iJ S.C.R.

SUPREME COUR'l' REPoRTS

DHARAM SINGH AND OTHERS

THE STATE OJJ' UTTAR PRADESH

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

RAGHUBAR DAYAL, JJ.)

Criminal Trial-Conviction by Sessions Judge-Appeal to High Court-Dif!ere1'Ce between Judges hearing appeal- Reference to third Judge-Duty of third Judge-If rtoust treat opinion of acquitting Judge as judgment of acguittal-Code of Criminal Procedure, 1898 (Act V of 1898) s. 429.

The appellants were convicted of offences under s. 302 read with s. 34 and s. 201 read with s. 34 Indian Penal Code

by the Sessions Judge. On appeal to the High Court there was a difference of opinion between the two Judges who heard it and the case was referred under s. 429 Code of Criminal Procedure 'to a third Judge. The third Judge upheld the. convictions. The appellants contended that where a case was referred under s. 429, the opinion of the Judge acquitting the accused had to be treated as a judgment of acquittal and that the third Judge must consider all the reasonsgiven by the acquitting judge and his judgment should indicate the reasons for disagreeing with the opiniOn of'the acquitting Judge. The appCllailts further contended that there were certain circumstances proved by tne evidence on the record which s bowed that the eye-witnesses co!Jld not be relied upon.

Held, that there was nothing in s. 429 which required the third Judge to whom the reference was made to act as though he was sitting in appeal against acquittal.

He had to consider the opinion of the two differing Judges and to give his own opinion.

Hehl, further (per Kapur and Das Gupta JJ. Dayal J. contra) that the judgment of the High Court suffered from such, infirmitie_s,. as placing the. ontis of proof of certain facts on the appellants and using of inadmissible evidence.

The case was ftill Of 110 many inCons.iste:nces 'and improbilities and peculiarities that it made it difficult to rely upon the testimony of the eye-witnesses and to hold that the case against the appellants was established beyond reasonable doubt.

Per Dayal J. The circumstances urged by the appellant did not make out a case for interference with the findings of facts 'of the High Court.

March 9

198t

Dhr.ram sr,, gh

•• Tl.~ Sbte nf Utt41' Pradrh

I. . ' ' . 770 SOl'REME COURT REPORTS [Hl62] SUPP.

CRDtrNAL APPELLA'fll Ju&ISDIG'l'ION: Criminal Appeal N'o. :!:2-! of 1!159.

Appeal by special leave from the judgment aml orer cla.te~ I 959. :May 5 of the Allahabad High Court m Cnmmal Appeal N'o. 1049 of 1958 and Government Appeal No. 1766 of 1958 .

.Jai Gopal Sethi, C. L. Sareen and R. L. Kohli for the Appellants.

G. C. Math'Ur and C, P. Lal for the Respondent.

_ l!W2. March 9. The Judgment of Kapur and Das Gupta, JJ. was delivered by Kapur, J. Dayal, J., delivered a separate Judgment.

KAPl:R, J.-The appellants and Prithviraj Singh were tried by the 8essions Judgt', Hamirpur, tho former for offences under s. 302 read withs. 149 and 8. ~Ol rea-0. withs. 149 and of them some under s. 147 and othurs under s. 148 and the latter under s. 201 read with s. 149 of the Indian Penal Code.

From amongst the accused persons Nathu Singh was acquitted and so was Prithviraj Singh but ten others were convicted under s. 302 read with s. 149 ands. 201 read with s. 149 and two of them were convicted undor s. l4i and others under a. 148.

The Sessions J udgc sentenced the convictd persons to imprisonment for life under s. 302 read with s. 149, to three years' rigorous imprisonment under s. 201 read with ~. 149, two of them to two years' rigorouH imprisonment under s. 14 7 and others to three yoars' rigorous imprisonment under s. 148 but all the sentences were concurrent. Against that order the convicted persona took an appeal to the High Court at llahabad and te 8tate appealed against the acquittal of Nathu Smgh and also applied for enhimcement of sentences against the convicted persons. The High Court dismissed the appeal of the convicted persons and allowed tho :ippeal against N'athu Singh.

Thus H persons wre convicted and sentenced to 1mprisolllllent for life

and to other concurrent sentences and they have appealed to this court by special leave.

The appellants a.nd Prithviraj Singh are residents of village Kharela and they were on terms of enmity with the deceased Baja Ram Singh. On July 28, 1957, at about 3-30 p.m. thii appellants collected in front of the house of Kali Charan appellant, two of them armed with lathis, two with pharsas and seven of them had spears. Dharam Singh appellant asked Raja Ham Singh as to why he had been abusing him to which the reply given by Rajaram Singh was that he was not in the habit of abusing any body at his back and if he felt like abusing imy body he would do so to his face and he fixed his spear in the ground and stood there. Appellant Dharam Singh threw away the spear, rushed towards Rajaram Singh, caught hold of him by the waist and asked his ten companions to beat the enemy. Rajaram Singh was thereupon attacked with various weapons as a result or which he fell down severely injured. He was still alive when appellants Sheo Rattan Singh and Gulab Singh struck on his neck with pharsas and partially severed it.

At the instance of nharam Singh, his cart was brought by others and Prith viraj Singh also arrived at the spot. Dharam Singh asked him to go home and bring his (Dharam Singh's) gun which Prithviraj Singh did and handed over the gun and the bandolier of cartridges to Dharam Singh who loaded the gun, put the dead body of the deceased on the bullock cart and the ten accused persons then took away the dead body from the village and it is alleged that they left it in a nullah near village Jataura.

There is a poiice post in the village of which Head Constable 6hivsewak Singh is incharge and. there is also an armed gimrd there. At 345 p.m.

Shyam Lal who is the brother-in-law (wife's bro-. ther) of Rajaram Singh made a report at the police

D/11wam Singh

TheSte'e of Vtiar Pradesl

K"pur J

lllaatam ingh

v. 1 J,, Stall•!

Uttar Protl1sli

Ko/JUI' J.

772 SLJP.REME.COU.RT BEPOR:fs (1962] SUPP.

post and at 7 30 p.m. he made a report at tho police station Muske.rs .which is 8 miles a\\ay from village Kharela.

This occurrence was witneSBed b.v five persons P. W. Babu Singh.

P. W.

Shivnath Singh, P. W. Ram Narain, P. W.

Mulain Singh and P. W. .Brij Rani.

While the corpse was being taken in the bullock cart three witnesses deposed to having seen it being carried in the cart. The>y are Ram Nath P. W. 21, Tiji\\a P. W. 22 and Jurhan P. W. 23.

In the High Court the appeal was heared in the first instance by Cak and Verma JJ. There was a difference of opinion between the learned judges and the matter was referred under s. 429, Criminal Procedure Codo to Desai J., who agreeing with Cak J., upheld the conviction of the ten app ellants who were eonvioted by the Sessions Judge and set aside the acquittal of Nathu Singh. Thus 11 persons were convicted and they have appealed to this court by Special Leave.

It W!Ml contended on behalf of the appellan~ that under s. 429, Criminal procedure Code, where tli.ore is difierm;1co of opinioµ botween the judges

constitutng .a Divisio, n Bench and the mattr is referred to a third judge the opinion of the Judge acquiting the acoqsec; l has t• • be treated in the samo

mne, r as the judgo; iept of acquittal by the trial con.rt and evfn though it may not be no.ceSBary to find compelling reasons for disagreeing with the opinion of the e.cquiting judgo it is necessary that the judgment should show that all the findings and the reasons give, ll ii:i the opinion of the acquitting judge are mon tioned in the opinio1;1 oft.he third judge and the judgment should indicate the reasons for disagreeing with the opinion of the aoquitting Judge. We ca.n see no warrant for this contention.

Section 429 of the Criminal Procedure Code Provides:

"When the Judges coillposing the Coutt of appeal are equally divided in opinion, the case, with •their opinions thereon, shall be laid before another judge of the •same Court, and such Judge, after suoh•hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion" .

.All it says is that the opinion of the two judges who disagree shall be laid before another judge who after giving such hearing, if any, as he thinks fit, shall deliver his opinion and the judgment or order should be in accordance with such opinion. Now it is obvious that when the opinions of the two Judges are placed before a third Judge he would consider those two opinions and. give his . own opm10n and the judgment has to follow the opinion of the third judge.

Consequently on that opinion is based the judgment of .the court.

For all practical purposes the third Judge must consider the opinions of his two colleagues and then give his own opinion but to equate the requirements with appeals against acquittalR is not jnstified by provisions of s. 429 or by principle or precedent.

Desai J., was of the opinion that the eye witnesses had seen the occurrence and their eviden-ce must be accepted but there are certain circumstances proved by the evidence on the record which when considered materially affect the force of the finding in regard to oral evidence and which have to be considered in order to adjudicate on the correctness or otherwiB'e of the prosecution case. The first point is whether the murder was committed in the village as is submitted by the prosecution? .According to the prosecution tho murder was committed in the village at 3-30 p.m. in the month of July in broad daylight on a public road and: the number of injuries caused to Rajaram Singh are such that th'er~ !l\JlSt

D"""~'Sinth

"' Th~ sf ate of Ultar 'Pradetli

Kapur J,

195!

Ohmen Singh

Thi StaJ• of U tiar ProJ1sh

Kapur J,

774 SUPREME COURT REPORTS (1962] SUPP.

have been a fi.ir amount of blood spilt at the place. According to the prosecution evidence after the murder was committed Dha.ra.m Singh sent for his bullock cart which must necessarily have ta.ken a. little time. Meanwhile Babu Singh P.W. went and informed Shyam La.I who went tu make a report at the police post in the village. It is stated to be about 4 furlongs away. [t is contended by the appellants that if the murder bad taken pla<>e as stated and them w<is an armed guard in the villagc, it would have b•ien difficult for the appellants to h.:i.ve sent for the cart, to put the dead body on it and take it out of the village and that within tho time between. the commission of the murdor and the time oft.he making of Report at the police post; that there is a considerable doubt :ibout the occurrence having taken place in the villa.go because no blood was found at the place of the murder; at least no evidence has been produced to show that there was any blood there.

