Mohamm<dbh.i Khudob..x Cll/tipa

•• Tira Blall of<Jujarol

WancAH ,1.

Morch JG.

906 SUPREME COURT REPORTS [1962) SUPP.

undor Ar_t. 31(1). \Ve may add that the same will apply to fecH collcctecl 11nder 8. I I ancl validated by sub-s. (2) of s. 29.R. Thcre iR therefore no force in

this contention. It iR hcrc:by rejected.

In the result, the petitions are dismissed with cost; i, One set of hearing fee.

Petilfon.y dismissed.

MADAN GOPAL RU~GTA

SECRETAH.YTO THE OOVERNMENTOF

ORISSA

(B. P. SINHA, p, B.

GA.mNDRAGADKAR, K. WANCHOO, N. RA.JAOOPALA AYYANOAH, and

T. L. VENKATARA)[A AIYAR, JJ.)

Writ-Iliyh Court-If can i.<.1uc writs beyond its territorial juristliclion-Mi11eral Conce..; sion /l1de.~, 194.9, 6,57 !J.'J 00-Constilution of India Ari. 226. ' '

The Stace Government of Orissa rejected the application of the appellant who had applied f()r grant of a mining least: in Decr.rnher 1957 on the ground that the State Government proposed to arrangr. for lhe exploitation of the area in the public si:ctor.

The appellant rnadr. an application for review to the Central Govern1nent under r. 57 of the rules of Mineral Concession Rub, 1949.

This application was rejected by the Central Government in June 1959.

Thereupon the appellant filed a petition under Art. 226 of the Constitution in the High Court of Oris'ia.

This petition was dismhsed by th~ 1-ligh Court on the ground that it had no j11risdiction to dc;1l \vi th the matter under l\rt. 226 a'i the final order in the case \\'a." passed by the Central Government, \vhich ,., as located beyond the territorial jurisdiction of the High Court. The appellant came up by special leave to appeal to the Supren1e Court. The 1nain question is as to the limit of the jurisdiction of the Iiigli Court under Art.

226. The appellant contended that as the Central Go, ern- !JlCnt had rq.crely dismissed the revcw petition, the effective

order rejecting the appellant's application for the mining lease was that of the State Government and therefore the High {!ourt would have juris.diction to grant a writ under Art. 226.

Held, that the High .Court was right in holding that it had no jurisdiction to issue a wiit under Art. 226 in the present case as the final order in this case was that of the Central Government which was not situa"te within the trrritories over which the High Court had jurisdiction. This order of the Central Gover.nment in effect rejecting the application of the appellant for the grant of the mining ]ease to him and confirming the rejection of the application of the appellant by the Orissa Government is clearly not amenable to the jurisdiction of the High Court of Orissa under Art. 226 in view of the fact that the Ccn tral Government is not located within the territories subject to the jurisdiction of the Orissa High Court. It would therefore ha\e been useless for the Orissa High Court to issue a writ against the Orissa Government for the Central Government's Order rejecting the application of the appellant for the grant of the mining lease would still stand.

Held, further that quite apart from the theoretical question of the merger of the State Government's Order with the Central Government's Order, the terms of r. 60 of the Mineral Concession Rule 1949 make it perfectly clear that whenever the matter is brought to the Central Government under r. 59, it is the order of the Central Government which is effective and final.

So where there is a review petition and the Central Government passes an order on such 'petition one .way or the other it is the Central Government's Order that prevails and the State Government's Order must in those circumstances merge in the order of the Central Government.

Election Gom, mission I nrlia v. l3aka V enkafa l:Jubha Rao,

(1953) S.C.R. 1144, Lt. Col. Kltajoo" Sin(lh v. Union of India,

(1961) 2 S.C.R. 828, A. T!iangol Kunju Musaliar v. M.

Venlcitaclmlam PoUi (1955) 2 S.C.R. 1196 relied on.

"Shivji Nathuh/; ai v. The Union of India, (1960) 2 S.C.R. 775, referred to.

The 8tate of U!U:-" Pradesh v. Mohammad Noolt, (1958) S.C.R. 595, not apphcable.

CIVIL APPELI, AT!'J JumswcTioN: Civil App<'~!

No. 407/61,

Madan Gopal

Rung ta

•• Secretary to lhe Governmeiit of Orissa

JI.Coo Oopal

Rwegta

8 ""''"9 lo '"' Ooomrm1 1 oJ Orilsa

W 1nch()Q J.

908 SUPREME COURT REPORTS [1962] SUPP.

Appeal by special leave from the judgment and or_der dated :'ugust :!3, I O~O, of the Orissa High Court 111 O.J.C .. \o. 103 of Hl.>9. ·

N. C. Chatterjee and P. /(. Chritterje_e, for the appellant.

C. I(' Dapftlar?J, Solicitor-General of India, B. R. L. Iyengar and P. D. Menm1., for the respondents.

R.111. Patnai!.:, S. N. Andley, lliimeshu-ar Nath and P. L. T' ol!ra, for the Intervener.

1962. March W.

The , Judgment of the Court was delivered by

WA~CITOO, J.-This is an appeal by special leave against the judgment of the Orissa High Court. The brief facts necessary for present purposes are these. The appellant made an ap13lication to the State Govornmcnt of Orissa in 1949 for . grant of a mining lt>asc for manganese ore over an area comprising 5400 acres situated in the distric't of Keonjhar. The appellant was the first applicant for the lease of the aforesaid area, and subsequently other persons applied for lease of tho same area including Messrs. Tata Iron and Steel Company Limited {hereinafter referred to as Tatas). the intervener in the present a.ppca.l.

The Government of Orissa decided to grant. tlrn lease in favour of Tatas and in .Jan1111ry 19156 referred tho matter to the Central Government for its approval under r. :l2 of the Mineral Concession Rul<ls, 1949 ( hereina.fter reforred to as the Rulos), which lays down that if more than one application regarding the s11.1ne . lo.nd is rocoiverl, preference shall be givrn to tho application received first, unlessthe State Government, for any special reason, and with the prior approval of the Central Government doi:ides to the contrnrv.

The appellant made a represnntation to the Central Government against the reoommendation of the

- _l

a 8.c.k.

SUPREME "(JOURT REPORTS 909

State Government.

Eventually, on April 9, 1957, the Central Government tui; ned down the recommendation of the State Government about the grant of the mining lease to Tatas. It also directed that the applications received prior to the application of Tatas should be considered according to tho Rules but added that in case the Government of Orissa desired to work the area on a departmental basis, the Central Government would have no objection to consider a proposal for that purpose. Thereafter the State Govcrnrnfmt rejected the application of . the appellant in December 1957 on the ground that the State Government proposed to arrange for the exploitation of the area in the public sector.

'.l'his was followed by an application for review to the Central Government under r. 57 of the Hules. This application was. rejected by the Central Government in June 1959. Thereupon the appellant filed a petition under Art. 2~6 of the Constitution in the High Court in July 1959. This petition was dismissed by the High Court on the ground that it had no jurisdiction to deal with the matter under Art. 226 as the final order in the case was passed by the Central Government which was located beyond the territorial jurisdiction of the High Court. The appf'llant then applied to the High Court for a certificatt to appeal to t.hie Court, which was rejected. He thrn asked for special leave from this Court, which was granted; and that how the matter has come up before us.

The main question raised before us is the limit of , be jurisdictkn uf the High Court under Art. 226 in circumEtances like those in the present case. The contention on behalf of the appellant is that as the Central. Governm<'nt had merely dismissed the review pe\ition, t_he (•ffectivn order rejecting the appellant's application for the mining lease was that of the btate Government and therefore the Hig1 Court would have jurii.diction to grant a writ

Madan Gopal

•Rung ta •• $t(r1ltr.)' lo tJ., Goyernment of OrisstJ

Wane/Joo J.

l'6Z

Madan Uopal

Rungla •

•• StCf'elary to th~ Gooern.mml o/ Uri ua

910 SUPREME OOURT REPORTs (1962] SUPP.

under Art. 226, and that the principle Ia.id down in Election Cmmnission India v. Sc1ka Venkata Subba Rao(!) would not apply. Heliance in this connection has been placed on the decision of this Court in Tlte State of Utuir l'r1uksh v. Mohammed Nooli(').

