38.C.R.

SUPREME COURT REPORTS 171

THE COMMISSIONER OF INCJME-TAX

SHAPOORJI PALLONJI MISTRY (S. K. DAS, M. HmAYATULLAH and J.C. SHAH, JJ.)

Income Tax-Power of Appellate Assistant Commissioner to enhance ass€ss1nent-ltems not mentioned in return or consi dered by the Income Tax Officer-Whether new source, s of income could be taxed-Indian Income Tax Act, 1922, (11 of 1922), ss. 31(3)(a), 33B, 34.

The assessee had received in July 1946, a sum of Rs. 40,000/· which according to him represented a receipt of a capital nature.

This fact was brought to the notice of the Income Tax Officer during the proceedings for the assessn1ent year l946-47 and the Income Tax Officer made a note that the question would be considered again at the time of 1947-48 assessment.

In the return filed for the assessment year 1947-48 this amount was not shown by the assessee. and the Income 'fax Officer also overlooked his previous note, with the result that this item was omitted.

During the pendency of the appeal by the assessee before the Appellate Assistant Commissioner the Income Tax Officer wrote a letter to the Appellate Assistant Comlnissioner inter alia requesting him to assess the amount of Rs .. 40,000/-. 'fhe amount was assessed and included in the original assessment.

On reference, the High Court answered that the Appellate Assistant Commissioner was not comptent to enhance the assessment. The question is whether in an appeal filed by an assessee, the Appellate Assistant Commissioner can find a new source of income not considered by the Income-tax Officer and assess it under his powers granted by s. 31 of the Act and travel beyond the reco1-d in enhancing the assessment for any year.

He/, d, that in view of the provisions of ss. 34 and 33B by which escaped income can be brought to tax., the power of the Appellate Assistant Commissioner is limited ; he has no power to travel beyond the record to enhance the assessment of any year by discovering new source of income not mentioned in the return of the asses see or considered by the Income Tax Officer in the order appealed from.

He.ld, further, that provisions of ss. 33B and 34 enable escaped income from new sources to be brought to tax after following special procedure. Enhancement of assessment by the discovery of new sources of income is not contemplated

1·1it Cor;, n, iuior.er 1/

lncornc•lax

Shaj, oQrji l'allonji

.\1 istr;•

Hidayati.llah- J.

172 SUPREME COURT REPORTS [1962) SOPP.

under s. 31, bcc,1ue if frt:sh sources of incon1c arc asescd undr.r tha.t ection 1 the asscsce \vill lie deprived of a finding

Ly l\\'O tribunals, and one right to aµpccd. 'l'hc pu\vcrs of rcn1aud should be cxcrcisr.U. in uch casr.s.

__ ;.\:arroJ.t 1/f.l.'/ Jlanorda .. s v.

Cu1nuii.~-si•Jncr_ of lnc~11t'frt(,, !l9:>1j 31 1.1'.ll. 909,.Jayarnalli Thrani v. G'o1nniissioner of lncl)11t•! 1'r1.r:, (1925j f.L.ll, 1t P..i.L JIJJ, (),1ja!a.}a,_i; hn1i Uinn, iny

}"'ctory v. (]1 .. Hnrni.s<; i1Jnt:1 of I 11,-:oni•:-ta.i.:, [I 952J 22 I :I'.({. 502,

li1sh11:r11uzth l'ritsad JJ!uzyu-at J>r, i:; a<l v. Co11inn'ssio11, fr of /nOJllH:.-

fux, [l9:)5J 2!) I:I'.ll. 74B ; u1tl. 1'hc ()onani,;; sioner of l11, r:o1ntlri.c

v. Mis. JfcJJil/an & Co. [l~"JBj S.C.R. 689, referred to.

CIVIL Al'l'ELLATE Jt:HISD!CTION: Civil Appeal Xo. 420 of l!J6l.

Appeal by pecial leavo from tho judgment and order dated ilhrch 14, 1958, of the Bombay High Court iu I.T.H. No. 54 of 195i.

I(: N. Rajagopal &itri and D. Gupta, for the appellant.

R. J, Kolah, D. Ii. Dw1srkcw.U1S, S. N. Andlcy, Rwne;; hunr Nath aud P.L. Vohra, for tho rcspondl•nt.

l!lui. :l!'eburary 14.

The Judgment of the Court was delivered by

liIDAYATl:LLAll, J:-The asscssee, who is the respondent here, had received on July 20, l!lHl a a sum of Rs. 40,000/·.

In tho proceedings for assrlisment for the assessment ye.u, I 94tl . .i7, this came to the notice of tho Incomet<1x Officer. Since tho receipt fell within the accounting year rolative to tho assessment year, 1947-48, tlio Income-tax Officer <lid not assess the amount making a noto,

"The question will however bo oonsidered again at tho time of 19i7--i8 assessment." In the return fild for the 8.sseesment year, l!J.!7-48, this amount was

not shown by the a88essee. The Income-tax Oflicer also overlooked tho note at tho end of bi" order in the back yoar's 'lBsessrnent, with the result that this it.cm was omitted, The assessee appealed to Appellate Assistant Commissioner against his . assessment for the year, 1947-48. While the appeal

was pending. the Income-tax Officer wrote a letter 1962 to the Appellate Assistant ComrniRsioner intimat- The Oommi<8foner of ing him th11t he would likf1 to he present, 1tnd n.lso

1 ""~.':'ax requesting him to asRess the :tmount of R8. 40.000/-. s1, apoo•ji Pallonji The Appellate Assisf, ant Commissioner. after issuing Mistry notice, :tssessed the amount :md included it in the llido; atu/laf, J. original assesment.. The oontPntion of the ltSsessee was th:it the amount of Rs. 4.0,000/- represented 11, receipt of a capital nature, while it wits

he Id to he a receipt on the nwenue account. With

thi~ controversy,. we 11, re not concerned. The Tribunal agreed with the Anpelhte Assist.ant C')mmissioner, hut on the application of the assessee, referred two questions to the High court under s. (i6 (l}. These quesf.ions-were:

" ( 1) Whether on the facts and in the circumstancPs of the case, the Appellate Assistant CommissionN w1ts compPtent to enh:tncc the 1tssessment of the Appellant for the assAssment year 1947-48 hy a sum of Rs. 40,0(10/-?

(2) Whether on the facts and circnmstances of the case the said sum of Rs. 40,000/- is a revenue rPceipt anr-J assessable to tnx in the assessment year 1947-48 ?'' The High Court answered the first qnrstion against the Department, 1tnd declined to nN<WAr the secon<l, in a much as it become aca<lPmic. This apnral has heen filed with special leave, against the judgment of the High Court of Bombay.

Tne question whirh arises in this appeal may be formulated thus: whether in an appeal filed hy assesee, the Appellate Assistance Commissioner

can find a new source of income not considered by the Income-tax Officer and assess it under his

powers granted by s. 31 of the Income-tax Act ?

Section 31 reads as follows :

".11. ( l} The Appellate Assistant Commissioner shall fi.x a day and place for the

Tiu Ccmmissior." of

lncomt-Tox

SMpoo1ji Pal/m:Ji

A1i1try

174 SUPREME COURT REPORTS (1962] SL'PP.

hearing of the appeal, and may from time to time adjourn the hearing.

(2) The Appellate Assistant Commissioner may, before disposing of anJ appeal, make

Ruch further inquiry as he thinks fit, or came further inquiry to he made Ly tho Jncornetnx Officer.

x x x x

(3) in disposing of an appeal the Appellate A8sistant.Commissioner may, in the case of nn ordC'r of as~<>sment,-

(a) confirm, reducP, enhance or annnl the asseRSment,

(h) set aside the as.essment and direct the Income-tax Officer to make a fresh assessment aftBr makinl! such fm ther inquiry as the Income-tax Officer thinks fit or the Appellate Assi; tant Commissioner may direct, and the Income-tax Officf'r shall thereupon proceed to mak<' surh fresh assr.ssment and determine whcro necessary the amount of tax pay. ah le on the hasis of such fresh assesmcnt. .. "

There is nn doubt that the Appellate Assistant Commissioner can "enhnce the assessment." It

is admitted alo hy the asRe8sre that. within the four cornerR of the sources proccssrcl hy the Income tax Officer, the Appellate Assistant Ccimmissioner can enhance the assessm('nt.

This power must, at least, fall within the words "enhance the asspssmcnt", if they are not to ho rend" red \I holly

nuga.f.ory.

The contro, crsy in this case is about hi;- di,; c., vering new sources, not mentioned in the rrt11rn a!Hl not considered by the Ineomr-tax Officer. Tho High Court held, following its earlier

view in N arron!las M anordass v. Commissioner of Ineome-tax ('), that the Appellate Assistant CommiRsioner has revisional powers, but that they are confined to what was before the Incometax Officer and considered bv the latter. The correctness of this view is challenged in this appeal by the Commissioner of Income-tax, Born bay.

The earliest caso, which considered 'the meaning of s. 31(3), was Jagarnath ThPrani v. Commissioner of Income-tax (2) decided by the Patna High Court.

In that case, the assessee had three businesses atPurnea, Jalpaiguri and Calcutta. Hi~ income from Purnea only was assessed by the Income-tax Officer.

On appeal by the assessee, the Appellate Assist:i.nt Commissioner assessed him with regard to the income from the other two businesses. The head of income was the same with s. 6 of the Income-tax Act, but the sources of income were different.

The Patna High Court observed : "Now this section relating to appeals is enacted for the benefit of the subject and also to the limited extent therein stated, for the benefit of the Crown.