On behalf of the prosecution it was submitted that tho evidence discloses that afta the murder tho blood was washed away by throwing a good deal of water and plastering the place and thus no blood was found when the place W<ts visited by the investigating Sub-Inspector. It was also submitted that some blood was found on tho wall of the chabutra in front of the house of the appellant Kali Charan which was collected in a small tin and was sent to the Chemical Examiner. It may here be pointed out that when the dead body was taken to the place where it was found 6-1/2 miles away from the place of occurrcnco tbe neck was cut and ta.ken away and only thti headless body was found there. That place was in the dry bed of a nullah. According to tho prosecution witnesH Ram Avtar there w1i.s plenty of blood thero but P. W. Raziuddiu stated that blood was found in drops lying in adjacent places but it was not found in heav) quantities at one place.

BloO<l-stBiuod earth was ken from the

wall of the chabutra of Kali Charan. Unstained earth was also taken from the same place which was also put in a small tin. Blood stained earth was also taken from the place in the bed of the nullah where the dead body was found.

All these tins were sent to the Chemical Examiner. It is not quite clear what exactly was his finding but he found that the earth in two tins was bloodstained but blood has not been shown to be of .human origin. It is not clearly shown as to what was the extent of the blood on the wall of the chabutra of Kali Charan. Desai J., was of the opinion that a lot of blood must have been spilt at the place where the murder was stated to have been committed but Kali Charan poured water over the spot, therefore no blood was visible at the spot and the Investigating Officer found the place wet when he examined it at night and that no explanation was given by the appellants as to how blood came to be on the wall of the chabutra. It does not appear from the examination of the appellants under s. 342 that any question was put to Kali Charan in ragard to the finding of the blood on the wall of his chabutra nor was any of the other appellants aske<l this question. The High Court should not have used this fact against the appellants.

Another circumstance which has been pressed at great length on behalf of the appellants is that no attempt was m1de to take any earth from the place and no investigation waa made as to whether there was any blood at the spot or not. If a man's neck is cut and he is caused the number of injuries that the deceased hiid, the amount of blood spilt there must have been in a fairly large quantity and it is difficult to imagine that just by pouring water over the spot and plastering it no bloorl was visible a, nd even if it was not visible no blood could be found if any effort was made. No attempt seems to have been made to take the earth from there and

sed it to the Chemioal Examiner for the purpos()

' Dharam Singh

v. f"he Stai. of Uttar Prad; sh

. Kopur.J,

. 19~2

Dh1, a'1t Sillfh

Thi S1414 of U ttar Pracltsh

776 SUPREME COURT REPORTS [1962) SUPP.

ofexamination. Desai J., has observed that the Investigating Officer found the ground to be wet.

The TnveRtigating Officer came there at II p.m. on the night of ocourrence which was a dark night and if he found the place to be wet it is not clear whether it waR wet becauso of water or bccauso of blood.

It was the month of , July when any water poured at 3-30 p.m. should have dried up by 11 p.m. Another point which has been preBSed on behalf of the appellants is that no trail of blood was discovered from the place where the murder is alleged to have been commiLted to the place where the dead body was ultimately found in the dry bed of the nullah.

A I though the evidence is conflicting there was some amount of blood at the place where the dtad body was found.

The head had been completAlly severed and taken away. In the cart also there was some blood and a blood stained axe was also found there. Therefore if the head was cut at the place where the dead body was found and there was

blood oozing out at that timo it is difficult to imagine that there would not be any blood oozing all tho time and there would be no trail of blood.

But none has been found.

It may be pointed out that there was blood on the planks of the cart on which the dead body is alleged to have been taken.

According to the books on :lledical , Jurisprndence blood does not coagulate till after four hours.

Therefor!! the submission of the appellants that there should have been some trail of blood from the place where the murder was committed to the plaoe where the dead body was taken has c:onsiderablo force.

The judgement of Desai, J., seems to indicate that the onus of certain matters was placed on the appellant3 whioh is unwarranted by law.

For instance, the learned .Judge said that the appellantH were asked in the Mai; istrate's court; about the

evidence that they had killed Rajaram Singh at 3-30 p.m. in the abadi and had then carried away his dead body in the cart of Dharam Singh, and they contented themselves by denying all the allegations and none of them had said that the deceased was not murdered in the abadi and in the day time.

The learned Judge then observed:-

"'If he was not murdered in the adadi and in day time they must have heard when and where he was murdered.

Their state ments were not evidence governed by the Evidence Act and they could say that they had heard. Yet when they refrained from saying anything about it, it just shows that they had not heard that Raja Ram Singh was murdered elsewhere and at another time".

This, in our opinion, was an erroneous approach to the question.

At another place in his judgment the learned Judge again seems to have placed the onus on the appellants and that was concerning the ownership of the cart in which the dead body was taken.

The finding of the bloodstained bullock cart was relied upon by the prosecution in support of their case.

That evidence was attacked on the ground that there was no identification parade of the c<trt and the bullockR.

The learned Judge said in regard to this matter that there was no necessity for any identification proceedings because if the Investigating Officer belieTed the witness who stated that the cart belonged to Dharam Singh then he was not required to cross-examine the prosecution witnesses by asking them to identify the cart and the bullocks. He then observed:-

"Dharam Singh, Babu Singh and Prithviraj Si~1gh appellants denied that the cart and the bullock produced were theirs but did not say to whom they helonged and how they were obtained by the police. They also 4~4

Dharam Singh

v, Th'e'Sttstt or lftfQr PradtSh

Kapur:!;

JMI

DlaaFam St11gh

•• 11,, Stai. of (/114r Prodesh

KopurJ.

778 SUPREME COURT REPORTS [1962] SUPP

not produce a.ny evidenco to rebut the evidonc(I of the prosecution witnesses a.bout their

ownership" .

In that very connection the learned .• Jmfoo has also relied on the fact that the bullock crtrt ws brought from the hara. of Ram Adhin Singh and the site plan propared by S.H.O. showed that thero were signs of fresh removal of the bullock cart frnm the

ba.ra.

Now this again is not admissible evidence because nothing shown on the plan unless deposed to by witnesses is evirlence against t.he appellants:'~ It was so heir! in Sa11ta Singh v. Stak of I'?tnjr1b ( 1) and Tori Singh v. State of Utt'ir Pradesh (').

Thero is another signifiwmt fact in regi:.rd to this cart According to prosecution witness Bahn Singh, tho

bullock which were yoked in the cart belonged to Ram Adhin Singh when he was asked to idontify he said one of them was the same but the second one was not the same which W:J8 yoked in the cart at the time when tho dead body was being taken.

It is an extraordinary circumstance that tho bullocks which are alleged to have belonged to lfam Adhin Singh, and which were yok<•rl to the cart

carrying t.he dead body, which a.II tho time remained in police custody got changer! so t.hat one of t.he bullocks is not the same.

Another circumstance which is equally significant is the fiinding of the yoke of prosecution witness Tijiwa with the cart.

It is stated that Tijiwa met the appellant~ when they were driving the cart away from the village.

At the time Tijiwa was returni11g home bringing his employer's cart..

Tijiwa's yoke 1ras I orrowcd beoauso the yoke of the ca.rt driven by the ppcl lants got broken aml Tijiwa.'s yoke was found at the place where the cart was subsequently discovered. What happened to the broken yokf' is not Hhown, how 'l'ijiwa took his own cart back without the yoke to tho village is not shown.

This drcum-

\11 A.f. 1q!6S.C. 526. t~) [1962) l S.C.R.

stance does not seem to have received the attention of the High Court which it deserved.

The appellants have vigorously pressed before us another argument which deals with the F'irst Information Heport and investigation by the police.

Accordin~ to the prosecution the occurrence was at about 3-30 p.m. and an information was given at the police post at 3-45 p.m. and according to the evidence of the prosecution witness Raziuddin, the Head Constable and two constables of the armed guard proceeded to recover the dead body and follow the murderers by following the track of the

oart. They left the police post of Kharela at :~-45 p.m., and from there they went to the house of the appellant Kali Charan and then they followed the track of the bullock cart. At a distance of four or five paces from the place of occurrence they met

Pancham Singh who does not seem to be a witness; so what he stated to the constable is not evidence.

They then followed the track of the bullock cart and found the dead body lying in the nullah about three furlongs away from the abadi of village .Jataura. The dead body was headless. They left the two armed guards at the place and proceeding a Jittle further they found the bullock cart with t, he two bullocks and there was no one near the bullock cart. Head Constable Shivsewak Singh had gune at 12 noon to Balatal for appearing as a witness.

There are no entries in the Police Duty Register at the Police Post as to his return nor as to his going with Raziuddin and others following the track of the cart.

Leaving the armed guard at the place where the dead body was found Head Constable Rhivsewak Singh went to Jataura and called Chowkidar

Sumer~. At about 10 or 11 in the night he sent Chowk1dar Sumera to Thana Charkhari to give

infomation and it is stated that as a result of the

Dharam Sinz'h .

•• The State of Uttar .Pradesh

Kapur J'.

196B

Dharam Sin1h

v. 7 h, Stou oj L. ~!ar Pro<ksh

Kapu1J,

780 SUPREME COURT REPORTS [1962] SUPP.

information given by Chowkida.r Sumera. tho Sub- Inspector in-oharge of Cha.rkha.ri Police Station came to the placo where tho dead boly W•l.S found and he started the invostig<1tion on the morning of July 29, l!J57.

He took the dead body into possossion, hold the inquest report and took bloodstained earth a1id the cart into possession.

There is no reason why the Head Constable should have sent Sumcrn to the police station Charkhari when the offence was committed in tho village in the jurisdiction of police station ;\<lusknm.