It is well settled by a series of decisions of this Court beginning with Salra V enkata Subba Rao'B case(') ·

that there is two-fold limitation on the power of the High Court to grant a writ under Art. 226. These limitation are firstly that the power is to be exercised throughout the territories in relation to which the High rourt exercise juri8diction, that is to Hay, the writs isaued by tho High Court cannot run beyond the territories subject to its jurisdic:tion, and secondly, that the person or authority to whom the High Court is empowered to issue 'such writs must be within thoRe territories, which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories. The view taken in this case has boen recently re, affirmed by this Court in Lt. Col. Khajoor Singh v. Union of India. (')Prima facie, therefore, as the final order in this case was passed by the Central Government which is not located within the territories over which the High Court has jurisdiction, t.Jie High Court will have no power to.grant a writ in this • case.

Learned counsel for the appJllant however relies on the decision in /Jfohd.Nooh's case(') where it was held that it was not correct to sav that an order of dismiBSal passed on April 20, 1948, merged in the order in appeal therefrom p8i!8Cd in May

1949, and the two orders in turn merged in the order passed in revision on April 2:!, 1950, or that the original order of dismissal only beoaruo final on the pas8ing of the order in revision.· It was furthor held that tho order of dismissal was operative on its

1. [1953J s.c.a. 1144.

2. t1958J s.c.R. 595. s. [1961J 2 s.c.R. &28.

3 S.C.R.

own strength and therefore no relief under Art. 226 could be granted against the order of dismissal pas scd in 19~8 as Art. 226 was not retrospective in operation. It is urged that if the order of dismissal in that case did not merge in the final order of revision which was passed in April 1950, after the Constitution came into force, there was no reason why the order of the State Government should be taken to have merged in the order of the Central Government in this case so as to deprive the appellant of his remedy in the High Court under Art. 226.

We are of opinion that the principle of Mohd. Nook's case(1) cannot apply in the circumstances of the present case. The question there was whetherthe High Court would have power to issue a writ under Art. 226 in respect of a dismissal which was effective from 1948, simply.because the revision against the order of dismissal was dismissed by the State Government in April 1950 after the Constitution came into force. It was in those circumstances that this Court held that the dismissalh1wing taken place in 1948 could not be the subject.matter of an application under Art: 226 of the Constitution for that would be giving retrospective effect to that Article.

The argument that .the order of dismissal merged in the order pased in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held (firstly) that the principle of merger applicable to decrees of courts would not apply to orders of departmental tribunals, and

(secondly) that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision, and therefore the order of dismissal having been passed before the Constitu- tion would not be Op"n to attack under Art. 226 or the Constitution. We are of opinion that the facts iu Mohd. Nook's case(') were of a special kind and

(I) ll958J s.c.R. 595.

I96B

Mada• Gopal

Run(fta

•• Secretar,1 to l'M <Jouernment oJ Orils:-

Wanchoo J.

.\/!fia GopaJ

/lungi.

•• tiur11ary to llN Gooernmetd oJOrissa

912 SUPREME OOURT REPoRTs (1982] SOPP.

the reasoning in that case would not apply to the facts of the present case .

.Further, in A. Thau.gal Kunj11 J!u8aliu,. v. Jf .

Venkit; v; halam Potti ('), though this Court was considering a matter in which the quc:ition which is before us wiis not directly in issue, it had occasion to consider certain decisions of curtain High Courts which dealt with cases similar to the present case : (ece p. l2lil). In those decisions orders had been paesed by c<:rtain inforior authorities within the wrritorics subject to the juridiction of the High Courts concerned, but they had been taken in appeal before superior authorities which were loc11.ted out. side the territories subject to the jurisdiction of tho High Courts concerned. In those circumst1mces the High Courtll ha.d held that the order of the inferior authorities had merged in the orders of the authorities. This Court apparently approved of the view taken by the High Courts in those casus on the ground that a wrjt against the inferior authority within the torritoriell could not l>e of any avail to the petitioners concerned in those cases and could give them no . relief for the orders of the superior authority outside the jurisdiction would. remain

outstanding and opcrativo af.(ainst them. 1'horefore, as no writs could be issued against the outside authorities, this Court was of the view that tho High Courts were right in dismis8ing the petitions, as any writ against the inferior e.uthority which is within the jurisdiction of the High Court, in vi"w

of the orders of the superior authority, would be infructuous. The position in the present case is similar to that envisaged above. The Orissa Government rejected the api>iJcation of the appellant for grant of the mining lease.

The ii ppella.nt being aggrieved by that order went in review to the Contra] Government under tho Rule8 and that review petition was dismissed so that in effect the Central

(!) [1955] 2 S.C.R. 1196,

3 S.d.R.

SOPREME COURT REPORTS 913

Government also rejected the application of the appellant for grant of the mining lease to him. It is not in dispute that if the Central Government was so minded it could ha.ve allowed the review and directed the Orissa Government to grant mining lease to the appellant. Therefore when the Central Government rejected the review petition, it in effect rejected the application of the appellant for the grant of the mining lease to him. This order of the Central Government in effect rejecting the applica- . tion of the appellant for the .grant of the inining lease to him and confirming the rejection of the application of the appellant by the Orissa Government is clearly not amenable to the jurisdiction of the High Court of Orissa under Art.226 in view of the fact that the Central Government is not located within the territories subject to the jurisdiction of the Orissa High Court. It would therefore have been useless for the Orissa High Court to issue a writ against the Orissa Government for the Central Government's order rejecting the review petition and therefore in effect rejecting the application of the appellant for grant of the mining lease would still stand. This is made clear by r. 60 of the Rules, which provides that "the order of the Central Government under Rule 59 and subject only to such order, any order of a State Government under these rules, sall be final''.

Clearly therefore r. 60 provides that where there is a review petition against the order passed in the first ihstance by the State Government, the order of the Central Government passed in review would prevail and would be the final order dealing with an application for a mining lease under the Rules. Therefore, quite apart from the theoretical question of the merger of the State Government's order with the Central Government's order, the terms of r.60 make it perfectly clear that whenever the matter is brought to the Central Government under r . .59, it is the order of the Central Government which is effective and final. In these

M ad, n Gopal Rungta

y, Secrclay to ht G(; Vernment of Orissa

lYanchoo J.

Madat< Gopal

Rungld ... 8e'1'dcny lo lht Governmerct oj Orillo

woncAoo J.

9I4 SUPREME COUR'"i. REPORTS [1962] SUPP.

circumstances we are of opinion that the High Court was right in holding that it had no jLirisdiction to issue a writ under Art. 22() in the present c1isc as the final order in this ease was that of the ntral Governm<'nt which was not situate within the territories over which the High Court has jurisdiction.

Our attention in this connection was drawn to Shivji Nathubhai v. 'J'he l.:nion of India (1).

In that case a mining lease had been granted by the State Government to a particular person and them was a review petition against the grant of that mining lease. The order granting tlw mining lease was set aside on reviow without notice to thc person to whom the lease had been granted. In that connection a question arose whether tho person to whom the State Government had granted tho lea, e had any interest to enable him . to make an application under Art. 22ti. It was then pointed out liy this Court that under the Rules the order of tho State Government would be cfft>ctive a~ there was no requirement that it was not final until confirmation by the Central Govornmm1t.

That case however is of no assistance to the appellaut for where there is a review petition and the Central Government passes an order on such potitiou one wy or thn other it is the Central Government's order that prevails and the State Government's order must in those eircurustances merge in the order of tho C"ntral Government. The observations in that case on which the appellant relics were made in another

connection and can have no bearing on the question before us, where an order has been paBBed by the Central Government on review and it is that order which is made final by r. tiO and which stands in the way of the appellant. 'lhere is therefore no force in this appeal and it is hereby dismissed with costs.

Appeal dismissed.

(IJ [1960J 2 s.c.J.{. ns.

s. 29

B. P. SINHA

K. WANCHOO

Art. 226

Art.

226

Art. 226

Art. 226

Art. 226

Mineral Concession Rule 1949

(1961) 2 S.C.R. 828

(1955) 2 S.C.R. 1196

(1960) 2 S.C.R. 775

Art. 2

Art. 226

Art. 226

Art. 226

Art. 226

Art. 226

Art. 226

Art. 226

Art. 226

Art. 226

[1955] 2 S.C.R. 1196

Art. 22()

Art. 22


a s.c.R. suPREME couRT R:Eroitrs !Ji5

STATE OF UTTAR PRADEISH

ABDUL SAMAD & ANOTHER.

(B. P. srnHA, c. J., K. suBBA RAo, N. RAJAGOPALA

AYYANGAR, J. R. MuDHOLKAR and T. L.

VENKATARAMA AIYAR, JJ.)