But the subject-mater of the appeal is the assessment and the scope of the appeal must in my opinion be limitcrl by the "subject-matter". The appe!l1ttc authrity has no power to-travel beyond the subject-matter of the assessment and, for all the reasons advanced by the appellant, is in my opinion. not entitled to assess new sources of income." The view of the Patna High Court receives support from a decision of the Madras High Court in Gajalakshmi Ginninq Factory

v. Commissioner of Income-tax(') where the Divisional Benchobserved as follows:

"Of course, it would not be open to the

(!) [1957] 31 I. T. R. 909. (21 [1925] I. I, R. 4 Pat. 385.

13) [ 1942] 22 J. T. R. 502, 5(0.

J96t

The Commissiorier .1f

lnco~Tax

Shapooji Pal/onji

Mistry

Tl.e Commfrsione1 of

Jn, ome-T ax

Sh(lpoorji Po Jlon;'i

,\Jistry

llida;•atullah J.

176 SUPREME COURT REPORT8 [1962] SUPP.

Appellate Assistant Commissioner to introduce into thA assessml'nt new sources, as his

P"''"r of enhancement should be restrirtcj nn 1, v to the income whirh was the rnbjectmaftl'f of eonsidl•ration for purposes of asseffment b~· the Income-tax Officer."

In R,"s1111.wna.th Pmsn.rl Bhaq11mt Prasad v.

Commi~ sionPr of T111:omP.-f1J.r (1), the ApncllatA AsRistant CommiR•ionpr had act.uitll~· rcmandPd the case, bnt whill' con•irforing the powers of the Appl'llate Assistant Commissioner, the Divisional Bench anpP'Lr• to h'lvA apnrovP<l of thn, above-rp1oted

na••n.go from Madras casA.

The observations in 1hilt ""R" mav ht> t.rpated as oln'ter.

In Nr1rro11das

Mm1orrl~ .... V,. enmmis.'!'i011er of Tncome-tax (') is to h" fmmrl t.h" "nlicr casP of t.hri Bomlnv High Court which w:iA followP<l in the judgment under appe11.l. 'Tn thnt en•<', th<> :i••PRACll wa• carrving on husinAss

in TI om hav :in<l also in 'Rajkot..

Tho profits from th!' R:i.ilrnt bminPSS w"rf' a11.esscrl hy the Tncomet11.x Officer at. Rs- 1, l 7.fl4:l/-.

TbP Income-tax OfficPr also fonnrl rcmittancPs t.o the ex!Rnt of Rs. 4 lnkhq from 'R•, jk01 t.o Tiomhay, but did not inclncll' t.hnt amount in the aSBl'Asment in Yil'w of t.hr> concession a llo,.-cd hy the Part 13 Stntl'S 'l'nxat.ion ConccRsion OrdP.r.

Th" assPssee anpPnlNl with rr>snnct to th<' sum of Rs. 1,17,643/, c.ontenrlin[! that the Tbjkot lmsincRs h td no profits hut nnh- ]Oi<S.

Th<' Appnllatc Assistant Commissionc•r cceptc-<l thi" conf Pnf.ion, but sr't aAide the

R ssc••ment nnrl rnmanrlP<l the P<sc to tho Incometn.x Officer for n•assPssmcnt with n. virlw to :\SSPSBincr tl1P snm of Rs. 4 lakhs. Tn rlealin!! with tho cn; c. th<> High Court helrl that tho powers of rl'm, rnrl wNl' ext.rcmel~· wi<lP,. hut it. quokd with anprnval the dPrision of the Patna. Hi!!h Court in .ln.'frtmrt.f.11, Thr.rani v. Comm,"s"irmrr of lncnm•-t, n: (')

and also t.h" ahme obs,, rv:ttion of tho :lfadras High C•mrt. The leuned Chief , Justice on the occasion

( 11 [I Q5'] 31 I. T. R. !JOQ,

(2) [ 192;] I. L. R. 4 Pat. I Ii.

(I) [ 1952] 22 I. T. R. 502, 510.

added that there was a distinction between the subject.matter of the appeal and the subjectmatter of the assessment, and that the Appellant Assistant Commissioner's powers nnder s. 31 were not confined to the subject.matter of the appeal but extended to the subject-matter of the assessment. Those powers included a power of remand to include in the assessment something which ought to have been so included by the Income-tax Officer, and a remand in that case was, therefore, proper.

The matter also came before this Court in The Oomn-tissioner of Incometax v. M/s. McMillan & Oo. ( 1); but the question, with which we are concerned, was left open. There is, however, a passage in the judgment, approving of the observations of Chagla, C. J., in Narrondas Manordas.s v. Oommi-

88ioner of Income-tax ( ') to the following effect:

"It is clear that the Appellate Assistant Commissioner has been constituted a revising authority against the decisions of the Incometax Officer; a revising authority not in the narrow sense of revising what is the subjectmatter of the appeal, not in the sense of revising those matters about which the assessee makes a grievance, but a revising authority in the sense that once the appeal is before him he can revise not only the ultimate computation arrived at by the Income-tax Officer but he can revise every process which led to the ultimate computation or assessment. In other words, what he can revise is not merely the ultimate a.mount which is liable to tax, but he is entitled to revise the various decisions given by the Income-tax Officer in the cvurse of the ass essment and also the various incomes or

(I) [1958] S. C.R. 689, 701.

(2) [1925] I. L. R. 4 Pat. 380.

Thi Commissioner of

Income-Ta

Shapoorji Pallonji

Mistry

Hii•1stullah J.

The CornmWi4ner of

Income-Tax

Shapoorji Paiknji

Mistry

HiJJJy•tullah J.

I 6 I .

I ' • • , • , , 1 , ,

178 SUPREME COURT REPORTS [1962] SUPP.

deductions which came in .for consideration of the Income-tax Officer."

The learned Chief Justice in the judgment under appeal considers that this Court has thus given approval to his view and also the view of the Patna High Court in the earlier ca.se. In our opinion, this Court must be hold not to have expressed its final opinion on the point arising here, in view of what was stated at pp. 709 ,. and 710 of the Report. This Court, however, gave approval to the opinion of the learned Chief Justice of the Bombay High Court thats. 31 of the Income-tax Act confers not only appellate powers upon the Appellate Assistant Commissioner in so

far ae he is moved by an assessee but also a revieional jurisdiction to revise the assessment with power to enhance the assessment. So much, of course, follows from the language of the section itself. The only question is whether in enhancing the assessment for any year he can travel outside the record, that is to say, the return made by the assessee and the aesessment order passed by the Income.tax Officer with a view to finding out new sources of income, not disclosed in either. It is contended by the Commissioner of Income-tax that the word "assessment" here means the ultimate amount which an asseseee must pay, regard being had to the charging section and his total income. In this view, it is said that the words "enhance the assessment" are not confined to the assessment reached through a particular process but the amount which ought to have been computed if the true total income had been found.

There is no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like s. 34 and 33B which enable escaped income from new sources to be bronght to tax after following a special procedure. The as& .eSBee contends that the powers of the Appellate

...

3 s.c.R. SUPREME couRT REPORTS i 79

Assistant Commissioner extend to matters considered by the Income-tax Officer, and if a new so11rce is to be considered, then the power of remand should be exercised. By the exercise of the power to assess fresh sources of income, the assessee is deprived of a finding by two tribunals and one right of appeal.

The question is whether we should accept the interpretation suggested by the Commissioner in preference to the one, which has held the field. for nearly 37 years. In view of the provisions of ss. 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section. If it were not, one would expect that the legislature would have amended s. 31 and specified the other intention in express words. The Income-tax Act was amended several times in the last 37 years, but no amendment of s. 31(3) was undertaken to nullify the rulings, to whioh we have referred. In view of this, we do not think that we should interpret s. 31 differently from what has been accepted in India as its true import, particularly as that view is also reasonably possible.

The appeal is, therefore, dismissed; but in the circumstances of the case, we make no order about costH.

The Commissionet oj

lncome .. Tox

Shapoorii Paltonji

Mistry

Hidapatul !ah J.

Appeal dismissed. , .

171

THE COMMISSIONER OF INCJME-TAX

SHAPOORJI PALLONJI MISTRY (S. K. DAS

C. SHAH, JJ.

Indian Income Tax Act, 1922

ss. 31(3)(a), 33B, 34

s. 31

ss. 34 and 33B

ss. 33B and 34

s. 31

s. 31

Income-tax Act

Section 31

s. 31(3)

s. 6

Income-tax Act

s. 31

Income-tax Act

s. 34 and 33B

ss. 34 and 33B

s. 31

Income-tax Act

s. 31(3)

s. 31


191iZ

180 SUPRElm OOURT REPoRTS (1962] SOPP.

BANWARI v.

:::.TATE OF UTTAH PRADESH

( J. L. I\ APUR, A. K. SA1uu.u and i{AOHUBA/~

DAYAL, JJ.)

<...:rimiu'!'I 1rial-1'hret co1n.mitment orders for three offence~ -uffe11cts. lna&/e at one trial-Se<Jaiu11a Judge recording all tt'1dence m one tri<il-Leyality of trial-Charges-l'oll'er of

1:Je.'>Si~1wJudge to subat1'tute churycs framed by Cum11iilli11g Alugistrak-.Jl urder-(}onunon Intention-Indian 1'enal Code, 1860 (Act .XLV of 1860), s. 34-Co<k of Criminal Procedun,

1~98 (V of 1898), "· l!26, 234, 23.9, ~37.

llanwari armed with a gun and Rani Charan arrnc<l with an axe were going together when they met Lakhan.

After some talk Banwari shot at and killed Lakhan.

They then proccc<lt:d together for son1e distance \\-hen they met Bhag\van.

After some talk llanwari shot at and killed Jlhagwan.

Thereupon the villagers started pursuing them and they ran and Bany..ari shot aud injured Narayan.

