3 S.C.R.

SUPREME COURT REPORTS 563

tribunal has considered all the relevant factors and has come "to the conclusion that five months' bonus Standa:.i-;,., •• ,.

would meet the ends of justice.

We do not see any Refining co. of reason to interfere with this award.

India In the result both the appeals fail and are disv. b h Its Worknten missed. There will be no order as to costs in ot the appeals.

Gajendragadkar ].

Appeals dismissed.

BHAGWATI SARAN AND ANOTHER v.

THE STATE OF UTTAR PRADESH. (B. P. SINHA, C.J., s. K. DAS, A. K. SARKAR,

N. RAJAGOPALA AYYANGAR AND

J. R. MUDHOLKAR, JJ.) Iron ad Steel Control-Notification fixing maximum prices- W hether ultra vires-If notification discriminates between "controlled stockholders" and" registered stockholders "-Report to Magistrate- Facts constituting the offence, meaning of-New Point-Iron and Steel (Control of Production and Distribution) Order, r94I, Cl. IIB -Essential Supplies (Temporary Powers) Acl, r946 (XXIX of

r9~). s. II-Constitution of India, Art. r4.

A police officer made a report under s. II of the Essential Supplies (Temporary Powers) Act, 1946, regarding a contravention of cl. .n-B(III), Iron and Steel (Control of Production and Distribution) Order, 1941, read with s. 8 of the Essential Commodities Ordinance, 1955 to the Magistrate against the appellants who were registered stockholders that they had sold iron bars at prices higher than the controlled rate. After enquiry the Magistrate framed a charge against the appellant under s. 7, Essential Supplies (Temporary Powers) Act •. 1946, read with cl. ll-B(III) of the Control Order. The appellants contended that the charge ought to be quashed on the grounds, (i) that the notification of the Controller fixing the maximum sale price of the several categories of iron and steel was ultra vj1es the rule-making power in

cl. n-B(i) of the Control Order, (ii) that the notification was discriminatory and violated Art. 14, and (iii) that the complaint could not be taken cognisance of by the Magistrate because the report of the police officer did not set out the facts constituting the offence as required by s. II of the Act. The first two grounds were raised for the first time before the Supreme Court.

Held, that the notification fixing the rates was intra vires

cl. n-B(i) of the Control Order. The notification did not omit any class mentioned in cl. n-B(i) from its purview; it included

I96I

January io.

I96I

Bhagwati Sara'lt

Stale of Uttar Praiesh

"registered producers" and it was not shown that there were any "producers" other than " registered producers" enumerated in the notification. The notification governed "registered stockholders"' also as they were included in the residuary category of persons other than " registered producers " and " controlled stockholders ".

The notification was not discriminatory and did not offend Art. 14 of the Constitution. The notification no doubt permitted the grant of credit facilities and the right to charge for cutting and wastage in sales to "controlled stockholders'" but not to "registered stockholders" in regard to sales by them. Differentiation was not per se discrimination. There was no material to show that there was any unfair or irrational discrimination which could attract Art. 14.

H ela, further, that the police report on which the prosecution was launched satisfied the requirements of s. rr of the Act.

The purpose of s. rr was to eliminate private persons from initiating prosecutions and to confine it to public servants. The requirement of the section that the report should be in writing and should set out the fact's constituting the offer.ce was to ensure that there was a record that the public servant was satisfied that a contravention of the law had taken place. If the contravention was sufficiently designated in the report the requirements of the section were satisfied. Section II did not require the mention in the report of details which would be necessary to be proved to bring home the guilt to the accused.

Dr. N. G. Chatterji v. Emperor (1946) 47 Cr. L.J. 876 and Rachpal Singh v. Rex (1947) 50 Cr. L.J. 469, not applicable.

Additional grounds, other than those urged before the High Court, would not lJe permitted to be raised before the Supreme Court as a matter of course, but only, in exceptional circumstances like cas<!s of subsequent legislation or where questions of fundamental and general importance were raised.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 16 of 1959.

Appeal from the judgment and order dated November 18, 1958, of the Allahabad High Court in Criminal Reference No. 452 of 1956.

R. V. S. Mani, for the appellants.

G. 0. Mathur and 0. P. Lal, for the respondent.

1961. January 20. The Judgment of the Court was delivered by

Ayyangar ].

AYYANGAR, J.-Having heard the learned Counsel for the appellants in full we did not consider it necessary to call on the respondent since, we were clearly

of the opinion that the contentions raised in the appeal possessed no merit.

The legality of a prosecution for contravention of the notification fixing the maximum prices at which certain categories of iron & steel could be sold is the subject.matter of this appeal. The appellants are two in number, related to each other as husband and wife.

The second appellant-Sushila Devi-is" a Registered tstockholder " and is state.d to be the proprietor of the firm "Balwanta Devi Sushila Devi" situated in Sultanpur in Uttar Pradesh and the first appellant-.

Bhagwati Saran, her husband, the. manager of the said firm.

There has been some previous history before the present prosecution was in.itiated but it is sufficient for the purposes of this appeal to start with the report to the Judicial Magistrate, Amathi, by the officer incharge of the Police station, Sultanpµr, dated A.ugust 20, 1955.

It was headed "Offence-Section 11-B Iron & Steel Control Order, 1941" and set out the following facts:

" Bhagwati Saran used to work as a Karinda in the firm of Balwanta Devi Sushila Devi and had all along been doing sales and purchases at the shop, and also issued receipts .under his signatures. Shrimati Sushila Devi is the wife of accused Bhagwati Saran and she was the proprietor. Balwanta Devi has died. Hence she alone is the proprietor. In the course of investigat.ion it was also revealed that Bhagwati Suran had from time to time sold some iron-b11.rs on behalf of this firm after receiving price more than the control rate, which he had all along been getting printed, and had been getting some other receipts checked fictitiously under the Control Act from the office of the Supply Officer. An information relating to it was given to Shri P. N.

Kapoor, the then D. M., Sultanpur by his munim Kalapnath and on it a case was registered at t:his police station and the investigation was made ..... . .................. On the report of the P.P"'the S.P. ordered another charge-shuet to be submitted under section 8 of Essential Commodities Ordinance of

1955. Hence this charge-sheet under sectiqn 11-B

Bhaiwati Saran

v Stale of Uttar Pradesh

Ayyangar J.

Bhagwati Saran

State of Vilar Pradesh

Avyangar ].

(III) Iron and Steel Control of Production and Distribution Order, 1941, read with s. 8 of Essential Commodities Ordinance of 1955 is sent against both the accused. The accused persons after being arrested were releaMed on bail.

It is, therefore, prayed that the accused persons after being summoned may be punished." The report further stated that 4 volumes of cash memos, and 5 volumes of register of Permits were deposited in the Malkhana and would be produced in evidence and followed it with a list of 13 prosecution witnesses.

The Judicial Magistrate registered the case and issued summons to the accused on September 16, 1955, the {lase being directed to be called on September 30, 1955.