Habeas Corpus-Arrest and detention for de1Jortalion- Petition for haheas corpus-Police holding detenues for production before High Court-Non-1iroduction before Magistrate- Production before High Court and grant of bail-Detention, if illegal-Con•titution of India Art. 2 2( 2).

In pursuance of an order for their deportatio11 the respondents were arrested on July 21, and sent to Amritsar.

The next day a habeas corpus application was filed on their behalf before the High Court at Lucknow and they were ordered to be produced on July 25, but on the High 'Court being informed that the respondents were beyond its jurisdiction it directed the application to be consigned to the records.

On spurious information being received at Amritsar that the respondents had to be produced before the High Court the respondents were sent back to Lucknow which they reached at 1 P.M. on July 25.

They were produced before the Deputy Registrar at 3 P. M. and he directed them to be produced at I0.15 A.M. on 'the next day. In the mean time a second habeas corpus application was filed on behalf of the respondents, inter a1ia, on the ground that the detention of the respondents was in violation of Art.22 of the Constitution as they had not been produced before any Magistrate. The respondents were produce¢ before the High Court at 10.30 A.M. on July 26, when the High Court adjourned the case till 2 P.M. onJuly

0 27, and directed the production of the respondents at the time of hearing. On July 27, the High Court ordered the release of te respondents on bail and adjourned the case till July 28. On July 28, the High Court allowed the application and directed the respondents to be released on the ground of a contravention of Art. 22(2). It did not consider the legality of the detention in the first stage, i.e. from July 21 to 1 p.m. on July 25, but held that the detention in the second stage was illegal as the respondents were not produced before a Magistrate within 24 hours of l P.M. of July 25.

Held, (per Sinha, C.J., Ayyangar, Mudholkar and'Aiyar,

- J.J., Subba Rao, J., dissenting), that the detention of the

196:!

March16.

19G2

Stales of Uttar

I'rarksh

A /.c}ul Sa11uJcl

!)Hi SUPREME OOUitT HEPORTS [1002] SUPP.

respondents was lei; al and the High Cou1 t '''a=> , .. 1ong in orUer ing their relcast'.. rhc rcsponrlc:nts \\'Crc produced before the High Court on .July 26, within 2+ hours of their airival at Luckno\v and the lligh C0urt by ordcrini.;· their production the . next day permitted the rr:spondcnts to rcn1ain in police custody. 'I hey were again produced before the 1-Iigh (; ourt within the

next 24 hours on July 2i, \Vhr:n they \Vere ordered cu be rrleased on bail. "fhus at no tin1e during the sccund sragc wuld the respondents be said to have been 11legally detainer! for 1nore than 24 hours \Vithout production before a j udical authority in violation of Art. 22(2).

Per Subba Rao, J. The detention of the respondents \Vas illegal.

The detention could no! b: dissected into t\\'O stages; it ,.,,.as a continuous one.

Arrest an<l detention for purposes of deportation was subject to t e provisions of Art.22(2) and the 1espondents not i1aving been produced lieforc a ~11fal{istr<itc \\oithin 24 liours of their arrest the delc11tion ~\'as illegal.

Collector of Ma/, af, ar v. },"/17ohim llajee, (19:i7) S.C.R. ~70 and State of l'unjab v. Ajaib Sinyh, (1953) S.C.R. 254,

distinb>'Uishj .

CRIMJNAL APPELLATE .JuHJ~!JfCTlOl'i : Criminal Appeal !\o. 48 of UHll.

Appeal by special leave from the judgment and order dated July 28, I fHiO, of the Allahabad High Court (Lucknow Bench) at Lucknow in Cr. :\iisc. rase :No. 186 of IU60.

G. C. , Jfot/mr and C. /'. Lal, for the appellant.

S. P. Siiiha and JJJ. I. JOmuj11, for the respondents.

19(i2. March !ti. The , Judgment of Sinha., C. , J., Ayyangar, 7lludholk1; r and Aiyar, , J, J., was delivered by Ayyangar, J., Subba Rao, J., d1•livcrPd a separate Judgment.

AYYA:SGAR, J.- This is an appeal by special lcaYc against the judgment and orcl!'r of the High Court of Allahabad by l\hich it allowed a petif.ion under, s. , l!)l of the Criminal Proc<'<lure Code filed

on behalf of the rcspondrnts.

We shall now narrate the facts which are not in dispute. The two respondents, who are husband and wife, were in Pakistan in March 1955. While there, they obtained a Pakistani passport on September 6, 1955, and obtained from the Deputy Indian High Commissioner on September l 7, 1955, a visa to enter India which theY. did on September 22, 1955. The visa granted to them was of the •C' category i.e., for temporary stay, which permitted them to remain in India till December 16, 1955.

By repeated applications they had the term of the visa extended and continued to stay in India. On Angust 10, 1957, they applied for their registration as Indian citizens but the application was rejected on October 18,

1957. Thereupon they moved the High Court by a petition under Art. 226 of the Constitution to have this order of the rejection of their application set . aside but the petition was dismissed in April, 1959.

Thereafter orders were iosued by the State Government and served on them asking them to leave India but they repeatedly applied for and were granted extensions of time for so doing.

The last extension applied for was on December 22, 1959, but .this was rejected and_ the government passed an order on July 7, 1960, requiring them to leave India within 24 hours after its service upon them.

This order was served on them on , July 20, 1960, at about 10 a.m. but they made no efforts to comply with it.

The order not having been complied with the police took the two respondents into custody on the evening of July. 21, 19ti0, at about 6 p.m. and sent them on by train to Amritsar for being deported to Pakistan.

The respondents with their escort reached Amritsar in the early hours of July 23,

1960. The Head Constable who had the custody of the respondents produced them before the Reader of the District Magistrate, Amritsar as directed by the Senior Superintendent of .Police, Kanpur anq

State of Uttar ·

Pradesh

A bdn'/ Sam ad

AyyangtlrJ,

J961

Stolt of Ullar

l'"'hsh v.

Abdul Stmad

!ll8 SUPREME COURT REPORTS [1962] SUPP:

the Reader took thorn by about IO a.m. to a Magistrate who ordered that they be kept in the Civil

Lines Thrma till further orders.

Meanwhile, afccr the departure oft.he rcsponrlents from Lucknow, proceedings were started on their behalf under R. 491 of the Criminal Procedure Code before the Lucknow Bench of the Allahadad High Court.

This application was filed on July 22, 1960.

The learned Judgo before whom the application was placed directed notice to the State of Uttar Pradesh and required the State to take a.II possible steps to detain these two persons and produce them before the Court. It ma.y be mentioned that the ground upon which the detcntiou was challenged as illegal in this petition was that the respondents were "British subjects" within the meaning of the Foreigners Act a.nd hence "their arrest was illegal as they were citizens of India." In other words, what was challenged was the validity of the deportation order. On the same day, i.e., on July 22, 1960 the petition wa.s placed hefore the Bench dealing with the matter which fixed tho date for the hearing of the petition as 10.15 A.:11. on July 2ii, l!lliO, R.twhich hour the rr•spon<lents ·, vcr<' directed to bo produced before the Court..

On July 2;~, 1()()0, a count<ir-affidavit waH filed on behalf of the State, which was affirmed by n Sub-Inspector of Police who, after denying that there was anything iilDgal in the order of deportation, stated that the respondents had been taken into custody on July 21, 1960, and were immedia.telv thereafter sent to AmritJ1ar and were therefore 1!0 more in Vtt-0.r Prade8h within the jurisdiction of the Court.

The petition under R. 491 of the Criminal Proeedure Code was taken up for hearing by the Court. on , July 25, 1960, nR originally fixed, and after perusing the counter-affidavit filed on behalf of the State, the learnod .Judges in their ordor

stated that the two respondents had been sent away to Amritsar and were no longer within the territorial jurisdiction of the Court, and recorded~

"We find that we have no jurisdiction in the matter"

Their further direction was :

"The proceedings are consigned to records".

Certain matters, however, transpired on July 23, 1960, to which it is necessary immediately to refer. After the remand by the Magistrate at Amritsar on July 23, 1960, and when the respondents were being kept in Civil Line Thana, a telegram was received by the police at Amritsar and also a call by trunk telephone, purporting to be from Saxena, Under Secretary, Home Department, U.P. informing them that the High Court had issued orders that the respondents should be brought back to Lucknow to attend their case on July 25, 1960.

