April !I

SUFREME COURT REPORTS

R.M.D.CHAMARBAUGWALLA

THE UNION OF INDIA (with connected petitions)

[1957]

(S. R.

DAS C.J., VENKATARAMA AYYAR, B. P. SINHA, S. K. DAs and P. B. GAJENDRAGADKAR JJ.)

Prize Competition-Definition-Construction-If includes competition other than of a gamOling nalure-Validity of enactment -Principle of setJerability-Application-Prize Competitions Act, ( 42 Of J955), SS. 2(J), 4, 5, TT. Jl, J2.

The petitioners, who were promoting and conducting prize compet1tJ.ons in the different States of India, challenged the constitutionality of ss. 4 and 5 of the Prize Competitions Act ( 42 of 1955) and rr. II and 12 framed under s. 20 of the Act. Their contention was that 'prize competition' as defined in s. 2( d) of the Act included not merely competitions that were of a gambling nature but also those in which succ.css depended to a substantial degree on skill and the sections ad the rules violated their fundamental right to carry on business, and were unsupportable under Art. 19(6) of the Constitution, that they constituted a single inseverable enactment and, consequently, must fail entirely.

On behalf of the Union of India this was controverted and it was contended that the definition, properly construed, meant and included only such competitions as were of a gambling nature, and even if that was not so, the impugned provisions, being severable in their application, were valid as regards gambling competitions.

Held, that the validity of the restrictions imposed by ss. 4 and 5 and rr. 11 and 12 of the Act as regards gambling competitions was no longer open to challenge under Art. 19( 6) of the Constitution in view of the decision of this Court that gambling did not fall within the purview of Art. 19(1)(g) of the Constitution.

The S!Ote of Bombay v. R. M. D. Chamarbaugwala, (1957) S.C.R. 87 4, followed.

On a proper construction there could be no doubt that the Prize Competitions Act ( 42 of 1955), in defining the word 'prize competition' as it did in s. 2(d), had in view only such competitions as were of a gambling nature and no others.

In interpreting an enactment the Court should ascertain the intention of the legislature not merely from a literal meaning of the words used but also from such matters as the history of the legislation, its purpose and the mischief it seeks to suppress.

The Bengal Immunity Company Limited v. The State of Bihar and others. (1955) 2 S.C.R. 603, referred to.

Even assuming that. prize competition as defined by s. 2( d) 1937 of the Act included not merely gambling competitions but also R.M. D. CharM• others in which success depended to a considerable degree on skill, baugwal/a the restrictions imposed by ss. 4 and 5 and rr. 11 and 12 of the v.

Act were clearly severable in their application to the two distinct The Union 1if fndi.l and separate categories of competitions and, consequently, could not be void as regards gambling competitions.

The principle of severability is applicable to laws enacted by legislatures with limited powers of legislation, such as those in a Federal Union, which fall partly within and partly outside their legislative competence, where the question arises as to whether the valid can be separated from the invalid parts and that is a question which has to be decided by the Court on a consideration of the entire provisions of the Act.

There is, however, no basis for the contention that the principle applies only when the legislature exceeds its powers as regards the subject-matter of legislation and not when it contravenes any constitutional prohibitions.

Jn re Hindu Women's Rights to Property Act, (1941) F.C.R. 12, The State of Bombay and another v. F. N. Balsara, (1951) S.C.R. 682, and The State of Bombay and another v. The' United Motors (India) Ltd. and others, (1953) S.C.R. 1069, relied on.

Punjab Province v. Daulat Singh and others, (1946) F.C.R. 1, Ramesh Thappar v. State of Madras, (1950) S.C.R. 594 and Chintaman Rao v. State of Madhya Pradesh, (1950) S.C.R. 759, distinguished.

ORIGINAL JuRISDICTION : Writ Petitions Nos. 78-80, 93 and 152 of 1956.

Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.

Sir N. P. Engineer, N. A. Palkhivala, R. A. Gagrat and G. Gopalakrishnan, for the petitioners in Petitions Nos. 78, 79 and 80 of 1956.

Ganpat Rai, for the petitioner in petition No. 93 of 1956.

K. C. /ain and B. P. Maheshwari, for the petitioner in Petition No. 152 of 1956.

C. K. Daphtary, Solicitor-General of India, Porus A. Mehta and R. H. Dhebar, for the respondent No. 1 in Petitions Nos. 78/56 and 152/56 and Respondents in Petitions Nos. 79, 80 and 93 of 1956.

G. R. Ethirajulu Naidu, Advocate-General, Mysore, Porus A. Mehta and T. M. Sen, for respondent No. 2 in Petition No. 78 of 1956. 7-80 S. C. lndia/59

R.M.D.C/Jamm'.

baugwalla v.

T1" Union of India

V enkatarama

.A!J>ar J.

April 9.

1957. The Judgment of the - Court was delivered by

VENKATARAMA AIYAR J.-Pursuant to resolutions passed by the legislatures of several States under Art. 252, cl. ( 1) of the Constitution, Parliament enacted Prize Competitions Act, ( 42 of 1955), hereinafter referred to as the Act, and by a notification issued on March 31, 1956, the Central Government brought it into force on April 1, 1956. The petitioners before us are engaged in promoting and conducting prize competitions in different States of India, and they have filed the present petitions under Art. 32 questioning the validity of some of the provisions of the Act and the rules framed thereunder.

It will be convenient first to refer to the provisions of the Act and of the . rules, so far as they are material for the purpose f the present petitions. The object of the legislation is, as stated in the short title and in the preamble, "to provide for the control and regulation of prize competitions". Section 2(d) of the Act defines "prize competition" as meaning "any competition (whether called a cross-word prize competition, a missing-word prize competition, a picture prize competition or by any other name), in which prizes are offered for the solution of any puzzle based upon the building up, arrangement, combination or permutation of letters, words or figures". Sections 4 and 5 of the Act are the provisions which are impugned as unconstitutional, and they are as follows :

4. "No person shall promote or conduct any prize competition or competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be offered in any month exceeds one thousand rupees; and in every prize competition, the number of entries shall not exceed two thousand.

5. Subject to the provisions of section 4, no person shall promote any prize competition or competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be offered in any month does not exceed one thousand rupees unless he has obtained in this behalf a licence granted in

accordance with the provisions of this Act and the rules made thereunder." Then follow provisions as to licensing, maintaining of accounts and penalties for violation thereof. Section 20 confers power on the State Governments to frame rules for carrying out the purpose of the Act. In exercise of the powers conferred by this section, the Central Government has framed rules for Part C States, an<l they have been, in general, adopted by all the States. Two of these rules, namely, rules 11 and 12 are impugned by the petitioners as unconstitutional, and they are as follows :

11. "Entry fee-(l) Where an entry fee is charged in respect of a prize competition, such fee shall be paid in money only and not in any other manner.

(2) The maximum amount of an entry fee shall not exceed Re. 1 where the total value of the prize or prizes to be offered is rupees one thousand but not less than rupees five hundred; and in all other cases the maximum amount of an entry fee shall be at the following rates, namely- ( a) as. 8 where the total value of the prize or prizes to be offered is less than rupees five hundred but not less than rupees two hundred and fifty; and

(b) as. 4 where the total value of the prize or prizes to be offered ts less than rupees two hundred and fifty.

12. Maintenance of Register.-Every licensee shall maintain in respect of each prize competition for which a licence has been granted a register in Form C and .shall, for the purpose of ensuring that not more than two thousand entries are received for scrutinv for each such competition, take the following steps,· that is to say, shall- ( a) arrange to receive all the entries only at the place of business mentioned in the license;

(b) serially number the entries according to their order of receipt;

(c) post the relevant particulars of such entries in the register in Form C as and when the entries arc received and in any case not later than the close of business on each day; an<l

R. M. D. Chamar

baugwalla v.

T"6 Union of India

Venkatarama

Ai,1ar ].

R. M. D. Ch.,.,,,.

baugwalla

TM Union of ldian

Vmkat<lrama

A!Yar ].

SUPREME COC'RT REPORTS (1957]

( d) accept for scrutiny only the first two thousand entries as they appear in the register in Form C and ignore the remaining entries, if any, in cases where no entry fee is charged and refund the entry fee received in respect of the entries in excess of the first two thousand to the respective senders thereof in cases where an entry fee has been charged after deducting the cost (if any) of refund."

Now, the contention of Mr. Palkhiwala, who addressed the main argument in support of the petitions, is that prize competition as defined in s. 2(d) would include not only competitions in which success depends on chance but also those in which it would depend to a substantial degree on skill; that the conditions laid down in ss. 4 and 5 and rr. 11 and 12 are wholly unworkable and would render it impossible to run the competition, and that they seriously encroached on the fundamental right of the petitioners to carry on business; that they could not be supported under Art. 19(6) of the Constitution as they were unreasonable and amounted, in effect, to a prohibition and not merely a regulation of the business; that even if the provisions could be regarded as reasonable restrictions as regards competitions which are in the nature of gambling, they could not be supported as regards competitions wherein success depended to a substantial extent on skill, and that as the impugned law constituted a single inseverabk enactment, oit must fail in its entirety in respect of both classes of competitions.