The accused were thereafter examined before the Magistrate under s. 364 of the

Criminal Procedure Code on March 23, 1956, and on the next day the Magistrate framed a charge against them which read as follows:

"That you between 10th January 1952 and 27th February 1952 in Sultanpur sold 11 Cwt. 12 lb. iron bars on 11th January 1952 and 3 Cwt. iron bars on 18-2-52 and 6 Cwt. iron bars on 26th February 1952 at the rate of Rs. 21-13-9 per Cwt. though the controlled rate as notified in Government of India Gazette dated 1st July 1952 for the commodity was Rs. 21-2-4 per Cwt. and thus you charged Rs. 1-15-0, Rs. 2.-2-3 and Rs. 4-4-6 respectively excess and more than the controlled price and thereby committed an offence punishable under s. 7 E. S. Temp. P. Act 1946 read with s. 11-B (iii) of Iron and Steel Control of Production and Distribution Order of 1941 and I hereby direct that you be tried by the said Court on the said charge." The two appellants thereupon moved the Court of the Sessions Judge, Sultanpur, to revise the order of the Magistrate dated March 24, 1956: framing charges against them under s. 7 of the. Essential Supplies (Temporary Powers) Act, 1946-Act XXIV of 1946 (referred to hereafter as the Act).

The points urged at that stage were mainly two :

(1) That the notification by the Controller under

cl. 11-B(I) fixing the maximum prices which were stated to have been contravened not having been filed before the Court, the Magistrate erred in framing a charge, and (2) that the report of the police was not in conformity with the provisions of s. 11 of the Act.

The learned Sessions Judge upheld the second of the above contentions which was, that the report made by the police officer did not set out " the facts constituting the offence" as required by s. 11 of the Act.

He rejected the other point put forward by the appellants but in view of his conclusion that there was a defect in the report which went to the root of the jurisdiction of the Magistrate to take cognizance of the case, he made a reference to the High Court with a recommendation that the charge framed against the appellants be quashed. This reference was heard by a Single Judge of the High Court, who disagreed with the learned Sessions Judge in his view that the report did not satisfy the requirements of s. 11 of the Act.

Before the learned Judge, however, a further point was urged, that s. 11-B of the Iron & Steel Control of Production and Distribution Order, 1941 (which will be referred to hereafter as the Control Order) was itself ultra. vires. This further objection was referred to a Division Bench .for decision. The point urged before the learned Judges' of the Division Bench was that the power to fix prices vested in the Steel Controller by cl. 11-B of the Control Order was unconstitutional, as violative of the right to carry on business guaranteed by Art. 19(l)(g) of the Constitution .. The learned Judges answered this point against the appella.nts and the case thereafter ca.me back before the learned Single Judge for final disposal of the reference by the Sessions Judge. The learned Counsel for the appella.nts once again made a. submission to the learned Judge regarding the report of the police officer dated

August 20, 1955, not satisfying the requirements of s. 11 of the Act and pressed before him the view which found favour with the learned Sessions Judge.

In a more detailed judgment, the learned Judge again rejected this contention and dismissed the reference and directed the prosecution to continue. It is this

r96r

B/Jagwati Sa,.an

State of Utta1 P1adesl~

Ayyangar ].

Bhagwati Saran

State of Uttar Pradesh

Ayyangar ].

SUPHEME COURT REPORTS [1961]

order of the High Court of Allahabad that is the subject-matter of appeal now before us, on a certificate granted by that Court.

It would be seen that the only two points in controversy before the High Court were: (1) whether the report of the police offioer dated August 20, 1955, contained " the facts constituting the offence " with which the appellants were charged, as to satisfy the requirements of s. 11 of the Act, and (2) whether

cl. 11-B of the Control Order, violated the fundamental right to carry on business guaranteed by Art. 19(1)(g). In the grounds of appeal to this Court and in the statement of case, however, the appellants have raised various other grounds and have also filed a petition for leave to urge these.additional grounds.

We desire to make it clear that grounds additional to those urged before the High Court would not be permitteJ to be raised before this Court as a matter of course and that petitions for such purpose would. not be granted save in exceptional cases; It has to be noticed that in hearing and dealing with such additional grounds the Court is handicapped innot having the advantage of the opinions .of the High. Court on the points urged. It is the correctness of the decisions of High Courts that are sought to be challenged in appeals and it is but proper that the correctness of these judgments should, save in exceptional cases . like for instance subsequent legislation or questions of fundamental and genera.I importance etc., be assailed only on grounds urged before such Courts. Besides, when among the grounds thus urged as in this case is included a violation of Art. 14, the handicap is accentuated, since the material facts on which the classification might rest could not be properly investigated or evaluated on the basis of the affidavits filed in this

Court without a careful sifting of the facts which a consideration by the High Court would afford. If in the appeal now before us, we have depr•rted from this rule and permitted the appellants to urge the additional grounds it was because of the circumstance that the prosecution was pending and learned Couns<l sabmitted that he woald seek to sustain his contention

:.~

3 S.C.It.

SUPREME COURT REPORTS 569

regarding the violation of fundamental rights on the materials already on record.

The ground regarding the constitutionality of

cl. L:. -B of tne. Control Order has been the subject of elaborate consideration by this Court in Union of India

v. Messrs. Bhrtna Mal Gulzari Mal (1) and is, therefore, no longer open to argument. Learned Counsel for the appeJlant therefore die not challenge the correctness of the judgment of the High Court upon this point.

Besides the ground based on a non-compliance with s. 11 of the Act which we shall consider later, learned Counsel urged before us two points with reference to the notification issued by the Steel Controller fixing the maximum prices at whjch the sevoral categories of iron and steel could be sold by producers and stockholders. These were: (1) that the notification of the Controller dated July 1, 1952, for the contravention of which the appellants were being prosecuted, was ultra vires the rule-, naking puwer conferred upon him by

cl. 11-B(l) of the Control Order, (2) if, however, the notification was held to b~ within his pow'3r, the same was unconstitutional in that it was discriminatory and violated Art. 14 of the Constitution. As we have indicated earlier, these gronnds of challenge to the validity of the notification were not made in any of the Courts below including the High Court, but for the reasons indicated we permitted learned Counsel to argue them before us.

In order to appreciate the contention presented in the two forms, it is necessary to set out the terms of

cl. 11-B(l) which conferred power upon the Controller to fix the maximum base-prices at which the several varieties of iron and steel could be sold.

Clause 11-B(l) runs:

"11-B. Power to fix prices.-(!) The Controller may from time to.time by notification in the Gazette of India fix the maximum prices at which any iron or steel may be sold (a) by a Producer, (b) by stockholder including a Controlled Stockholder and (c) by any other person or class of persons. Such price or prices may differ for iron and steel obtainable from

{1) (1960] 2 S.C.R. 627.

B hagwati Saran

State of Uttar Pt<adtsh

Ayyangar f

Bhagwati Sa1. ·

v. .. Slatecoj ···:·.-iu."a~: Prades

Ayyanga~ J.

different sources and may include allowances for

contriuti!\n to and payment from any equalization furid' established by the Controller for equalising freight, the concession rates payable to each producer or class of producers under agreements entered into by the Controller with the producers from time to time, and any other disadvantages." Clause (2) of the Control Order defines "producer " as " a person carrying on the business of manufacturing iron or steel", and "registered producer" as "a producer who is registered as such hy the Controller ".