It is now almost common round that the telephone call as well as the telegram were spurious and did not emanate from the authorities at Lucknow. The Amritsar polico however acted on these messages and immediately made arrangements for transporting the respondents back to Lucknow where they arrived at about 1 P.M. on July 25, 1960, by which time it would be noticed the petition filed on July 22, 1960, had been disposed of by the High Court by being consigned to records.

Immediately on their arrival a supplementary application was filed for reviving the petition which had been disposed of earlier in the morning founded upon the ground . that the respondvnts were then at Lucknow within the jurisdiction of the Court and praying for a direction that the respondents be released on bail. One other fact requires mention. The police at Amritsar h1tving been informrd th1tt the High Court had qirected the two respondent~ to be produceq before

tale of Uttar

PradeJh . v. .

Atdul Somod

AJ)'onpat #,

State of {Tttar

Pradtsh

v. ilhdul Samad

A.r.J'.l"l!.arJ.

920 SUPREME COURT REPORTS [1962J. SUPP.

it, the police constables who escorte<l the respondtntR from Amritsar immediately on arrival pr.oduced thPrn Lefore thP Deputy Hegi8trar of tho High Court and this officer pass,:d an order in these terms:

"Tho detcnuPs who were Lrought from Amritsar today at. about 3 P.M. to this Court ......... are sent back under the same custody with the direction that the Head Constable ... .. . ... should produce them before this Court at IO.Iii A.M. tomorrow, the :Wth July, l!J60 po sitiV<dy."

1md the Head Constable made nn endorsement on th<' order undertaking to produce as direckcl.

Not contont with what was termed the supplemPntary application filed on the 2iith aftrrnoon, a fresh petition unrlcr s. 4!ll of tl1P Criminal Procedure Codo was filrd on tho 26th for the production of the respondent; i and for thrir being set a.t liberty and it is this aprlication that was allowed hy the learned Judges. In the petition, beaicles repeating the allegation8 nlrcad.v made in the petition filed on .Tnly 22, 1960, chalJt.nging the validity of the rkportntion order, n fresh one wnR addNI which ran:

"Since .Tuly 21, 19n0 the applicants are in custody without. being produced before any Ma!!istrate and hence the provisions of Art.. 22 of thri Constitution have been violated".

Which, as would be seen from tho abo:ve narration.

was delibRrately false, and.it ended with th~ prayer that the Stato be rcstrame<l from effeetm!( the

<lcportation of the reaponrlentl! to Pnkistan. Both the "supplementary appl.intion" elated .July 2fi,

1960 to r"vh" thP pct1t1on dat<'d .July 22, l!l60, as w"ll as the fresh substantive petition clat.ed .July 26, 1960, camo up for orders before the Bench on

July 26, 1960, and the learned .. Jud.ges,', afterdisp.os- . :ing of the "supplementary apphcat10n by directmg

that no orders were necessary thereon because of the other petition, passed an 0rder on the petition dated July 26, 1960, that it would be taken up for hearing the next day (i.e., 27th at 2 P.M. and alo

directed that the respondents should be produced m Court at the time of the"hearing.

The petition was taken up on July 27, 1960, as directed the previous day when the le:i, rned Government Advocate prayed for :i, n adjournment of one day, i.e., till July 28, 1960, to enable hirn to file proper affidavits particularly as r'egards the bogus communication received by the police at Amritsar which as responsible for the respondents being brought back to Lucknow. The adjournment asked for was granted bt1t in doing so the learned Judges made this ob;; ervation :

"As it is not denied that the two applicants have been in police custody since 21st July, 1960, it appears to us that their non-production before a Magistrate within 24 hours of ttheir being taken in custody is pr-ima facie open to 0bjection under the Constitution of India. We, therefore, without corning to any decision, direct that the two applicants sh.all forthwith be released on bail on each of them furnishing a personal bond in the sum of Rs. 1,000/- (one thousand) and two sureties in the like amount to appear before this Court tomorrow at 10.15 A.M. sharp and on all

daes to which the hearing of the case may be adiourned... ...... .. . .. . ..... In case of default the two applicants ill be remanded to jail custody."

Thei respondents took advantage or this order for their release on hail :i, nd they were accordingly released the same day. The State filed a counter-

:1ffidvit on July 28, 1960, in the course of which

State of Uttar

Pradesh

Abdul Samad

A7yangar J •

)962

Stal• of VIiar

Praduh

•• Abdul Samad

Ayyan_ear J.

922 SUPREME OOURT REPORTS (1962) SUPP.

they pointed out that the respondents had been produced bAforo a Magistrt-0 !at Amritsar and recounted the other facts which

we have already narrated.

The matter came on for final orders on , July 28, 1960, when the learned .Judgpe held that the respondents bad been detained in violation oft.ho provisions of Art. 22(2) of the Constitution and thorefore directed their hoing set at liberty. It is the correctness of this order that is challenged by the State in this appeal.

Pausing here we consider it necessary to mention one matter. We were informed by ::IIr. Sinhalearned Counsel-who appeared for the respondents that subsequent to tho order of release now under appeal the respondents had instituted a suit in a

Civil Court challenging the validity of the deportation order and had obtained n.u interlocutory injunction restraining the State from effecting their deportation pending the disposal of the suit.

On this ground he urged that tho question of the correctness or propriety of the order of the High Court was no louger a livo issue hut had become acadcmic.

Having carefully considered this aspect of the mn.tter wo have arrived at the cimclu8ion that the grounds on which the learned .Judges J..inve directed the reli:n.sc nre Ruch as to require examination at

our hn.nds.

It would be noticed that he respondents had been in custody from a bout G P.llf. on the 2 I st , July to the evening of the 27th July when on the orders of the High Court they were rclt>ased on bail.

Tho learned Judges have divided this into two periods-the dividing line being

1 P.'.IT. nn 25th July l(lUO, when they were brought to Lu"know

in pursuance of the telephonic message purporting to emanate from the Under Secrctarv to G0\'1 rnment for being proclucerl before the High Court.

The Learned , Judges of t.he High Court confined their attention to tho second period aud holding

that during this period there had been a violation of the requirements of Art. 22(2) of the Constitution, in that the respondents had not been produced before a Magistrate within 24 hours of the commencement of the custody, expressed their opinion that the detention was illegal and directed the release of the respondents. It is the correctness of this order . of the High Court that arises for consideration in this appeal.

Before p:'oceeding to examine the reasoning of the learned Judges it it necessary to state one matter. In view of the ver, v limited question before us we do not feel called upon to deal with the scope of Art. 22(1) or .22(2) or of the two clauses read together in relation to the taking into custody of a person for the purpose of executing a lawful order of deportation which would require to be considered in regard to the detention durin~ what has been stated earlier as the first period. When the question does arise for decision the following circumstances would be among those to be considered before the scope of the constitutional guamntee could be properly determined: (1) An alien has no legal and enforceble

right to enter the country and can do so only subject to the permission granted by the executive under our law and when such a person overstays in the country beyond the period for which he i' so permitted, the State acting through the executive is entitled to require the alien to quit the country for the mere reason that the period for which he has been permittd to stay has elapsed. - (2) That where an alien is takn into custody in pursuance of a valid order of deportation he is not charged with any offence within the meaning of these words in Collector of Malabar v. Ebrahim Hajee (1 J but the State is merely effecting his removal from the country - an act which the alien was himself bound by law to have done. (3) When the Constitution makes a provision for procluction before a Magistrate, the requirement is not to be trea.te1l as any

(1) [1937J S.C.R, 970. .

196B .

State of Uttar

Praderh

Abdul Samad

Ayyangar J.

19C2

Stalt nf Uttar

PradtJh v.

Abdul Sr; mad ---.

A vangor J.

924. SUPREME COURT REPORTS [1962) SUPP.

formality but as purposeful designed to enable the person arrested an<l detained to be releaRed on bail or other provision made for his proper custody pending the investig1tion into the offence with which h<' is charged or pending an enquiry or trial.

In the caRe of a lawful deportation order the Magis trate can obviously pasR no order for release on bail or direct any other custody than that of the officers who have to execute the order of deportation.

As stat<'d earlier, the learned , Judges having confined their scnit.iny to the second period we shall not pronounce on the precise scope of Art.22(1) or (~) or the two clauses read together in n'lation to an arrest and dPtcntion for the purpose of exeeu

ting a lawful order of deportation, which arises by n:ason of tho non.production before a magistrate within 24 hours after the respondents w"rn taken into custody on the evening of the 21st , July or before the nearest Magistrnt c, but shall restrict ourselves to the very narrow question whether there was any basis for th(! conclusion of the Learned

.Judge~ that there had been a. viol:ition of the constitutional guarantee after the respondents were brought to Lucknow at beyond middny on 2iith .July, l9GO.