Mr. Secrvai who appeared for the respondent, disputes the correctness of these contentions. He argues that 'prize competition' as defined in s. 2(d) of the Act, properly construed, means and includes only competitions in which success does not depend to any substantial degree on skill and arc essentially gambling in their character; that gambling activities are not trade or business within the meaning of that expression in Art. 19( 1 )(g), and that accordingly the petitioners are not entitled to invoke the protection of Art. 19( 6); and that even if the definition of 'prize competition' in s. 2( d) is wide enough to include competitions in which success depends to a substantial degree on skill and ss. 4 and 5

of the Act and rr. 11 and 12 are to be struck down in respect of such competition as unreasonable restrictions not protected by Art. 19( 6), that would not affect the . validity of the enactment as regards the competitions which are in the nature of gambling, the Act being severable in its application to such competitions.

These petitions were heard along with Civil Appeal No. 134 of 1956, wherein the validity of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948 was impugned on grounds some of which are raised in the present petitions. In our judgment in that appeal, we have held that trade and commerce protected by Art. 19( 1) (g) and Art. 301 are only those activities which could be regarded as lawful trading activities, that gambling is not trade but res extra commercium, and that it does not fall within the purview of those Articles.

Following that decision, we must hold that as regards gambling competitions, the petitioners before us cannot seek the protection of Art. 19(1)(g), and.that the question whether the restrictions enacted in ss. 4 and 5 and rr. 11 and 12 are reasonable and in the interest of the public within Art. 19(6) does not therefore arise for consideration.

As regards competitions which involve substantial skill, however, different considerations arise. They are business activities, the protection of which is guaranteed by Art. 19(1)(g), and the question would have to be determined with reference to tl1ose competitions whether ss. 4 and 5 and rr. 11 and 12 are reasonable restnct10ns enacted in public interest.

But Mr. Seervai has fairly conceded. before us that on the materials on record in these proceedings, he could not maintain that the restrictions contained in those provisions are saved by Art. 19(6) as being reasonable and in the public interest. The ground being thus cleared, the only questions that survive for our decision arc

(1) whether, on the definition of 'prize competition' in s. 2( d), the Act applies to competitions which involve substantial skill and are not in the nature of gambling; and (2) if it does, whether the provisions of ss. 4 and 5 and rr. 11 and 12 which are, ex cQ1Jcessi void, as regards such competitions, can. on the principle of sevcrability

R. M. D. Clulinatbaugwalla

Tht Union of InJia

R. M. D. Cizamar.

baugwalla v.

The Union of India

V tnkatarama

A9-ar ].

be enforced against competitions which are in the nature of gambling. !. If the question whether the Act applies also to prize competitions in which success depends to a sul>- stantial degree on skill is to be answered solely on a literal construction of s. 2 ( d), it will he difficult to resist the contention of the petitioners that it does. The definition of 'prize competition' in s. 2(d) is wide and unqualified in its terms. There is nothing in the wording of it, which limits it to competitions in which success does not depend to any substantial extent on skill but on chance. It is argued by Mr. Palkhiwala that the language of the enactment being clear and unambiguous, it is not open to us to read into it a limitation which is not there, bv reference to other and extraneous, considerations.

No;.., when a question arises as to the interpretation to be put on an enactment, what the court has to do is to ascertain "the intent of them that make it", and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all 0ther materials. 'The literal construction then", says Maxwell on Interpretation of Statutes, 10th Edn., p. 19, "has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope am! object of the whole Act; to consider, according to Lord Coke: !. What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and ( 4). The reason of the remedy".

The reference here is to Heydon's case( 1 ), These are principles well settled, and were applied by this Court in The Bengal Immunity Company Limited

v. The State of Bihar and others('). To decide the true scope of the present Act, therefore, we must have regard to all such factors as can legitimately be taken into account in ascertaining . the intention of the legi,_ lature, such as the history of the legislation and the purposes thereof, the mischief which it intended to

(r) (1584) 3 W. Rep. 16; 76 E.R. 637.

(2) (1955) 2 S.C.R. 603, 633

suppress and the other provisions of the statute, construe the language of s. 2 ( d) in the light of indications furnished by them.

and 1957 the . R. M. D. Chamarbaug<sa/la

Turning first to the history of the legislation, its genesis is to be found in the Bombay Lotteries and Prize Competitions Control and Tax Act (Born. LIV of 1948). That Act was passed with the object of controlling and taxing lotteries and prize competitions within the Province of Bombay, and as originally enacted, it applied only to compettttons conducted within the Province of Bombay. Section 7 of the Act provided that "a prize competition shall be deemed to be an unlawful prize competition unless a li.:ence in respect of such competition has been obtained by the promoter' thereof." Section 12 imposed a tax on the amounts received In respect of competitions which had been licensed under the Act. With a view to avoid the operation of the taxing provisions of this enactment, persons who had theretobefore been conducting prize competitions within the Province of Bombay shifted the venue of their activities to neighbouring States like Mysore, and from there continued to receive entries and remittances of money therefor from the residents of Bombay State. In order to prevent evasion of the Act and for effectually carrying out its objrct, the legislature of Bombay passed Act XXX of 1952 extending the provisions of the Act of 1948 to competitions conducted outside the State of Bombay but operating inside it, the tax however being limited to the amounts remitted or due on the entries sent from the State of Bombay. The validity of this enactment was impugned by a number of promoters of prize competitions in proceedings by way of writ in the High Court of Bombay, and dealing with the contentions raised by them, Chagla C.J. and Dixit J. who heard the appeals arising from those proceedings, held that the competi- tions in question were gambling in character, and that the licensing provisions were accordingly valid, but that the taxes imposed by ss. 12 and 12-A bf the Act were really taxes on the carrying on of the business of running prize competitions, and were hit by Art .. 301 of the Constitution, and were therefore bad. It is

Thl Union of India

V enkatarama.

Al)lar ].

R.M.D. Clumwrbaugwalla v.

The Union of India

V tnkatl11'm1UJ

A(Yar J.

against this decision that Civil Appeal No. 134 of 1956, already referred to, was directed.

The position created by this judgment was that though the States could regulate the business of running competitions within their respective borders, to the extent that it had ramifications in other States they could deal with it effectively only by joint and concerted action among themselves. That precisely is the situation for which Art. 252(1) provides.

Accordingly, following on the judgment of the Bombay High Court, the States of Andhra, Bombay, Madras, Orissa, Uttar Pradesh, Hyderabad, Madhya Bharat, Patiala and East Punjab States Union and Saurashtra passed resolutions under Art. 252 ( l) of the Constitution authorising Parliament to enact the requisite legislation for the control and regulation of prize competitions.

Typical of such resolutions is the one passed by the legislature of Bombay, which is in these terms :

"Th.is Assembly do resolve that it is desirable that control and regulation of prize puzzle competitions and all other matters consequential and incidental thereto in so far as these matters are concerned with respect to which Parliament has no power to make laws for the States, should be regulated by Parliament by law." It was to give effect to these resolutions that Parliament passed the Act now under consideration, and that fact isrecited in the preamble to the Act.

Having regard to the circumstances under which the resolutions came to be passed, there cannot be any reasonable doubt that the law wh.ich the State legislatures moved Parliament to enact under Art. 252(1) was one to control and regulate prize competitions of a gambling character.

Competitions in which success depended substantially on skill could not have been in the minds of the legislatures which passed those resolutions. Those competitions had not been the subject of any controver!!V in court. They had done no harm to the public . and had presented no problems to the States, and at no time had there been any legislation directed to regulating them. And if the State legislatures felt that there was any need to regulate even those competitions, they could have themselves effectively done

so withut resort to the special jurisdiction under Art. 252(1). It should further be observed that the language of the resolutions is that it is desirable to control competitions. If it was intended that Parliament should legislate also on competitions involving skill, the word 'control' would seem to be not appropriate.

While control and regulation would be requiite in the case of gambling, mere regulation would have been sufficient as regards competitions involving skill. The use of the word 'control' which is to be found not only in the resolution but also in the short title and the preamble to the Act appears to us to clearly indicate that it was only competitions of the character dealt with in the Bombay judgment, that were within the contemplation of the legislature.

Our attention was invited by Mr. Seervai to the statement of objects and reasons in the Bill introducing the enactment. It is therein stated that the proposed legislation falls under Entry 34 of the State List, viz., "Betting and gambling". If we could legitimately rely . on this, that would be conclusive against the petitioners.

But Mr. Palkhiwala contends, and rightly, that the Parliamentary history of the enactment is not admissible to construe its meaning, and Mr. Seervai also disclaims any intention on his part to use the statement of objects and reasons to explain s. 2(d). We must accordingly exclude it from our consideration. But even apart from it, having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill.

(2) Assuming, however, that prize competitions as defined in s. 2( d) include those in which success depends to a substantial degree on skill as ' well as those in which it does not so depend, the question then ai:ises for determination whether ss. 4 and 5 of the Act and rr. 11 and 12 are void not merely in their application to the former-as to which there is no disputebut also the latter. Mr. Palkhiwala contends that they' are, because, he .argues, the rules as to sev:erability of

R.M.D.C,._

baugwallo

Tlr4 Union ef I..tio

VenkOIOtatM

Avor J.

