made an incorrect entry regarding possession over certain disputed plots in the khasra for the year 1358 F, and was eonvieted under s. 218 of the Indian Penal Cod< .•

Held, that in order to sustain a conviction undc.r s. 218 of the Indian Penal Code it is not sufficient that the entry is incorrect, it is essential that the entry should have been made with intent to cause, or knowing it to be likely to cause, loss or injury to some person. The incorrect entry in regard to the year 1358 F. could not cause any loss to the complainant a~ alleged in the charge, because when the entry was alleged to be made the case under s. 145 of the Criminal Procedure Code had already been decided and it could not confer hereditary tenancy on the person recorded to be in occupa1ion in the year 1358 F. as s. 16 of the U.P. Zamindari Abolition and Land Reforms Act benefited persons recorded to be in possession in the year 1356 F. and not the year 1358 F.

CRIMINAL

APPELLATE Jua1so1cT10N: Crimir.al Appeal No. 94 of 1955.

Appeal by special leave from the judgment and order dated September 7, 1954, of the Allahabad High Court in Criminal Appeal No. 647 of 1952 arising out of the judgment and order dated June 7, 1952, of the Court of Sessions Judge at Ghazipur in .S. T. No. 11 of 1952.

H. /. U mrigar, for the appellant.

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

1957. February 20.

The Judgment of the Court was delivered by

KAPUR J.-This is an appeal by Special leave under Art. 136 of the Constitution of India against the J udgment of the Allahabad High Court confirming the conviction of the Appellant Raghubansh Lal under s. 218 of the Indian Penal Code.

The offence for which the appellant was tried was, that being a Patwari of village Arazi Mafi Pandai and thus a public servant, he "framed the khasra of 1358 F in respect of plots Nos. 170 and 74/1 of village Arazi Mafi Pandai", which he knew "to be incotrect with intent to cause or knowing to be likely that he would thereby cause an undue loss to Smt. Mahura Kunwar."

The facts out of which this appeal has arisen are these.

Two brothers, Mahadeo and Sahdeo, who were members of a joint Hindu family owned certain plots of land.

Mahadeo died leaving a widow Basera Kunwar, a son Damodar Pande and a daughter Mahura Kuer.

Sahdeo died leaving a widow Sundra Kuer.

On the death of Damodar Pande, one Ram Sewak Pande brought a suit against Smt.

Besera Kunwar and Smt. Sundra Kuer for possession of zamindari property including sir and sayar left by Damodar Pande which was dismissed.

On the death of Basera Kunwar, Adit Pande son of Ram Sewak and one Ganga Pantle got their names mutated in regar'.i

to this property.

Smt. M:i.hura Kuar then brought a suit for possession of the estate left by Smt. Basera Kunwar against Adit Pande and Ganga Pande which was decreed on August 1, 1941.

On May 31, 1943, Smt. Mahura Kuar obtained possession through Court of this estate which included the two plots Nos. 170 and 74/1.

On February 25, 1950, Mahura Kuer made an application to the Sub-Divisional Magistrate for taking proceedings under s. 145 of the Criminal Procedure Code against Adit Pande and Ganga Pande. The Magistrate ordered the attachment of the land including the two plots Nos. 170 and 74/1, and it is alleged that possession of these two plots was given to Shubh Karan as sapurdar or custodian.

The property remained under attachment from March 15; 1950, to December 18, 1950, which would comprise a part of 1357 F and a pan of 1358 F.

On December 18, 1950, the proceedings taken by the Magistrate ended in favour of Mahura Kuar with the finding that ' her possession had been established.

Adit Pandc and Ganga Pande were restrained from

Raghuhansh Lal v.

The State of U.P.

Kapur J.

R•1huhan.sh Lal v.

T Ill 31at1 of U. P.

interfering with the possession of the lady ; and it was ordered that the attachment should end and the possession of the plots of land in dispute be handed back to Smt. Mahura Kuer.

The opposite party took a revision to the District Magistrate which was dismissed on March 28, 1951, and it is alleged that actual possession was delivered in April, 1951.

From December 1950 to April 1951, the delivery of possession remained stayed under the District Magistrate's order.