One report was lodged of the three incidents and the police sent up thre.e charge sheets. 'l'he !vlagistrace ma:de three orders of commitrncnt, framing charges against the two appellants under s- 302 and s.307 rrad withs- 34 Indian Penal <':ode respectively in respect of the first incident, under s. 302 read with s. 34 in respect of the second incident and under s. 307 read with s. 34 in respect of the third incident.

The Sesions Judge framed certain charges describing thern as a1nen<lcd charges, undrr s. 302 read with s. 34 against both accused for the murder of Lakhan, under s. 302 against Banwafi for the murder of Bhagv:an and under s. 307 against Banwari for the attcn1pted murder of Narayan. He recorded the entire evidence in one trial and by a comn1on judgment convicted Ban"ari and Ram Charan and scntcncetj the former to death and the latter to in1prison ment for life. The appellants contended that the trials were illegal as the procedure followed by the Sessions Judge w,15 not v.arrantcd by law, that Ram .Charan's convictio11 for the murder of Bhagwan and attempted murder of Narayan \Vas bad as he was not tried for those offences and that the conviction of Ram Charan with the aid of s. 34 was bad as he had no common intention with Banwari to com1nit any of the offences.

Held, that though the procedure of recording evidence in one trial with respect to offences which were the .:>ubjcct of diffrrent trials was unwarranted the trials were not vitiated

on this account. The procedural error was curable under ss. 537 of the Code of Criminal Procedure.

The three offences with which the appellants were charged were of the same kind and one joint trial of those

offeqces was justifiable under s. 234 Code of Criminal Procedure. A joint trial of both the appellants for the three offences each of which was alleged to be committed by them jointly within twelve months would have been justifiable under ss. 234 and 239 of the Code.

Even if there were three committal orders the Sessions Judge could try the accused at one trial if the provisions of ss. 234 to 239 permitted a joint trial.

In the present case the Sessions Judge did not purport to consolidate the committal orders and try the accused at one trial though really that is what actually happened' when he recorded evidence in one case only and presumably examined the accused also once. The trial was not vitiated by any procedural error nor had any prejudice been shown to have been caused to the appellants.

Payare Lal v. The State of Punjab, (1962) 3 S.C.R. 328, referred to.

Ram Charan had been charged for all the offences for which he was convicted.

The s0-c, lled amended charges framed by the Sessions Judi; e were really additional charges and not in substitution of the charges framed by the Mclgistrate.

The Sessions J ud!!e had no power to drop any charges under which the accused had brcn committed for trial ; he could frame a charge, or add to or otherwise alter the charge as the case may be where a person was committed for try without a charge or with an imperfect or erroneous charge.

But the conviction of Ram Charan could not be sustained. He did nothing in any of the three incidents. The facts and circum stances of the case did not establish that he hd a common intention 'vi th Banwari to commit any of the offences.

There was no allegation that he had enmity with any of the victims or that there was any pre-concert betWfen him and Banwari.

From the fact that he was in the company of. Banwari all along no inference of common intention could be drawn.

The question of his dissociating from Banwari did not arise when he had n0t associated himse]f in the first instance with him.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 80of1961.

Appeal by special leave from . the judgmPnt and order dated December 8, 1960 of the Allahabad

196!

Banwari v. .State nf Uttar Pradesh

1!62

Br.nu, ari

v, State of Uflar P1adtJh

SUPREME COURT REPORTS [1962] SUPP.

High Court in Criminal Appeal No. 1517 of 1960 and Referred No. W4 of 1960.

A. S. R. Chari, 0. P. Ra11il and K. K. Sinha, for the appellants.

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

1962. February 14. The Judgment of the court was delivered by

Rcg\ub" TJa; al J,

RAOH'C:BAR DAYAL, J.-Banwari and Ram Charan appeal, by special leave, against the ocder

of the Allahabad High Court dismissing their appeal R nd confirming their conviction by the II Additional Sessions Judge, Etnwah. Banwari W!ls conviC'ted of the offences undPr s. 302 Indian Penal Code for committing the murder of Lakhan Singh and Bhagwan Singh and also for an offence under s. 30i Indian Penal Code, for having attcm Jt(id to Commit the murder of Babu Singh.

Ram Charan was convicted of the same throe offences mad with s. 34, Indian Penal Codo.

The facts leading to the appeal nre these, Banwari, a Lodh by c'asti. and Ram Charan, armed with a gun and axe respeetivi>ly, pa8sed the field of Lakhan Singh, Lakhan Singh asked Banwari as to where he was going.

Banwari replied that he was going for shooting birds. I.a.khan Singh turned back.

Banwari fired two shots at Lakhan Singh.

Lakhan Singh fell clown and died.

Banwari and Ram Charan, thereafter, proceeded south-wards and at a distance of about six or seven furlongs, mot Bhagwan Singh, who was grazing his cattle. Bhagwan Singh questioned Ranwari as to where he was going.

Banwari said he was going to shoot crocodils in the river.

Bhagwan Singh said there were no crocodiles in the river and asked Banwari to go back and look to his work. When Bhagwan Singh turned towards

soth1 Banwari fireq a s}iot. at liiw, Bhai; wan

Singh sat down. Banwari again fired a shot at him. He further fired two more shots, Bhagwan

Singh died.

The village people pursued the two appellants and Banwari fired at them. He fired at Babu

Singh, but hit Narayan Singh.

One report was lodged at the Police Station with respect to these incidents. The police, after . Pnquiry, sent up three charge-sheets ·. under s. 173,

Code of Criminal Procedure.

The Magistrate registered three cases, one with respect to the murder of Lakhan Singh, another with respect to the murder of Bhagwan Singh and the third with respect to the offence under s. 307 Indian Penal Code, for shooting at Babu Singh and Narayan Singh. Ultimately he committed both the accused for trial to the Sessions Court in each of the cases. Sessions Trials Nos. 34, 37 and 38 of 1960 were registered on the basis of those three committal orders.

In the case with respect to the murder of Lakhan Singh, the Magistrate framed one charge under s. 302, Indian Penal Code, against Banwari and another charge age.inst Ram Charan for an offrince under s. 302 read with s. 34, Indian Penal

Code.

In the proceedings with respect to the murder - of Bhagwan Singh, he framed one charge aaainst both the accused Banwari and Ram Charan, for an offence under s. 302 read with s. 34, Indian Penal

Code.

Lastly, in the proceedings uner s, 307, be again framed a common charge agamst both the accused for an offence under a. 307 read with s. 34 Indian Penal Code.

At the commencement of the hearin" of the Sessions Trial No. 34 of 1960 on July 18, 1960, on

w4ic4 date presumabl; Y the otqer two Sessions

Banwari v.

Slate of Uttar Pradesh

Raghubar DayatJ,

Banwari

State aJ Uttar Pradesh

Rt11hubar Dayal J,

SUPREME COLTRT REPORTS [19621 SUPP.

Trials wore also fixed for hearing; the loamed Sessions Judge framed ccrtrtin charges describing them as amend Pd chrtrgcA.

In Sessions Trial X o. 3t of 1960, ho framed a chargo against Banwari an<l Ram Charan for an off<•nce un<ler s. 302 read with s. 34 Indian Penal Code with respect to the murder of Lakshan Singh. In Sessions Trial JI o. 37 of 1960 he framed an amended charge against Banwari under s. 302 Indian Penal Corle, for his committing t.ho murder of Bhagwan Singh. In Se8sions Trial No. 38 of 1960 he framed an amended charge against Banwari of an offence under s. 307 Indian Penal Code, for h1wing shot. a.t Bahu Singh and Narayan Singh with such intention and knowledge !Ind in such circumst<LIJC<'S tl11tt if by that act ho had cause(! the <leath he would have been guilty of murder.

He rear! over and explainerl the amended charges to the accused.

In the proceedings of the Court date<l July 18, 1960, thn l<•arned essions Judge noted: "The amended charge was read out in Court and explained to the prisoner (Re<•tion

2il., Criminal Procedure CodP) who pleads not guilty.

The S.T 3i /<iO and 38/60 are consolidated with the case and evidence is recorder! in the present case (unrler section 234 Cr. P.C.). The L.D.G.C. op('ned his case and examine<! the following witnPsses." The learntd Session~ Judge opened hiR judgment with the following obsPrvat.ion:

"Three 8essionB trials No~. 34, 37 and :!8 of 1960, in which both Ilanwari and Ram Charnn figure a; i accused persons, were hPard together .\nd arn heing disposed of hy on<' judgment. Banwari f~CCtJscd stands charge<! under section 30~ Indian Penal Cncfo f"r hav ing committed the murders of Lakhan Singh

• -

and Bhagwan Sfogh and also under section

307 Indian PenaLCode for having made an attempt to kill Narayan Singh on 12th November, 1'!)59, in village Boorhadana, police station Dibiapur.

He a.long with Ram Charan ha.s further been charged under section 302 read with 34 and 307 read with 34 of l he Indian Penal Code for having in furtherance of their common intention committed the above murders and made a.n attempt to kill Narayan Singh."

In his order at the end of the judgmem the learned Additional Sessions Judge said:

"Banwari accused is found guilty under section 302 of the Indian Penal Code for the murder of Lakhan Singh and is convicted and sentenced to death. He is further found guilty under section 302 of the Indian Penal Code

for the murder of Bhagwan Singh and is convicted and sentenced to death for this incident also.

He shall be hanged by the neck till he be dead.

He is further found guilty under section 307 of the Indian Penal Code and is convicted and sentenced to eight years R. I.

The other ace-used Ram Charan is found guilty under section 302 read with 34 'Of the Indian Penal Code for the murder of Lakhan Singh and is Convicted and sentenced to life. imprisonment.

He is farther found guilty under section 302 read with 34 of the Indian

Penal Code for the murder of Bhagwan Singli and is convicted and sentenced to life imprisonment on this count also.

He is further found guilty under section 307 read with 34 of the Indian Penal Code and is convicted and sentenced to five years R. I. The sentences shall run concurrently. He is in custody and shall be detained to serve out his sentences.