The main judgment in the case wa~ r1mdercd by igam, .J., who reasoned as follows :

"I do not propose to give a considered view on the matter of (arrest and detention

of a person for the purpose of deporting him out of India not being an arrest and detention within Art. 22(2)) at this stage for I am of opinion that even if tho contention of the

learned Counsel iH accepted the detention on 2ith July, I %0 could not IH' said to Ii(• n detention for the plll'posc of deportation".

This he explained lat.er by stating :

"After return from Amritsar the t:w"

applicants were being detained not for the vurpose of deportation for bad that been the guiding purpose they would never have been brought back from Amritsar.

They were brought back to Lucknow and were being detained in the custody in connection with the writ petition pending before this Court. Thus, I find as a matter of fact th<it

in tbe present circumstances the detention was not in connection with the deportation of the petitioners and as such, it being admitted that the petitioners were not produced befofe a Magistrate within 24 liours of their arrest and were not being detained in connection with a warrant for jail or police custody signed by a Magistra, te or other judicial officer, it cannot be suggested that their detention was legal." Mulla, J., the other learned Judge also divided the case into the same two stages. And this learned Judge also thought that at the second stage a violation of Art. 22(2) had occurred. His reasons. were stated thus :

"l need not dwell upon the first stage but I feel that once the petitioners came back within the jurisdiction of this Court and a writ waR filed on their behalf eailier, which was entertained and on which the State was asked to submit a return, the matter• had become sub-judice and the detention or custody of the petitioners ceased to b peurely au administrative custody for the purpose of carrying out an executive order. It is wellknown that in writ of habeas corpus. the presence of the petitioners before the court is necessary and therefore they became parties to a judicial proceeding and they can be lawfully kept only in judicial custody ............ The courts of law do not approve

State of Uttar

Pradesh

Abdul Samad

Ayyango1 J.

Slat, of Ullo.

P•aduh

Abdul Samt1tl

ll26 SUPREME COURT REPURTS [1962] SUPP.

of citizens or aliens remaining in tho custody or detention of the police for a long time.

The police is certai11 ly carrying out its executive duties and it i8 in the discharge of these duties that the police has to keep some persons

in their custody, but the courts a1e vi@ilant that tho police does not detain persons in their cuatody beyond the }Jcriod which is necessary for the discharge of their duties. hi this case it was not necessary for the polico to detain the petitioners in their custody for diseharging their dutios urn! their duty wuuld start after the writ 1ietit.io11 was decided.

L p to that time the presence of the n1J!lie1111ts \la~ noe<led in tho hearing of the writ petition fi]c, d

by thorn and their detention for thiH pt riod was primarily to help the court in deciding the Writ Petition." It is not very clear from the learned Judge's judgment as to what according to him was the duty of the police after a petition for a writ of habeas corpus had Lel'n filed. It is not. possible to make out whether it was the opinion of the learned Judge that on the filing of a petition for habeas corpus the polico were bound immediately to have released the detained person or whether the authorities could la"l\folly detain the perBon till the Court decided the mattC'r.

The leamed Judge Wf'llt on to add :

"l am, therefore, clearly of the or: inion t }l!l t t bf' pct it iouns hould have bce1' •presented either before the High Court itst';: for a suitable remand order or at any rate efore a MagiBtrate so that a judicial mind B~ ould have operated in deciding the question \a to their being kept in cuBtody and the cond1 •ions under which they should be kept in oust ody.

The State failed to do so and detaine ithe

petitioners in the CUBtody of tho police. C'his

violates the manda'tory provision of clause (2) of Article 22. It cannot be said that the arrest and detention of the petitioners subsequent to their coming back to Lucknow was that type of detention which is not covered by the mandatory proviions of Article 22." It is very difficult to appreciate what ex, actly either of the learned Judges had in mind in making these observations holding that the guarantee under Art. 22( 2) had been violated. During the "second stage" at which tho learned Judges held that the detention has been illegal because of violation of Art. 22(2), the facts were these : The respondents had brought back to Lucknow on a message requiring their production before the High Court. They reached Lucknow on the 25th at 1 p.m. and were produced at 3 p.m. the same day, i.e., within two hours of reaching Lucknow before the Deputy Registrar. The Deputy Registrar had directed their production the next day and they were accordingly so produced.

Even taking it that the Deputy Registrar was not a judicial authority such as the learned Judges had in mind, the respondents had been produced on the 26th morning at 10.15 a.m. before the learned Judge3 when they were at liberty to make any order regarding the custody which they considered proper and the time when they were produced before the Judges was admittedly not beyond 24 hours from the time the respondents reached Lucknow .. On the 26th the learned Judges who took part in the final decision passed an order directing the production of the respondents on July 27, 1960; at 2 p.m. which obviously permitted the previous custody to be con tinned till further orders. They were produced accordingly at 2 p.m. on that day and by a further order of July 27, 1960, the learned Judges had directed the release of the respondents on bail and in pursuance of this order the respondents had been released on July 27, 1960, itself. In these circums

State of Uttar

Praduh

Abdul Samad

AyyangMJ.

.tolr nj Uttar

I'radesh

Abdul Samad

1IJJU1.g:1r J.

928 SUPREME COURT REPORTs (1962) SUPi'.

tances we are at a loss to unden; tand which is the period during "the second stage" or "on tho 2ith", when the respondents could be ea.id to have been illegally detained for more than !!4 hours without produotiou before a judicial aut, hority as required by A, t. 2~('.!).

We would add that oven if Art.22(2) wcrn construed tu require that a person arrested and detained has to be produced before a Magistrate every 24 hours during his detention, a meaning which it assuredly cannot bear, though it is not clear to us whether the 'learned J udgo did not undorstand the Article to require this, even such a requirement wau satisfied in this case as the respondenU:l were during "the second stage" produced before the High Court itself "for suitable orders" on the 26th and again on the 27th. We have no desire to comment further on this judgmeu t 9f the learned Judges except to s<ty that tht>re was no justification whatsoever for the finding on tho basis of which the loamed Judges directed the release of the respondents.

We have given anxious thought to the quPstion as to the proper order to pass in the appeal.

In the first place, we have to take into account that it is the liberty of the person that is involved and that it is the duty of the Courts to ensure that there is no encroachments on that liberty anrl particularly of infringements of the guaranteeB which the Constitution has conferred on all persons, oitizens and others in that regard. When the highest Court in a Sta.te has made an order upholding such a libCrty, this Court would naturally be slow to intorfero with it unless satisfied that there has been a miscarriage of justice caused by a patently erroneous interpretation of the law, though it need hardly bo added that a miscarriage of justice might equally be occasioned by the improper order of release of a person whose custody is lawfo!. We are alsn conscious of the fact that the appeal before us is

by virtue of special leave under Art. 136, and that

3 S.O.R. SUPREME CC>URT REPORTS 929

in such cases, it is not every error that would be corrected, and in a case of the kind now before us, the conscience of the Court should be satisfied that interference is called for before the order of the Court below is interfered with. It is bering these considerations in miad that we have arrived at the conclusion that the order of the High Court should not be allowed to stand.

The appeal is accordingly allowed and the order of the High Court set aside.

SUBBA RAo, J.-I regret my inability to agree. The facts are simple. The two respondents, husband and wife, were arrested at Lucknow by the polioe on July 21, 1960 at about 6 p.m.

Soon thereafter, they were sent by train to Amritsar for being deported to Pakistan. They reached Amritsar in the early hours on July 23, 1960, and were produced before a Magistrate at Amritsar at

10 a.m. on the same day. They were ordered by the said Magistrate to be kept in Civil Lines Than& till further orders. They were brought back to Lucknow in the afternoon on July 25, 1960, and, immediately thereafter, they were produced before the Deputy Registrar, High Court, Lucknow Bench, who directed them to be produced before the Court at 10.15 a.m. on the next day. At 10.15 a.m. on July 26, 1960, the High Court directed the respondents to be produced in court at 2 p.m. on July 27, 1960 to which time the petition for habeas cor- pus, filed by the respondents, was posted for hearing. The petition was adjourned to July 28, 1960 and the High Court directed the two applicants to be released on bail on certain terms. On July 28, 1960, the learned Judges allowed the petition for a writ of habeas corpus on the ground that the arrest of the respondents was in violation of the provisions of Art. 22(2) of the Constitution and, therefore, directed them to be set at liberty.