It is next stated that the Officrr-in-Charge of llfuskara Police Station, Suh-Inspector Rasu Deo ca.me to vill11ge Kharela at II p.m.

There is no entry in the Register at the Police Post sh<nving his coming to the place of. ths occurrcnc<'- He has deposed that he went to the place of occurrence and notioed that outside the house "some water appeared to be lying and at places it appeared th11t thl• ground had been washed with hand and water''.

How in the middle of a dark night he could havo seen all that hall been explained irnd the appellants rightly challenge bis very coming to the vi I la; e at that time.

From these circumstances th~ appellants submit that there is a gret deal of doubt as to tho time of the m11king of th'" First Infonnation Report and the time and place of murder. Wo ha.ve theso facts which cast a good deal of doubt a.s to the authenticity of the report or the investigation by tho police of Mnskn, ra. into thl' allPged

occurrence. (I) if the information was givon n, t tho police post soon after the ooeurrence, as is alleged, tlwro is no reason why the police should not have roached the place and prevented the removal of tho d"n<I body which w1\B after all being carried on n, bullork cart.

(2) It is not shown by the entries of thn Duty Rogistor that the Head Constable returned from

Bla.tal at 4 O'Clock a.nd came back to the village

3 S.CJ, R.

SUPREME 100U:R.T REPoRTS 'Bi

(Kharela) and then proceeded to follow the "track of the bullock cart in which the dead body was alleged to have been carried.

(3} There is no reason why when the dead body was found near the nullah at about 6-30 p.m. the Head Constable should have sent the Chowkidar of Jataura to Police Station Charkhari to make a report at that place and why the investigation should have been carried on by the police of that police station and not by the police of Muskara Police Station when the latter had come to know of it about 6-:10 p.m. tha, t murder had been committed in their jurisdiction.

(4) There is no reason why the Police Sub Inspector Kharela Police Post should go at 11 p.m. and in a most casual manner to the place of occurrence, see water lying at the place and that in the hot month of July. Why the next day he did not take any earth from that pla.ce is also a very significant question. ·

( 5.) There is total absence of blood at the place of the occurrence. It is stated that there was some blood on the wall of chabutra of Kali Charan what was the extent and nature of the blood is not shown. How far the chabutra was from the exact place of murder is not shown.

(6) There is no evidence at all that any earth was stained with human blood.

(7) There is total absence of entries in the Duty Hegister.

Therefore tire coming of Sub-Inspector Basu Deo is also doubtful. There is no indication t.hat there was any trail of blood even for a short distance from the place of oocurrence.

(8) The evidence in regard to the borrowing of the yoke from prosecution witness Tijiwa is b,.igbly suspicious in the circumstances of thi11 case.

Dltar<im Sing;,-

v. ;,' 'Fhe {itJJt~ oJ T..:ttar Pradlih

JUI

Dluvom Singh

v. 7ll. State of U ltGf' Pr•tftsh

782 SUPREME COUHT REPORTS [1962] SJPP.

(9) Lastly we fiud that the approach of tho learned Judge to the case is not in accordance with law in th •t as to two or three matters he has approached the question as if it is for the defence to disprove certain facts. 1''or instan()(' the failure of the defence to produce reliable evidence to contradict eye witneHHes; there failure tu state that the murder was not commiw'd in the village ; there failure to say as to whom the ca.rt belonged if it did not belong to Dharam Singh.

Desai J., was of the opinion that no blood was found by Haziuddin on tho way from the abadi to the nullah and no trail of blood coulrl be expected becaue the bleeding must have stopped bcforo the cart left the abadi. On what evidance he found that bleeding must haw stopped is not clear.

The learned Judge also relied upon the fact th11t Chowki<lar Sumera made a report at the police station Ch<1rkhari about certain facts which arc mentioned there. Sumera is not a witness. Therefore whllt he stated cannot be evidence in thiH case.

It appears that the learned Judge also took into consideration the fact that the a pp<•llante were absconding and that they gave no explanation a<i to their absconding but they <lo not seem to bave been asked any queation in regard to it. In regard to the witnesses Ram Nath, Tijiwa and Jurkhan who saw the dlad body being carried in the cart, the learned Judge said that he found no reason to diRbelicve thoir testimony. At another place in the judgemeut the learned Judge obscrvt><l that when witnesses talked about the neck of Rajaram Singh being cut thoy must have been tutored about it. In this view of the matter and taking other material .mprobabilities in the t<>stimouy of those witnesses which the learned Judge does not seem to hav<' considered it is difficult to place any reliance on their evidence.

' I

3 s.c.k.

SUPREME dotJRT REl?oR.i's 7s3

-The whole case is full so many inconsistencies and improbabilities and peculiarities that it must be said that the case has not been estabilished against the appellants beyond reasonable doubt.

We are opinion that the High Court's failure to consider the important circumstances disclosed by the evidence, and the error in wrongly placing onus on the accused has resulted in miscarriage of justice. The case therefore falls within the rule laid down in Pritam Singh v. Stat, e (1) and calls for our interference .

In these circumstances the conviction of the appellants must be set aside and the appeal must be allowed. The appellants are acquited & must be released forthwith unless required in some other case.

i962

Dhoram Singh

The Slate of Utt1r Prodtsh _.,..

Kopur J.

RAGHUBAR DAYAL, J.-l have had the ad van• Boghubor Dt; Y:I , tage of perusing the judgment prepared by my learned brother Kapur, J.

I agree with the interpretation of s.429, Cr.P.C.

I am, however, of opinion that the circumstances urged for the appellants do not justify interference with the verdict of the High Court on questions of fact.

They have all been considered by Desai J., in forming his opinion. He has relied on the statements of the eye-witnesses. -

It is argued for the appellants that the 0ircumstances tend to throw doubt on the correctness of the prosecution story that the incident took place insidn the village abadi and that therefore the appellants' conviction should be set aside.

The first circumstance is that the incident took place at 3.30 p. m., information about it reached the police outpost four furlongs away at 3.45 p.m., the armed guard at the outpost then proceeded to the spot and yet it is said that the

c11 [lil50J s.c.R. 453.

19H

D"-'•m Singh

The Stott of Ullar-Prodt•h

Raghub<-r LO.JOI J.

784 SuPREME COURT REPORTS [1962) SUPP.

acused "ould rmove the dead bcdy fr0m the spot

pnor to the arnval of the armed guard. The getting of the bullock cart and the loading of the corpse would have taken sufficient time and the arrival of th<; armed guard could have been within that time.

In this cnnnection, it is to be noticed that Babu Singh, P. W. I, an eye-witness, left the spot after the body had been removed on the cart. It was he who informed Shyam Lal about the incident. Thereafter, Sh yarn Lal left for the police outpost. Babu Singh states :

"After the cart left. I ran to the house of Raja !tam Singh. There we met Shyam Lal. ..

I told hyam Lal all what I witnessed. He went to tho police outpost to mako a report and I went home."

'I he first information report was lodged at the thana at 7-30 p.m.

It mentions the fact of the dead body being taken away on the cart. In view of this fact it is clear that the armed guard could not have reached the spot in time to prevent the removal of tJie corpse.

Another fact against the circumstance urged is that tlic incident did not take place at 3.30 p. m., which was really the time when Babu Singh informed Shyam Lal. Shyam Lal dictated i.t1 the first information report :·

"At about :l.30 p.m., Babu Singh.".. came to my house and informed me as follows ... ".

The incident therefore must have started much earlier, say at about 3 CYolook and the body must have b{,>en removed by about 3.25 p.m . • The other circumstance urged is that no bloodstained earth was found at the spot and that therefore this throws doubt on the incident having taken

place at the spot alleged. It is in the prosecution evidence the.t some of the accused washed the

ground where blood . had fallen and plastered it.

According to the SubInspector, P. W. 27, bloodstained earth was taken in possession from the door of the accused Kalicharan Singh, which really means, from the front of his house. Siya Ram,

P.W. 26, stated that a few places in the Cha.butra where blood stains were detected were scraped and that the stains were on the walls of the Chabutra.

The recovery list Ex. K-29 mentions :

"blood stained earth was scraped from in front of the house of Sri Kali Charan, son of Bhan Singh, Thakur, and from . the 'Chabntra' (platform), whereon there appeared to be some stains of blood."

Blood stained earth from the place where the dead .body was recovered was also taken in possession.

The two samples of earth so taken in possession were sent in different packets to the Chemical Exa.miner who found them stained with blood. The Serologist could not determine the nature of the blood due to disintegration. In view of this evidence, it cannot be said that no bloodstained earth was found at the alleged spot.

Further, Raziuddin, P.W. 17, who went with the armed guard to the spot stated ;

"When at first I visited the house of Kali Charan I had noted that in front of his house there were indications of the waohing of the ground at places. It appeared that somebody had removed things from that place with hands and legs by spreading water at

different places."

This supports the statement of the other witnesses a.bout the washing and plastering of the spot.

Sub-Inspector Basudeo, P.W. 27, stated that when he reached the house of Kali Charn at about 11 p.m., he noticed that outside it some water

190:!

Dharam Singh

The State of l'ttar Pradesh

Raghubor J?ayal J.

. 6t

Dlu6om Singh

Tht Stalt of Uttar PrtJtltJ.'i

Rag/, ubar Datal J.

186 SUPREME COURT REPORTS (1962] SOPP.

appeared to be lying and at places it appeared that the ground had been washed with hand and water.

It is true that the night was dark and he did not carry out the local inspection due to want of a suit able light.

But these facts can hardly affect his testimony. He could not have mistaken the nature of the witneBB and should have been able to distinguish whether it was from water or from blood. The witneBB of the ground is not to be doubted even though about 8 hours had elapsed since the washing took place.

Raziuddin has deposed that there had been rain-fall two days earlier. The incident had taken place on the 28th of , July. The ground could have been wet from before and fresh washing could have wetted it more. In fact, the more the spilling of blood, the more would have been the water used to wash it away.

Another circumstance urged is that no trail of blood was noticed betweon the village and the actual place where the dead body was recovered, a distance of over six miles.