Bonwari v.

Srate of Uttar Pradesh

Ra:hubar Dayal J.

196~

Banwari

Stale of Uttsr Prad,1h

11.thubar Dayal J.

186 SUPREME OOURT REPORTS [i.962] SUPP.

This judgment governs all the Sessions Trials Nos. :H, :~7 and 38 of60 and a copy of it shall be placed on the records of 8.T. Nos. 37 and 38 of 60 ."

The criminal &ppcal filed by the appellants in the High Court perported to be an appeal against the order of the Sesions Judge in Criminal

S1)~S ions Trial Nos. 31, ~7 and 38 of 60 and the grounds taken in tho appeal were that the conviction was against the weight of evidence on the record, that no offence was made out from the evidence of the prosecution witnesses anrl that tho sentence was too Heverc.

The High Court considerer! the CMe proved against the appellants and dismissed their appal.

Mr. Chari, for the appellants, has urged the following points:

(I) Ram Charan, appellant, was not tried for the offences of committing the murdor of Bhag wan Singh and of attempting t, o murder Babu Singh and Narayan Singh, as the learned Sessions Judge tried the appellants with respects to the offonc8 mentioned in tho amended charges which 'l'ero road ' and explained by him to the accused, and there fore nam Charan's conviction for those tWl' offoncc8 wns• bad,

(2) The Sessions , Judge conducted thrrw separate trials on the basis of the three commit ment orders, but recorded evidence in one case onlv . i. e., in Ses.ions Trial No. :!4 of l91i0.

Such a procedure which in a way amount<:<l t.o the amal gamnt.ion of the three .Ses8i6ns Tria18 into one, was not warrantecl by the provision of the Code of Criminal Procedure and that this error in tho mode of trial, being not cnrablo under R. :i:n of the Code; vitiated it.

( 3) If the trial be held to be Ya lid, the

sentence of death on Banwari errs on the side of severity.

(4) Th'e conviction of Ram Charan is bad as there is no evidence on the record that the various offences were committed by Banwari in furtherence of the common intention of both Banwari and Ram Charan. In the absence of any evidence about previous concert and of Ram Charan's having any motive to join in the commission of the offences, the fact that Ram Charan was with Banwari at the time the three offences were committed is insufficient to convict him.

Mr. Mathur, for the State, has urgP.d that the learned Sessions Judge framed amended charges in addition to the ()barges framed by the Magistrate, that both the appellants 'could be legally tried for the v.arious offences in one trial and that Ram Charan's conviction is correct.

The first question therefore to determine is whether the learned Sessions Judge framed amended charges in addition to the charges which had been framed by the Magistrate and for the trial of which the Magistrate had committed the appellants to the Court of Sessions, or he su bstimted those charges in the place of the ones prepared by the Magistrate. The learned Sessions Judge, in his judgment, has clearly said in the paragraphs quoted above, that Banwari stood charged for the three offences simpliciter and also jointly with Ram Charan for the three offences read with s. 34, Indian Penal (')ode.

This clearly indicates that he <.lid not contemplate the amended charges to be in substitution of the charges framed by the Magistrate. This is also indicated by two further facts.

The learned Sessions Judge had no power, under the Code of Criminal Procedure, to drop any charges under which the accused had been committed for trial. He can in the e:icercise of the :powers under

1~62

Banwati

v, Stole ef Utto• Privl<•h

Roghubar Dayol.J.

1~62

Rar1uari

Stott of (JltM Jlradtsh

Ra"ghubar Dn; o/ J.

188 SUPREME COURT REPORTS [1962) SCPP.

8. 226 of the Code of Criminal Procedure, frame a charge, or add to or otherwise al!Rr the charge as the case may be in cases where a person is committed for trial without a charge or with au imperfect or erroneous charge. As the Magistrate had not framed a charge under s. 302, Indian Penal Code, simpliciter, with respect to the murder of Bhagwan Singh and a charge under R. 30i, simplicitcr, for attempting to murder Babu Singh and Narayan Singh, the learned Sessions Judge thought it neceSRary to frame such charges against him and he did so.

Banwari was not charged by the Magistrate under 8. 302 read with e. 34, Indian Penal Code for the offence of commit.tin11 the murrlcr of Lakhan Singh and therefore the .. Sesions Judge prtpared the charge against both Blmwari a.ncl Ra.m Charan with respect to such an offence. It is only this amended charge which was in reality in substitution of the charge framed by the Magistrate.

Ur, it may be said, that this amended charge was the charge framed by the Magistrate, but amended hy the Sessions .Judge by adding the name of Banwari among the pPron8 charged and altering the languag-e as a cpnseguence of it.

Lastly, t.he final order of the learned SPssion8 Judge recorded eonviction of Banwari foe tho ofTen<'eS implicitcr and of Ram Chara11 for those offencPR n•a.d with s. 34, Indi:tn Pena.I Code: At that stag.,, there was no point. in recording the conviction of Banwari with rPspect to the chargeB for tho vario118 ofTPnCPS read withs. :J4, Indian P!nal Code.

It was, however, rlesirahle that at the commencement of thn trial Banwari charged both for offences sim pliciter and for offences read with s. 34, Indian Penal Codi>, to avoid any contention in future in case ho be conviete<l for an ofT .. nce with which he was uot a.dually charged, i. e. convicted of an offence rear! with s. :14, Indian Penal Code when there was no such charge against him or he c, mvic- •

ted of an offence simpliciter there being no charge for that offence.

We are therefore of opinion that there is no force in the argument that Ram Charan was convicted of an offence with which he was not.charged and tried by the Sessions Judge.

The learned Sessions Judge did not comply with the provisions of s. 271 of the Code of Criminal Procedure inasmuch as he did not read over and explain the charges framed by the Magistrate. This omission on his part, however, does not vitiate the trial in view or' s. 537 of the Code when it is not shown that any prejudice has resulted to the appellants on account of this omission.

I ' .

The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the Code of Criminal Procedure.

Every separate trial must proceed separately with result that every proceeding, including the recording of evidence, in each trial should be separate.

The question, however, is whether this wrong procedure adopted by the learned Sessions Judge, has vitiated the trial, irrespective of the fact whether prejudice has been caused to the a, ccused or not.

It is contended for the State that both the appellants, Banwari and Ram Charan, could have been tried at one trial for the offences they were charged with in view of the provisions of ss. 234 and :l35 of the Code of Criminal Procedure. We are of opinion that the provisions of s. 235 Cr. P. C. would not have justified one trial for these offences.

We do not have the three chargesheets submitted by the police to the Magistrate, but the fact that three charge-sheets were submitted and that the Magistrate made three commitment orders indicate that th~ prosecution did not come to Court with the allegation that three offeaces

Banwari

State of Uttar Pradesh

Raghu~.ar Day, al o!.•

Statt of Uttor PtadtJh

R•gluhor Da)'<ll J.

'\. -

I!JO SUPREME COURT REPORTS [1962) SUPP.

were committed in the course of the same transaction. However, we agree thatthe provisions of ss. 234 and 239 of the Code of Criminal Procedure would have justified the joint trial of the appfllants for the offences they were charged with and tried.

Section 234 allows the trial of a person accused of three or less number of offences of the same kind commitkd within the space of twelve months, and provides that offences of the same kind are those which are punLhable with the same amount o( punishment under the same section of the Indian Penal Code or of any special or local law.

The two offences under s. 302 with respect to the murder of Lakhan Singh and Bhagwan Singh arc punitthable under the same section of the Indian Penal Code with the same amount of punishment. In viow of the proviso to s. 234, an offence of attempting to commit an offence is of the same kind as that other offence. Thus the offence under s. 307 Indian Penal Code, is of the same kind as the offence under s. 302.

The three offences of which the appellants were charged, therefore, aro of the same kind and one joint trial of those offences would therefore be justified under s. 234 of tho Code.

Section 239 lays down the joinder of persons at one trial and provides that persons :iccused of more than one offence of the same kind within the meaning of s. 234 committed by them jointly within a period of twelve months could be charged and tried together. Therefore, the trial of both Banwari and Ham Charan for tho aforesaid three offences each of which was alleged to have been committed by them jointly within twelve months, would have been justified.

The learned Sessions Judge did not., however purport to try tho appellants at one trial, as is clear from the record that he proceeded with the three trials but just recorded evidence in only one.

3 s.c.k. sbi>REME COURT REPORTS 191

It has been urged that amalgamation of three different Sessions Case11 is not' warranted by the provisions of the Code of Criminal Procedure.

The Code simply provides by ss. 233 to 239 that ordinarily each distinct offence must be separately tried except in cases covered by the pro visions of ss. 234, 235, 236 and 239. It is clear that if separate commitments had been made of such distinct offences, which did not come within the exception to s. 233, they c0uld not be tried at one trial by consolidating those three cases. But this does not mean that if there had been sepa rate commitments of person who could be tried together at one trial, or of the same person for offences which could be tried together at one trial, the accused could not be tried at one trial. It often hap pens that persons accused of committing a particular offence or offences jointly or in the course of the same transaction are not put up for trial at the same time, usually for the reason that some of them were not available. They may be available later on and sub sequently committed for trial. If no trial has proceeded with respect to the first commitment by that time, the Sesions Judge is not bound to have two separate trials, one with respect to each commitment. He can certainly try all the accused at one tri<tl and in that way consolidate the proceedings on t.he two committal orders in one. The committal order just gives the Sessions Court cognizance . over the trial of the persons committ.ed. The committal order does not bind the Sessions Jlj.dge to try those persons alone at one trial, who have been committed by the particular committal order.

The question of the trial of the various committed persons does not depend on the number of committal orders, but on the provisions of ss. 233 to 239 of the code. If one trial can be justified under those provisions and there is no prejudice to the accused, the Sessions Judge can certainly consolidate the committal orders in those cases and try the accused

Banwari v.