R.M.D. Ch.,,.,,,.

baugwalla

The Union of India

VenA:atatama

Atyar J.

statutes can apply only when the impugned legislation is in excess of legislative competence as regards subjectmatter and not when it is in violation of constitutional prohibitions, and further because the impugned provisions are one and indivisible. On the other hand, Mr. Seervai for the respondent contends that the principle of severability is applicable when a statute is partially void for whatever reason that might be, and that the impugned provisions are severable and therefore enforceable as against competitions which are of a gambling character. It is on the correctness of these contentions that we have to pronounce.

The question whether a statute which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds : It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, s. 91 and 92 of the Canadian Constitution, and s. 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranted in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature, whose authority is subject to limitations aforesaid enacts 'a law which is wholly in excess of its powers, it is entirely void and must be completely ignored.

But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void' in its entirety? The answer to this question must depend on whether what is valid could be separated from What is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act.

This 1s a principle well

S. C.R.

SUPREME COURTS REPORTS 941

established in American Jurisprudence, Vide Cooley's Constitutional Limitations, Vol. I, Chap. VII, Crawford on Statutory Construction, Chap. 16 and Sutherland on Statutory Construction, 3rd Edn, Vol. 2, Chap. 24.

It has also been applied by the Privy Council in deciding on the validity of laws enacted by the legislatures of Australia and Canada, Vide Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Company Limited(1 ) and Attorney-General for Alberta v. Attorney-General for Canada ( 2). It was approved by the Federal Court in In re Hindu Women's Rights to Property Act(3) and adopted by this Court in The State of Bombay and another v. F. N. Balsara(4 ) and The State of Bombay v. The United Motors (India) Ltd., and others( 5).

These decisions are relied on by Mr. Seervai as being decisive in his favour. Mr. Palkhiwala disputes this position, and maintains that on the decision of the Privy Council in Punjab Province

v. Daulat Singh and other( 6 ) and of the decisions of this court in Romesh Thappar v. State of Madras(7) and Chintaman Rao v. State of Madhya Pradesh.( 8 ), the question must be answered in his favour.

We must now examine the precise scope of these decisions.

In In re Hindu Women's Rights to Property Act('), the question arose with reference to the Hindu Women's Rights to Property Act XVIII of 1937 That was an Act passed by the Central Legislautre, and had conferred on Hindu widows certain rights over properties which devolved by intestate succession and survivorship.

While the subject of devolution was within the competence of the Centre under Entry 7 in List III, that was litnited to property other than agricultural land; which 'ws a subject within the exclusive competence of the Provinces under Entry 21 in List II. Act No. XVIII of 1937 dealt generally with property, and the contention raised was that beirtg admittedly incompetent and ultra vires as regards ariculiura~ lantls, it was void \n its entirety.

{1) [1914] A. C. 237.

(5) [1953] S. C. R. ro69.

(2) L. R. [1947] A. C. 503•

(6) [1946) F. C. R. 1.

(3) fi941] F. c. R. 12. (i'J [1950] '8. c. R. 954;

(4) [1951l S. C. R.· 682.

(8) [1950] .S. C,. R. 759

R.M.D. Chamarbaugwalla! ...

Tiii Unitm of lndi.ai

V,•nJ; atarama

Avar J.

R.M.D. Clra1orJr.

bau87:f!alla

"· "Tiu Union of India

Venkatarama

AV•ar J.

It was held by the Federal Court that the Central Legislature must, on the principle laid down in Macleod v.

Attorney-General for New South Wales('), be presumed to have known its own limitations and must be held to have intended to enact only laws within its competence, that accordingly the word 'property' in Act No. XVIII of 1937 must be construed as property other than agricultural land, and that, in that view, the legislation was wholly intra vires.

It is contended by Mr. Palkhiwala that this decision does not proceed on the basis that the Act is in part ultra vires and that the remainder however could be separated therefrom, but on the footing that the Act is in its entirety intra vires, and that thus, no question of severability was decided.

That is true; but that the principle of severability had the approval of that Court clearly appears from the following observations of Sir Maurice Gwyer C. J.:

"It should not however be thought that the Court has overlooked cases cited to it in which the same words have been applied in an Act to a number of purposes, some within and some without the power of the Legislature, and the whole Act has been held to be bad. If the restriction of the general words to purposes within the power of the Legislature would be co leave an Act with nothing or next to nothing in it, or an Act different in kind, and not merely in degre, from an Act in which the general words were given the wider meaning, then it is plain that the Act as a whole must be held invalid, because in such circumstances it is impossible to assert with any confidence that the Legislature intended the general words which it has used to be construed only in the narrower sense. If the Act is to be upheld, it must remain, even when a narrower meaning is given to the general words, 'an Act which is complete, intelligible and valid and which can be executed by itself;' 'Wynes: Legislative and Executive Powers in Australia, p. 51, citing Presser v. lllinois(2)."

There is nothing . in these observations to support the contention of the petitioners that the doctrine of

(1) [1891] A. C. 455.

(2) (1886) 116 U. S. 250.

severability appliesonly when the legislation is in excess of the competence of the legislature quoad its subject-matter, and not when it infringes some constitutional prohibitions.

In The State of Bombay and another v. F. N. Balsara( 1 ) the question was as to the validity of the Bombay Prohibition Act. Sections 12 and 13 of the Act imposed restrictions on the possession, consumption and sale of liquor, which had been defined in s. 2(24) of the Act as including "(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and (b) any other intoxicating substance which the Provincial Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act". Certain medicinal and toilet preparations had been declared liquor by notification issued by the Government under s. 2(24) (b). The Act was attacked in its entirety as violative of the rights protected by Art. 19 ( 1) ( f) ; but this Court held that the impugned provisions were unreasonable and therefore void in so far as medicinal and toilet preparations were concerned, but valid as to the rest. Then, the contention was raised that "as the law purports to authorise the imposition of a restriction on a fundamental right in language wide enough to cover restrictions both within and without 'the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable". In rejecting this contention, the Court observed (at pp. 717-718) : ''These items being thus treated separately by the legislature itself and being severable, and it not being contended, in view of the directive principles of State policy regarding prohibition, that the restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties are unreasonable, the impugned sections must be held valid so far as these categories .are concerned." This decision is clear authority that the principle of severability is applicable even when the partial

(\) [.1951) S. C. R 682.

fl.M.D. Chamar•

baugwa/la v.

The Umon of Indio

V enkataram"

Aiyar J.

J957

R.M.D. Chanallf"•

baugwa/la

TM Union of India

Venkatarama

Aryar J.

invalidity of the Act arises by reason of its contravention of constitutional limitations. It is argued for the petitioners that in that case the legislature had through the rules framed under the statute classified medicinal and toilet preparations as a separate category, and had thus evinced an intention to treat them as severable, that no similar classification had been made in the present Act, and that therefore the decision in question does not help the respondent. But this is to take too narrow a view of the decision. The doctrine of severability rests, as will presently be shown, on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining facr, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it. It is a feature usual in latterday legislation in America to enact a clause that the invalidity of any part of the law shall not render the rest of it void, and it has been held that such a clause furnishes only prima facie evidence of severability, which must in the last resort be decided on an examination of the provisions of the statute. In discussing the effect of a severability clause, Brandies J. observed in Dorchy v. State of Kansas(') that it "provides a rule of construction, which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command". The weight to be attached to a classification of subjects made in the statute itself cannot, in our opinion, be greater than that of a severability clause. If the decision in The State of Bombay and another v. F. N. Balsara( 2 ) is examined in the light of the above discussion, it will be seen that while there is a reference in the judgment to the fact that medicinal and toilet preparations are treated separately by the legislature, . that is followed by an independent finding that they are severable. In other words, the decision as to severability was reached on

(1) (1924] 264 U. S. 286; 68 L. Ed. 686, 690.

(2) [1951] S. C.R. 6820

the separability in fact of the subjects dealt with by the legislation and the classification made in the rules merely furnished support to it.

Then, there are the observations of Patanjali Sastri C.J. in The State of Bombay v. The United Motors (India) Ltd.( 1 ). Dealing with the contention that a law authorising the imposition of a tax on sales must be declared to be wholly void because it was bad in part as transgressing constitutional limits, the learned Chief Justice observed (at p. 1099) : "It is a sound rule to extend severability to include separability in enforcement in such cases, and we are of opinion that the principle should be applied in dealing with taxing statutes in this country." The petitioners contend that the rule of severability in enforcement laid down in the above passage, following the decision in Bowman v. Continental Co.(2) is confined in American law to taxing statutes, that it is really in the nature of an exception to the rule against severability of laws. which are partially unconstitutional, and that it has no application to the present statute. We are unable to find anv basis for this argument in the American authorities ... That the decision in Bowman's case(2) related to a taxing statute is no ground for limiting the principle. enunciated therein to taxing statutes. On the other hand,. the discussion of the law as to severability. in the authoritative .text-books .shows that no distinction is made in American Jurisprudence between taxing statute~. and other statutes, Corpus Juris Secundurri, Vol. 82, dealing with the subject of severability, states first the principles applicable generally . and to all statutes, and then . proceeds to consider those principles with reference to different topics, and taxation laws from one of those topics.