On July 31, 1951, Smt. Mahura Kuar filed the present complaint in the Court of the Judicial Magistrate at Ghazipur under s. 218 of the Indian Penal Code against the present appellant in which after reciting the various relevant facts she alleged that the accused who was a Patwari of the village had deliberately made wrong entries in regard to the plots Nos. 170 and 74/1 and in the remarks column had entered the name of Adit Pande as being in possession, and thus he had committed an offence under s. 218 of the Indian Penal Code.

The case was committed to the court of Session where in support of the prosecution Smt. Ma.hura Kuar herself appeared as witness No. 1 and her case was supported by two other witnesses, namely, Gouri Shankar P.W. 2 and Naresh P.W. 3.

The accused produced in defence Adit Pande, D.W. I and Ram Swamp D.W. 2.

The accused's pita in the Sessions Court was that he had come to know from Shubh Karan Chowkidar that Smt. Mahura Kuar had won the case under s. 145 of the Criminal Procedure Code, but in spite of the order of the Magistrate he found the possession "on the spot" to be of Adit Panek, that he did not act according to the order of the Magistrate because he did not receive any such order and that he did not find Smt.

Mahura Kuar in whose favour the order was passed by the Magistrate to be in actual possession.

The learned trial court found that the accused had made incorrect entries knowing them to be incorrect with intent to cause "gain to Adit Pande and loss to Smt.

Mahura Kuar".

He, therefore, convicted the accused and sentenced him to one year's rigorous

imprisonment and a fine of Rs. 200 or in default 4 months rigorous imprisonment.

The High Court confirmed the trial court's decision on the ground that the delivery of possession to the complainant Smt. Mahura Kuar was proved by the statements of the lady herself and of 'GauriShankar' and Naresh Gadaria, who had supported the statement of Mahura Kuar and had deposed that Shubh Karan sapurdar had sown barley in one field and paddy in the other and that actual physical possession was delivered to her in April 1951.

On a consideration of the evidence the High Court held that the entries were incorrect and had been made with a view to injure Mahura Kuar. !

Rule 60 of the U.P. Land Records Manual deals with the preparation of Khasras.

The form of the khasra contains columns showing the name of the cultivator, the name of the sub..tc:nant or tenants and entries relating to crops etc.

The rule requires that the entries shall be: made in accordance with the actual facts and provides that the Patwari is responsible for all entries and he must satisfy himself of the facts by inquiry from the persons concerned as well as by field inspection and complete the khasra by April 30th.

In the remarks column-and this is shown by the order of commitment-the entry of the years 1357 F and 1358 F was "qabiz badastur" (possession as before). In coming to the finding of incorrectness of the entries in the k.hasra with intent to cause injury to Smt. Mahura Kuar, the Courts below have taken into consideration the proceedings under s. 145 of the Criminal Procedure Code. Although the finding of the Magistrate in rhose proceedings was in favour of Smt. Mahura Kuar, the land in dispute had been attached and had been given for cultivation to Shubhkaran Chowkidar, and even according to the prosecutiQn case the actual physical possession did not pass to Smt. Mahura Kuar till April

1951. The sapurdar, Shubhkaran, himself has not been examined as a witness, may be due to the then existing dispute between Mahura Kuar and Shubhkaran as to the produce of the land in dispute for the period of his cwtodianship.

Even though the possession of the

Razhubansh Lal v.

Tiii Stat1 of U.P.

Irajnir J.

Ra1.hub<1ns/i Lal

TM Stat1 of U. P.

ll"apur ].

disputed plots is stated to have been given to the complainant in April 19.il, she was not in actual physical passession before that date, i.e., during the period the land was under attachment.

For the purposes of this case, the prosecution had to prove:-

(!) that the accused knowingly framed the record ii1 an incorrect manner ; an<l

(2) that the accused did this with the intent to cause or with the knowledge that he would thereby cause loss or injury to the public or to Smt.

Mahura Kuar.

It is true that the High Court found that the accused knew of the litigation between Mahura Kuar and Adit Pande ond in spite of this he had made an incorrect entry.

But in order to sustain the conviction it is not sufficient that the entries are incorrect, it is essential that the entry should have been made with the intention mentioned in s. 218 of the Indian Penal Cock.

Direct evidence proving the necessary intention is, in this case, lacking and the circumstantial evidence is too meagre to support any safe conclusion as to the intention with which the appellant madr the entry complained of.

His case was that the sapurdar, Shubhkaran, never got possession from Adit Pande.