The same clause defines "stockholder" as " a person holding stocks of iron or steel for sale who is registered as a stockholder by Controller" and "Controlled

stockholder" as "a stockholder appointed by the Controller to hold stocks of iron or steel under such terms and conditions as he may prescribe from time to time". The notification of the Controller dated July 1, 1952, impugned in these proceedings runs in these terms, quoting only the material words:

"Under Ministry of Commerce and Industry Notification ............ the prices of all items of steel under columns I, II and III in the schedule of Base Prices of the attached price circular No. 1 of 1951 have been increaGed by Rs. 50/- per ton with effect from 1st July, 1952, except item 19(b), i.e., Billets which has been increa.sed by Rs. 45/- per ton ........ .

The other General and Special Conditions of sale. mentioned in the attached Price circular remain the same."

.··,

--f

3 &.C.R.

SVPREME COURT REPORTS 571

The price circular dated July I, 1951, referred to here consisted .of eight columns which ran thus: ·

Base Materials Price

Item

No.

A-Bars, Structural and plates etc.

I Bars and Rods {Rounds and squares below 3" and flats up to and including s" wide)

(Price. in rupees per ton)

Maximum Base Prices at Calcutta., Bombay and Madras

Column..! I

Column II_ I

Column III

For sales by For sales by For sales by Registered controlled all persons Producers. stockholders. er than Registered Producers and controlled stockboldera,

.,; I I

.,; .,; .,; ..; 1i $ • • • • ~ ii

~ 1;; • • • • • • • • • d f.<

~ f.<

~ !-< = = ·~ ~

Rs. I

Rs. I

Rs.

Rs.

Rs. I

Rs.

303 333

2 to '42 ............................................................................................ .

This was followed by General Conditions and Specie.I Conditions which inter alia made provision for the purpose of rounding off inequalities in freight caused by places being situated at varying distances from the place of production etc. It was the operation of sorue of these conditions that was urged as giving rise to the discrimination complained of, but it will, however, be convenient to deal wih them laer, B:fter disposing of the argument regardmg the not1ficat10n not being within the powers of the Controller under cl. U.B (1).

The ground urged in support of the contention tha.t the notification Ly the Cont-roller was not in conformity

Bhagwa1i Saran ·

Staj1 of U llar PrU..sh

Ayyangar f.

Blwgu:ati Sara1t

v. .state 1Jf [Tttar Pradesh

with cl. 11-B (1) was this: Whereas under cl. 11-B(l) theController was directed to fix the maximum prices

\vhieh could be charged by three different classes, viz.,

(a) Producers, (b) Stockholders including Controlled stockholders, and (c) Other persons, the impugned notification departed from this scheme in two respects: (1) The clause contemplated that the notification should apply to all " producers" whereas "producers" other than "Registered producers"

were wholly left out by the Controller with the result that no limitation was placed upon the price they could charge, (2) Whereas the clause directed the Controller to include both the types of stockholders- " Registered " as well as "Controlled "-within the same class and make the same limit of prices applic- . able to both, the notification had included only "Controlled stockholders " as the second category of dealers and "registered stockholders" had not been specified eo nomine by him. This meant either that "Hegistered stockholders" were wholly outside the class of dealers governed by the notification or that they were intended to be included in the residuary class in column III.

On these premises learned Counsel urged that if "registered stockhoklers" like the second appellant were not within the notification, the prosecution must fail because the maximum 'prices chargeable by her had not been fixed. lf on the other hand such dealers had been separated from " •Controlled stockholders" and included in the residual category, such a classification was not countenaµced by cl. 11-B(l) and was therefore ultra vires.

We consider that these submissions are wholly without any .substance. Before the argument that " producers '' other than '"registered producers" had not been included in the notification ca; n be accepted, it has to be established that there is any such producer.

There is a list of "registered producers" appended to the notification and learned Counsel admitted that he could not say that thore were any besides these, who wore "producers" of iron and steel within the meaning of the Control Order. If therefore every "producer'' was regi"tered, ther~ io< no scope for the argument that

.-., i

any persons had been left out and permitted to sell at prices of their choice.

The other part of learned Counsel's argument that " registered stockholders " were not governed by the notitication because they were not included in column II thereof and that dealings by them were not subjected to the maxima of prices fixed by it, has only to be stated to be rejected.

The heading of the last column shows that all categories of dealers other than "registered producers?' and "controlled stockholders" were included in the residuary category. The related contention that the Controller acted outside his powers in differentiating between "contro!led stockholders" and "registered stockholders " and in fixing different ma, xima of prices that could be charged by the two categories of dealers; does not deserve serious consideration either. If we understand the classification a.right, it is like one between wholesale dealers and retailers and it is on this basis that the maximum price that could be charged by the "Registered Stockholders" who fall under column III is fixed at Rs. 20/- per ton above that permissible to "Controlled Stockholders" iP respect of the category of steel which we have extracted earlier.

The classification which gives persons in the category of the appellants this advantage is certainly not one regarding which a complaint could be made. Even when this advantage conferred on regfotered stockholders by the classification by the Controller was pointed out to learned Counsel for the appellant he persisted in his argument that "registered stockholders" should have been put in column II along with " controlled stockholders " and should have been permitted to sell only at the same maximum prices. 'l'his is sufficient to show that the argument regarding the classification was frivolous and could not have been urged with any seriousness. This apart, we consider that even on the terms of cl. 11-B (1), the Controlleds not prevented from drawing a distinction within the three classes which are specified in it. The purpose and policy of the enactment is to ensure that an essential commodity like iron and steel is made available to

r96I

Bhagwati Saran

State of Uttar Pradesh

Ayyangar j.

Bhagwati Saran

State of Uttar Pradesh

Ayyangar ].

the consumer at reasonable prices and in the achievement of this objective classification of producers or of other stockholders based upon rational grounds would obviously be within the power of the Con_troller.

Ta.king for instance the la.st class (c) "any other person or class of persons," it cannot be that this group could not be sub-classified, if there was any reason or necessity to do so. If head ( c) is susceptible of this interpretation, as it obviously must, we see no reason why head {b) should not be similarly construed. We have therefore no hesitation in rejecting the contention of learned Counsel, that the notification of the Controller fixing maximum prices is beyond his power, as not warranted by the terms of cl. 11-B (1) of the Control Order.

The argument next advanced in challenge of the validity of the notification was, that some of the General Conditions appended to the notification were discriminatory of the class of"registered stockholders" as compared with the "controlled stockholders " invoking for this purpose Art.14 ofth.e Constitution. Learned Counsel did not challenge the legality of the creation of the equalisation , fund by the allowances for what is termed as " place extra ''.. Learned Counsel, however, urged two matters wherein facilities had been afforded or price increases permitted, to " controlled stockholders" which were denied to " registered stockholders " and that these had been done without any rational basis.

These were: (1) The 3rd of the special conditions for sale .by "controlled stockholders" read: "The question of credit faoi.lities will be a matter for negotiation between the customers and the controlled stockholders."