Stale of U ttar PradeJh

Raghubar Dayal J.

19G2

Banwa1i

"· Stalt of Uttar Pradesh

Raglwb111 Dayal .J.

192 SUPREME COUR'f REPORTS [1962] SUPP.

at one trial.

He may, for the purpose of the trial, frame a fresh charge with appropri, te counts against

the accused, in substitution of tho charges framed by the Ilfagistrate in the different committal proceedings. ff tho persons have been committed by one committal order alone with rcspccL to different

offencos which could not be tried at one trial in accord11nce with th<'se sections, the joint trial uf those persons on those charges would be illegal.

This makes it clear that the validity of a joint trial before the Sesoions JULlge is dependent on the fact whether the provisions of the Code justify one joint. trial or not.

\Ve therefore hold that though a Sessions J udgo cannot try at one trial persons committed under different committal orders with respect to distinct offencea whose joint trial is not warranted by the provisions of ss.:!34 tu 2:39 of the Code, he is competent tu try at one trial pernons who can be tried at one trial under tho provisions of thoso sections even if there had hoen separate committal orders.

In the present case, however, the learned Sessions Judge did not purport to consolidate tho committal orders aud try the accuse'.! jointly at one trial, though really that is what actually happened when he recorded evidence in one case only and presumably ho examined the accused also once. He heard the arguments once and he actually delivored one common judgment in all the three Sessions Trials.

There therefore duos not really arise in the present ca.so the question that the Sessions Judge wrongly a.malgamatod or consolidated the three Sessions Trials. ill the circumstances of this caso the trial is not vitiated by any procedural error nor has any prejudice bcou shown to have been caused

in the conduct of the trial or its result.

Wll have already said that the proceedingR in each separate trial should be separate and that on

that basis the procedure adopted by the learned

Sessions Judge was wrong.

The question for determination, then, is whether his following the wrong procedure vitiates the trial and the conviction of the appellants or is curable under s. 537 of the Code. ·

We are of opm10n that such a defect does not invalid<tte the trial in view of s. 537 of the

Code.

In Payare Lal v. The State of Punjab (1) this Court said:

"In rega, rd to this section ( s. 537), it was said by the Privy Council in Pulnlcuri Kottaya

v. King Emperor (L. R. 74 I. A. 65), at p. 75,

"When a trial is conducted in a manner different from that prescribed by the

Code (as in N. A. Subramania lyer's case, L. R. 28 I.A. 257), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some. irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and !Jone the Jess so because the irregularity rnvolves, as must nearly always be the case, a bniach of one or more of the very comprehensive provisions of the Code.' It seems to us tha, t the case falls within the first category mentioned by the Privy Council. This is not a cas.o of irregularity but want of competency."

As a]rAady held, tbe impugned procedure adopted hy the learned Sessions Judge in the persent case doAs not relate to the competency of the Court to try the various offences a, t one trial.

(1) [19G2]

3 S.C.R. 328.

196S

11anwari

Slate of Uitar Pradesh

Raghubar Dayal J.

Banwari

Str.le rJj Uttar Pradesh

Rn:hub.Jr Dayal J,

l!l4 SUPREME COURT REPORTS [1962J SUPP.

The amendment made in s. 537 of the Code by the Code of Criminal Procedme (Amendm<'nt) Act,

l!l55 (Act XX\'I of l\l:)5)does not in any way go in favour of th(' app<'llants as the result of the amendment is that the scope of s . .537 is made wider, covering cases nf misjoinder of charges as well.

We therefore hold that tbe trial of the appellants had been valid.

Ramrnri bas heen sentenced to death under s. 302 Indian Penal C'ode. Mr. C'bari urges that Jlanwari must have shot at Lakhan Singh as a result of the latter giving provocation as allrged by Banwari in his statement ns, otherwise, there was no motiv" for hi~ hnot ing at Lakhan Singh and tha~ thoreforn the less<'r. penalty for the offence of murder would he the prnpcr sentence <1gainst him. We do not agrco.

The Courts below dihelievPd Banwari'a version of the oomersation with Lakhan Singh.

Even if that conversation be believed, we do not think tbat that Rhould have provoked him to such: an cxhnt tlmt be should have fired at. Lakhan in11h not only once, bnt also a second time. There could be no jnstificatio11 for his firing at Bhagwan Singh who is not Aaid to have giv!'n any provocati(•n evt'n.

Banwnri fire<! s"Ycral shots at. Bhagwan Singh.

In the circnmstanr.e~, we do not see any reason to Cull si<l<'r thP sent€1we of death to be unjustified and to reduce it.

So far us Ham Charan is concl'nwd, we are of opinion that bis ronvietion cannot be sustained. He did nothing nt any of thl• thn'e incidents. His <:onduct in remaining with Ranwari throughout cannot lead to anv conclusion that he had comm"n int<>ntion with Banwari to shoot at Lakhan Singh or

Bhugwan Singh or Bahn Singh arnl Narain Singh, what, to s"~' of his IHL\•ing a common inl<'ntion with Banwari to commit the mmder of thu firHt two.

It is not tbe caHe of the pro•erntion that Ban wari and Ram Charan had an) enmity with any of

the victims or that they had prearranged between themselves to pick up any sort of conversation or quarrel with Lakhan Singh or Bhagwan Singh and then to shoot at them. All the incidents happened by accident. If Lakhan Singh and Bhagwan Singh had not questioned Banwari, probably, nothing would have happened. They questioned him and for some reason Banwari fired at them. He might have considered that their questions to him a.s to . where he was going was an indirect reference to his going armed and a sort of reflection on his possessing a gun.

The Courts lbeow imputed common intention to Ram Charan on account of his not disassociating himself from the activities of Banwari.

The question of dis-association did not arise when he had not associated himself in the first instance with Banwari's activities.

He was proba blv much bewildered at the conduct of Banwari in shooting Lakhlln

Singh down as Lakhan Singh or any one else would have been. After the shooting of Lakhan Singh

both Banwari and Ram Charan are said to have just proceeded towards t.he south. It was after Bhagwan Singh had been shot dead that they took to their heels.

Ram Charan could not have anticipated a second incident with Bhagwan Singh. There was no reason for their pre-arranging the shooting of Bhagwan Singh. Ram Cha.ran's running away simultaneously with the running away of Banwari after the shooting of Bhagwan Singh could have been motivated by the instinct of saving himself from the villagers who could have thought that he was a party to the various incidents.

Wben Courts could consider his presence in that light, the villagers could have thought on those lines much more easily.

His running away, therefore, is uo indication of his guilty conscience. [twas the result of his anticipating popular reaction. In the circumstances, his possessing an axe at the time was nut for committing any violence against L:.khan Singh or the

Banwari v.

State of Uttar Prad1sh

Raghubar Dau al J.

Bomvari

Stott of Ultar p, adt•h

ll1tlrubar Dayal J.

Ft1-1Ili.

196 SUPREJ\IE COURT REPORTS [1962] SUPP.

other viotims.

He had it with him Eithrr as a matter of courc or for doing the work hP mil!ht have bren doing that day. We are therrfore of the opinion that ltam Charnn had no common intention with Banwari in his acts towards the \'arious victims of tho incident anrl t.hat he has been wrongly convicted.

"\Ve therefore dismiss the appciil of Ranwari and allow the appeal of Ram Cha.ran and acquit the latter of the offonccs he has been convict.id of.

AppP.al pa.rtly allowed.

THE FINE KNITTING CO., LTD. v.

THE IN"DCSTIUAL COURT, BOJ\IBAY

AND OTHEHS

(P. B. GA.H::S-DRAGADKAR, A. K. SARKAR :ind

K. N. WA:S-CHOO, JJ.)

lncfu.<; lrial dispu.tt -lndu,, trial conrern-8plit-Linq up of a. going concern-Hosiery Gonzpany-lnsfa!lalion n.f spinnin!f 1nflchinf', ry -Rrc<;1j11ition of Com[>finy as ho-ier11 und.rf1tkinr1 and t.ipinning undlcrtak:1.q 1v~ sr.para.1p -Vrzlidity -Rrnnba.1J [ntb1stri!tl R•Jation-• Act, 1.94r, (Rom. 1 I of /!147), s. 11.

The. appellant Comparv was incorporated in 1908 and its principal activity then ""as to manufac.turc hosiery.

In 1924 \\'hen tilt' appellant shifted its factor to Ahmcdtbarl it installr:d spinnin~ n1achinr:ry \\ich a view to ensure suitable and e\r.n s111)ply of yarn for its hosiery manufacture. ()riginally, a notifiratior. had hccn isst"d on fay 30, ll39,

under the Bo1nl>ay Industrial l)i.-p11tc Act, l 93n, ,., hereby hosierv concerns , .. rrc includccl in t.hc dcfination of 11Cotton

Tr.xtil~ Tndusrry•·, h11t suhsrqucntly on July 17, t 9:t.1, another

notification vvas issued as a result of which the lloirry manu facture \\'as excluded from thP. (otton 'fcxtile lnd 11stry and it \'•:ls covt"red by a separate notificatinn.

For the purposrs of th~ Ro1n\Jav Industrial Rlations Act, 1916, th~ appellant concc-rn ,.,•as rccognisr<l as an undertaking of th~ hosiery industry by the Rcgiitrar nncler s. 11 of that Act.

Subsequently as a re-;11lt of certain proceedings taken liy the Textile Lobour Association of Ahmedabad, the Registni.r decided

v.