We have now to consider the decisions in Punjab .

Province v. Daulat Singh and others( 3), Ramesh Thappar v; State of Madras( 4 ) and Chintarnan Rao v. State. of Madhya Pradesh( 5 ) relied on by the petitioners. In Punjab Province.· v.

Daulat Singh and others(3), the

(1) [1953] S. C.R. 1069 at 1098-99.

(3) [1946] F. C.R. 1.

(2) (1921] 256 U.S. 642; 65 L. Ed. 1137.

(4) 1950 S. C. R.-594.

(5) (1950] S. C. R. 759. .

R.M.D. Ciuunarbaugr.aalla

Tiii Union of India

Venkatararna

A!1ar ].

fl.M.D. Chamarhaugwalla v. r lu: Union of India

V en.(:atarama

Aryar ].

challenge was on the validity of s. BA which had been introduced into the Punjab Alienation of Land Act XIII of 1900 by an Amendment Act X of 1938.

That section enacted that an alienation of land by a member of an agricultural tribe in Punjab in favour of another member of the tribe made either before or after the commencement of the amendment Act was void for all purposes, when the real beneficiary under the transaction was not a member of the tribe. Section 4 of the Act had empowered the local Government to determine by notification the body or group of persons who are to be declared to be agricultural tribes for the purpose of the Act. A notification dated April 18, 1904 issued under that section provided that,

"In each district of the Punjab mentioned in column 1 of the Schedule attached to this notification, all persons either holding land or ordinarily residing in such district and belonging to any one of the tribes mentioned opposite the name of such district, in column 2, shall be deemed to be an agricultural tribe' within the district''.

The question was whether s. BA was void as contravening s. 298 ( 1) of the Government of India Act, 1935, which provided inter alia that no subject of His Majesty domiciled in India shall on grounds on! y of descent be prohibited from acquiring, holding or disposing of property. It was held by the Federal Court that s. BA was void as infringing s. 298(1) to the extent that it prohibited alienation on ground of descent, but that it was valid in so far as it related to a prohibition of the transaction in favour of a person who belonged to the tribe but did not hold land or ordinarily reside in the district, as a prohibition on that ground was not within s. 298(1) and that accordingly an enquiry should made as to the validity of the impugned alienation with reference to the qualifications of the alienee. (Vide Punjab Province v. Daul.at Singh( 1 ).

Before the Privy Council, Mr. Pritt, counsel for the appellant, "conceded that membership of a tribe was generally a question of descent", and the Board accordingly held that s. BA was repugnant to s. 298(1)

(I) [1942) F. C. R. 67.

and was void. Dealing next with the enquiry which was directed by the Federal Court as to the qualifications of the alienee, the Privy Council observed as follows (at p. 20) :

"The majority of the Federal Court appear to have contemplated another form of severability, namely, by a classification of the particular cases on which the impugned Act may happen to operate, involving an inquiry into the circumstances of each individual case. There are no words in the Act capable of being so construed, and such a course would in effect involve an amendment of the Act by the court, a course which is beyond the competency of the court, as has long been well established."

It will be noticed that, in the above case, there was no question of the application of the Act to dilferef't categories which were distinct and severable either i:l fact or under the provisions of the Act. The notification issued under s. 4 on which the judgment of the Federal Court was based did not classify those who did not belong to the tribe and tho:e who did not hold property or reside in the district as two distinct groups. It described only one category, and that had to satisfy both the conditions. To break up that category into two distinct groups was to go against the express language of the enactment and to substitute the word "or" for "and". The Privy Council held that could not be done, and it also observed that the severability contemplated in the judgment of the Federal Court was an ad /zoc determination with reference to qualifications of each alienee as distinguished from a distinct category with reference to the subject-matter. This is not an authority for the position that if the subject-matter of what is valid is severable from that of what is invalid, even then, the Act must be held to be wholly void.

More to the point are the following observations (at pp. 19-20) on a question which was also raised in that case whether s. BA which avoided the alienations made both before and after the Act, having been held to be void in so far as it was retrospective, was void in toto :

" .... If the retrospective element were not severable

fro~ ti1e rest of the provisions, it is established bevond

8-80 S.C.Ind; a/59.

R.M.D. Chamarbaugwalla v.

Tht Union of India

Venkatarama

AiJ'ar J.

R.M.D. Chamar

baugwalla

The Union of l'lldia

v, nkatarama

AiJar J.

controversy that the whole Act would have to be declared ultra vires and void.

But, happily, the retrospective element in the impugned Act is easily severable, and by the deletion of the words 'either before or' from the early part of sub-s. ( 1) of the new s. BA, enacted by s. 5 of the impugned Act, the rest of the provisions of the impugned Act may be left to operate validly."

Discussing this decision in The State of Bombay v.

The United Motors (India) Ltd.(') Patanjali Sastri C.J. observed (at p. 1098):

"The subject of the constitutional prohibition was single and indivisible, namely, disposition of property on grounds only of (among other things) descent and if, in its actual operation, the impugned statute was found to transgress the constitutional mandate, the whole Act had to be held void as the words used covered both what was constitutionally permissible and what was not." That is to say, the notification issued under s. 4 was single and indivisible, and therefore it was not severable. Agreeing with this opinion, we are of opinion that the decision in Punjab Province v. Daulat Singh(") cannot, in view of the decision of this Court in The State of Bombay v. F. N. Balsara, t), be accepted as authority for the position that there could be no severabilitr, even if the subject-matters are, in fact, distinct and severable.

In Romesh Tlwppar \'. State of Madras(•), the question was as to the validitv of s. 9 (1-A) of the Madras Maintenance of Public Order Act XXIII of 1949.

That section authorised the Provincial Government to prohibit the entry and circulation within the State of a newspaper "for the purpme of securing the public safety or the maintenance of public order". Subsequent to the enactment of this statute, the Constitution came into force, and the validity of the impugned provision depended on whether it was protected by Art. 19(2) which saved "exist\ng law in so far as it

relates to any matter which undermines the security

(<) ["J53] s. c. R. •069.

(3) [•os•[ S.C.R. 68•.

(2) [1940] l.F. C.R. I. (4 (qo] S.C.R. 504.

of or tends to overthrow the State." It was held by 'this Court that as the purposes mentioned in s. 9(1-A) of the Madras Act were wider in amplitude than those specified in Art. 19(2), and as it was not possible to split up s. 9(1-A) into what was within and what was without the protection of Art. 19(2), the provision must fail in its entirety. That is really a decision that the

impugned provision was on its own contents inseverable.

It is not an authority for the position that even when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a statute arises by reason if its contravening constitutional prohibitions.

It should be mentioned that the decision in Romeslz I happar v. State of Madras( 1 ) was referred to in The State of Bombay v. F. N. Balsara(2) arid The State of Bombay v. The United Motors (India) Ltd.( 3 ) and distinguished.

In Chintaman Rao v. State of Madhya Pradesh (4), the question related to the constitutionality of s. 4(2) of the Central Provinces and Berar Regulation of Manufacturers of Bidis (Agricultural Purposes) Act No. LXIV of 1948, which provided that, "No person residing in a village specified in such order shall . during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the. manufacture of biclis". This Court ht.:ld that the restrictions imposed by s. 4(2) were in excess of what was requisite for achiC\ing the purpm.e of the Act, which was "to provide measures for the supply of adequate labour for agricultural purposes in hidi manufacturing areas", that that purpose could have been achieved by limiting the restrictions tc, agricultural labour and to defined hours, and that, as it stood, the impugned provision could not be upheld as a reasonable restriction within Art. 19(1) (g).

Dealing next with the question of severability, the Court. observed (at p. 765) .that,

"The law even to the extent that it could be said to authorise the imposition of restrictions in regard to

(1) [1950] S. C.R. 594

(3) [1953] S. C.R. 1o69.

(2) [1951] S. C.R. 682.

(4) [1950] S. C.R. 759. 9-8,) S. C. Jndia/';9,

R.M.D. Chamarbaugwa/la v.

The Union of India

Venkatarama

Aryar ],

R.M.D. Chamar baugwalla v.

The Union of India

Venkata,-ama

Arya, J.

agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right." Now,. it should be noted that the impugned provision, s. 4(2), is by its very nature inseverable, and it could not be enforced without re-writing it.

The observation aforesaid must be read in the context of the particular provision which was under consideration.

This really is nothing more than a decision on the severability of the particular provision which was impugned therein, and it is open to the same comment as the decision in Ramesh Thappa,-

v. State of Madras( 1 ). That was also one of the decisions distinguished in T lie State of Bombay v. F. N. Balsara( 2). The resulting position may thus be stated : When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibitions.

That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of 'prize competition' in s. 2( d) is wide enough to include also competitions involving skill to a substantial degree.