(2) Similarly, Condition 5 also relating to "controlled stockholders" read : "The base-prices are for sizes

and length available in size. Customers requiring

mat"iria.l cut to length or size not available in stock will be required to pay cutting and wastage charges a.greed between the customers and the stockholders." Coming now to the special conditions for sale " by persons ot!ier than producers ana controlled stockholders," i.e., the conditions which governed sales like those by the second appellant, special condition I

\ ..

j \

read: "The base-rates given in column III above are ex.site and apply to sales by all persons other than Producers and Controlled Stockholders ............ and are not subject to additional charges for cutting or for credit facilities. " Neither of these points-cutting charges or credit facilities-could be held to be discriminatory without a full investigation of the facts and circ.umstances which led to the imposition of these special conditions. Differentiation could never per se be discrimination, nor is there -any presumption that the adoption of different rules for groups differently situated is unequal treatment violative of Art. 14. On

the other hand, the presumption is the other way and the party that alleges unjustifiable discrimination should establish it to the satisfaction of the Court.

We consider that there is no material on the basis of which an argument could be sustained that the specialconditions to which lea.med Counsel adverted contained any element of unfair or irrational discrimination to attract Art. l4.

There was a slight and subsidiary point raised in regard to the allowance of credit facilities and cutting charges. It was said that these charges were indeterminate and that the Cpntroller having been directed by cl. 11-B (1) to fix definite maximum prices had departed therefrom by permitting increases of undefined a.mounts. This argument again has no substance. The base-price for the commodity having been fixed, there are incidentals which by their very nature were incapable of definite quantification, since they were dependent on ea.ch individual case. This contention also we therefore reject. In passing, we might observe that the matter before this Court in Union of India v. MesMs. Bhana Mal Gulzari Mal(•) related to e. prosecution for a. contravention of a. notification of an earlier date, but in terms identical with the present, except as to the prices, wherein the dealers in the commodity were classified in -the so.me manner e.a he.a been done in the notification now before us and with the so.me general and specie.I conditions. The respondent then before this Court we.a '' a. registered

(•) (1g6o] a S.C.R. 627.

Bhagwati Saran

State of Uttar Pradesh

Ayyangar ].

Bltagwati Saran

Slat1 of Uttar Pradesh

Ayyangar J.

stockholder" who was being prosecuted for effecting sales in excess of the maximum prices fixed.

The fact that on that occasion no contention was urged challenging the validity of the notification as beyond the powers of the Controller, on the grounds now put forward clearly indicates, that the matters now urged never appeared then, as a possible source of grievance to a party situated similarly as the second appellant.

We hold th'l.t the notification fixing the prices together with the conditions appended thereto a.re valid and enforceable.

The last point that remains to be dealt with, is the contention that the initiation of the pr<'secution against the appellants waR invalid for non.compliance with the requirements of s. 11 of the Act. This Section runs :

"11. Cognizance of offences.-No Court shall take cogniza.nce of any offence punishable under this Act except on report in writing of the facts constituting such offence ma.de by a person who is a public servant as defined in section 21 of the Indian Penal Code (XLV of 1860)." Learned Counsel for the appellants urged that though two of the conditions specified by the statute, viz., (I) a report in writing, (2) by a public servant were satisfied, the third requisite, viz., that the report should set out the " facts constituting such offence " was lacking and that by reason of this defect the Magistrate could not lawfully take cognizance of the case against the appellants. In elaboration of this point learned Counsel pointed out that the report did not specify: (a) the date when the alleged sales took place, (b) the quantity sold, (c) the person in question who was the buyer and who pa.id the excess over the controlled price, (d) the cJa.3s or category of iron and steel which was the subject of the sale by the appellants, (e) the precise maximum price which had been fixed for such variety, (f) the a.mount which the appellants were alleged to have received in excess.

The learned. Judge of t}, le High Court rejected this contention and, in our opinion, correctly. In the report which we have alrea.dr extracted the provision

--;-, ',...---:- .,.,. .\

.3 S.C.R.

SUPREME-COURT REPORTS.· 577

of the la.w which the appellants were atated .. to have contravened wa.s set out, and it was there stated that being "registered stockholders" they. had sold the goods above the price notified and that theyhad . further,_in order to conceal their crime, fabricated evidence. It is to be noticed that the report is required to contain only "a. statement of facts constituting the offence" a.nd its function is not to serve as a. chargesheet a.ga.i!lst the accused: The function or purpose of the second of the a.hove three requirements of s. 11 is to eliminate private individual~·. such as rivaF traders or the general public from initiating a. prosecutfon and for this purpose before cognizance is ta.ken · the complaint is required to emanate from " a. public servant"- The two further requirements, viz., that the report should be in writing and regarding the contents of the report, are to ensure that thereshall be a.record that the public servant is satisfied that a. contravention of the Ja.w has'. ta.ken place. If the contravention in question is sufficiently designated in the report, a.nd in the present case that cannot be disputed, since besides a. reference to the notification stated to have been contravened, the report states

tha.t .the accused had effected sales .a.hove the maximum prices specified in the notification, the requirements of'the section are satisfied. '£he details which would be necessary to be proved to bring home the guilt to the accused and which comprised the several

matters enumerated by learned Counsel which we have set out, will be details which would emerge at a later stage, when after notice to the accused a charge is framed against them. and of c; Q_urse at the stage of the trial.· They would all be matters of evidence and s. 11 does not require the report to be or to contain either the charge-sheet or the evidence in. support of the charge, its function being merely to afford a basis for enabling the magistrate to take cognizance of the case. .

 In support of his submission regarding the construe- · tion of s. 11 reliance was placed on two deCisions : Dr. N. G. Ohallerji v'. Emperor(') nd Rachpal Sirigh v.

\•l (1946) 47 Cr. LJ •. 876.

Bhagwati SMatf

State of Uttar P1a]e$lt

.Ayyangar ].

. '

Bhagwati Saran

State of Ullar Pradesh

Ayyanga• ].

. Rex('). Both these were cited before the learned Judge and we agree with the manner in which he has

dealt with and distinguished them. No doubt, in both these cases it was held that the requirement of r. 130 (1) of the Defence of India Rules (whose language was similar to s. 11 of the Act) as to the Statement of "facts constituting the contravention" was not complied with, but the " reports " dealt with in them, bear no resemblance to the report in the case before us. In the first of these decisions, the recital in the report was that the accused was guilty of a " prejudicial act to the interest of the public" and "had prejudiced the success of financial measures with a view to the efficient prosecution of the war". These words were held to be absolutely vague, even the particular rule or provision of law which was said to have been contravened, not even being mentioned in the report.

The other decision in 50 Criminal Law Journal does not bear any.analogy tothe present case either. The report there in question ran :

"On the statement of the informant an offence under s. 81(2), Defence of India.Rules, has been committed for which the charge-sheet is being submitted." On this it was held that the facts alleged to constitute the contravention were not set out in the report and that the Magistrate had therefore no jurisdiction to take cognizance of the case. Obviously this case could not assist the learned Counsel to sustain a contention that the report in the present case was defective. We consider that the report on which the prosecution was launched satisfied the requirements of s. 11 of the Act. In the result the appeal fails and is dismissed.

Appeal di8mi8sed.

(1) (1947) $0 Cr. L.J. 469.