Shubhkaran ws not a witness, may be for the reason already stated, and it was contended that in the absence of the testimony of Shubhkaran the case of the prosecution cannot be held to have been proved at least it is not free from doubt.

But the courts below have considered this fact and taking all the circumstances into consideration have held in favour of the complainant on the question of possession.

The question still remains whether the incorrect entries were made with the intent to cause or knowing it to be likely that the accused will thereby cause loss or injury to the complainant.

It is difficult to sec how any wrong entry in regard to the year 1358 F. could cause any loss to the complainant.

In this case the intention has to be gathered from the act of the accused.

The entry could not have been intended tp creiH• evidence for being used against the complainant

in the proceedings under s. 145 Criminal Procedure Code, because according to the evidence on the record the entries were made somewhere in March and this could not have helped Adit Pande, as the magistrate had already decided the proceedings under s. 145 Criminal Procedure Code in December 1950, and had ordered possession to be delivered to the complainant ; and, therefore, this entry could not affect the result of the proceeding under s. 145 Criminal Procedure Code.

Mr. Mathur founded his case also on s. 16 of the

U.P.

Zamindari Abolition and Land Reforms Act, (U.P. Act I of 1951), which provided that a person, who was recorded as an occupant of the land for the year 1356 F and who, on the date mentioned in the section was in possession of the land, shall be deemed to be a hereditary tenant of the land.

But the entry complained of is not for the year 1356 F but for the year 1358 F, and this entry would not have been of any avail to Adit Pande for the purposes of s. 16 of the Zamindari Abolition Act.

In the circumstances of the case it cannot be said that an offence under s. 218 has been committed by the appellant a§ in our opinion the prosecution has failed to prove the necessary criminal intention.

In these circumstances, we would allow the appeal, set aside the order of conviction and acquit the accused.

As a consequence the bail bond shall stand cancelled.

Appeal allowed.

BHA TN AGARS AND CO. LTD.

THE UNION OF INDIA

(and connected petitions)

S. R. DAs C.J.,

VENKATARAMA

AYYAR, B. P.

SrNHA, S. K. DAs and GAJENDRAGADKAR JJ.)

Import and Export, Control of-Soda ash, if can be imported tuithout licence-Issue of licence, if amounts to delegated legislation- Trafficking in licence-Confiscation of consignments and seizure of licence by Sea Cu; toms Authorities-Issue of Writs-Policy Statement

R•zhub•nsh Lal v.

Tiu Stat1 of U.P.

Kapur].

F1lruary 21

RAGHUBANSH LAL

THE STATE OF U. P

JAGANNADHADAS

IMAM

Gov1NDA MENON

L. KAPUR JJ.

s. 218

s. 218

s. 218

Indian Penal Code

s. 145

s. 16

G. C. Mathur

C. P. Lal

KAPUR

Art. 136

Constitution of India

Allahabad High Court

Raghubansh Lal

s. 218

Indian Penal Code

Arazi Mafi Pandai

Mahura Kunwar

Mahadeo

Sahdeo

Mahadeo

Basera Kunwar

Damodar Pande

Mahura Kuer

Sahdeo

Sundra Kuer

Ram Sewak Pande

Besera Kunwar

Adit Pande

Ram Sewak

Ganga Pantle

i.hura Kuar

Ganga Pande

August 1, 1941

May 31, 1943

Mahura Kuar

February 25, 1950

Sub-Divisional Magistrate

s. 145

Shubh Karan

March 15; 1950

December 18, 1950

Adit Pandc

March 28, 1951

July 31, 1951

s. 218

Indian Penal Code

s. 218

Indian Penal Code

Ma.hura Kuar

Gouri Shankar

Naresh

Adit Pande

Ram Swamp

Shubh Karan Chowkidar

s. 145

Mahura Kuar

GauriShankar

Naresh Gadaria

Shubh Karan sapurdar

s. 145

Shubhkaran Chowkidar

Shubhkaran

s. 218

Shubhkaran

s. 145

Criminal Procedure Code

s. 145

Criminal Procedure Code

s. 145

Criminal Procedure Code

Mathur

s. 16

s. 16

s. 218

BHA TN AGARS AND CO. LTD

UNION OF INDIA

S. R. DAs

VENKATARAMA

AYYAR

B. P.

SrNHA

S. K. DAs

GAJENDRAGADKAR

Import and Export, Control of-Soda ash