The corpse was laid on the planks of the cart, They got blood-stained.

Any dropping of the blood from the cart on the track would have depended on the extent of the flow of blood and on the openings between the planks. It is not expected that blood would have fallen in a continuous stream. Some drops could have fallen down at places. They could be easily pressed upon by the accused's feet, some of whom would have been walking behind the cart. The armed guard and others who followed the cart in pursuit were more concerned wit, h the following of the marks left by the cart than with noticing some minute drops of blood which might have fallen here and there on the track.

Absence of blood on the paSBage, therefore, cannot discredit the prosecution case.

3 S.C.R.

SUPREME OOURT REPORTS 7s1 ·

When the cart was produced in Court, it had one of the bullocks used at the time when the corpse was removed and another bullock substituted for the other one. Much has been made of this change in the other bullock. The Sub-Inspector has stated in his evidence. "I had entrusted the recovered bullockii and carts to the custody of Binda Lodh.i of village Kharedi. One bullock which is white iu colour could not be brought here as it is suf(ering from small-pox."

The questions put to tbe accused mentioned the allegation about the other bullock suffering from small-pox and in their replies this fact was not denied. The police was not in charge of the cart and the bullock and explanation has been given for . not producing the other bullock in Court. This circumstance too cannot therefore affect the correctness of the prosecution case.

It has also been urged that the carts and bullocks found near the dead body were not put up for identification by witnesses. Desai, J., has rightly observed that when witnesses could recognize the cart and bullocks there could be no point in having the cart and bullocks formally identified before a Magistrate. Only such articles and accused are put up for a test identification as are not known to the witnesses. Those known are never put up for identification. The statements of the witnesses who recognized them are judged from other circumstances.

Further, the evidence about thP. ownership of the cart was only by way of corroborating the statements of the prosecution witnesses.

Any cart which could be available to the accused could be used for the purpose of transporting the dead brn; ly.

Tijwa, P. W. 22, stated that Arjun Singh, accused, stopped the cart about a mile from the village abadi when he was returning home from his

196t

Dharam Singh

Tht. State of Uttar Pradesh

lioghubat Dayal J,

Dliaram Singh

•• Th< St.11 of Utlt11 ProtlesA

Ro.r; huhar Dtf'°' J •

788 SUPREME coun:r REPORTs (1962] SUPP.

fields and replaced the yoke of the cart with that of Tijwa's as the former had brokPn. It is urged that the absence of c\ideuco with rnspect to what happened to the broken yoke and how the cart' of Tijwa reached the village, import:tnt circumstances, had not been noticed by the High Court in its judgment.

These circumstances cannot. he said to be important.

In fact, they were very remotely relevant to test the veracity of Tijwa. Tijwa was not cross-examined about it. He stated that the broken yoke wa.~ also taken away in tho cart of Arjun Singh. It should follow th; i.t Tijwa's cart remained on the

passage till its owner i\Iahadev Brahmin could have brought it bauk.

It may be mentioned that the recovery memo, Ex. K. 22, did not mention about tho finding of the l, Jroken yoke in the cart. The broken yoke is said to have been tied with a towel. It might have been that the accused had removed the towel and thrown away the broken pieces. '.j'he police party had no knowlodge about the broken yoke when the cart was recovered and could not therefore have looked for the broken parts. It may equally bo that the broken yoke was used hy Tijwa. His

cart had to go a much smaller distance that the cart which took the dead body to the nah. When the accused starwd with the cart they expected the broken yoke to serve tho purpose of driving the cart to the nala and bac!,. It was just accident that they happened to meet Tijwa on the way 'and borrowed his yoke.

However, I consider these matters very insignificant in a3sessing the correctneBB of the prosecution case.

Another matter severely commented upon for the appellants is the conduct of Sheo Sowak Singh, P. W. 20, Head Constable, Kbarcla Police

Outpost, and the Investigating Officer, Basudeo, P. W. 27, mainly on account of the absence of entrica in the duty register of the outpost a bout

Sheo Sewak Singh's return there at about 4 p.m., and about the Sub'.Inspector's visit to it at about 11 p.m., on 28th July.· The Sub-Inspector has stated:

"It is not necessary to make any arrival and departure (entry) at police out-post Kharela, when I visit that p9st in the record of that outpost."

The statement is with reference to making an entry about his arrival and dparture. He further stated:

"I did not make any entry of my activities in the night between the 28th and 29th July 1957, in the record of police out-post at Kbarela nor it was necessary to note them there.''

And again:

"Entries are made in the record at Kharela outpost about the duties allotted to the staff during duty hours."

Sheo Sewak Singh, P.W.20, deposed:

"I do make entries in the recordH at the police out-post Kharela about my arrival there and also about my dC'parture from that post.

These entries are made in the general diary by way of allotment of duty."

Sheo Nandan Singh, P.W.19, Constable at that outpost, stated:

"This (Ex.K-5) is not a general diary in which cases are registered and entered. It is a register in which duties that are allotted and the Amad and Rawangi of the police staff are noted. ·

When the Sub-Inspector attached ., o Mus- )rara co:mes to the police out-post at Kbarela

' ' , . "'

Dharam Sirigh

y, The St•le of UltarPrmksh

Raghubar D•Jal J,

Dharam Singh v.

The S1alf. o/ Uttsr PraUsh

llaghubar na_, al J.

790 SUPREME COURT REPORTS (1962) SUPP.

hP notes his arrival and departure in tho register kept at police outpost Kharcla. No entry of his arrival and departure is made in the register in the night between the 28th and 29th of July l!l5i."

Police officers do write their arrivals and departures in the general diary at the police station and may also be doing so at the out-post duty registers, if '3heo Nandan Singh's statement is to be preferred to the stat.Pmonts of tho Sub-Inspector and the Head Const.able.

But even then such C'ntrics arc usually made when the :trrival of an outside police

officer is in connection with some work at the outpost. A casual visit on his way to another spot

may not be required to Le noted. Similarly, the return of a member of the police force at t.he outpost would be' nl'ted when he finally returns to duty.

His mere return to his quarters at the outpost may not he noted. Any way, any omillfion to make an entry the duty register at the out-post is not to rliscredit the entire prosecution evidence about the incident. and the course of the investigation. .

After the recovery of the clead body, i:'umera, Chowkidar, was sent. to Police Station Charkhari, in whose jurisdiction the dead body was founcl.

Ho lodged a report thne at 3 a.m., and stated in it wh; it lrnd taken place earlier.

Rt\m Autar Dixit, P., V.14, the then second officer at Thana Charkhari, went to the spot, took in possession the dea<l bod.v and the cart, prnpared the inquPHt report and took other necessary steps.

Criticism is made of Sumcra's being B<'nt to Charkhari police station and of this Sub-Inspector making an inv<'stigati9n in connection with an

offenc<:' said to h:weheen committed in thn jurisdiction of police station Muskara. Thn criticism is unjustified. 'fhe recovery of the corpse had to be

reported to the nearest police station and was properly made at Charkhari Police Station in whose jurisdiction also the dead body was found. It was the duty of the Sub-Inspector to proceed to the spot to prepare the inquest report and to take such other action as was necessary in the circumstances with respect to the recovery of the various articles (s. 174 Cr. P.O.). He was not questioned about his bonafides or about his jurisdiction to do what he stated to have done.

The fact that Sumera was sent to report the recovery of the dead body to police station Charkhari can hardly lead to the conclusion that this was done as no incident had taken place in village Kharela as alleged by the prosecution.

Lastly, griPvanc.e is made of certain observations of Desai, J., generally to the effect that the accused had not stated something or had not led evidence to rebut the prosecution evidence on certain points. It is urged that he therefore wrongly placed on the accused the onus of proving the defence version negativing the prosecution version.

I am of opinion that he made references to this as a , factor suppnrting the conclusions he had already arrived at on the consideration of the evidence and circumstances. He did not base his findings on such conduct of the accused.

He based his conclusion on moJe solid groundH.

Some of such observations are :

. ( 1) •That the accused gave no explanation as to how the blood came to be on the wall of the Chabutra'. The accused were not questioned about it and therefore their omission to explain it could not go against them.

However, the fact that blood was found on the wall of the platform or in the earth in front of Kali Charan' a house was proved froµi_ the positive evidence on record. . . . . ,

1962 - Dharam Singh

•• The Stai, of U tlar Pradqsh

R aghubar D 1yal J •.

19G2

Dh•11w1 Singh

•• "Tit Sta e cf Utlnr l'radrsh

. Rcgl.llbar Do; a I.

792 SUPREME COURT REPORTS [l9u2) SUPI'.

(2) Aftor Desai, J. had expressed his opinion about the reliability of the cyC\I itnesses, he stated :

"Kharela is a large village and if tho murder did not take place inside the abadi and at 3-30 p.m. it would not have been difficult for the appellant£ to produce reliable evidence to contradict the cye-witneescs, but they did not produce any cvidence .... None of them said that Raja Ham Singh was not murdered in the abadi and in day time. If be

was not murdered in the abadi and in day time they must have heard when and where he was murdered. Their statements were not evidence govorned by the Evidence Act and they could say that what they had heard." I am of opinion that there is nothing wrong in this observation when the incident is alleged t(I have taken place in broad daylight in the village abadi and yet the accused did not examine any witness to establish that no such incident took place in the village. Of coursP, e. finding that the incident di<l take place in the village as alleged by the prosecution could not have been ha.Red on such consideration alone and the finding to that effect has not been so based.

(3) Similarly, Desai, J., made rdcrcnce to

cerain accused not stat.ing as to whom the bullocks belonged and how they were obtained by the police.

A finding about the ownership of the cart and

bullock> is based on the evidence of Tijwa and .other witnesses and not on the omission of the accused to state as to whom they belonged.