Gajendragadkar

BHAGWATI SARAN AND ANOTHER

s. K. DAS

A. K. SARKAR

N. RAJAGOPALA AYYANGAR

R. MUDHOLKAR, JJ.

Constitution of India

s. 8

Essential Commodities Ordinance, 1955

s. 7

Art. 14

Supreme Court

Art. 14

Art. 14

R. V. S. Mani

G. 0. Mathur

0. P. Lal

Ayyangar

AYYANGAR

Sushila Devi

Balwanta Devi Sushila Devi

Uttar Pradesh

Bhagwati Saran

A.ugust 20, 1955

Section 11

Bhagwati Saran

Balwanta Devi Sushila Devi

Shrimati Sushila Devi

Balwanta Devi

Bhagwati Suran

P. N.

Kapoor

Sultanpur

section 8

Essential Commodities Ordinance

s. 8

Essential Commodities Ordinance

September 16, 1955

September 30, 1955

s. 364

March 23, 1956

26th February 1952

1st July 1952

s. 7

s. 11

Sessions Judge, Sultanpur

March 24, 1956

s. 7

cl. 11

s. 11

s. 11

s. 11

s. 11

cl. 11

Art. 19(l)(g)

August 20, 1955

s. 11

State of Utta1

State of Uttar Pradesh

s. 11

cl. 11

Art. 19(1)(g)

Art. 14

s. 11

July 1, 1952

cl. 11

Art. 14

cl. 11

Clause 11

India

(1960] 2 S.C.R. 627

B hagwati Saran

State of Uttar

Slatecoj

Ayyanga~

.state 1Jf [Tttar Pradesh

cl. 11

cl. 11

cl. 11

cl. 11

cl. 11

Art. 14

cl. 11

Bhagwati Saran

s. 11

section 21

Indian Penal Code

s. 11

s. 11

s. 11

Bhagwati SMatf

State of Uttar P1a]e$lt

.Ayyangar

State of Ullar Pradesh

s. 11

s. 81(2)

s. 11


3 S.C.R.

SUPREME COURT REPORTS. 579

INTERNATIONAL CONTRACTORS LTD. v.

PRASANTA KUMAR SUR. (J. L. KAPUR and J. C. SHAH, JJ.)

Sale-Repudiation of contract by vendor---, Suit for specific performance, if lies without formal tender of purchase money.

The appellant purchased the property in dispute from the respondent but soon thereafter there was an agreement for reconveyance of the property to the respondent within a period of two years for almost the same value for which it was sold. The relevant clause of this agreement was as follows:-

"Clause 3-The purchase shall be completed by the purchasers within two years, i.e., to say on or be lure the roth day of February, 1943, time being the essence of the contract. If the purchasers shall on or before the IOth day of February, 1943, pay to the vendor a sum of Rs. 10,001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right, title and interest in the said property free from encumbrances, if any, created by it."

Before the expiry of the stipulated period the respondent entered into correspondence with the appellant asking for the completion of the agreed reconveyance and irttimatingthatthe purchase money was ready to be paid; but after some correspondence the appellant's solicitors totally repudiated the agreement for reconveyance. The respondent did not then tender the price agreed to be paid and filed a suit for specific performance which was dismissed by the trial court on the ground that the respondent had not paid the money. The High Court decreed the suit.

Held, that as the appellant had totally repudiated the contract for reconveyance and had failed to perform his part of the contract it was open to the respondent to sue for its enforcement and the High Court was right in holding that the respondent was entitled to a decree for specific performance.

In a case of total repudiation ot"the agreement for sale it was useless to make a formal tender of the purchase money.

Hunter v. Daniel (1845) 4 Hare 420, andChalikani v. Zamindar of Tuni and Others (1922) L.R. 50 I.A. 41, followed . .

Ismail Bhai Rahim v. Adam Osman I:L.R. [1938) 2 Cal. 337, distinguished

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 205of1956.

Appeal from the judgment a.nd decree dated May 26, 1954, of the Calcutta High Court in Appeal from Original Decree No. 127 of 1950. ·

January 25.

 .. 5SO' .. -

',...... > ..... -

SUPRE~IE COURT REPORTS - [1961] \" '' . -. -. ·. \ ' '. .

'9~' -n. N. Mukherjee, for the a.ppella.nts •. ....

Jnter•atio•al '\ . N. C. ChlJtterjee a.nd R. R. Biswas, for respondents Confra<tors Ltd. 'Nos. l(a.) a.nd 2. • •

v. ' - \ p,., •• ,. Kumar

1961. Ja.nua.ry 25. The_Judg!llent of the Court was

Kapur].

delivered by , __ . _

- KAl'UR, J.-This is a.n a.ppea.l a.ga.inst the i"udgment and decree of the High Court of Judicature a.t Calcutta..

The a.ppella.nt wa.s the defendant in the suit out of which this a.ppel has a.risen a.nd respondent No: I was -the plaintiff,· a.nd the second respondent wa.s a. proforma. defendant. The facts 'of this ca.se a.re these:

On Febrria.ry' 4, 1941, the_ respondent sold the pro. perty in dispute to the appellant for a. sum o_f_J;!.s •. 10,000. __ j On February IO, 1941, there-. was a.n a.greement':J0r, '" _; reconveya.nce wihin a. period up to February .10; ,;:· -· ·.

1943, for a. sum of Rs; 10,001. The relevant clause of this agreement was the third clause which was a.s follows:- - - . -

- - " Clausi 3.-The purchase sha.11 be completed by the purchasers within two ye_ars, i.e., to say on or before the 10th da.y of February, 1943, time being the essence of the contra.ct; If the purchasers sha.11 on or before the 10th da.y of Februa.ry, 1943, pa.y to . the vendor a sum of Rs. 10,001 the vendor sha.11 a.t the cost of the purchasers execute such conveyance a.s ma.y be.necessary for conveying a.nd transferring its right, title a.nd interest in the sa.id property free from encum'bra.nces, if a.ny, created by it." On November 26, 1942, the solicit<Jt"for respondent

-- No. 1 wrote a. letter to the a.ppella.nt s.tating that that _respondent wa.s rea.dy. a.nd willing to ha.ve the pur. _ chase, completed_ a.s early as. possible on payment of __ -Rs. IQ; OOl •. Along with that letter a draft conveyance was sent fora.ppto'val but a.II this was subject to the result of a. search a.s to the encumbra.'lces, if any; : .created by the appellant. On November 30,1942, the . solicitors for the a.ppella.nt company wrote back saying - -

; tha.t immediate a.rra.ngements should be ma.de for giving inspection of the_ agreei:nerit of sa.le on which the respondents were relying a.s the a.ppella.nt wa.s utia.ble to trace the copy of the said agreement from its record.

Again on December 11, 1942, the respondent's solicitor sent a letter stating: International "My client is very eager to complete the purchase Co1t1ractors Ltd. and the full consideration money therefore is lying v. idle in his hands awaiting the return of the relative Prasanta Kuma. draft conveyance as approved by you on your Sur clients' behalf." To this the reply of the appellant's solicitors dated December 18, 1942, was:-

"Our clients deny that there was any concluded or valid agree:nent for sa.le with your client or with any other person in respect of the above premises." On June 10, 1943, respondent No. l filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage.

The trial court dismissed the suit on May 16, 1950, holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not pa.id the money " punctually according to the terms of the contract, the right to repurchase was lost and could not be specifically enforced", and the court had no power to afford any relief against forfeiture of this breach. The plaintiff-respondent took an appeal to . the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does not bar a suit for specific performance because after the repudiation of the contract by the appellant, the tender would have been a useless formality. The appeal was therefore allowed and the suit for specific performance decreed.