It will be useful for the determination of this qne.tion to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows :

1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, PP- 176-177.

(1) [1950] S. C.R. 594

(2) [195•] S. C.R. 682.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from 0:1c ano.ther, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On .the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code ndependent of the rest, then it will be upheld notwithstanding that the rest has become unenfom:able. Vide Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.

Vide Crawford on Statutory Construction, pp. 218-219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme hut what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The . separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections;

(Vide Cooley's Constitution::il Limitations.

Vol.

I, . pp. 361-362); it is not the form, but the substance of the matter that is m::iterial. and th::it has to be ascertained on an examin::ition of the Act ::is a whole and of the setting of the relevant provisions therein.

6. If after the inv::ilid portion is expunged from the st::itute what rem::iins cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will ::imount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.

7. In determining the legislative intent on the quesnon of sep::irability, it will be legitimate to take into account the history of the legislation, its object,

R.M.D. Chamarbaugwalla v.

The Union of India

Venkatarama Aiyar J.

R.M.D. Chamar

baugwalla v.

The Union of India

Venkatarama

AiJiar J.

the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178.

Applying these principles to the present Act, it will not he questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts.

On the facts, there might be difficulty in deciding whether a given competition falls within one category or not; but when its true character is determined, it must fall either under the one or the other. The distinction between the two classs of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question, would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and re-written before they could be applied to them. They will squarely apply to them on their own terms and in their true spiri~ and form a code complete in themselves with reference to the subject. The conclusion is therefore inescapable that the impugned provmons, assuming that they apply by virtue of the definition in s. 2 ( d) to all kinds of competitions, are S<:verable in their pplication to competitions in which success does not depend to any substantial extent on skill.

In the result, both the contentions must be found against the petitioners, and these pet1t10ns must be dismissed with costs. There will be only one set of counsel's fee.

Petitions dismissed.

GIPN-S 6-80 S. C. Inrlia159-2-2-63.-i.OOO

M.D.CHAMARBAUGWALLA

DAS C.J.

B. P. SINHA

P. B. GAJENDRAGADKAR JJ.

Prize Competitions Act

SS. 2(J), 4, 5

ss. 4 and 5

Prize Competitions Act

s. 20

s. 2( d)

Art. 19(6)

of the Union of India

ss. 4 and 5

Art. 19( 6)

Art. 19(1)(g)

s. 2(d)

(1955) 2 S.C.R. 603

s. 2( d)

ss. 4 and 5

Rights to Property Act

(1941) F.C.R. 12

(1946) F.C.R. 1

Article 32

Constitution of India

N. P. Engineer

N. A. Palkhivala

R. A. Gagrat

G. Gopalakrishnan

Ganpat Rai

K. C. /ain

B. P. Maheshwari

C. K. Daphtary

Porus A. Mehta

R. H. Dhebar

G. R. Ethirajulu Naidu

T. M. Sen

VENKATARAMA AIYAR

Art. 252

March 31, 1956

Central Government

April 1, 1956

India

Art. 32

Section 2(d)

Sections 4 and 5

section 4

Section 20

Union of India

Union of ldian

Vmkat<lrama

A!Yar ]

Palkhiwala

s. 2(d)

ss. 4 and 5

Art. 19(6)

Secrvai

s. 2(d)

Art. 19( 1 )(g)

Art. 19( 6)

s. 2( d)

ss. 4 and 5

Art. 19( 6)

Art. 19( 1)

Art. 301

Art. 19(1)(g)

ss. 4 and 5

Art. 19(6)

Art. 19(1)(g)

ss. 4 and 5

Seervai

Art. 19(6)

s. 2( d)

ss. 4 and 5

R. M. D. Clulinatbaugwalla

s. 2

s. 2(d)

Maxwell

Coke

Parliament

(1955) 2 S.C.R. 603

s. 2

R. M. D. Chamarbaug

Bombay

Section 7

Section 12

Mysore

Bombay State

legislature of Bombay

High Court of Bombay

Chagla C.J.

Dixit

ss. 12 and 12

Union of India

It is

Thl Union of India

V enkatarama.

Art. 252(1)

Bombay High Court

Orissa

Uttar Pradesh

Hyderabad

Madhya Bharat

Patiala

East Punjab

Saurashtra

Art. 252

Art. 252(1)

Art. 252(1)

s. 2(d)

s. 2( d)

ss. 4 and 5

atatama

Atyar

Seervai

Seventh Schedule

s. 91 and 92

s. 51

Vide Cooley

Australia

Canada

Rights to Property Act

Punjab Province

Rights to Property Act

Rights to Property Act

[1946) F. C. R. 1

R.M.D. Chamarbaugwalla

Avar

R.M.D. Clra1orJr

Maurice Gwyer

S. 250

Sections 12 and 13

s. 2(24)

s. 2(24)

Art. 19

Umon of Indio

Aiyar

R.M.D. Chanallf"•

Venkatarama

Aryar

Brandies

S. 286

Patanjali Sastri

Bowman

Punjab

[1946] F. C.R. 1

S. 642

R.M.D. Ciuunarbaugr.aalla

Amendment Act X of 1938

Section 4

April 18, 1904

s. 298

Government of India Act, 1935

s. 298(1)

s. 298(1)

Pritt

s. 298(1)

[1942) F. C. R. 67

s. 4

Union of l'lldia

v, nkatarama

AiJar J.

s. 5

s. 4

Romesh Tlwppar

s. 9

Order Act XXIII of 1949

Art. 19(2)

s. 9(1-A)

Art. 19(2)

s. 9(1-A)

Art. 19(2)

s. 4(2)

s. 4(2)

Art. 19(1)

s. 4(2)

s. 2( d)

Vide Crawford

Vide Sutherland

Venkatarama Aiyar

R.M.D. Chamar

baugwalla

Venkatarama

AiJiar

United Kingdom

s. 2

S 6


S.C.R.

SUPREME COURT REPORTS

SARW AN SINGH

THE STATE OF PUNJAB

(with connected appeal)

[]AGANNADHADAS, B. P. SrNHA and

GA JENDRAGADKAR JJ.] .

Confession-Procedure-Duty of the Magisttate-Time to be given to accused to decide to make the confession-Corroboration-- Approver-Reliability- Test- Corrobation-Code of Criminal Proc:edure (AC! V of 1898), s. 164.

The appellants and G were convicted of the offence of murder by the Sessions Court on the basis of the evidence of the approver, which it considered reliable, and the confession made by the first appellant which it found to be voluntary and true. The High Court held that the evidence of the approver as against G was very discrepant and unreliable and set aside his conviction but, nevertheless, confirmed the conviction of the appellants. The appellants appealed to the Supreme Court. It was found ( 1) that the statement originally made by the approver as _against the second appellant was wholly inconsistent and irreconcilable with the evidence given by him in Court and that the High Court did not consider the question as to whether the approver was a reliable witness at all,

(2) that the Magistrate who recorded the confession did not fully .comply with the procedure to be adopted to ensure that it was voluntary, ( 3) that the prosecution story as deposed to by the approver was inconsistent with the material statement in the confession, and ( 4) that the High Court while decid; ng whether the confession was voluntary assumed that it was true

Held, that the conviction of the appellants must be set aside.

The appreciation of an t.pprover's c.idence has to satisfy a double test. It must show that he is a reliable witness and that his evidence receives sufficient corroboration.

The act of recording confessions under s. 164 of the Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take care to see that the requirements of sub-s. (3) of s. 164 are fully satisfied.

When an accused person is produced before the Magistrate by the investigating officer, it is of the utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and he must be sent to jail custody and given adequate time to consider whether he should make a confession at all. Ordinarily, he should be given at least 24 hours to decide.

Even if a confession is voluntary, it must also be established that it is true and, for that purpose, it is necessary to examine it

19.57

Ajllil 10

Sarwan Singh

The State of

Punjab

Gajendragt1dkar J.

and compare it with the rest of the prosecution evidence and the probabilities of the case.

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeals Nos. 22 and 23 of 1957.

Appeals by special leave from the judgment and order dated August 7, 1956, of the Punjab High Court at Chandigarh in Criminal Appeals Nos. 253 and 250 of 1956 and Murder Reference No. 38 of 1956 arising out of the judgment and order dated May 21, 1956, of the Court of Additional Sessions Judge at Ludhiana in Trial No. 17 of 1956 and Case No. 9 of 1956.

Cyan Chand Mathur, for the appellant in Criminal Appeal No. 22 of 1957.

R. L. Kohli, for the appellant in Criminal Appeal No. 23 of 1957.

Gopal Singh and T. M. Sen, for the respondent in both the appeals. 1957.

April

10. The Judgment of the Court was delivered by

GAJENDRAGADKAR J.-Harbans Singh, Gurdial Singh and Sarwan Singh were charged in the court of the learned Additional Sessions Judge at Ludhiana with having committed an offence of murder punishable under s. 302 of the Indian Penal Code. The case against them was that they, along with Banta Singh, the approver, had intentionally caused the death of Gurdev Singh by inflicting injuries on his person with kirpan, toki and dang on November 23, 1955, within the limits of the village Sohian, police station Jagraon.