Desai, J., as certainly wrong in using a note in the site plan when. the subject matter of that note was not deposed to by any \\· it.ncss iu Court, hut this error with respect to the notn that thtJro were fresh marks of a cart in the cart enclosure of Dharam Singh had no signific:ant bearin!( on tho case. . '

, I

In connection with Sumera's Report at Police Station Charkhari, Desai, J., observed in his judgment:

"Neither H.C. Sheo Sewak nor P.C. Raziuddin nor the armed guard had any interest in concocting a false case against the appellants on their own.

Therefore, when the information was conveyed through Sumera Chaukidar that Kharela police had gone in search of the murderers, it must be accepted that information was received at the out-post at about 3-45 p.m. about the murder 'in the Abadi and that the out-post police went at once in search of the murderers.

In other words the murder must have been committed in the Abadi and in day time as deposed by the prosecution witnesses." Earlier, Desai. J., had said what Sumera had informed at th<'l Police Station. He said :

"Sumeri't reacµed the police station at 3 a.m., met the second officer and informed him that constables of police circle Muskara went to his house in Jataura. and told him that Raja Ram Singh was murdered in Khare la, that the murderers carried away his corpse in a bullock-c<irt and they and the head-constable of the out-post followed them, that the murderers ran away after throwing the corpse into the nala of Jataura, that the head of the corpse was missing but the bullock cart had been recoverecl and that he was sent to convey the information at the police station." .

I do not consider the evidence about Sumera's making the report and stating certain thinas there to be inadmissible in evidence. These are"' matters of record. What he dictated cannot be considered to be substantive eviqence of the facts stated, when . . . . . . '

J961

Dharam Singh v.

The Stale of Ultar Praduh

Raghubnr Dayal J.

Dhoram Singh ..

TAe St.U of Uttor Prath; h

Raglnibar J).,_101 J.

SUPREME COURT REPORTS [1962] SUPP.

Sumera was not examined as a witness to prove them. But what he actuallv dictated and thA time when he dictated arc facts which have been duly proved.

They can be considered to determine the probability of what the direct eviden•:O tended to establish. This is what Desai J., did when he use<l these facts of his making the report and ma.king certain statements in considering that thoy tend to support the prosecution version. It may be noted that he had earlier considered at length the suggestion th'Lt the entire proseuution c1ise was concocted by the police and the villagers and had given his reasons for repelling tho suggestion.

Desai J., was in error to refer to t.he absconding of the accusod as a circumstance against them as that had not been put to them when examined under s. 3!?, Cr. P. C.

But as it did not basically affect the finding with rnspect to tho rorrcctness of the prosecution case, that would not justify interference with the findings of fact.

I would therefore dismiss this appeal.

BY CocnT.

In view of the opm1011 of the majority, the 'Lppeal is allowed.

The appellants are acquitted and must be rcle; isrd forthwith un Ires required in some other ca.se .

DHARAM SINGH AND OTHERS

THE STATE OJJ' UTTAR PRADESH

L. KAPUR

K. C. DAS GUPTA

RAGHUBAR DAYAL, JJ.

Code of Criminal Procedure, 1898

s. 429

s. 302

s. 34

s. 201

s. 34

Indian Penal Code

s. 429

Code of Criminal Procedure

s. 429

s. 429

s. 302

s. 147

s. 148

s. 201

s. 149

Indian Penal Code

s. 302

s. 149

s. 149

s. 302

s. 149

s. 201

s. 14

s. 148

s. 429

s. 429

Section 429

s. 429

s. 342

s 7

Cr.P.C

s. 174

s. 3


a s.c.R.

SUPREME COURT REPORTS 795

TATANAGAR FOUNDRY COMPANY

THEIR WORKMEN

P. B. GAJENDRAGADKAR, A. K. SARKAR and

K. N. WANOHOO, JJ.)

Industrial Dispute-Compensation-Statutory compen sation-Lay off when , iustijied and when malafide-Scope of enquiry by Tribunal-Industrial Disputes Act, 1947(14 of 1947), 88, 2(kkk), 250.

The appellant has its factory atJamshcdpur. It manufactures cast iron sleepers, pipes, etc., in the said factory.

The raw materials mainly. required for the manufacture of sleepCrs are pig iron, coke, limestone and mouldingsand.

The Railway Board is the only buyer of sleepers, and the sleepers are manufactured only on !'eceipt of orders from the said Board and not otherwise.

Inspite of its best efforts to secure the raw materials in 1959, the appellant failed to secure the same.

As the appellant found that the manufacture of sleepers could not be carried on, it issued a notice and laid-off the workers of the sleeper factory.

The lay-off continued from December 15, 1959 to September II, 1960.

On September 12, 1960, the appellant closed the Sleeper Foundry Department and issued :µotice of retrenchment.

Retrenchment compensation was also paid to the workmen retrenched.

The appellant paid the respondents the statutory compensation for the Jay-off period as prescribed bys. 250 of the Industria1 Disputes Act 1947.

However, the respondents contended that the lay-off ;.as not justified.

The dispute between the parties was referred for adjudication by the Government of Bihar to the Industrial Tribunal. The Tribunal found that the appellant was in financial difficulties at the relevant time, the appellant was not actuated by any malafide intentions and the lay-off was not the result of any ulterior motive. However, it held that if the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay-off could have been avoided. Under the circumstances, the Ttibunal held that the lay-off could not be held to be altogether justified, and awarded compensation to the respondents in excess of the amount fixed by the statute.

March 9.

TataJiogar Foundry

ComparrJ'

Tluir W orkmtn

Gajtndra.odlcar J,

796 SUPREME COURT REl'ORT:S [l!lti2] SCP F.

Held, that the lay-off was justified as raw materials were not available to 1he appcllan1 at the relevant time. The only relief to which the \vorkmcn \Vere entitled was the staluttory relief prescribed by s. 25C.

If the lay off is malafide in the sense that the employer has deliberately and malaciously brought ahout a situation \vherc lay off becomes necessary, it is not a lay-off \\'hich in justified 11nder s. 2(kkk) and the relief provided under s. 25C is not the only relief to which the workmen are entitled.

The malafides of the employer in declaring Jay-off really means that no lay-off has in law taken place and a finding a!i to the malafide of the employer in declaring a layoff takes the lay-off 011t of the definition of s. 2(kkk). If Jay-off is d<'clarc<l in order to victin1ise \\rorkmen or for son1e ulterior purpose, the position in the same.

C1vrr, APPELLATE Ju1nso1CTJ0l\: Civil Appr11l Ko. 315 of l!l61.

Appeal by special leave from t.lie award dated December 29, l!JflO, of tho Industrial Trina!, Bihar at Patn:i in Reference No. 4 of Hl60.

C. K. Daplitary, Solid lur-Gt11oa/ n_{ lr1dia. and Sardar Bal!lldur, for tho appellants.

B. P. Malwshumri, for the.respondents.

1962. Mardi 9. The Judgment of the Court was deli\'Ned by

GA.IF.XDRAGAllKAH, J.-This appeal by special leave is directed against the order pnssed by the Industrial Tribunal, Patna, directing the appellant, the Tata nagar Foundry Co., to pay to the respondent~, its workmen, 75% of the consolidated wages as com pensation for having laid them off for a period of 4i"i days commencing from December lfi, l95!l.

i~ common ground that the appellant laid off tho respondents for the said period. The appellant's case was that it had paid the respondents tho statutory compcru; ation for the said lay-off as

prescribed by s.25C of tho Industrial Disputes Act (No. 14 of 1947) (hereinafter called 1, he Act).

To

respondents, however, contended that the lay-off was not justified and so the statutory compensation paid by the appellant did not satisfy the ends of justice. It was this dispute between the parties which was referred for adjudication by the Government of Bihar to the Industrial Tribunal on February \!, 1960.

On this reference, the Tribunal has held "that the lay-off could not be held to be altogether justified." That is why it has awarded compensation to the respondents in. excess of the amount statutorily fixed in that behalf.

The appellant contends that the award thus made by the Tribunal is contrary to law.

Before dealing with the merits of the contentions raised by the appellant, it would be necessary to state some rclevent facts which led to the lay-off.

The appellant is a Public Limited Company and bas its factory in Jamshedpur. It manufactures east iron sleepers, pipes, general engineering casting and non.ferrous castings in the said factory. The raw materials mainly required for the manufacture of sleepers are pig-iron, coke, limestone and moulding sand. The Railway . Board is the only buyer of sleepers and the . sleepers are, therefore, manufactured only on receipt of orders u:pon tenders from the said B Jard, and not otherwise.· The normal procedure for procuring raw material was that after an order was received from the Railway Board, the appellant submitted its requirement of pig iron to the Iron & Steel Controller of the Government of India who allocates the quantity for the said commodity to the varios manufactures, such as Tata Iron & Steel Co. Ltd. and Indian Iron & Steel Co. Ltd. Formerly, supply of pig iron used to come from the said two concerns to the appellant and the appellant used to pay cash to Tata Iron & Steel Co. Ltd. for the pig iron supplied by it and by a Letter of credit to the Indian Iron & Steel Co. Ltd. on which the said Company used to supply the raw material made by it. In 1959, both the companies

Tatanag11r roundry

Company v.

Their Workmen

Gajendragadkllr J.

Tatanr:gar f"'&11ndr7

CampanJ

Tlttir Workmtn

Oajnzdratalikar J.

798 SUPREME COURT REPORTS [1962) SUPP.

stopped supply of pig iron in spite of the order iBSucd in that behalf by the Controller, and they wrote to the appellant suggesting that the appellant should request the Controller to cancel his order and place the same with some other suppliers.

Correspondence followed between the said companies and the appellant and finally in November, l 959, the appellant was informed by the said companies that they could not supply its requirements of raw material. ·

In June, 1959, the Bhila.i Steel Works made their first shipment of pig iron addressed to the appellant. In August, 1959, the said Works despatched some wagons of pig iron to the appellant, but out of 20 wagons of the consignment, I 4 were lost completely, and the rest misrlclivcred and were subsequently found somewhere in Gomoh and some in Tatanagar and they never reached the appellant in time.