It is against this judgment and decree that the a.ppeJ. !ant has come in appeal to this Court.

The correspondence which has been proved in this case shows that when the respondent's solicitor called upon the appellant to reconvey thf property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the prop!)rty in dispute. This was a complete repudiation of the contra.ct to reoonvey which the

Kapu• ].

• x96x appellant had agreed to by cl. 3 of the agreement

I I I. 1 which has been set out above. As the appellant had n erna iona , . c ontiactors Ltd. repudiated the contract and had thus failed to carry ·

v. out his part of the contract it was open to the respond.

Prasanta Kumar ent to sue for its enforcement. But it was argued on

Sur behalf of the appellant that the respondent did not

Kapur]. tender the price, i.e., Rs. 10,001 nor was be in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance.

In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally, refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunter v. Daniel (1) is applicable to cases of this kind.

In that case Wigram, V. C., stated the position as follows:-

" The practice of the Courts is not to require a party to make a formal tender whare from the facts stated in the Bill or from the evidence it appears the teder would have been a mere form and that the party to whom it was made would have refused to accept the money." Lord Buckmaster in Ohalikani Venkatarayanim v.

Zamindar of Tuni (')accepted this statement of the law and observed:-

"Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money." This principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted toan unequivocal refusal to carry out its part of the contract which in our opinion it was.

It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when

(1) (1845) 4 Hare 420: 67 E.R. 712-

(2) (1Q2') L.R. 50 I.A. 41, 47.

the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so. We are unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman (1), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promisor through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the. promisee of ascertaining that the promisor is able and willing to perform his promise.

Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender.

In our opinion the High Court rightly .held that the respondents were entitled to a decree for specific performance and we therefore dismiss this appeal with costs.

Appeal dismissed.

STATE OF MADHYA PRADESH

AHMAD ULLAH.

(A. K. SARKAR and N. RAJAGOPALA AYYANGAR, JJ.)

Murder-Plea of unsoundness of mind-Crucial time-Acquittal -High Court's refusal to reverse, if justifiable-Indian Penal Code, ss. 84, 3oz.

The High Court affirmed an order of acquittal of the respondent on a charge of murder under s. 302 of the Indian Penal Code passed by the Sessions Judge on the ground that the accused was of unsound mind. The prosecution case was that the accused committed the murder of his mother-in-law against whom he had borne ill-will, by severing her head from her body while she was asleep at dead of mght. He made" confession of the crime but a plea of insanity was taken at the trial. On appeal with special leave by the State : H dd, that the crucial point of time at which unsoundness of mind should be established is the time when the crime jg actually

(1) I.L.R. [1938] 2 Cal. 337. 75

I96I

lnlef'national Contractors Ltd.

Prasanta Kum at

Sur

Kapur J.

z96z

579

INTERNATIONAL CONTRACTORS LTD

PRASANTA KUMAR SUR

L. KAPUR

C. SHAH, JJ.

Clause 3

(1922) L.R. 50 I.A. 41

Calcutta High Court

N. Mukherjee

N. C. ChlJtterjee

R. R. Biswas

KAl'UR

High Court of Judicature a.t Calcutta

December 11, 1942

December 18, 1942

June 10, 1943

May 16, 1950

cl. 3

Prasanta Kumar

Wigram

Buckmaster

L.R. 50 I.A. 41

STATE OF MADHYA PRADESH

AHMAD ULLAH

A. K. SARKAR

N. RAJAGOPALA AYYANGAR

Indian Penal Code

ss. 84, 3

s. 302

Indian Penal Code

lnlef'national Contractors Ltd.


3 S.C.R.. SUPREME COURT REPORTS 583

the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so. We are unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman (1), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promisor through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the. promisee of ascertaining that the promisor is able and willing to perform his promise.

Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender.

In our opinion the High Court rightly .held that the respondents were entitled to a decree for specific performance and we therefore dismiss this appeal with costs.

Appeal dismissed.

STATE OF MADHYA PRADESH

AHMAD ULLAH.

(A. K. SARKAR and N. RAJAGOPALA AYYANGAR, JJ.)

Murder-Plea of unsoundness of mind-Crucial time-Acquittal -High Court's refusal to reverse, if justifiable-Indian Penal Code, ss. 84, 3oz.

The High Court affirmed an order of acquittal of the respondent on a charge of murder under s. 302 of the Indian Penal Code passed by the Sessions Judge on the ground that the accused was of unsound mind. The prosecution case was that the accused committed the murder of his mother-in-law against whom he had borne ill-will, by severing her head from her body while she was asleep at dead of mght. He made" confession of the crime but a plea of insanity was taken at the trial. On appeal with special leave by the State : H dd, that the crucial point of time at which unsoundness of mind should be established is the time when the crime jg actually

(1) I.L.R. [1938] 2 Cal. 337. 75

I96I

lnlef'national Contractors Ltd.

Prasanta Kum at

Sur

Kapur J.

z96z

z96I

State of Madhya Pradesh

AhmaduUah

584 SUP):tEME COURT REPORTS [1961]

committed, the burden of proving which lies on the accused in order to entitle him to the exemption provided under s. 84 of the Indian Penal Code. .

It is not. sufficient only to prove that the accused suffered from an " epileptic type of insanity " before or after the commission of the crime.

Henry Perry, 14 Cr. Appeal Rep. 48, followed.

There was nothing on the record of the instant case to show that at the moment when the crime was committed the accused was incapable of knowing that what he was doing was wrong or contrary to law and as such he was not entitled to an acquittal under .s. 84 of the Indian Penal Code.

Refusal by the High Court to interfere with an acquittal in the proved circumstances of the case could not be justified under any rule as to "impelling reasons ".

CRIMINAL

APPELLATE

JURISDICTION: Criminal \ppeal No; 120 of 1960.

Appeal by special leave from the judgment and order dated February 28, 1958, of the Madhya Pradesh High Court (Gwalior Bench), in Criminal Appeal No. 3 of 1957.

I. N. Shroff, for the appellant.

The respondent did not appear.

1961. January 25. The Judgment of the Court was delivered by

Ayy•"lf•• J.

AYYANGAR, J.-This is an appeal by special leave by the State of Madhya PNl.desh against the dismissal of an appeal preferred by it to the High Court of Madhya Pradesh (Gwalior Bench) which declined to reverse the order of acquittal passed by the Sessions Judge holding the respondent not guilty of an offence under s. 302 of the Indian Penal Code.

The ground of acquittal by the Sessions Judge, which was concurred in by the High Court was that the respondent was of unsound mind at the time of the commission of the crime and so was entitled to an acquittal under s. 84 of the Indian Penal Code.

There is very little dispute about the facts or even about the construction of s. 84 of the Code because both the learned Sessions Judge as well as the learned Judges of the High Court on appeal have held that the cruial point of ime at which the unsoundness of

mind, as defined in that section, has to be established is when the act was committed. It is the application of this principle to the facts established by the evidence that is the ground of complaint by the appellant-State before us.

Section 84 of the Indian Penal Code which was invoked by the respondent successfully in the Courts below runs in these terms :

"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." It is not in dispute that the -burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by this section lies on the accused who claims the benefit of this exemption (vide s. 105, Indian Evidence Act, Illustration (a)).