The State of Uttar Pradesh has preferred the present appeal against the said order of the High Court.

196t

State of Uttar

Pradesh

Abdul Samad

Subb11 Rao, J •

"'tali of Utldr

l'r11d, sh

Abdul Sa1nad

930 SUPll™E OOUH:r Rl>ORTS [1962] SUPP.

It has been brought to our notice that subsequent to the tiling of the present appeal, the

respondents filed a smt and obtained an injunction against the State from deporting them to Pakistan pending the disposal of the suit. In the circumsta.nCCH they have ceased to have any interest in the present appeal.

The first question is whether it is a. fit oase for exercising the extraordinary juriRdiction of this Court under Art. 136 of the Constitution. The appeal has become infructuous, for even if the 1State succeeds it cannot arrest the respondents till the disposal of the suit. Nor has the High Court decided any such impcrta.nt question of law as to cause some irreparable injury to the appellant unless this Court sets the matter right. The learned Judges expressly left open the question raised, namely, whether Art. 22 would govern the arrest for the purpose of deportation. I would, therefore, dismiAs the appeal on tho simple ground that this is not a fit case for interference by this Court,

That a.pa.rt, I am also not satisfied that the conclusion arrived at by the High Court is wrong. On the said facts, the respondents were arrested on July 21, }!)60, for tho purpose of deportation and they wre admittedly not produced before the nearest Magistratp, wit.bin a period of

24 hours of such arrest excluding the time necessary for the journey from thfl place of arrest to the court of the Magistrate. .Such persons coulcl not be detained in custody beyond the said period without the authority of a Magistrate. There iH an allegation that the respondents were produced before a Magist.rat<' at Amritsar, I.Jut that i\Iagistrate did not satisfy the definition of ".:llagistrate" in Art. 2:!(2) of tho Constitution. I find it difficult to dissect the detentiou into two periods, namely, (i) detention for deportation, and

(i) detention for production before the High Court.

The act of detention was a continuous one and it did not cease to be one for the purpose of deportation by the fact that the respondents were brought back to Lucknow or thereafter to the High Court pursuant to the notice issued.

The question, therefore, is whether such an arrest for the purpose of deporta, tion is outside the ken of the constitutional protection given under Art.22(2).

Indeed, the State of Uttar Pradesh in its petition for. special leave contended that the detention was for the purpose of deportation and, . therefore, was not governed by the said provisions. The material portions of the article read:

"22. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessa.ry for the journey from the place of arrest to the court of the magistrate and no such persqn shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

( a) to any person who for the time being is an enemy, alien; or

'(b) to any person who is arrested or detained under any law providing for preventive detention."

It would be seen that under this provision there is a constitution injunction that a person arrested and detained in custody shall be produced before a magistrate within the prescribe~ tin; ie. It cann?t

be gainsaid that arrest and detention m custody m contravention of this provision is illegal. Clause

(3) of the article specifies two exceptions to the

196t

Stott of Uttar

Prarlesh

v. /bdul S motl

Subba Rao J.

SI•" of Uttar

Praclesla

Abdul Samoa

Subba Rao J.

932 SuPREME COURT REPORTS [1002] SUPP.

said injunction.

Admittedly the respondents did not fall under one or other of the two exceptions.

The constitutional provision is couched in clear

and unambiguous phraseology and it is not permissible to read into thn.t. proviRion exceptions other than those specially provided for.

When a provision issues an injunction in clear words and provides for two specific exceptions it must be held that it prohibits any other exceptions. In the present .case it is not. disp•1ted that the respondenta were arrested by the police on July 21, 1960,

and detained in their custody till they were pro, duced before the High Court, and tha.t their production before the Magistrate at Amritsar was not in compliance with the provisions of Art. 22(2) of the Constitution.

But. it iH argued that this Court has limited tho eontcnt of the words "arrested and detained" in State of Pim jab v. Ajaib Sinyh{l) and The Collector of Malabar v. Erimal Ebrahim Hajee(').

The first case relates to an abducted person taken int@ custody for the purpose of being ha.oded over to a rescue-home. But that decision was confined only to the facts of that case, namely, a <'.ase whir:h dealt with an extraordinary situation of unprecedented exodus and abduction.

Das, J., as he then was, observed:

"It is not, however, our purpose, nor do we consider it desirable, to attempt 11 precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that some within its protection. Whatever else may come within the purview of article 2:!( 1) and ( 2), suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put .upon an abducted person in the process of recovering and taking that person into custody

{I) !1953)S.C.R. 254,269.

(2) [1957) $.C.R. 970.

without .any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in-charge of the nearest camp under section 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of article 22(1) and (2)".

There, this Court was dealing with a case of the police taking into custody an abducted person with the limited object and with the sole view of delivering that person to the custody of an officer incharge of the nearest rescue-home. In the , view of this Court, such a person was not doing any act prejudicial to the State or the public interest and, therefore, the act of taking such a person into custody was not arrest within the meaning of the said constitutional provision. But in the present case the respondents, who are alleged to be foreigners, were directed to leave the eountry; and, as they failed to do so, the police arrested them wit, h a view to deport them out of the country. The respondents were certainly guilty of an act prejudicial to the State or the public intereAt and, therefore, their arrest could not be equated with thitt of the person in the aforesaid case. This Court in express terms confined that deciAion to the facts of that case.

The second decision took away the case of . arrest of a person in execution of a warrant by a

, civil court out of constitutional protection. That decision does not bear upon the present case.

For the foregoing reasons, I hold that the

Slate of Uuar

Pr-adesh

v •.

Abdul Samad

Subba Rao J,

S14, of Uttar

Pratk1h

Abdul Samad

Sribja Rao J.

March I'

934 SUPREME COC'RT REPORTS [1962) SUPP.

arrest of the respondents was illegal and that the High Court rightly ordered their release.

In the result, the appeal fuils and is dismissed.

BY Cov1a. In accordance with the opinion of the majority, the appeal is allowed.

M/S. SERAJUDDIN & CO.

1;.

THEIR WORKMEN

(P.R. GAJENDHAGADKAR and K. ~. WA~CIIOO, JJ.)

I11dustrial DispMle-Reference b11 Stau Gol'emmenlr alidity-"A1)1)ropriate Goiern1nent 1 i -''Industrial dispute'', in relation to 1nine-l'onstrur.tion of-1'J(ine"-DefinilionbidMslrial Dispuf.fs Ar.t, 1947 (J4of 1947), ss. 2(a), 2(a)(i), 2(j), 2(k)-Jfinr., Act, 1962 {-~··; of 19o2), "' 2(j), 2(k). 2(h).

/\. <lisp:.Ite covering clain1s n1adc by the employees \Yas referred for adjudication to rhc tribunal by the State Government of \Vest Bengal. The appellant r:iisecl a preliminary objection against the validity of the refcrencr and urged th<Lc uncler s. 2(a) the appropriate Govcrnmrnt \Yhich could make a valid reference in relation to the present dispute was the Central Govr.r11mcnt and not the Govcrn1nent of lVest Bengal and so, the refr.rcnce "''as unauthorised and inconlpetnt and the Tribunal had no jurisdiction to deal v.:ith it. The Tribunal over-ruled this objection an<l the case was set do\vn for hearing on the merit:;.

Against th_is finding, the appellant prei'errc<l the present appeal hy special leave and the only point raised \\as that the hr.ad office of the appellant at Calcutta hcing an interal part of the mine, any industrial dispute bet\vccn the said office and its ernployces is an industrial dispute concerning a 111ine under s. 2(a)(i) and so the appropriate Governn1cnt 1nust be the Central Government and not the State Go, ernmcnt. 'fhc q11cstion for decision \Vas \Vhcther the present dispute can h<· said to he an industrial dispute concrrnin~ a 1nine It \Vas argur.cl that the \\'ord ''industry" is wide enough to include the Head Office of a mining company though, it may be situate<l a\\'ay from the

Ji5

STATE OF UTTAR PRADEISH

ABDUL SAMAD & ANOTHER

K. suBBA RAo

AYYANGAR, J.

R. MuDHOLKAR

Art. 2

Art. 22(2)

Art. 22(2)

Art. 226

Foreigners Act

s. 4

Constitution of India

Art. 22(2)

Art. 22(2)

Art. 22(1)

Art. 22(2)

Art. 22(2)

Article 22

Article 22

Art. 22( 2)

Art. 22(2)

Art. 136

Art. 22(2)

Art. 136

Art. 22

Art. 2

Art. 22(2)

article 2

section 4

article 22(1)

ss. 2(a), 2(a)(i), 2(j), 2(k)

s. 2(a)

s. 2(a)(i)


S14, of Uttar

Pratk1h

Abdul Samad

Sribja Rao J.