The learned trial judge held that the charge framed against all the three accused had been proved beyond a reasonable doubt. That is why he convicted them of the offence charged and sentenced each one of them to death. On appeal to the High Court of Punjab, the order of conviction and sentence imposed against Harbans Smgh and Sarwan Singh was confirmed whereas the order of conviction and sentence against Gurdial Singh was set aside and he was ordered to be acquitted and discharged.

Accused No. 1, Harbans

Singh, and accused ; No. 3, Sarwan Singh, have come to this Court in appeal by special leave.

It would be convenient to state the prosecution case very briefly at the outset. Gurdev Singh, the victim of the assault, was the brother of accused No.

1. It appears that the father of the two brothers had left the village some years ago and is apparently no longer alive. Harbans Singh was a shirker and a waster and that made Gurdev Singh impatient. When Gurdev Singh tried to improve Harbans Singh, Harbans Singh. resented Gurdev Singh's efforts and his irritation and annoyance had reached such 'a stage and extent that he began to plan his murder.

According to the story of the prosecution, Harbans Singh got in touch with his friends Sarwan Singh and Gurdial Singh and requested them to assist him in his plan to get rid of his brother.

It appears that Gurdial Singh himself was on inimical terms with Gurdev Singh because he was angry with Gurdev Singh . for having cut jokes with his sister.

A few days before the commission of the offence, Harbans Singh and Sarwan Singh, were sitting on a canal bank near their village enjoying their drink when Banta Singh joined them. He was also asked to partake of the liquor and was told about the plan to murder Gurdev Singh. A few days later there was another meeting between these three men and it was agreed that an attempt should be made to procure arms for the purpose of carrying out the plan. Rakha was accordingly approached and as a result of the negotiations he sold a country-made pistol and a cartridge for Rs. 40 to Sarwan Singh.

Rakha was also requested to join the conspiracy. He was however unwilling to respond and though he did not openly say 'no' to the proposal, at the material time he refused to join the conspirators.

On the day of the offence itself, Sarwan. Singh, Gurdial Singh and Banta Singh went by a bus together and got down near the road which leads to the village Sohian.

Then they proceeded on foot until they met Harbans Singh near the canal minor.

Harbans Singh then advised his co-conspirators to hide themselves in the bushes.

He then fetched a bottle of liquor and all the four drank from it. This

Sarwan Singh v.

The State of Punjab

Gajendragadkar J.

&vwan Singh

Tire State of

Punjab

Gafend,.gadkar].

took them to sunset time, when Harbans Singh left the place and promised his friends that he would send his brother to the place where they would lie concealed.

He also told them that he would give a signal as soon as his brother would approach the place of their concealment by clapping his hands.

In accordance with this plan Harbans Singh persuaded his brother to go ahead. Sarwan Singh then coughed and this raised an apprehension in the mind of Gurdev Singh that some people may be lying in wait for him. So he called out to his brother Harbans Singh and said that he suspected that there were some people there.

Harbans Singh assured him that he would soon join.

Meanwhile, according to plan, the three assailants emerged from their place of concealment and attacked Gurdev Singh.

Harbans Singh also arrived on the scene and joined them in the assault. The prosecution case is that Harbans Singh was armed with a kirpan, Gurdial Singh with a lathi, the approver Banta Singh with a toki and Sarwan Singh used a kirpan. The attack was undoubtedly brutal and callous and it resulted in as many as 69 incised wounds and two contused injuries which had been caused with a blunt weapon.

Having asaulted Gurdev Singh in this brutal manner _his assailants ran away.

Harbans Singh returned to his village and raised a hue and cry. He complained that his brother had been carried away by a number of persons and he pretended that his brother's assailants were Darshan Singh, Jagat Singh, Gurnam Singh and Banta Singh of the village Pana. The villagers, however, found that Harhans Singh was not keen on joining them in rendering help to the victim or in pursuing his assailants.

Finally, however, he was persuaded to accompany the villagers and the villagers in the company of Harbans Singh reached the spot where Gurdev Singh's body was found in a pool .of blood.

Thereafter Harbans Singh went to the police station and made a report of the occurrence at.about 10-30 p.m.

He alleged in his report that his brother had been murdered by the aforesaid four persons of the village of

Pona. Purporting to act on this report, the police -

reached the spot in the early hours of the next morning and so the investigation commenced.

It is clear that the police had their own doubts about the truth of the report made by Harbans Singh from the start and they suspected that it was Harbans Singh and his friends who were concerned with the commission of this foul offence. Sarwan Singh, Gurdial Singh and Banta Singh were arrested on November 25 and Harbans Singh on November 26. The investigating officer recovered from the person of Sarwan Singh

a blood-stained shirt and chadar and obtained from Sarwan Singh's house a pistol and an empty cartridge on information given by him.

From die person of Gurdial Singh a blood-stained turban w41s recovered and the information given by him led to the discovery of a stick or lathi.

This lathi was blood-stained.

From Banta Singh's person a blood-stained chadar was recovered and the information given by him led to the discovery of a kirpan and a toki from a well in which they were thrown after the commission of the offence.

The proseClition also alleges that, on the information given by Harbans Singh, some blood-stained clothes were recovered from Gurdev Kaur sister of Gurdial Singh. It appears that, on November 30, Sarwan Singh offered to make a confessional statement and the confession was in fact recorded on the same day. On December 2, Banta Singh was given pardon and made an approver.

That in brief is the prosecution case.

All the three accused deny any connection with the commission of the offence. The learned Sessions Judge held that Banta Singh was a reliable witness. . Since . Banta Singh is, however, an approver the learned Judge ·

considered whether his evidence had received the . reqms1te corroboration in material .. particulars and . he held .that it' did. The learned Jµdge also found that the confession n1ade .· hy Sarw:i.n Singh. was voluntary . and true and irt:his Opiion the evidence . of. Rakha and the other circumstantial evidence with regard .· to the blood-stained Clothes of the respective aq:used persons and .. the recovery of the weapons afforded sufficient corroboration in material ·· particulars. That is how he reached the conclusion that the charge of murder has

Sarwan Singh

The State •f

Putifah

Gajendragadkar J

Sarwan Singh

Tiu State of

Pur/jab

Gqjmdragadkar J.

been proved against all the three accused.

On appeal it has been held by the learned Judges of the High Court of Punjab that the evidence given by the approver, Banta Singh, against accused Gurdial Singh was very discrepant and therefore unreliable and so they found that the case against Gurdial Singh had not been proved beyond a reasonable doubt.

In the result Gur<lial Singh was acquitted; but the view taken by the learned Judges in respect of the prosecuaon case against Harbans Singh and Sarwan Singh was that the approver's evidence supplied the basis for the prosecution case against them and since it w•s corroborated •by circumstantial evidence to which reference has already been made and by the confession of Sarwan Singh, there was no difficulty in confirming the order of conviction and sentence passed against these two accused persons.

It is this view which is challenged before us by the two appellants in the present appeals.

Since the present appeals have been filed by special leave under Art. 136 of the Constitution, it would normally not be open to the appellants to raise questions of fact before us.

Prima facie the orders of conviction and sentence passed against the appellants are based on concunent findings of fact and we would be slow to interfere with such findings unless we are satisfied that the said findings are vitiated by errors of law or that the conclusions reached by the courts below are so patently opposed to well established principles of judicial approach, that they can be characterised as wholly unjustified and even perverse.

On behalf of Harbans Singh, it has been urged before us by Mr. Kohli that the judgment of the High Court of Punjab suffers from a serious infirmity in that, in dealing. with the evidence of the approver, the learned Judges do not appear to have addressed themselves to the preliminary question as to whether the approver is a reliable witness or not.

The problem posed by the evidence given bv an approver has been considered by the Privy Council and courts in India on several occasiom.

It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under

the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous.

On the other hand, ' it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to .satisfy a double test.

His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration.

This test is special to the cases of weak or tainted evidence like that of the approver.

Mr. Kohli's contention is that since the learned Judges of the High Court of Punjab have failed to address themselves to this initial question, their appreciation of the approver's evidence suffers from a serious infirmity.

In our opm10n, this contention is well-founded. \Ve hayc carefully read the judgment delivered by the High Court but we find no indication in the whole of the judgment that the learned Judges considered the character of the approver's evidence and reached the

Sarwan Singh v.

The Stale of Punjab

Gajendragadkar J.

Sarwan Singh

Tk Stat, of

Pu, Yab

Gajendr agad!uu :J.

conclusion that it was the evidence given by a reliable witness.

The only statement which we find m the judgment dealing with this topic is that "since the main evidence in the case consists of the testimony of the approver it is necessary to consider the case of each appellant individually".

With respect, this observation is open to the criticism which has been made against it by Mr. Kohli.

The argument that the character of the approver's evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical in the present case because, as we will presently point out, the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the conclusion that the approver in the present case is a wholly unreliable witness.