In orqer to appreciate the point raised for our decision it is necessary to refer to the findings of the Sessions Judge which were in terms approved by the learned Judges of the High Court. Before we do so, however, we shall narrate a few facts regarding which there is no dispute : The deceased Bismilla was related to the accused-respondent as the mother of his wife Jinnat whom he had divorced. The accused nurtured a grievance against his mother-in-law for matters it is unnecessary to set out. Bismilla went to bed in her own house on the night of September 28,

1954. On the morning of the next day the body of Bismilla was found by her husband lying in a pool of blood on the cot on which she was sleeping with the head missing.

The First Information Report was immediately lodged by the son of the deceased. The police were informed that the respondent had borne ill-will towards Bismilla and thereafter the Sub-Inspector who was in-charge of the investigation sent for the respondent. The respondent admitted having committed the murder and stated that he had put the head of Bismilla and the knife with which it had been severed from the body in a cloth-bag which he had hid in an underground cell in the furniture shop

I96l

Slat. of Madhya Praiksh

Allmadullah

Ayyangar ].

z96z

Stataof Madhya Prad<sh

Ahmadu//ah

of his father. The respondent w11.s taken to that shop where he took out the articles in the presence of Panch-witnesses. He also took out a torch from the cash-box of the shop and handed it over to the police with the statement that the torch had been used by him on the occasion of the murder to locate the deceased in the darkness. The accused further stated the manner in which he managed to scale over the wall of the house of the deceased, how he gained entrance into the room, how he found her asleep on a cot and how he severed the head from the trunk ; i.nd carried the former away and hid it at the place from which he took it out. The respondent was produced before the District Magistrate before whom he made a confessional statement reciting all the above facts.

He was thereafter committed to stand his trial before the Court of Sessions Judge, Gwalior, for the offence under s. 302 of the Indian Penal Code. We have only to add that the confession which was subatantially corroborated by other evidence was never withdrawn though in his answers to the questions put to him by the committing magistrate and by the Sessions Judge under s. 342 of the Criminal Procedure Code he professed ignorance of everything.

On behalf of the defence, in support of the plea of unsoundness of mind three witnesses were examined, two of them being medical men. The first witness- Mahavir Singh was the District Civil Surgeon and Superintendent of the Mental Hospital. He spoke of having treated the accused in August 1952 as a private patient. His deposition was to the effect that the accused had an epileptic type of insanity, the last time that he saw him being in August 1952, i.e., over two years before the date of the occurrence. His evidence therefore cannot be very material-not to say decisive-on the question as to whether at the moment when the offence was committed the accused was insane as defined by s. 84 of the Code or not.

The other medical witness examined for the defence was the Superintendent of the Mental Hospital who had examined the accused on and after November 18, 1954, i.e., nearly two months after the occurrence. His

3 S.C.R.

SUPREME COVRT REPORTS 587

deposition also was to the effect that the accused was suffering from epileptic insanity. The witness testi- Stal• of fied, that at the first stage of the attack of a fit the Madhya Pr•tksh

v. patient becomes spastic, that in the second stage the patient would have convulsions of hands and feet and Ahmaduliah in the tertiary stage becomes unconscious and at the 1 k k

Ayyanga1 ]. last stage the patient might do acts i e sleep-wal ing: Obviously this was expert evidence about the nature of the disease which the doctor stated the accused was suffering from, and not any evidence relating to the mental condition of .the accused at the time of the act. The other witness who spoke about the mental condition of the accused was his father. In his evidence he stated :

" The accused was in a •disturbed state of mind in the evening of September 28, 1954. He had not taken food for two days. When I went to the shop on the morning of September 29, 1954, at 7-30 or 7-45 I found the accused was unconscious and 1hat his hi1nds and feet were stiffened. Just then the police came there and took away the accused." On the basis of this evidence the learned Sessions Judge after correct.ly statiµg t_l, i"/Ja:iy.that uz; der s. 84 of the Indian Penal Code the crucial point of time at which unsoundness of mind should be established, is the time when the act constituting the offence is committed and that the burden of proving that an accused is entitled to the benefit of this exemption is

upon him, summarised the evidence which had been led in the case in these terms :

" The next thing therefore to consider is whether the accused was incapable of knowing the nature " of the act. The fact that the accused went at night to the house of his mother-in-law, deliberately cut her head and brought it to his house is too obvi9us to show that the accused was capable of knowing the nature of the act. To put it differently, the accused while killing Bismilla was not under the impression that he was breaking an earthen jar. Even the learned counsel for the defence laid no stress on this aspect of insanity. He, however, contended that the accused was incapable of knowing that what he was doing was either wrong or contrary to law."

State of Madhya P1adesh

Ahmadullah

AyyangaYJ.

The learned Judge, however, rested his decision to acquit the accused on the following reasoning:

"There is the circumstance that soon after the crime the accused was admitted to the mental hospital and the Superintendent of the Hospital at least confirms that the accused suffers from epileptic fits. Now epilepsy is a kind of disease which may cause insanity. This is called epileptic insanity. In this insanity the patient commits brutal murders without knowing what he was doing. The accnsed who suffered from epilepsy has committed a brutal murder. There is thus ground to believe that he may have committed this murder in a fit of epileptic insanity .................. These things give rise to the inference that the accused may have committed the crime in a fit of insanity and without knowing that what he was doing was either wrong or contrary to law. I, therefore, find that the accused Ahmedullah did kill Bismilla by severing her head from the body with a knife but that by reason of unsoundness of mind he was incapable of knowing that what he was doing was wrong or contrary to law anc! that he is, therefore, not guilty of the offence of murder with which he is charged under section 302, Indian Penal Code and I direct that the said accused be acquitted." The learned Judge had definitely found that the accused knew the nature of the act he was doing, a finding which as we shall presently point Out, was concurred in by the learned Judges of the High Court.

In the face of it we find it rather difficult to sustain the reasoning upon which the last conclusion is rested on the facts of this case.

From this order of acquittal by the learned Sessions Judge the State filed an appeal to the High Court.

The learned Judges of the High Court also correctly appreciated the legal position that to invoke the benefit of the exemption provided by s. 84 of the Indian Penal Code it would be necessary to establish that the accused was, at the moment of the act, insane. The learned Judges, on this aspect of the case, said :

"About the -mental condition immediately before and after the crucial moment, we have the

circumstances, the conduct of the respondent on the morning of the 29th and his confession given on that afternoon. By themselves they do not support the theory of mental unsoundness necessary for Section 84, though they are explicable, consistently with epileptic insanity. The murder itself has been committed with extraordinary cunning, and attention to the most minute detail.. ................ It is certain the respondent knew at that time the physical nature of what he was doing; he did not believe that he was breaking a pot or cutting a cabbage, but was taking the life of a human being which he says within 16 hours, he did for vindicating his honour. In fact, the condition at the time of the confession is one of elation rather than of depression or a black-out .................. The learned Sessions Judge has held that the respondent was in a fit of epileptic insanity on the 28th night, when he killed his mother-in-law; it. is not clearly rcorded, but it also seems to be his finding that this fit of epileptic insanity continued at least till the time of his confession. This finding is not one without any evidence to support it, or one that can be called perverse; still, it is one that could properly be arrived at, only if it is consistent with the observation made on the respondent immediately after the 29th September, 1954." They proceeded to point out that there was no observation by medical experts soon after the act to enable an inference to be drawn as to the mental condition of the accused just prior thereto. After detailing the arguments on either side the learned Judges concluded:

"Thus we have no evidence pointing to that kind and degree of mental unsoundness at the time of the act as required by section R4 of the I.P.C. ; but on the defective material adduced, it would have been in my opinion, an unsatisfacto!'y conclusion either way ............ In a case like this when the

proved facts would otherwise support a conviction for murder it was for the defence to adduce evidence

aqd it should, in principle, reap the consequence of any omissions in this regard."