:::.TATE OF UTTAH PRADESH

DAYAL, JJ.

s. 34

Banwari

s. 302

s. 34

s. 307

s. 34

s. 302

s. 34

s. 302

s. 307

s. 34

ss. 537

Code of Criminal Procedure

s. 234

Code of Criminal Procedure

ss. 234 and 239

ss. 234 to 239

(1962) 3 S.C.R. 328

s. 302

Indian Penal Code

s. 30

Indian Penal Code

s. 34

s. 173

Code of Criminal Procedure

s. 307

Indian Penal Code

s. 302

Indian Penal Code

s. 302

s. 34

Code

s. 302

s. 34

Code

s. 34

Indian Penal Code

s. 302

s. 34

Indian Penal Code

s. 302

s. 307

Indian Penal Code

section 234

section 30

section

307

Indian Penal Code

section 302

Indian Penal Code

section 302

Indian Penal Code

section 307

Indian Penal Code

section 302 read with 34

Indian Penal Code

section 302 read with 34

Penal Code

section 307 read with 34

Indian Penal Code

Code of Criminal Procedure

s. 34

Code of Criminal Procedure

Code of Criminal Procedure

s. 302

Indian Penal Code

Indian Penal Code

s. 34

s. 34

Indian Penal Code

s. 271

Code of Criminal Procedure

s. 537

Code of Criminal Procedure

ss. 234

Code of Criminal Procedure

s. 235

ss. 234 and 239

Code of Criminal Procedure

Section 234

Indian Penal Code

s. 302

s. 234

s. 307

Indian Penal Code

s. 302

s. 234

Section 239

s. 234

Code of Criminal Procedure

ss. 233 to 239

ss. 234, 235, 236 and 239

s. 233

ss. 233 to 239

s. 537

s. 537

s. 537

L. R. 74 I. A. 65

L. R. 28 I.A. 257

section 537

s. 537

s. 302

s. 11

Jav Industrial Rlations Act, 1916

s. 11


Bomvari

Stott of Ultar p, adt•h

ll1tlrubar Dayal J.

Ft1-1Ili.

196 SUPREJ\IE COURT REPORTS [1962] SUPP.

other viotims.

He had it with him Eithrr as a matter of courc or for doing the work hP mil!ht have bren doing that day. We are therrfore of the opinion that ltam Charnn had no common intention with Banwari in his acts towards the \'arious victims of tho incident anrl t.hat he has been wrongly convicted.

"\Ve therefore dismiss the appciil of Ranwari and allow the appeal of Ram Cha.ran and acquit the latter of the offonccs he has been convict.id of.

AppP.al pa.rtly allowed.

THE FINE KNITTING CO., LTD. v.

THE IN"DCSTIUAL COURT, BOJ\IBAY

AND OTHEHS

(P. B. GA.H::S-DRAGADKAR, A. K. SARKAR :ind

K. N. WA:S-CHOO, JJ.)

lncfu.<; lrial dispu.tt -lndu,, trial conrern-8plit-Linq up of a. going concern-Hosiery Gonzpany-lnsfa!lalion n.f spinnin!f 1nflchinf', ry -Rrc<;1j11ition of Com[>finy as ho-ier11 und.rf1tkinr1 and t.ipinning undlcrtak:1.q 1v~ sr.para.1p -Vrzlidity -Rrnnba.1J [ntb1stri!tl R•Jation-• Act, 1.94r, (Rom. 1 I of /!147), s. 11.

The. appellant Comparv was incorporated in 1908 and its principal activity then ""as to manufac.turc hosiery.

In 1924 \\'hen tilt' appellant shifted its factor to Ahmcdtbarl it installr:d spinnin~ n1achinr:ry \\ich a view to ensure suitable and e\r.n s111)ply of yarn for its hosiery manufacture. ()riginally, a notifiratior. had hccn isst"d on fay 30, ll39,

under the Bo1nl>ay Industrial l)i.-p11tc Act, l 93n, ,., hereby hosierv concerns , .. rrc includccl in t.hc dcfination of 11Cotton

Tr.xtil~ Tndusrry•·, h11t suhsrqucntly on July 17, t 9:t.1, another

notification vvas issued as a result of which the lloirry manu facture \\'as excluded from thP. (otton 'fcxtile lnd 11stry and it \'•:ls covt"red by a separate notificatinn.

For the purposrs of th~ Ro1n\Jav Industrial Rlations Act, 1916, th~ appellant concc-rn ,.,•as rccognisr<l as an undertaking of th~ hosiery industry by the Rcgiitrar nncler s. 11 of that Act.

Subsequently as a re-;11lt of certain proceedings taken liy the Textile Lobour Association of Ahmedabad, the Registni.r decided

to recognise the appellant concern as consisting of two under-· takings, the hosiery section and the rest excluding the hosiery section and this decision was confirmed by the Industrial Court.

The appellant challenged the order of the Industrial Court on the grounds ( l) that the spinning and the hosiery

sections in its establishrr1ent were one concern because (a) there was unity of ownership, management, supervision, con .. trol and employment,

(b) there was compleie functional integration, and (c) the two sections were functioning under the same roof, and (2) that, in any case, s. l l of the Act did not authorise the spJitting up of a concern into two undertakings. The evidence showed that though in 1924 the spinning section had begun as a subsidiary to the hosiery section in order to serve as its feeder, later on the spinning section developed to such an extent that it became a spinning mill by itself and could no longer be regarded a• a minor section attached to the hosiery works, that only 20% of the yarn manufactured by the spinning section was consumed for hosiery purposes while the rest was sold in the markrt, that the spinning department produced yarn of all counts, some of which could not be used for hosiery work., that when the knitting department was closed in 1948, the spinning dpartment was not. It was also found that the amount paid to the employees in each of the two departments by way of minimum wages and dearness allowance was different.

Held, that the decision of t'ie Registrar recognising the hosiery and spinning departments of the appellant concern as separate undertakings under s. I I of the Bombay Industrial Relations Act, 1946, was correct.

Held, further, that the question whether the several undertakings carried on by the same company are separate or not depends on whether they are distinct and independent of each-other or are functionally integral or inter-department and that the kegistrar was within his powers under s. 11 of the Act to come to a decision on this question on the basis of the circumstances disclosed on evidence.

Associated Cement Companies Ltd. v. Their Workmen, ( 1960) I S.C.R.703, PratapPressv. Their Workmen, (1960) I L.L.J. 497 Pakshiraja Studios v. Its Workmen. (1962) 2 L.L. J. 380 and Honorary Secretary, The Soath India Millowrers' Association v The Secretary Coimbatore District Textile Worker8' Union, Coimbotore (1962) Supp. 2, S.C.R. 926 relied on.

CIVIL APPE'ILATE JURISDICTION: Civil Appeal No. 306 of 1961.

Thi Fine Knitting

Co. Ltd.,

•• The lndustriaf Court,

Bombay

19'S

Tht /•1nt Kniltint

Co., 1.14.

•• f"ft lndtHtrilll C1urt,

lJ1mb•y ·

198 SUPRE:.\IE COURT REPORTS [1962] SUPP.

Appeal Ly Bpecial leave from tho Judgment and order dnttd !\lay 16, !Oii9, of thn Industrial Court, Bombay, in Appeal (J.C.) Ku. HO of 1959 .

.J.P. lHtlttii and l.N. Shroff, for the appellant.

N. !IL Harot, Secretary, Labour Association, for the respoudeut Nu. 3.

I!lfi2. February l 5.

The Judgment of the Court was delivered by

GAJE~IJHAGADK.All, J .. The appellant, tho :Fine Knittiug Co. Ltd., was iuoorpomted in 1908

and its priucipal actiitv then was to man11facture hosiery.

Ju HJ24, wht'.n the app<'llant shifted its factory from Barejadi tu Ahmedabad, it installed spinning machinery with nooo spindles

with a vil'w to ensure suitable and .,, en rnpply of yarn for its hosiery manufacture. On :\lay 30, 1939, the Government of Romhav i"sued a notification under t.he Bombay Industr

0ial Disputes Ac:t, l!):J8 (No. XXV of Hiili;), whereb.v hosiery concerns were

included in tht' definition of Cot ton Textile Industry'. Subsequently on .July 17, Hl45, another notification was issued as a re8ult of which the hosiery manufacture was excluded from the Cotton Textile Industry and it was covered by a separate

notifi~-ation issued under the said Act.

This latter notification which was made applicable to the Hosiery Industry specified that the said notification i'.?lkr aliu, lo all concerns using power and employiug twe11ty or moro persons which are engaged in . the manufacture of hosiery or other knitted ar.tio:lcs made of cotton and all processes

incidental or supplementary thereto. Aft.or this notification was issued, the appellant ceased to be covered by the extended and inclusive definition of the 'Cotton Textile Industry' and was recognised as a HusiH, Y concern being engaged in the manufacture of hosiery.

Later, in J!l46, the Bombay Industrial Relations Act, 1946 (No. XI of 194i) (hereinafter called the Act.), wa.s applied to the

industries to which the Bombay Industrial Disputes Act had been applied, as a result of s.2(3) of the former Act. In consequence, for the purposes of the Act, the appellant concern was recognis<"d as an undertaking of the Hosiery Industry under s. ll. This

was the result of notification No. 10 of 1948, issued by the Registrar under the Act. This position was recognised by the Industrial Tribunal in industrial adjudications concerning disputes between the appellant and its workmen.

Even so, respondent No. 3, the Textile Labour Association, Ahmedabad, sought to reopen the issue by applying by to the Registrar on October 16, 1953, that the appellant's factory should be recognised as an undertaking both in the Cotton Textile Industry and the Hosiery Industry. The Registrar who is the second respondent in the present appeal held an enquiry and ultimately came to tJ:i.e conclusion that there was no justification for splitting up the concern into two units-and recognising them as suggested by the third respondent. The third respondent did not prefer an appeal against the said decision of the second respondent; but respondent No. 4 who are the five elected representatives of the employees of the appellant sought to challenge the said decision of the second respondent by preferring an appeal to the Industrial Court, respondent No. 1. The appellant contended that respondent No. 4 were not entitled to prefer an appeal because they were not parties to the proceedings in the original application before the second respondent. This preliminary objection was upheld and the appeal preferred by respondent No. 4 was dismissed.