Indeed it may be legitimate to point out that the learned Judges of the High Court have themselves criticised the evidence of the approver in dealing with the prosecution case against Gurdi~I Singh and have ultimately found that the account given by the approver is unreliable and, though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh that would not be enough to sustain his conviction. It seems to us that if it was found that the approver's account against one of the accused persons was wholly discrepant, this finding itself should inevitably have led the court to scrutinise his evidence in respect of the other accused persons with greater caution.

Besides, it is somewhat unfortunate that the attention of the learned Judges of the High Court was presumably not drawn to the still more serious discrepancies in the evidence of the approver in regard to die part assigned to Harbans Singh in the commission of the offence. In the evidence given by the approver before the trial court, he has definitely and unequivocally implicated Harbans Singh in the commission of the offence. It has been brought out in the cross-examination that in the very first statement made by the apprm""r before the investigating officer on November 25 he had made statements about Harbans Singh which are wholly inconsistent with the subsequent story. In this statement. the

approver had definitely stated that only the three of them were concerned with the commission of the offence. himself, Sarwan Singh and Gurdial Singh. He had also stated clearlv in the said statement that Harbans Singh did not -join in murdering Gurdev Singh. It is remarkable that in regard to almost every material particular about the part played by Harbans Singh in the commission of the offence the story disclosed by the approver at the trial is inconsistent with his first statement before the police.

In his statement at the trial, the approver assigns Gunlial Singh the possession of lathi and according to him Gurdial Singh subsequently took up the kirpan from Sarwan Singh and murdered Gurdev Singh after which Harbans Singh himself gave a blow with it at the neck of the victim. ln his statement before the police, the approver had said that Gurdial Singh had carried a kirpan. We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of the approver in his cross-examination.

In our opinion, the discrepancies brought out in the evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to only one conclusion and that is that the approver has no regard for truth.

It is true that in his secornl statement recorded on November 29, the approver substantially changed his first story and involved Harbans Singh in the comm1ss1011 of the offence, and in that sense, his second statement can be

saitl to be consistent with his evidence at the trial.

But we cannot lose sight of the fact that, within three days after the recording of his second statement, he was granted pardon and his statement was recorded under s. 164 of the Code of Criminal Procedure on the same day.

Therefore it would be legitimate for the accused to contend that the additions made by the approver in his subsequent statement may be the result of promise held out to him that he would be granted pardon.

Apart from this consideration, in view of the positive statements made b)· the approver in his first recorded statement, there can be no doubt

Sarwan Singh v.

The State f

Punjab

Gajendragadkar ]-

Sarwan Singh

The State of Punjab

Gajendragadkar

that the subsequent allegations against Harbans Singh are improvements and are the result of his decision to involve Harbans Singh in the commission of the offence.

If this was a case where the statements made by the approver on subsequent occasions merely added details which were not included in the first statement, it may perhaps have been a different matter. It is true that omissions have not always the same significance as contradictions ; but in the present case it is patent that the two sets of statements are wholly inconsistent and irreconcilable and that obviously leads to a very serious infirmity in the character of the witness. It is indeed to be regretted that the attention of the learned Judges of the High Court was not drawn to this aspect of the matter and they were not invited to consider the initial question as to whether the approver, Banta Singh, was a reliable witness at all.

Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.

If the evidence of the approver is discarded as being unreliable the case against Harbans Singh must inevitably fail.

No doubt there are some circumstances against him on which the prosecution relies.

The evidence of Rakha

(P.W.8) would show that Harbans Singh and the other accused persons were concerned with the purchase of a pistol from Rakha.

Incidentally this pistol has not been used m the commission of the offence at all and that, in the circumstances, it is difficult to explain. However, the purchase of a pistol from Rakha may merely raise a suspicion against Harbans Singh but suspicions, however strong, cannot take the place of nroof.

Harbans Singh had injuries on his person and the conduct of Harbans Singh soon after the commission of the offence was very suspicious. That again may raise a suspmon against Harbans Singh but without the basis of the approver's evidence the suspicious circumstances can play no effective part in a criminal trial.

The discovery of clothes alleged to have been made at

the place of Gurdev Kaur cannot be pressed into service against Harbans Singh because Gurdev Kaur herself has not been examined and the importance of the recovery of a kirpan and a red scabbard from the spot cannot obviously be exaggerated. In our opinion, there is no doubt whatever that, if the approver's evidence is rejected as unreliable, the other evidence on which the prosecution relied against Harbans Singh cannot possibly sustain his conviction of the offence of murder. We must, therefore, hold that the finding of the learned Judges of the High Court that the offence of murder has been proved against Harhans Singh is vitiated by a serious infirmity to which we have just referred and must be reversed. If the learned Judges have failed to address themselves to the initial question of law before dealing with the merits of the approver and if, in dealing with his evidence, they" have failed to take into account the glaring and obvious inconsistencies in the account given by the approver, it is open to the appellant to challenge the validity of their conclusion.

In the result, the appeal preferred by Harbans Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged.

That takes us to the case of accused No. 3, Sarwan Singh. We have already pointed out that the order of conviction passed against Sa}wan Singh is in the words of the judgment of the High Court based on the fact that "there is the evidence of the approver and it is corroborated in every particular by his own confessional statement".

Besides, there is other circumstantial evidence to which reference has already been made in narrating the prosecution story at the beginning of this judgment.

It would at once be noticed that, if we come to the conclusion that the approver is an unreliable witness, the basis of the evidence of the approver on which the learned Judges of the High Court proceeded even while dealing with the case against Sarwan Singh has been shaken. If, in our opinion, the approver is unworthy of credit, then it would not . be possible to consider the question

Sarwan Singh

The State of

Puiab

Gaje11dragadkar J.

S.rwan Singh

The State of

Punjall

Gajtndragadkar ].

of the corroboration that his evidence receives from the confessional statement made by Sarwan Singh himself.

It is, however, true that Sarwan Singh has made a confession and in law it would be open to the court to convict him on this confession itself though he has retracted his confession at a later stage.

Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement.

What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. In the present case, the learned Sessions Judge has considered the question about the voluntary character of the confession made by Sarwan Singh and has found in favour of the prosecution. The judgment of the High Court shows that the learned Judges agreed with the view of the learned trial Judge mainly because the evidence of the Magistrate who recorded the confession appeare<l to the learned Judges to show that the confession was voluntary.

It is this view which is seriously challenged before m hy Mr. Mathur on behalf of Sarwan Singh.

Prima facie whether or not the confession is voluntary would be a question of fact and we would be reluctant to interfere with a finding on such a question of fact unless we are satisfied that the impugned finding has been reached without applying tl1e true and relevant legal tests in the matter.

As in the case of the evidence given hy the approver, so too unfortunately in the case of the confession of Sarwan Singh the attention of the learned Judges below does not appear to have been drawn to some salient and grave features which have a material bearing on the question about the voluntary character of the confession.

Sarwan Singh was arrested on November 25. His clothes were found blood-stained and he is alleged to have been inclined to help the prosecution by making tlie statement which led to the discovery of incriminating articles. All this happened on the 25th itself and yet, without any ostensible explanation or justification, Sarwan Singh was kept in police custody until November 30.

That is one fact

which is to be borne in mind in dealing with the voluntary character of his confession.

What happened on November 30 is still more significant. On this day he was sent to the Magistrate to record his confessional statement.

The . evidence of th<; Magistrate Mr. Grover shows that the accused was produced before him at about 2-30 p. m.

He was given about half-an-hour to think about the statement which he was going to make and soon thereafter the confessional statement was recorded. It is true that the Magistrate did put to the accused the questions prescribed by the circulars issued by the High Court of Punjab. EYen so, when the learned Magistrate was asked why he did not give more time to the accused before his confessional statement was recorded, his reply was frank and honest.

He said that the accused seemed to insist upon making a statement straightaway.

The Police Sub-Inspector who had taken the accused to the Magistrate . was apparently standing in the verandah outside ii! the Magistrate's office. The doors of the office wc::re closed but the fact still remains that the Sub-Inspector was standing outside.

The evidence of the Magistrate also shows that, soon after the statement was finished, the Sub-Inspector went to the Magistrate's room again.

The person of the accused showed some injuries and yet the learned Magistrate did not enquire how the accused came to be injured.

It is in the light of these circumstances that the question falls to be considered whether the confession made by the accused can be regarded as voluntary. It is hardly necessary to emphasize that the act of recording confessions under s. 164 of the Code of Criminal Procedure is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirements of sub-s. (3) of s. 164 are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under sub-s. ( 3) of s. 164 should not be allowed to become a matter of a mere mechanical enquiry .. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied .

that the confessional . statement which the accused

Sarwan Singh

TM State of

Purifab

Gajendragadkar J.

Sarwnn Singh

The Stalt of

Punjab

Gajo1dragadkar ].

wants to make is in fact and in substance voluntary.

Incidentally, we may invite the attention of the High Court of Punjab to the fact that the circulars issued hy the High Court of Punjab in the matter of the procedure to be followed, and questions to be put to the accused, by !>.fagistrates recording confessions under s. 164 may he revised and suitable amendments and additions made in the said circulars in the light of similar circulars issued by the High Courts of Uttar Pradesh, Bombav and Madras.