State of Madhya Pradesh

Ahmadullaii

Ayyangot ].

',.,·; . .. .. 590

-·-,-Fr'..-----"":' . /' > ' .

- SUPRElllE COURT REPORTS [1961]

~ ,\.

". I96' . ' .From these obsef ations itwould -appear as if the

State of' learned Judges of the High Court were differing from ll!adhya Pradesh the learned Sessions Judge in his conclusion as regards v. the application of section 84 to the facts of the present Ahmaaullaio case. They however, continued:

Ayyangar ].

·:.-·

"The Sessions Judge was satisfied that the defence has discharged the onus of proving that at • -the -time of •/the commission of the offence the accused was mentally so unsound as not . to know that the act was wrong and contrary to law. Now -it is for the/ State to establish in appeal that the finding is perverse and that there are compelling reasons why that decision should be reversed.". and it is ori this ground that the learned Judges dismissed the ap ea! by the State. - - _ We find our elves wholly unable _to ccmcur with this _ conclusion or ith the reasoning on which it. is rested.

The learned /Judges failed to appreciate that the error in the Ndgment of the Sessions Judge lay not . so much in4he implicit acceptance of the testimony . of the fathe of the accused-because he was obvi-

. ously an int ested witness, and of this the appellant.

State could rtainly and justifiably complain-but in proceeding on a basis wherein.inferences and probabi- . lities_ resting on assumptions were permitted to do duty for proved facts, which . the statute required to be established before the exemption under the section could be claimed; Refusal to interfere with an acquital in such circumstances could hardly be justified under

ny ruleas to. "impelling reasons" for interference even assuming the existence of such a rule. The error : in the judgment of the High Court consisted in ignor- ,·- ing the fact that there was nothing on the record on the basis of which it could be said that at the moment of the act, the accused was incapable of knowing that what he was doing was wrong or contrary to law.

In this connection we might refer to the decision of the Court of Criminal Appeal in England in Henry Perry(') where also the defence was that the accused _ had been prone to have fits of epileptic insanity. • During the course of the argument Reading, -C.J., observed:

(1) 't Cr. Appeal Rep. t8,

"The crux of the whole question is whether this '96' man was suffering from epilepsy at the time he comf . d h . 0 h , 't ld b t Stale o m1tte t e crime. t erw1se I wou e a mos Madhya Pradeslo dangerous doctrine if a man could say, 'I once had v. an epileptic fit, and everything that happens here- Ahmadullah after must be put down to that'." In dismissing the appeal the learned Chief Justice Ayyangar J. said:

" Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing-that is, the physical nature and quality as distinguish11d from the moral-or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong ...... There is, however, evidence of a medical character before the jury, and there are statements ma.de by the prisoner himself, that he has suffered from epileptic fits. The Court has had further evidence, especially in the prison records, of his having had attacks of epilepsy. But to establish that is only one step; it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders; and that has not been proved." We consider that the situation in the present case is very similar and the observations extracted apply with appositeness. We consider that there was no basis in the evidence before the Court for the finding by the Sessions Judge that at the crucial moment when the accused cut the throat of his mother-in-law and severed her head, he was from unsoundness of mind incapable of knowing that wha.t he was doing was wrong. Even the evidence of the father does not support such a finding. In this connection the Courts below ha.ve failed to take into account the circumstances in which the killing was compassed. The accused bore illwill to Bismilla and the act was committed at dead of night when he would not be seen, the accused

x96x taking a torch with him, access to the house of the

5 1 deceased being obtained by stealth by scaling over a Madh;:'•;.adesh wall. Then again, there was the mood of exaltation v. which the accused exhibited after he had put her out Ahmadullah of her life. It was a crime committed not in a sudden mood of insanity but one that was preceded by careful Ayyangar f. planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy.

]anua,.y a7.

The appeal is therefore allowed, the order of acquittal passed against the respondent set aside and in its place will be substituted a finding that the respondent is guilty of mQJ.'der under s. 302 of the Indian Penal Code. In the normal course the proper punishment for the heinous and premeditated crime committed with inhuman brutality would have been a sentence of dee.th. But ta.king into account the fact that the accused ha.a been acquitted by the Sessions Judgea.n order which has been affirmed by the High Courtwe consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life. It is needless to add that the State Government will take steps to have the accused treated in a.n asylum until he is cured of his illness, if this still continues.

Appeal allowed.

ARDESHIR H. BHIW ANDIWALA

ti.

THE STATE OF BOMBAY. (JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and

N. RAJAGOPALA AYYANGAR, JJ.) Factory-Sall Works, whether a factory-Premises, if include open land-Manufacturing process-Conversion of sea water into

salt-Factories Act, z948 (LXIII of I948), ss. 2(k) and (m), 92.

The appellant was convicted of an offence under s. 92 of the Factories Act, 1948, for working a salt works without obtaining a licence. The salt works extended over an area of about

250 acres. The only buildings on this land were temporary shelters for the resident labour and for an office; at some places there were pucca platforms for fixing the water pump wh•ll

STATE OF MADHYA PRADESH

AHMAD ULLAH

A. K. SARKAR

N. RAJAGOPALA AYYANGAR, JJ.

Indian Penal Code

ss. 84, 3

s. 302

Indian Penal Code

lnlef'national Contractors Ltd.

State of Madhya Pradesh

s. 84

Indian Penal Code

Henry Perry

s. 84

Indian Penal Code

I. N. Shroff

AYYANGAR

State of Madhya PNl.desh

s. 302

Indian Penal Code

s. 84

Indian Penal Code

s. 84

Section 84

Indian Penal Code

s. 105

Indian Evidence Act

Bismilla

Jinnat

September 28,

1954

Court of Sessions Judge, Gwalior

s. 302

Indian Penal Code

s. 342

Mahavir Singh

s. 84

November 18, 1954

Ahmaduliah

September 28, 1954

September 29, 1954

s. 84

Indian Penal Code

State of Madhya P1adesh

AyyangaYJ

Ahmedullah

section 302

Indian Penal Code

s. 84

Indian Penal Code

Section 84

29th September, 1954

I.P.C

section 84

Ayyangar

England

Ayyangar

Ahmadullah

s. 302

Indian Penal Code

ARDESHIR H. BHIW

STATE OF BOMBAY

JAFEB IMAM

J. L. KAPUR

K. c. DAS GUPTA

RAGHUBAR DAYAL

Factory-Sall Works

Factories Act

ss. 2(k)

s. 92

Factories Act, 1948