March I'

934 SUPREME COC'RT REPORTS [1962) SUPP.

arrest of the respondents was illegal and that the High Court rightly ordered their release.

In the result, the appeal fuils and is dismissed.

BY Cov1a. In accordance with the opinion of the majority, the appeal is allowed.

M/S. SERAJUDDIN & CO.

1;.

THEIR WORKMEN

(P.R. GAJENDHAGADKAR and K. ~. WA~CIIOO, JJ.)

I11dustrial DispMle-Reference b11 Stau Gol'emmenlr alidity-"A1)1)ropriate Goiern1nent 1 i -''Industrial dispute'', in relation to 1nine-l'onstrur.tion of-1'J(ine"-DefinilionbidMslrial Dispuf.fs Ar.t, 1947 (J4of 1947), ss. 2(a), 2(a)(i), 2(j), 2(k)-Jfinr., Act, 1962 {-~··; of 19o2), "' 2(j), 2(k). 2(h).

/\. <lisp:.Ite covering clain1s n1adc by the employees \Yas referred for adjudication to rhc tribunal by the State Government of \Vest Bengal. The appellant r:iisecl a preliminary objection against the validity of the refcrencr and urged th<Lc uncler s. 2(a) the appropriate Govcrnmrnt \Yhich could make a valid reference in relation to the present dispute was the Central Govr.r11mcnt and not the Govcrn1nent of lVest Bengal and so, the refr.rcnce "''as unauthorised and inconlpetnt and the Tribunal had no jurisdiction to deal v.:ith it. The Tribunal over-ruled this objection an<l the case was set do\vn for hearing on the merit:;.

Against th_is finding, the appellant prei'errc<l the present appeal hy special leave and the only point raised \\as that the hr.ad office of the appellant at Calcutta hcing an interal part of the mine, any industrial dispute bet\vccn the said office and its ernployces is an industrial dispute concerning a 111ine under s. 2(a)(i) and so the appropriate Governn1cnt 1nust be the Central Government and not the State Go, ernmcnt. 'fhc q11cstion for decision \Vas \Vhcther the present dispute can h<· said to he an industrial dispute concrrnin~ a 1nine It \Vas argur.cl that the \\'ord ''industry" is wide enough to include the Head Office of a mining company though, it may be situate<l a\\'ay from the

place \vhere the mining operations are actually carried on and it is in the light of the said definition of the word "industry"

contained ins. 2(j) that the words "in relation to a mine"

mtist be construed.

Held, that in construing the words "an industrial dispute" in relation to a mine, it must first be deterinined what a mine means and it must be done without reference to the broad definition of industry prescribed by s. 2(j). In the absence of a definition of the word "mine" in the Act itself, what has

to be taken into account is the dictionary meaning of the wor<l "mine" or as is contained in the Mines Act and judged in that light, there can be no difficulty in holding that an industrial dispute between the employees engaged in the Head Office at Calcutta and the employer is not an 'industrial dispute concerning a mine. The Head Office is not a mine and so, an industria! dispute raised by the employees engaged in the head office is not a.n industrial dispute concerning a mine.

The rights conferred on the lessee under a mining lease can have no direct bearing on the construction of s. 2(a) and therefore, the tribunal rightly held, that the present dispute between the appellant and its employees at its Head Office

at Calcutta, is not a dispute in relation to a mine.

If el d, further that all industrial disputes which are outsides. 2(a)(i) are the concern of the State Government under s. 2(a)(ii); in other words, the gneral rule .is that an industrial dispute arising between a employer and his employees would be referred for adjudication by the State 0overnment except in cases falling under s. 2(a)(i); and so it Is the extent of one o~ the . exception mentioned i.n s. 2(a) (i) that has to be determined in the present case, and in determining the extent of the said exception, it \vould not be irrelevant to bear in mind the scope of the provisions of the Mines Act itself.

That is why the fact !hat an office of a mine is outside the definition of a mine is of so1ne assistance in interpreting the word "mine" under s. 2(a)(l) and therefore the tribunal rightly came.to the conclusion that in the present

ase th~ reference by the State GoverI1ment of West Bengal was vahd.

CrvIL APPELLA'f}J JURISDICTION: Civil Appeal .'fo. 35.5 of 1961. ·

Appeal by special leave from the order No. :?8 dated January 17, 1961, of the fourth Industrial Tribunal, West Bengal in Case No. VIII-71.

Se, ajuddin d:J Co. v.

Their W?Jrkmen

StrajiJdin 1(· Co. v.

Their JJ'orkmtn

G11j:ndr1i.aadkar J,

P. K. Sanyal and D. N. Muklwrjee, for the appellants.

Janardan Shaima, for the respondents.

1962. March, 19. The Judgment of the Court was delivered by

GA.JE:'>DRAGADKAR, J.-This appeal by special leavefraises a very short question about the construction or a part of section 2( a) of the Industrial Disputes Act (14of1947)(bereinafter called the Act).

That question arises in this \vav. On the 14th March, 1960, the Government of West Bengal referred for adjudication to the Fourth Industrial Tribunal six items of dispute between four employers and their respective employees. Amongst the employers was the appellant M/s. Serajuddin & Co., p-16, Bentinck Street, Calcutta-I. and tho items of dispute covered claims made by the employees for grade aud scale, Dearness Allowance, House rent, leave and holidays, Provident Fund and Gratuity, and condition of service. It appears that all tht'l workmen employed in the tbreo other industrial concerns filed affidavits before the Tribunal intimating to it that they did not want to proceed with tbe case because the dispute between them and their respective employers had been settled. That is bow the only dispute which waR loft before tho Tribunal for its adjudication was tho dispute between the appellant and its workmen.

On behalf of the appellant, a preliminary objection was rais<ld against the validity of the reference itself. It was urged that under s.2(a), tho appropriate Government which could make a valid reference in relation to the present dispute between the parties was the Central Government and not the State Govt. of West Bengal and so, tho reference made by the latter Government was unauthorised and incompetent and the Tribunal bad, thereforo no jurisdiction to deal with it.

Thi R

objection has been over.ruled by the Tribunal and the case has been set down for hea.ring on the merits. It is against this finding that the a ppel

!ant has come t.o this Court by special leave and so the only point which has been raised by Mr.

Sanyal on behalf of the appellant is that the appropriate Government under s. 2(a) '.is the Central Government and not the State Government of West Bengal.

Before dealing with this point, it is necessary to refer to the relevant and material facts in regard to the work which is carried on by the workmen at the appellant's office.

The appellant's office at Calcutta generally manages the work of the mines and looks after the sale of its mine products. The mining operations of the appellant are, however, carried on the State of Orissa, under a lease executed in favour of the appellant by the said State.

These operations. relate to the work of chromite and manganese. The function of the Calcutta office is merely to exercise general control over the mining operations and look after the sale of the minerals produced in the said mines. It appears that the staff engaged in the Head Office at Calcutta can be transferred to the office in Orissa where the mines are situated. For the purpose of exercising direct supervisory control over the mining operabions, the appellant employs staff at the site of the mines.

Mr. Sanyal contends that the Head Office of the appellant at Calcutta being an integral pl)>rt of the mine, any industrial dispute between the said Office and its employees .is an industrial dispute concerning a mine under s. 2(a)(i), and so the appropriate Government must be the Central Government and not the State Government.

Section 2( a) ( i) provides, inter aila, that unlesA there is anything repugnant in the subject or context, "appropriate Government" means - in relation to an industrial dispute concerning a mine tqe ·

Serajuddin Co. v.

Their Workmen

Gajendr6gadkar J.

Snajuddi" d.• Cn.

Tlvir lfor!mtr1

Gajrndragod/r.Gr J.

938 SUPREME COURT REPORTS [19!i2) S"GPP.

Central GO\ernmont.

The question which ariseB for our decision is whether the present dispute can .

be said to be an industrial dispute concerning a mine.

Mr. Sanyal'a argument is that the word "industry" is wide enough to include the Head Office of a mining company, though it may be situatod away from the place where the mining operations are actually carried on; and it is in the light of the said ddinition 0f the word "industry" contained ins. 2(j) tha1 the words "in relation to

a mine" must be construed. An "industrial dispute" under s. 2(k) m<•ans inter a/ui any dispute between employers and workmrn and the expression "work man" means any person employed in any industry to do any skilled or uuskilled work of the type described by section 2 (H).