The whole object of putting questions to an accused person \Vho offers to confess is to obtain an assurance of the fact that the confessoion is not caused by any inducement. threat or promise having reference to the charge against the accused pe"son as mentioned 111 s. 24 of the Indian Evidence Act.

There can be :io doubt that. when an accused person is produced before the Magistrate by the investigating officer, it 1s of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all.

It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case.

However, speaking generally. it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. \Vhere there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.

In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the m2tter.

Indeed, any Magistrate with enough criminal experience would have immediately decided to give longer time to Sarwan Singh in the present case for the obvious reason that Sarwan Singh appeared to the learned Magistrate to be keen on making ' a confession straightaway.

The learned Magistrate himself has fairly stated that he would

have given him longer time but for his insistence to make a confession without delay. This insistence on the part of Sarwan Singh to make a con£ession immediately should have put the learned Magistrate on his guard because it obviously bore traces of police pressure or inducement.

Unfortunately, the effect of the failure of the learned Magimate to grant enough time to the ac('.used to consider the matter has not been considered by the learned Sessions Judge and has been wholly ignored by the learned Judges of the High Court. Besides, in neither court below has any attention been paid to the fact that Sarwan Singh appeared to have been kept in police custody without any justification between November 26 and November 30. We have carefully cnsidered all the relevant facts beaming on this questioh and we see no escape from the conclusion that the failure of the learned Judges of the High Court to take into account these material facts has introdu::ed a serious legal infirmity in their conclusion that the confession made by Sarwan Singh is valuntary. That is why we think we must reverse this conclusion.

There is, besides, another fact which is equally fatal to the prosecution case. Even if the confession is held to he voluntary, it must also be established that the confession is true and for the purpose of dealing with

thi~ question it would be necessary to examine the confession and comRare it with the rest of the prosecution evidence and the probabilities in the case. In ow opinion, some material points mentioned in the confessional statement are not shown to be true. Sarwan Singh says that when Gurdev Singh was assaulted hr: and his brother Harbans Singh were walking together.

On the other hand the prosecution story is that Harbans Singh had first contacted his accomplices and had told them that he would send Gurdey Singh towards the spot where the accomplices would lie in wait for him. The story further is that when Gurdev

Singh suspected that there were some people near about he shouted to Harbans Singh and before Harbans Singh came on the spot assault and begun.

This part of the prosecution story as deposed to by the 2-61 S. C. India/59

Sarwan Singh

The Stolt of

Pu, galt

Gajendrazadkar

Sarrvan Singh v.

TJw. Jtat~ o.f

Pur.ja/;

Gq, erulragadkar J.

approver 1s inconsistent with the marerial statement in the wnfession.

According to the confession, Dial Singh gave a Dang blow to Gurdev Singh on the head from the front. This statement is not borne out by medical evidence. There does not appear to be a corresponding injury on the head of the victim.

Sarwan Singh says that he took the, kirpan which was first used by Harbans Singh and gave two blows to Gurdev Singh on his thigh. This statement again is not borne out by the medical evidence about the injuries on the body of the victim.

Similarly, the statement of Sarwan Singh that the handle of the kirpan vias broken and he got his finger injured with it is not easily reconcilable with the medical evidence about the injury itself. Unfortunately these disn-cpancies between the confessional statement and the main prosecution evidence given by the approver have not been noticed by the learned Judges of the High Court.

Indeed, after having found that the confession was voluntary it appears to have been assumed by the learned Judges that the confession was true and that, ; n our opinion, is another infirmity in the conclusion ceached by the High Court.

That leaves the other circumstances which have been proved against Sarwan Singh to be considered.

There were injuries on his person. They are thus described by the doctor:-

"l. A superficial incised wound with a scab, the face, just above the 3/S x 1/12 on the left side of left moustache.

2. An abrasion outer surface of the

3. An abrasion outer surface of finger.

with a scape 1/2 1/4 on the middle digit of the left ring linger.

with a scab 1/8 x 1/8 on the the middle digit of the left little

4. An abrasion with a scab 1/4" x 1/4" on the outer surface of the terminal inter-digital joint of the left little finger.

All the injuries were simple and of about two days duration. Injury No. 1 was caused by shorpedged weapon and the rest by some blunt weapon."

In his cross-examination Dr.

Singh admitted that injury No. 1 could have been caused by razor blade as suggested b;' the counsel for Sarwan Singh and injuries Nos. 2 to 4 could h:ive been caused by rubbing against some hard substance. In other words, on medical evidence it is difficult to reject the explanation of the accused as unreasonable or palpably untrue. Then we have the evidence of biood-stains on 1:1e shirt and chadar w:orn by Sarwan Singh. If the expiar:aion given by Sarwan Singh about his injuries is not unreasonable i:hen the presence of blood-stains on his dress cannot be seriously pressed agaiD.st him. The evidence of Rakha about the negotiations and purchase of a pistol from him and about the part of Sarwan Singh in that transaction no doubt may suggest that Sarwan Singh was asociated with the criminals but that is very far from pro•1ing the charge of murder against him.

Incidentally, as we have already observed, if the pistol was purchased it is difficult to understand whv it was not used. Then we have the evidence of the . shoes which were found on the spot.

The evidence of the shoe-maker Santa Singh suggests that he had identified the pair of shoes as belonging to Sarwan Singh that very night. According to him, he has been manufacturing shoes like this pair though not on a large scale. Unfortunately, in his examination under s. 342 of the Code, no question had \:.een put to

Sarwan Singh about these shoes.

It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet. In any event, failure to give him an opportunity to explain the circumstances by putting an appropriate question to him undtr s. 342 justifies his argument that this circumstance should not be used against him. Besides, like the evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan S_ingh is being tried.

The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to

Sarwan Sir.gh

Tht Stat. oj

Punjab

Gajendragailkar J.

Sanvan Singh

bring home to Sarwan Singh the charge framed against him. If that he the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul could-blooded and cruel murder like the present should go

The State of

Pu'lfa:b

J. unpunished. It may be as Mr. Gopal Singh strenuous! y urged before us that there is an element of truth in the prosecution story against both the appellants.

Mr. Gopal Singh contended that, considered as a whole. the prosecution story may be true ; hut between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us ; but we do not think it would be possible to regard the approver as a reliable witness or to hold that the confession of Sarwan Singh is voluntary or true.

In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged.

Appeals allowed.

THE COLLECTOR OF MALABAR

FRIMAL EBRAHIM HAJEE

(S. R. DAS C.J., JAFER IMAM, s. K. DAS, GoVINDA MENON and A. K. SARKAR JJ.)

Income Tax-Arrears of-Wilfully withholding and evading payment-Arrest of asses see to recover arrears-Whether illegal- /ndian Income Tax Act, s. 46 (2)-Madras Revenue Recovery Act (Mad. II of 1864), s. 48-Constitution of India, Arts. 14, 19 21 and 22.

The Income Tax Officer forwarded a certificate under s. 46(2) of the Indian Income Tax Act to the Collector for recovering the arrears of lncome Tax from the assessee as if they were arrears of land revenue. The Collector proceeded under s. 48, Madras Revenue

SARW AN SINGH

THE STATE OF PUNJAB

s. 164

Supreme Court

s. 164

Code of Criminal Procedure

s. 164

Sarwan Singh

State of

Punjab

Cyan Chand Mathur

R. L. Kohli

Gopal Singh

T. M. Sen

GAJENDRAGADKAR J.-Harbans Singh

Gurdial Singh

Additional Sessions Judge at Ludhiana

s. 302

Indian Penal Code

Banta Singh

Gurdev Singh

November 23, 1955

Sohian

High Court of Punjab

Harbans Smgh

Harbans

Singh

Harbans Singh

Rakha

Sarwan. Singh

Gajendragadkar

Darshan Singh

Jagat Singh

Gurnam Singh

Pana

Harhans Singh

Pona

Gurdev Kaur

Banta Singh

Rakha

Sarwan Singh

State

Putifah

Gajendragadkar

Gqjmdragadkar

Gurdial Singh

Gur<lial Singh

Art. 136

Kohli

India

Indian Evidence Act

Gurdi~I Singh

Gunlial Singh

s. 164

Code of Criminal Procedure

Sarwan Singh

State of Punjab

Sa}wan Singh

State of

Puiab

Gaje11dragadkar

S.rwan Singh

State of

Punjall

Gajtndragadkar

Mathur

Grover

s. 164

Code of Criminal Procedure

s. 164

s. 164

s. 164

s. 24

Indian Evidence Act

Gurdey Singh

Gurdev

Singh

Sarrvan Singh

Dial Singh

Singh

Santa Singh

s. 342

s. 342

Sarwan S_ingh

Sarwan Sir.gh

Gajendragailkar

Sanvan Singh

State of

Pu'lfa:b

J.

Gopal Singh

S. R. DAS

JAFER IMAM

s. K. DAS

GoVINDA MENON

A. K. SARKAR

Income Tax Act

s. 46

Madras Revenue Recovery Act

s. 48

Constitution of India

Arts. 14, 19

s. 46(2)

s. 48

Madras