The result was that the order passed by the Registrar rejecting the application made by respondent No. 3 concluded the dispute.

Even while the said appeal was pending before the first respondent, respondents Nos. 3 and 4

Thi Fim Knitting Co., Ltd. v.

Thi lndustri•l Court

Bombay

Uoj1ndragadk•r J.

Tht Fir1~ Knit1ifll

Co., Ltd.

Y, The lndu 1lrid/ Court,

Bombay

200 SUPREME COCRT REPORTS [1962) SL'PP.

initiated the present proceedings by means of two applications made before the second respondent in which the same relief was claimed that the appellant concern should be recognised as an undertaking both in the Cotton Textile Industry and in thr Hosiery Industry. The second respondnt, howenor. rejected these applications on the ground that since he gave his earlier decision, there had been rio chango of circumstances and so there was no justification for roconsidering the matter over again.

The third and the fourth respondents then went in appeal before the first respondent and their appeals were allowed by the first respondent and a direction was issued that the appellant company should be recognised as two undert&kingsone in the Cotton Textile Industry and the othPr in the Hosiery Industry. Thu appellant then moved the High Court of Bombay undH Articles 2~!i and 227 of tho Constitution and challenged the validity of the order passed by the first respondent. In the High Court the parties took an order by consent on August 20, l!J58.

As a result of this consent order, the direction issued by the first respondent was set aside and the matter was remanded to the second respondent to enable him to hold a fresh enquiry and to dispose of the dispute betwcC'n the parties in accordance with law.

On February 14, 1959, the second respondent pronounced his decision.

Ho came to the conclusion that in the cir< umstances disclosed on evidencu, tho best courts wo~ Id be to recognise the spinning and hosiery sectior • of the appellant company as two separate unrl artaking and treat them as two separate enterpriseR.

That is why under s.11(1) he decided to recognise the Fine Knitting Co: Ltd. (Hosiery Section) and the Fine Knitting Co. Ltd. (excluding Hosiery Section) as undertakings in the Hosiery Industry and the Cotton Text.He Jndustr, v respectively. The appellant was aggneved by th!B order and so is preferred a.ppe&ls before the first

3 S.C:i:t.

SUPREME COURT REPORTS 201

respondent. The respondents Nos. 3 and' 4 also challenged the decision of the second respondent and contended that the entire concern of the appellant should be treated as Cotton Textile Undertaking.

All the . three appeals failed and the first respondent confirmed the order passed by the second respondent. The result is that the appellant concern is recognised as consisting of two undertakings, the Hosiery Section and the rest excluding the Hosiery Section. It is against this order of the first . respondent. that the appellant has come to this Comt

by special leave.

The first point which Mr. Mehta has strenuously urged before us on behalf of the appellant i8 that on a proper application of the tests laid down by this Court, it should be held that the spinning and the Hosiery Sections in the appellant's establishment are one concern and in support of this argument he h<ts referred us to the decisions in the Associated Cement Companies Ltd. v. Their Worlcmen ( '), Pratap Press v. Their W (ll'lcmen (2) and Palcshiraja Studios v. Its Workmen ('). This question has been recently considered by this Court in the case of the Honorary Secretary, The South India MiUowners' Association v.

The Secretary, Coimbatore District :Textile Workers' Union, Coimbatore (') in which judgment has been pronounced on February 1, 1962. In the last mentioned case, this Court has examined the relevant earlier decisions and ha.s come to the conclusion that though the question about the unity of two industrial establishments has to be considered in the light of the refevant tests laid down from time to time, it would be unreasonable to treat any one of the said tests as decisive. As has been observed in that case, in dealing with the problem, several factors are relevant, but it must be remembered that the significance of the several factors

(1) (1960] 1 S.C.R. 703.

(3) (1961] 2 L L.J. 380.

(2) (1960] I L.L.J. 497.

(4) (1962] Supp. 2 s.c R. 92s

The _Fine Kni.rting

Co., Lld .

•• The lnd1Jdrial Court,

Born.hay

Gajendragadkar J.

1 ht Fi1ic 1\11iUint;

Co Ltd.

v. 11u Tndusl1ial Co11rt,

Bomb~J

Gajmdn']adkar J

202 SUPRE:IIE COtJRT REPOR'i'S (1962] SUPP.

would not be tho same in each case nor their importance. It is in the light (Jf tht>se decisions that tho point raised by Mr. llkhla has to be consi dered.

:llr. i\lchta contends that in the present caso there is unity of ownership aml as a necessary corollary, tlwre is unity of mauagement, supervision and control; there is unity of purpose and design and he 11rgucs that there is complete functional integration. According to him, as no hosiery could be manufactured without ya.ru, thereis such a functiu1ml in tcr-dcpendcnco between the spinning and the hosiery sections that the latter cannot exist without the former.

There is also unity of fornnce and in consequence, there is one capital aud depreciation fund account, one common account of expenditure and incomo, one balanct!· sheet and one profit and loss account. There is also unity of employment and the two concerns function UJ:der the same roof; so there is unity of habitation. It is on these grounds that lllr. Mehta contends that the first and the second respondents were in error in spl, itting up the appellent's establishment into two Hections and recognising them separately as such.

In dealing with the significance and the effect of the factors on which ;\Ir. i\lchta has rightly relied it is necessary to bear in mind certain other relevant foctorn on which the decision wider appeal is substantially baaed. It is true that in 1924, the spinning scct10n of the establishment may have begun as a subsidi111y tu the hosiery section and in order to servo as its feeder.

But tho evidence on tho record clearly shows that the position is now roversed and that the spinning section has now

assumed major importance and hosiery takes a minor place in tho industrial activities of the appellant. The inspectiou notes made by the second respondent show that it was admitted by the

management tha.t the spinning section has now developed to such an extent that it is like a spinn

ing mill by itself; it can no longer be regarded as a minor section attached to the hosiery _works.

It was conceded before the secowi respondent that only about 20'/'0 of the yarn manufactured in the spinning section is consumed for hosiery purposes while the rest is available to be sold in the market.

The production figures in the spinning section and 'the consumption of the yarn produced in that sec

tion unmistakably point to the fact that the spinn ing section is no longer a minor department run by the appellant solely for the purpose of its hosiery section. In 1955 in the months of November and December, the production in the epinning department was worth Rs. 1,17,742 whereas whatever was consumed in the knitting department was only Rs. 23,817 leaving a balance which was sold for Rs. 93,!l25.

The corresponding figures for the year 1956 Mc Es. 6,70,854, Rs. 1,40,105 and Rs.5,30, 749. Similar figures for 1957 are Rs.8,17,153, Rs. 1,31, 725 and Rs. 7,04,018 and for 1958 are Rs. 6,68,095, !'ts. 1,26,252 and Rs. 5,40,873.

The balance-sheet for the year 1954 shows that the total hosiery sale was worth Rs. 2,37,232-6-0 whereas the total yarn sale was worth Rs. 14,82,705-5-0.

Similarly, for the year 1955, the hosiery sale was Rs. 2,56,986 and the yarn sale was Rs. 14,44,929.

The strength of the employees engaged in the two respective sectors tells the same'story. The table prepared by the second respondent from the information supplied by the management shows that .for the year 1955, spinning employees were 174, hosiery employees 5ti and the common work, men 35. For the year 1956, the figures were 217, 54 and 38; for Hi57, the figures were 194, 65 and 38; and for 1958, the figures were 178, 60 and 32.

Mr. Mehta quarrels with some of these figures but does not dispute the broad conclusion which is drawn from the figures , that the number of employees engaged in the spinning section is far more

The Fine Knittjng

Co., Ltd. v.

The Industrial Court, Bombay

Gajendragadkar J.

1!16Z

Tht Jr'ine },'n1tt{1,;

Co., Ltd.

•• 1·1i, lnduJll'ial Court,

Bombay

Gajtndr 'l.cadkar .J.

204 SUPREME COVRT REPORTS [1962] SCPP.

than that employed in the hosiery section. Thus, there can be no doubt that the spinning activity of the appellant which may have begun as subsidiary to the hosiery activity has now grown in importance and has taken a place of pride in the industritd activity of the appellant coIJ.Sidered as a. whole; it can no longer be regarded as subsidiary to hosiery.

It is common ground that by the notification issued under the Cotton Textile (Control) Order,

l!J48, the appellant is called upon to supply to the Governm1nt the prescribed quantity of yarn produced by the spinning depa.rtment. It is unnecessary to refer to th!' details of the order or to tho extent of the yarn required to be sup.plied by the appellant under it. 'Vhat is significant is the fact that by the application of the ord!lr issued in that behalf, the Govcmmcnt has treated the appellant as a producer who has a spinning plant and in that sense, the existence of the spinning activity of the appellant bas bocn treated as an independent activity liable to be controlled by the notification issued under the Cotton Textile (Control) Order, 1948.

Then as t-0 the argument that the spinning and the hosiery am functionally integrated, it is clear that hosiery can exist without spinning, provided the industry engaged in hosiery purchases yarn required f'or the purpose of hosiery. That is one aspect of the ma.ttor.

But the more important aspect on which reliance bas been placed against the appellant is tha.t the appellant's spinning dep artmcnt produces yarn of all counts some of which would admittedly not be useful for boHiery work.