In May, l9ri9, the appellant arranged for Letter of Credit for a sum of Rs. 1,00,000/- fol' the Bhilai Steel Works. In August, there was a supply of 440 tons and in September, followed a supply of 36 wagons containing pig iron to the extent of 20 to 21 tons each roughly. In all, this latter supply came to about 760 tons. In the two subsequent months, no supply was rec, eivcd from Bhilai. The Letter of Credit which the appellant had opened for Bhilai Steel Works was revolving, with the result that as soon aa one transaction was completed, the said letter was ready for the subsequent transaction. The effect of this revolving letter was that the value of credit of Rs. l,00,000/- continued to be outstanding all the time. In spite of this revolving letter, the Bhilai Steel Works failed to supply pig iron in the two months October and November. The appellant reminded the Works that no supply of pig iron was received from them and yet no advice of any despatch of pig iron waa received from the

~ s.c.li.

SUPREME COURT REPORTS 799

Works after July 27, 1959. Even the 20 wagons which had been sent in August and September did not arrive at the factory. These wagons, it was later learnt, had been delivered to K. P. Docks and some other destinations.

In regard to the supply of pig iron from Rourkela, the appellant arranged for finance on cash basis. In fact, between August and December a total advance of Rs. 1,75,000/- was made to the Rourke la Steel Works. A supply of pig iron worth about Rs. 1,64,000/- was received by the appellant, but th~ balance of Rs. 11,000/- was still outstanding.

Jn addition to the cash advances, the appellant also opened a Letter of Credit for Rs. 1,00,000/- in November, 1959, for financing the purchase of steel from the said Works.

As early as 1959, TISCO informed the appellant that it regretted that it would not be possible for it to supply the requirements of the company regularly, while in regard to the supply from IISCO,

the position was still worse.

The appellant kept its employees and the Assistant Labour Commissioner fully informed of these unfortunate developments from time to time.

Both the Assistant Labour Commissioner and Mr.

John, President of the respondents' Union, did what they could by moving the Government to assist the appellant in securing the raw material.

Even so, when the situation did not show any signs of improvement and the appellant found that no raw material was available with whioh its foundry could 0arry on tho manufacture of sleepers, it issued a notice on December 15, 1959, and laid off the workers of the Sleeper Factory. This lay-off continued until September, 11,.1960 and from September 12, 1960, the appellant closed the Sleeper Foundry department and issued notice of retrenchment.

Subsequently, retrenchment compensation was duly

vaid to the workmen who had been retrenched.

Tatanagar Foundry

Compat:Y v.

Their Workmen

Gajendragadkar J.

800 SUPRE'.IIE COURT REPORTS (1962] SUPP.

/98t That, in short, is the background of the la.y-off, tho validity of which formed tho subject-matter of the T alim.gttt F0111tdry f' CMflP••.1 present re erence.

Tl,.;,~-.,;,,,,.

It appears that boforc the Tribunal it was

Oojer.Uracadlcor J. urged by the respondents that the appellant had deliberately brought about a situation which led to the lay-off in order to divert the relevant orders for sleepers to its Belur factory.

The argument was that at Belur, the appellant gets its work done at cheaper cost with the help of contract labour. Now, if this contention had been established, then it would clearly have been a case of malafides on the part of the appellant and a claim for additional compensation may have been justified.

But the Tribunal has rej<>ctcd thie contention and has held that no ovideacu had been adduced to prove such a malafide intontion on the part of the appellant.

It was also urged by the respondents that even in the absence of pig iron, the manufacture of sleepers could have been curried on by utilising a substitute, 'ln<l in support Df this case, four witnesses were examined by the respondents. The Tribunal has rejected this ca.so also.

It has found that the evidence given by tho four witnesses was unreliable and un-satisfactory and the statement made by the General Manager in cross-examina.tion on this point was sufficient to show that in the absence of pig iron, castings with scrap iron and tin could not have been made. In fact, the Genera.I Manager categorically stated that the appellant had not casted any sleeper without pig iron at any time. Thus, the alternative plea raised by the respondents to suggest that if the appellant bad so desired, it could have avoided to la.y-otf its workmen, bas also been rejected by the Tribunal.

The Tribunal, however, was inclined to take the view that if the management had been more foresighted, it could have avoided the unfortunate

position which it had to face at the relevant time and because the Tribunal thought that the situation which faced the appellant at the relevant time was partly due to its negligence, it reached the final conclusion that the lay-off was not altogether justified. The Tribunal's view appears to be that if reasonable care had been exercised by the appellant, the situation could have been avoided.

It is this part of its finding that is seriously disputed before us by the appellant.

Under s. 2 (kkk), "lay-off" men, ns, inter nlia, the failure, or inn, bility of an employer on n, ccount of shortage of raw materials to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. As we have already seen, there is no doubt that raw materials were not -available to the appellant at the relevant time and so. the lay off which is the subject-matter of the present dispute satisfies the test prescribed by the definition.

Section 25C provides for the right of workmen laid-off for compensation, and it is common ground that compensation, equal to 50% of the total of the basic wages and dearness allowance, as th.erein prescribed has been paid hy the appellant to the respondents.

The issue referred to the Tribunal was whether the action of the management in laying off the workmen was justified. If not, to what relief were the respondents entitled ? In other words, the reference shows that it was only if the Tribunal came to the conclusion that the lay-off was not justified that the question of considering what additional compensation should be paid to the respondents could arise.

If the lay-off is justified and it satisfies the requirements of the definition under s. 2(kkk), the only relief to which the workmen laid off are entitled is the statutory relief prescribed by s. 250.

Ther<C is no doubt ur dispute about this position.

Tatan1gaf' Foundry

Company

Their Hrorkmen

Gaje11drt11adkar J.

1aa11a1sr F1, u1id1.J

Co1t1pat!}' .. 'fhtir.WOYkmc'I

UajenJ, ttgadl.:ar J.

so2 SUPREME dOUR'i' REi>oRTS [1962] SUPP.

It is also not in disp!Jfo that if the lay.off is

mal1lido . in ihe sense that the employer has dcliboratcly and maliciously brought about a situation where laj off became nocl'ssary, then it would not bn a lay-off which is justified under s. :?(kkk) and the relief provided to the laid-off workmou under s. 25C would not be the only relief to which they are entitled. Malafidee of the employer in declaring a lay-off really mean that no lay-off, as contemplated by th1~ definition, has iu law taken place and so, a finding as t-0 malafides of the employer in declaring a lay-off naturally takes the

lay-off out of ihe definition of s. 2(kkk) and as such s. 25C cannot be held to be applicable to it so as to confiw., the workmen's right to the compensation therein prescribt<l. If the lay-off has been declared in order to victimise . the workmen or for some other ulterior purposP, the position would be the same. It would not be a lay-off as contemplated

by 8. 2(kkk).

But when dealing with a lay-off like the one with which we arc concerned in the present appeal it would not be open to the Tribuual to enquire whether the appellant could have avoided the lay off if he had been more diligent, more careful or more far-sighted.

That is a matter rclat iug to the management of the undertaking and unless malafides are alleged or proved, it would Le dilllcult to asi; ume that the Industrial Tribunal has jurisdiction to sit in judgment over the acts of manag:; rnent of tho employer and inveetigMe whether a more prudent management could have avoided the situation which led to lay-off. The danger involved in permitting such jurisdiction to the Tribunal is illustrated by the present award itself.

The Tribunal has found that tho appellant :was in financial difficulties at the relevant time ; it has fow1d that the appellant was not actuated by any malafide intention, it has come to the conclusion that the lay-off was not the result of any ulerioJ~

 motive, and yet it has finally come to the conclu sion that if the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay-off could have been avoided. Apart from the fact that this conclusion does not appear to be borne out hy any evidence on record, it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. The appellant is, no doubt, expected to manage its affairs prudently, but it would, we think, not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay-off his workmen, it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the fore-thought displayed by it in anticipating and avoiding the diffi

culties. That is why we think in embarking upon an enquiry as to whether the . appellant had shown sufficient foresight in managing its affairs, the Tribunal bas exceeded its jurisdiction. Besides, as we have just indicated, its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. In that connection, it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid retrenchment compensation due to them.

The result is, the appeal succeeds and the order passed by the Tribunal for the payment of compensation of 75% of the consolidated wages is set aside.

There would be no order as to costs.

Appeul allowed.

196:i

Tatonogar FotJndry

Comp1ny

•• Their Workmen

Gajtndrcga!fkir J.

795

TATANAGAR FOUNDRY COMPANY

THEIR WORKMEN

P. B. GAJENDRAGADKAR

A. K. SARKAR

Disputes Act 1947

s. 25C

s. 2(kkk)

s. 25C

s. 2(kkk)

Industrial Disputes Act

s. 2

Section 25C

s. 2(kkk)

s. 250

s. 25C

s. 2(kkk)

s. 25C


Ma, ch ll.

S04 SUPREME COURT H.EPOHTs [i962] SUPP.

THE SUGAULI SUGAli WORK') (PltIVATE) LTD.

THE ASSTT. HEGISTRAl1, 00-0PERATJ\'E

SOCIETIES

(B. P. SINHA, c. J., K. SUBBA RAO, N. IiAJAOOl',\J, A

AYYAJSOAit, J. l{. MuDHOLitAit and T.J,.

VE:SKATARAMA AIYAR, JJ.)

(}o-operatiie Society-R,, fercnce_:._Juri.vdt"ction of /(eyist,-cir -If can entertain claim f, y registered society ayainJi non-1uernfxr

-Bilzar and Orisu1 Co-operative Socielies Act, 1935(/J. & 0. Ii iof WJ!i), a.s amenrlcd l1y Jlihar Co-operatiuc Societie• (. l me nrlmc11t) Act, 19·18 (llihar W of 1948), ss.48 (1), 16(1) ,,,,,/

2(c).

The point for etennination in the appeal was wlhcr the Registrar of Co-opcrati\'C Sr1cieties under the Bihar nnJ Orissa Co-operative Societies Act, 1935, as amended by Act 16 of 1948, had the jurisdiction under s. 48(1) of the Act to hear and decide a reference made by a registered society against a non-member. The appellant company, incorporated under the Indian Companies J\ct, with its registered office at Calcutta, 1nanufacturcd s11gar in Dihar. 'fhe second respondent the Union of Cn-operative Societies, registered under the Co-operative Societies Act, mad, c a reference under s. tB of the Act, against the appellant claiming the sum of Rs. 1,20,809/- odd as co1nmission and interest for supplying sugarcane in 1950-60.

The first respondent, the 1\ssistant Registrar of Co-operative Societies registered the reference and issued notice to the appellant.

The appellant took the preliminary objection that the 1\ssistant Registrar ha<l no juris diction under the 1\ct to entertain the reference. 'fhat objcc tion was overruled by the Assistant Registrar relying on a decision of the High Court and the High Court upheld that order by dismissing in limine the appellant's petition under Arts. 226 and 227 of the Constitution.

Held, that the High C'.ourt had taken a wrong view of the law.

Althoush under s. 18 of the Act the claim by a financing bank again.t a non-1nen1.ber to whon~ it had 1ncle n advance either in cash or kind, \Ylth lhe snctlon of the ReglStrar under s. 16( I), could l?e entertained ly the Registrar_, that did not mean that a c\a11n not nf the kind referred to 111 s, lfi( I), read

3 S.C.R.

SDPREME COURT REPORTS 805

withs. 2(c), made by a registered society against a nonmember, who was not an agriculturist, was \Vithin the purview of s 48(1), read with the Explanation!. The addition of the word 'non-member' by the amending Act of 1948 to the Explanation I, did not enlarge the scope of the main section so as to make all kinds of dispute between a registered society and a non-member cognizable by the Registrar.

Since in the present case, the second respondent was not a financing bank nor was the appellant an" agriculturist, s. 48(l)(e) and the Explanation I could have no application.

Union of India v. Registrar, Co-operative Societies, Patna,

(1961) I.L.R. 40 Pat. 7, overruled. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 100 of 1962.

Appeal by special leave from the judgment andordilr dated October 30, 1961, of the Patna High Court in M.J.C. No. 954 of 1961.

A. N. Sinha, A. K. Nag and P. ](. Mulche1jee, for appellant ..

0. K. Dphf£!ry, Soliciwr General of India and S. P. Varma, for respondent No. 2.

L. K . .fh'J and S. P, Varma, for respondent No. 3.

1962. March 14. The Judgment of the Court was delivered by

SINHA, C. J.-This appeal, by special leave, is directed againt the order of a Division Bench of the Patna High Court, dated October 30, 1961, dismissing in limine the appellant's petition dated October 24, 1961, under Arts. 226 and 227 of the Constitution, being Miscellaneous Judicial Case No. 954 of 1961, for a writ of Prohibition directing the first respondent not to proceed with the A ward Case No. IOI of 1961, and a writ of Certiomri for quash- ing the order of the said respondent, datd September 29, l!l6 I. The appellant is a private limited compa.ny, incorporated under the Indian Companies Act, with its registered offlce at Oajcuttq. H

T1i1 Sug"uli Sug'" JJ'o1ks (Prival1}-l1d. ·.

•• Tiu Asstt. R1gistf'tar Co-optrative 5o.; ittits.

Sinh• C.J.

Tilt Sug1uli Suga' Works ".Privak; l.1d.

Tltt A uJI. Btgistrar. fllt" SuriltuJ.

Si1ha C.J.

carries on the business of manufacturing sugar in its factory at Sugauli in the district of Champ>iran, in Bihar. The fir8t respondent is tho Assistant

Registrar, Co operative Societies, :\Totihari Circle,

lot!httri, in the Stat.c of Bihar; the sncond respon. dent is the Union of Co-operative Societies, and is registered unc;!er the Ribar and Orissa Co-operative Societies Act ( B. & O.

Act VI of I !135) (to he referred to hereinaftl•r a~ the Act); the third respondent is the State of Bihar.

On August 14, 1961, respondent No. 2 made a reference under s.48 of the Act, against the appellant, claiming the sum of Rs. I,~0,809;'- odd, as commission and interest for supply of sug11rcane during the crushing season I 9ii\J-fi0.

The said reference W'.!B registered by the first respondent as Award Caso Xo. IOI of l9fH, on August 17, 1961. otice of the said reference was issued to tho appellant. On Septcmbor 26, 19fil, the 1Lppellant took a pr .. liminary objoetion to the jurisdiction of the first respondent. to entert1iin the reference and to adjudicate upon it, and prayed that the reference be reject erl.

The fir8t respondent, following a decision nf the P:itna High Court, reported in Union of hulia v. Rertistmr, Co-operative Sor.ieries, Pril.na ('), overrule<! the appellant'~ preliminary objection by his order ll<ttcd Sept., mber 29, 19 •l.

Against that order, the appellant movod its application aforesai<1 before the High Court of Patna., The High Court, following its previous d'oeision aforesaid, sumruarily dismissed tho application.

The appellant moved this Court aud obtained special leave to appeal from the order of the High Court, dismising his application.

This Court granted the special kave on December 4, 19til.

The appellant movecl this Cuurt for stay, which was finally heard on , Jn, nuu.ry I I, I !Hi2, and the Court directed that the appr"tl be h1ar<l peremptorily on February Iii, this year.

That is Jiow tho

(1) (1961) 1.L.R. 40 Patna 7.

:1 S.C.R.

SCJPRIDM:ID CJCJRr RIDPOR. TS 807

matter comes before 'us for hearing of the main appeal.

The only question for determination in this appeal is whether under the provisions of the Act, the first respondent had jurisdiction to hear and determine the dispute referred to him at the instance of the second respondent. The answer to the question raised in this appeal must depend upon the interpretation of the provisions of the Aot.

Before examining the provisions of the Act, as it stands at present, it is necessary to set out the legislative history of the law on the subject. When the co-opocative movement was set up in the beginning of this century, the law governing cooperative societies was enacted as The Co-operative Societies Act (II of 1912), by the Indian Legislature. That Central Act continued in force in Bihar and Orissa until it was repealed by the Bihar and Orissa Legislative Council by the Bihar & Orissa Co-operative Societies Act (B. & 0. Act VI of 1935), after obtaining the previous sanction of the Governor-General, under sub-s. 3 of s. 80-A of the Government of India Act. The Act of l 035 was enacted with a view to consolidate and amend the law relating to cooperative societies in tLc Province of Bihar and Orissa, as it then was. As it displaced the Co-operative Societies Act of 1912, so far as the Province of Bihar and Orissa was concerned, s.5 enacted that all references to the Co-operative Societies Act, 1912, occurring in any enactment made by any authority in British India, and for the time being in :force in the Province, shall be construed as references to the new Act. Under s. 7, a society, which has as its object the promo tion of tho common interest.a of its members in accordance with co-operative principles, or a society established with the object of facilitating

j; he o:peration of sqch a society, ma.y be reistered

The 8ugouli Sugar Works( Private) Ltd. . v.

The A••lt. Registrar c Co"Optrative Socitties.

Sinha C.J.

T ht Su!}<Juli Sugar lfvrA1 (1'1i.ai1) !.td. v.

Tiu A uCt ntjiJt1 Jr, Cu-vp1ralil'f n:ir.fitl. --

under the Act.

On .such registration, the Society

hcom"~ n ho<ly rorporntc with perpetual "1wces;; ion ancl a commo11 ~Pal, llll!] with power t11 ae(juirn and hold property, to enter into ""ntracb, to institute> an.d clcfend suits, etc. under s. 15, a registered socioty shall rcceho deposits and Joano from members and non-members onlv to such extent and under such conditions as may be prcscribc<l.

Under s. 16, ordinarily a registered society shall not make a loan to any IJ('rso11 other than a member, except with the general or spl'cial sanction of the Registrar, and su bjcct to sud1 re8tl'ictions as he may impose.

Section l 'i further provides for such prohibitions and restrictio11s, in r<'pect of the transactions of a registered society with persons other than members, as the Provincial GovernmP.nt ma.v by rules prescribe.

Section 48 makes it obligatory that any dispute toud1ing the business of a rt•gistered society, among mcmhPrA, past members, pcrRons claiming through membern, past members or deceased momhers and sureties of membern, past members or deceased membcers. whether such sureties are mombcrs, or non-members, or between them and t.he re"isterecl society, shall be rcforrecl to tho " .. gcgistra:'. . By virt.ue of Ex:planation (I) to the section, a claim hy 11 rcgistcre<l sooiety for any debt or demand clue to it from a mt•mber or a past member or his h•Jir or leg, iJ rqiresentativc, or from Rurntics, whether they are memhers or non-mem

bers, shall be a dispnk wit.hin tho meaning of the main section, c\en though such debt or <leman<l is admitted and the onl.v point at issue is the ability tn pay or the manner of onforecment of payment.

It. will thus he seen that the Act is limited in its operation to regist.c,, nl sor>ict.ies and their memht'rs in thnir <lralini;>i with one m10thor.

Jt is only in exceptional casps of borrowing

3 S.C.R.

SUPREME COURT REPORTS

SOJ

by a registered society from non-members, in accordance with the rules and bye-laws prescribed by the comp)tont authority, or in case of loan to a non-member under the provisions of s. 16, that there could be dealings between registered societies and non-members, keeping aside the cases of sureties of members, who may be nonmembers, but who also come within the purview of dealings between a society and its members.

Such were the relevant provisions of the Act when it was amended by the Bihar Co-operative Societies (Amendment) Act, 1942, and the Bihar Co-operative Societies (Amendment) Act, 194!, enacted by the Governor of Bihar in exercise of the powers assumed to himself by the Proclamation dated November 3, 1939, issued by him under s. 93 of the Government of India Act, 1935.