When the appellant was asked whether t, he allegation mado by respondents Nos. 3 and 4 in that behalf wa.s true or not, the ma.na.gement of the app ellant hositatingly donicd the said 111lcgation. But an advertisement published in the local daily "Sandesh" wa.s produced by respondent.a Nos. 3

3 S.C.R.

SUPREME COURT REPO.ttTS 205

and 4 and it clearly showed that yarn of all counts was offered by the appellant for sale in the general , market. Therefore, it would be idle to contend that the spinning work carried on in the spinning department is meant exclusively or solely for tbe hosiery department. If the spinning department produces yarn which is not useful or necessary for, and which cannot be used by, the hosiery section. the only inferei:ice is that the spinning department is working on its own and is producing yarn to be sold in the market. That being so, the argument of functional inter-dependence or integrality cannot be treated as valid.

Besides, it is not disputed that when the knitting department was closed in 1948, the spinning department was not. If the two departments are functionally inter-dependent, the closure of the one without the closure of the other may need an explanation. The explanation which has appealed to the first and the second respondents Hpparently is that though the spinning work carried on by the appellant may, to some extent, be useful for the hosiery work, the major part of its work is carried on independently with an eye on the market and so the closure of the hosiery cannot and did not affect the continuance of the spinning department.

There is yet another circumstance on which considerable reliance bas been placed by the first and second respondents in rejecting the appellant's contention that the two departments constitute one unit. This circumstance refers to the conduct of the appellant itself in dealing with the employees engaged in spinning and in knitting departments.

It is admitted that the minimum wages paid to the employees in knitting differed from the minimum wages paid to the employees in spinning and so does the amount of dearness allowance paid to the respective employees differ. It is difficult to understand how an employer can make a distinction ui

The Fine Knitting

Co., Ltd.

The Industrfol Court, Rombay

G ajendragadkar J,

Tht Fint Knittin.~

Co., LJr/.

Tht Industrial Ccurt,

Bombay

OojtndrogadJ:or J.

206 SUPREME COURT REPORTS [1962] SUPP.

the payment of minimum wa.ges between one class of employees a.ad another if bfJth the classes of employees are engaged in diffllrent departments • of the samo esta blibmcnt or concern. If there is unity of rmployment ancl unity of purpose and design as suggested by ;\fr. Mehta., it is inconceivn.ble that th" employees engaged in two departments intt>grally connect<id with Pach other and constitut.ing onA unit would be paid different minimum wag<'s. Wha.t is true about the minimum wages and the cl Parness a.llowanco is also tru<' a bout tho bonus.

It a.ppca.ra that even in years in which the appPllant made profits and actually paid bonus to the worktrwn employed in the spinning dPpart.ment, no bonus

was paid to the employes enga11Pd in the knitting rlepartmcnt. That again can be explained and

jutifiecl only 0n the basis that the appellant treated the two departments as distinct and separate and so the employees in the one got bonus and not the cmploype• in the other. It was suggested by Mr. :\Jet ha that the genesis of the present di8pute lies in the anxi<'t:V of the third respond('nt to take within its jurisdirt.inn the emplnyees Pngaged by the appellant in itR spinnin!! departm.-nt. On t.lw other hand,

fr. Barnt for rt'Spond1·11ts x OS. a and 4 contends that the prt'Hcnt trouble aros<' b<'causc the appellant beiran to deny to its employers in the spinning d<'partmr>nt t.h<, berwfitR of 1'11 relevant conditions of sPrviee which were npplicnhle to the employees in the Textile fndnstrv in Ahm('dabad.

What-

Pvr ma~' ho the baekgronncl of the dispute and its gPm"•is, it is clear beyond dc, ubt that. the way in whi0h ihe appellant has t.rrat<'<I irn employees in spinning ns clistiuguihPd frnm itH cmp](l}"<'es in knit.ting leads very st.rci11gly to the infon'rW~ that t.he nppell•rnt treat•'•! the two departnwnts not

aR one 11nit hut aR separate unitH each one functioning on its own and inde.pc11dm1tly of the other.

It is in tht' light of these cirnmstances that.

the first and the second respondents were not impressed by the relevant factors on which the appel ·

!ant relied in support of its plea of the unity of the two activities and came to the conclusion that the two activities were separate and as such, as must be separately recognised under s. 11. . We do not see how the appellant can successfully challenge the correctness of this conclusion.

There is one more point which yet remains to be considered. Mr. Metha argues that the impugned order recognising two different undertakings under s. 11(1) is not justified by the provisions of the statute. Section 11 provides that the Registrar may, after making suh inquiry as he deems fit, recognise for the purposes of the Act- ( 1) any concern in a.n industry to be an undertaking ;

(2) any section of an undertaking to be an occupation. 1

The argument is that s. 11 ( 1) does not authorise the splitting up of a concern into two undertakings.

A concern, says ]\fr. Metha, is the whole of the concern or establiEhment run by the appellant and as such it has to be recognised as one undertaking in so far as the order under appeal treats the appellant's concern as two undertakings, it is contrary to s. 11 (l). We are not impressec! by this argument. The appellant is undoubtedly engaged in the hosiery industry and that part of its business cannot. be recognised as Cotton 'l'extile Industry because it is a concern engaged in spinning only which can be recognised under that category. If that is so, industrial activity of the appell~.nt in relation to hosiery industry must be recognised separately from the textile undertaking. If one concern or company carries on several businesses or undertakes different types of industrial works, these businesses or works would amount to separate enterprises or undertakings and would have to be

]962

The Fin6 Knitting

Co., Ltd.

Vo The /ndustrinl Court,

Bombay ,. --, Gajendragadkar J.

Tht Fint Knitting

Co., I.td. . •.

The Indtutri12/ Court,

Flombay

Gajt11drn:a'1k1r J,

208 SUPREME OOURT REPORTS [1962] SUPP.

recof!lliRerl as such. In fa.ct, if the a.ppel!a.nt it.qelf has heen treating the two kinds of work sepa.ra.tdy and ha.s thus split up its whole husiness into two indcIJ"mfont sections, it is not easy to understand why the Registrar cn, nnot recognise the existence of two undcrtakingR carried on by th.e appell:rnt and trPat the sairl undcrtakings as such. We see no jnstific•ition for the as.q•.1mption made by Mr. :'vfctha. that s. 11 (I) doPA not permit the recognition of several undertakings carried on bv the same company Rf'parat<>ly.

Jt all depends On whether the undertakings arc sepa.rato, distinct and independent. of oaf'h other or n, re functionally integral or intcr-dl'pcndent..

Tn the former case, th<i Registrar woul<l h<> justified in trPating the several undertakings separa.telv while in tho latter case, hA may recognise all of them as one undortaking.

There is one minor point to which reference may incidPntally be made. It. appears that before the firnt respondent, it was 'urgcd by the appellant that tlw present applications made by respondents !'\os. :J and 4 were barred by reA judicata. The

ari.rnment wast.hat. sine" the Aeconrl respondent had on an Ni.rlier 'oncassinn c>nsidcmd the merits of tho cas" :tnd ' refuRr<l to grant the request made by the third r<'Apondent for reeogni.qing the two und<•rtakings separately, t.he same question <'ot1ld not he !'('-agitated again before the same authority. In our opinion, there is no substance _in this argument.

As we have alread.v pointed out, when the second re"'Pondent passed hiR earlier

order, an appeal wag preferred againAt the said ordPr hv the fourth resprmd<mt hefore t.he first rPHponc10nt.

That. appeal was, however, dismiHsed on the groun<l that. the fourth responclent w; Ls not

partv to the proceedings hcforn th<> sccon<I res pondt'nt and, thcrc•fore, he could not prefer an appeal. If t.he fourth reApondent had no right to m:i.ke an appeal because he wits not a party to the said proceedings, it is difficult to see how he can

be precluded from making the present application on the ground of res judicata. At the highest, a plea ofres judicata may perhaps be raised against the third respondent but that would not be effective in view of the fact that in the present case, an application has been made by the fourth respondent as well.

That is why Mr.

Mehta did not seriously press the point of res judicata before us.

In the result, fails the appeal and is dismissed with costs.

Appeal dismissw.

KRISHAN LAL DHAWAN AND ANOTHER

DELHI ADMINISTRATION

(J. L. KAPUR, K. C. DAS GUPTA and RAGHUBAR

DAYAL, JJ.)

Criminal Trial-Trial by Special Judge-Another •pecial Judge conducts further proceedings-Conviction-Valid-ity- Code of Criminal Procedure, 1898 (Act 5 of 18.98), s. 350-

Criminal Law Amendment Act, 1952 (46 of 1952). s. 8, sub's. 3.

The appellants were charged under ss. 120B and 420 Indian Penal Code ands. 5 (I) (d) read withs. 5 (2) of the prevention of Corruption Act. The trial of the appellants was commenced before a 15pecial Judge who heard the prosecution evidence. 'fhereafter the trial was taken up by another special Judge who examined the defence witnesses. and finally convicted the appellants. The appellants appealed to the High Court and the High Court upheld the conviction and sentence. The appellants thereupon appealed to the Supreme

Court by special leave.

The sole question which was raised by the appellants was that in view of the fact the trial commenced before one Special Judge and another Special Judge took up the proceedings are incompetent. . . The respondent relying on s. 8, sub-s. (3), of the Cnmmal Law Amendment

The Fine IL nit tint

Co., Ltd.

The fndustrial Court,

Bombay

Gojentlr•zadk•r J.

196S

THE FINE KNITTING CO., LTD

A. K. SARKAR

s. 11

Jav Industrial Rlations Act, 1916

s. 11

Bombay Industrial Relations Act, 1946

s. 11

Bombay Industrial Relations Act, 1946

Industrial Disputes Act

Articles 2

(1960] 1 S.C.R. 703

s. 11

s. 11(1)

Section 11

s. 11

s. 11

s. 11

Code of Criminal Procedure, 1898

s. 350

Criminal Law Amendment Act, 1952

s. 8

s. 3

ss. 120B and 420

Indian Penal Code

prevention of Corruption Act

s. 8