For our purposes, it is only necessary to notice some of the amendments made by the amending Act of l 944 (Bihar Act X of 19H). By s. 2, cl. (c) of s. 2 of the Act of 1935 was substituted in these terms :

"(c) 'financing bank' means a registered society the main object of which is to make advances in cash or kind to other registered societies or to agriculturists who are. not members of registered societies or to both such societies and agriculturists."

Bys. 3, s. 16 of the Act of 1935 was amended by adding su b-s. (3) to s. 16, as under :

"(3) Where the Registrar has accorded sanction to a financing bank under the provisons _of sub-section (l), a registered society whwh 1s a member of such financing bank may, subject to the terms of the sanction and such other terms and conditions as may be prescribed by the R.egistrar, act as agent for the fi'; lancing bank and as such agent carry out, with or without any eomillission, al\ or

The Sugauli SuglV IV or ks( Private( Ltd .

•• The Asstl, Registr.1r, Co--operative Societie1.

Sinha C.J.

Thi Sug01'1i Su1cr w., qp,;,.,,) Lid.

v. rne A•Jtt. R1gi.1tto1 Co-opertltiot Societies:

Si,1ha C.J.

any transactions oonnected with loans or advances made or to he made by the financing bank."

A consequential change was made in s. 23 of tho Act of rn:J5, by inserting s. 2:J.A, so as to make a debt or an outstanding demand to a rocristorod society from a non-member a first charg; on the property of the non-member. The most import.ant amendment .was made bys. r., in s. 48 of the main Act as follows :

"6. In sub-section (I) of section 48 of the said Act-

(a) after clause (d), the word "shall be inserted and theroafter the following clause shall he inserted, namely :-

"(e) between a financing bank authorised under the provisions of sub-soetiou (I) of section 16 and a porson who is not. a member of a registered society;" and

(b) in Eplanation (1), after the words "from a mcmher," t.he word "non-member" shall be inserted and after tho words "of a deceased member" t.he words "or non-member" shall be inserted .

. It is not necessary to refer to the other consequential amendment3' made and the addition of a now chapter 7 A, relating to the manner of recovery.

The amendments effected by the amending Act of

1944. had been enactd by the Governor of Bihar in exorcise of his spodal powers aforesaid. The pro visions of those amendmentR were re-enacted as Act XVf of 1948.

We would, therefore refer hereinafter to the amendments in q1wst.ion as the

amendment.~ of I !l48.

As already indicated, 1t Division Bench oft.hi Patna High Court bas laid it down, in the ease of

3 S.C.R.

SUPREME COURT REPORTS SU

Union of India v Registrar, Co-operative Societies.

Patna (') that the Explanation to s. 48( l) of the Act covers a claim by a registered society for any debt or demand from a non-member, and that, therefore, the claim of a registered society against the railway company for compensation for short supply is a dispute within the ambit of s. 48 of the Act, and that, therefore, the AsBistant Registrar, Co-operative Societies, had jurisdiction to determine the dispute under s. 48{2) of the Act. Relying upon that decisi:on, the High Court dismissed the appellant's petition under arts. 226 and 227 of the Constitution, in limine.

The appellant has questioned the correctness of that decision. The question, therefore, is whether the High Court has taken a correct view of the provisions of s. 48, the relevant portions of which are as follows:

"48 ( 1) If any dispute touching the business of a registered society ... arises- ( a) amongst members .. past members, persons claiming through members, past 'members or deceased members, and sureties of members, past members or deceased members whether such sureties are members or non-members; or

(b) between a member, past member, persons claiming thrflugh a member, past member or deceased member or sureties of members, past members or deceased members, whether such sureties are members or nonmembers, and the society, its managing committee or any officer, agent or servant of the society; or

(c) ....................... .

(d) ....................... . ( e) between a financing bank authorised under the provisions of sub-section (1) of \!) (1961) I.L.R. 40Pat. 7.

The Sueauli Sugar Works (Private) Ltd, . ..

The Ass tt. Registrar Co-operative Societies.

Sinha C.J.

J96Z

7h1 Suga"H S11gar lfor1.t(Pri1 1olt) I.Id.

Tht Asltl. ll1gis11~'•

Jo.op1raJit't Socittits.

1'-Jinha c .. J.

812 SUPRR\IE COURT REPORTS [1962] SUPP.

section 16 and a person who is not a member of a registered Hociety ; 811ch disputes sh!i-ll be referrrcl to tho Regis trar.

Explanation I -A claim by a ro2ister<>d society for any debt or demand due to it from a member, non-membor, past member or the nominee, heir or legal representative of a deceased member or non-member or from sureties of members, past members or deceased members, whethersuch surctie~ aro members or non-members, shall be a dispute touching tho business of the society within the meaning of this sub-section even in case such debt or demand is admitted and the only point at issue is the ability to pay or tho manner of

enforcement of payment . .. . . . . . . . . . . . . .

(H) Save as expressly provided in this section, a decision, of the H.cgist.rar under this seotion, anrl subject to the orders of the Registrar on appeal of review, 11 dec:ision given in a <lisput<J tramferred or referred under clause (b) or (c) of suhsect.ion (2), 8hall

ho final." From tho provisions of tlw Act, set out above, it is manifest that the act created a special trihmial, namely, the registrar of Co-operative Societies, to deal with certain disputes spec:ifie<l in s. 48(1)(a) to (e).

This special tribun:il WUH createcl with a view to shortening litigation and providing spe<'dy relief to registerod societies and t.heir mrmbers in thoir disputes int.er sc in respect of tho busines of the society.

Befor.., tho amendments introducer! by the Act of 1!148, the dispute~ which could be entertained by the Registrar were disputos amongst

3s.d.R. scf PREME <.Jou.RT REPORTS

members, past members or their heirs or their sure 1962 ties, or between a society and other registered . The Sugauli Su; ar societies (without meaning to exhaust all the cate.

Work•(Private} Ltd. gories.) But, before the amendments, one who was rh, Asst1~

0 R•gistrar, not a member of a society or was not claiming Co..,, p1ra1ive soc;.1;,.. through a member or a past member or a deceased member, or was not a surety of a member or a deceased member, was not subject to the jurisdiction of the Registrar under s. 48.

That is to say, any dispute between a society or its members, past members or deceased members or surities of such members on the one hand and nonmembers on the other, was not within the purview of the section so that the appellant company, which is not a re. gistered society, or a member of a registered society, could not have its claim, or a claim against it by a registered society, referred to the Registrar for decision, under this section. Such a dispute by a society or its members against a nonmember had to

b3 taken to the ordinary courts for decision.

In our opinion, the contention raised on behalf of the appellant is correct. By the amending Act of 1948, the aforesaid relevant and important amendments were introduced into the Act. The effect of these amendments is that a claim by a financing bank against a nonmember to whom the former may have made an advance in cash or kind with the sanction of the Registrar s. 16(1), would be entertainable by the Registrar, on a reference. But that does not mean that a claim which is not of the description referred to in s. 16( 1 ), read with s. 2(c), by a registered sodety against any. non.member,. who is not an agriculturist, is within the purview of s. 48( I). read with the Explanation. The Explanation cannot be read as adding a new head to the categories (a) to (.e) under s. 48 ( l ), of disputes which may be referred to the Registrar. Originally, the Exp Jana ti on had been added only to make it clear that even if a debt or

Sinha C. J.

Ile Suauli Sugai TYorks (Priv7tt) lid.

Tho ~.ull. RegiJtrttr,

c~µ, atiVt Socielier.

Sinlia CJ.

814 suPitIDrlE COURT REPoRTS cioo21 SUPP.

a demnn<l is admitted and the only point at issue is the ability to pay or the manner of enforcement of P'.1-Yment., the di~1mt-0 would come within the purview of the mam s. 48(1 ).

The addition of the word 'non-member'; by the amending Act of 1948, to the first Explanation has not t>nlarged the scope of the main s. 48( I) so as to make all kinds of disputes between a registered society and a non-mt>mber cognizable by the Hegistra.r. thue excluding the jurisdiction of the ordinary courts.

In the instant case, it is manifest that the disput-0 is between a registered society, the second respondent, and the appellant, a nonmember, in respect of the claim for commiBBion a.nd interest thee on for supply of sugarcane, and the appellant alleges that it has a counter-claim of a lakh and fifty thousand rupees for short and irregular supply of sugarcane against that respondent. These are matters which, in our view, are wholly beyond the purview of s. 48 of the Act, when it is remembered that the second respondent is not a financing bank

and that the appellant is not an agriculturist to whom any advances in ca.h or kin<l had been made or could have been made so as to. bring the appal !ant within the purview of s.48 (I) (e), and consequentially of Explanation I. The decision of the Patna High Court to the contrary is, therefore, not correct. In the result, the appeal is allowed with costs, and it is directed that the Hegistrar should not entertain the reference, and should not adjudicate upon the disputo, and not make an award. The main contesting parties must be left to their remedies in the ordinary oourts.

Appe.al allowed.

B. P. SINHA

K. SUBBA RAO

Co-operative Socielies Act, 1935

s. 48(1)

THE ASSTT. REGISTRAR, CO-OPERATIVE SOCIETIES

Arts. 226 and 227

s. 18

s. 16( I)

s 48(1)

s. 48(l)(e)

Arts. 226 and 227

Companies Act

Orissa Co-operative Societies Act

s. 3

s. 80

Co-operative Societies Act, 1912

s. 7

s. 15

s. 16

Section 48

s. 16

s. 93

Government of India Act, 1935

s. 2

s. 2

s. 16

s. 16

s. 23

s. 2

s. 48

section 48

section 16

s. 48( l)

s. 48

s. 48

arts. 226 and 227

s. 48

section 16

s. 48(1)(a)

s. 48

s. 16(1)

s. 16( 1 )

s. 2(c)

s. 48( I)

s. 48

s. 48(1 )

s. 48( I)

s. 48