Therefore, th1• words "industrial dispute" used in s. 2(a)(i) necessarily take us to the definition of the word "industn"' in s. 2(j) because au industrial dispute takes us to tho definition of the workman and the definition of a workman inevitably brings in the c; Jefinition of "industry" in s. 2(j).

That is how in construing the clause "an indutrial dispute concerning a mine" we cannot iwoid hringing in the wide 1.fofi nition of tho worrl "in<luHtry" in s. ?. (j) and

in the light of the said definition, a mine mut mean the indw; try of mining and that woul<l include the Head Office which exercise~ gineral supervision over the mining operations of a company though it may be bituatcd far away from the place where the en.id ope mt ions arn cunduotod. That, in brief, ia the arg11mP11t urge<l in support of 1he appeal.

On tho other hand, if we look at the definition in s.2(a)(i), it would be noticed that where it was

intended to refer to an industry <is such, the defini tion uses the wurd industry as for instance, it refer" to industrial disputn concerning any such controlled industry as may he spoeified in this behalf by tho Central Government, wheread iii referring to the

dispute in regard to a mine the definition does not refer to an industrial dispute concerning a mining industry but it merely says an industrial dispute concerning a mine. In the context, a mine is referred to just as a banking or an insurance company is referred to or an oil-field or a major port is referred.

Therefore, in construing the words "an industrial dispute" in relation to a mine, we must first determine what a mine means and this .must be done without reference to the broad definition of industry prescribed by section 2(j).

In the absence of any definition of the word "mine" in the Act, we may take into account the dictionary meaning as excavation in earth for metal, coal, salt etc.

The mines Act (:'15 of 1952) also contains a definition of "mine" in s. 2(j).

The said definition shows, inter aUa, that a "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on. It is significant that the definition of mine under s.2(j) excludes an office of a mine which is separately defined by s.2(k) as meaning an office at the surface of the mine concerned so th:it there is no doubt that the office of the mine, though it may bt1 situated at the surface of the mine itself, is not within the definition of mine. This position is further clarified when we consider the definition of the person employed in a mine which is prescribed by s. 2(h).

A person is said to .be employed in a mine who works under appointment by or with the knowledgo of the manager, whether for wages or not, in any mining operation, or in cleaning or oiling any part of any machinery used in or about the mine, or in any other kind of work whatsoever incidental to, or connected with, mining operations. It is obvio11s that the persons employed in the Head Office wherever it may be situated cannot be said to do the mi11ing operation within the first part of the definition. In our opinion, they cannot be said to be ordinarily

Serajuddin & Co. v.

Their .1 orkm1n

Go.jendragadkar J.

Illf2

SuojudJlri d~ C:o.

Tluir JV 0rl:111tn

Oojrndragadkor J.

engaged in any other kind of work which is incidental to or connected with mining operations either.

Th'3 work which is incidental to or connected with mining operations must have some connection with or relation to the mining operations themselves.

The work that is carried on in the Head Office which consists principally of the sale operations really begins after the minerals are ready and all opern.- tions incidental to or connected with them are over.

This position is not disputed. Therefore, there can

be no doubt that under the lines Act, office of tho mine, though sit1mtcd at the surface of tho mine, is

not necessarily a mine and the employees in the said office cannot 1wcessarily be Raid to be 1mrons employed in a mine and so, the regulatory provi sions of the i\IineH Act would not necessarily apply to the offi"" and would not go, crn the conditions of service of the cmployN•s in the said office.

It is in the light of the dictionary meaning of the word "mine" or. in the light. of the definition of the word "min"" co11t11in<•d in the lines Act that we have to rlenirle what an industrial diRputi ecmcerning a min,-, moans unrl11r s.:!(a)(i). Judged in that way, there criu be no <lifficulty in holdi11g thnt nu industrial rlispute het.\\rrn the employees engage< I in the Hea{l Office at Cakut, tn and t.hn employer iR not an industri:il dispute '1onc!'rning a mine. The Head Offico is not. a mine and SP, an industrial disput<•

raiRed by the <!mployoes c11gagod in the Head Office is not an inrlustrial dispute coneerning 11 mine.

It is, however, urg<'d by ~Tr. Sunyal on hehalf of the appellant that a mining l"ase unrler tho l\Iines and Mi11orals (Regulation and Development) Act (53 of l 048) means a lease granted for tho purpose of searching for, winning, working, getting making mcrchant:iblc, carrying away or dis1osing of minerals or for purposes connected therewith, and includes an exploring or 11. prospecting license. This Act 4as been substantially amended in 1957. But_ for

., t

the purpose of the argument urged on the definition of the "mining lease" contained in s.3( d), it is not necess&ry to refer to the subsequent amendments made in the Act or in the said definition itself. The argument is that a mining lease contains a provision which enables the lessee to carry away or dispose of the minerals and so, the process of disposal of the minerals being covered by the mining lease must be held to be integrally connected with the mining operations and since sales of minerals are looked after in the Head Office, the Head Office itself is a part of the mine. In our opinion, there is no substance in this argument. The purpose of granting a mining lease obviously is to enable the

Jessee to search for and win minerals and make them merchantable. The said purpose must necessarily include the right of the lessee to carry a way the minerals and to dispose of them in the market. But the rights conferred on the lessee under a mining lea8e can have no direct bearing on the question of the construction of s. 2(a) with which we are concerned. As we have already pointed out, in the absence of a definition of the word "mine" in the Act itself, we have to take either the dictionary meaning of the word or the definition of the word "mine" in the Mines Act. The rights conferred on the lessee in whose favour a mining lease is executed can he of no assistance in interpreting the word "mine" in section 2(a)(i).

Therefore, we are satisfied that the Tribunal was right in holding that the present dispute between the appellant and its employees at its Head Office at Calcutta is not a dispute in relation to a mine.

On general considerations also, the conclusion of the Tribunal appears to be right. The Central Government would be interested in industrial disputes in relation to a mine and so, in regard to such disputes, the Central Government is made the appropriate Government by s.(2)(a). In this con- .

nection, it would not be unreasonable to assume

ScrojuJdin &: Co.

•• Their Worm~A

Gajendragodkar J.

Snajucldin &: Co.

v. l"hth Workmrn

that the Central Government would be int(lrested in industrial disputes relating to mines as defined by the mines Act. 'fhe relevant provisions of the mines Act are intencicd to regulate labour in mine~ and as tho scheme of the Act showH, several provisions havo been m11.de by the Act fur t.he health and safety of the persoIJs working in the mines and provisions have also een made for hours and limitation of employment in that behalf. If the scheme of the Act shows that office of the mine is outside the purview of the Act and the employees engaged in the office would, therefore, not ordinarily be governed by tho major provisions of the Act, it would not be unreasonable to hold that an industrial dispute between such employees of the office of the mine and the omµloyer iH not a dispute in which the Central Government would be interested.

It may be that some of the work done in the office of the mine situated at the surface of the mine may be incidental to or connected ith the mining operations, al!, e.g., keeping muster roll of workmen or payment register maintained for them. Clerks engaged in such type of work may be said to be persons omployed in a mine; but the work in the Hoad Office with which we are directly concerned in this a.ppeal is wholly unconnected with mining operatiom.

All industrial dispuw, s which are outside s. 2(a)(i) are the eo11cern of the St.ato Government under section :l(a)( ii); in othor words, the genera.I rule is that an industrial dispute arising between a employer and his employ<'es would be ruforred for adjudication by the State Government, except in cases falling under section 2(a)(i); and so it is t.hc ext.out of one of the exceptions mentioned ins. 2(a)(i) that we have t<! detorminc in the prc- Ment case. In determining the oxtent of the said exooption, it would not be irrelevant to bear in mind the scope nf the provisions of the Mines Act itself. That is why we think the fact that an office of a mine is outside the definition of a mine is of

some assistance in interpreting the word "mine" under section 2(a)(i).

Serajuddin &:: Co •.

•• T!ieir Workmen We must, therefore, hold that the Tribunal was right in coming to the conclusion that the reference by the State Govemment of West Bengal in the present case was valid.

The appeal accordingly fails and is dismissed with costs,

Gajtndragodk11r J.

Appeal dismissed.

THE STATE OF KERALA

NARAYAN! AMMA KAMALA DEVI

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

RAGHUBAR DAYAL, JJ.)

Criminal Trial-Conviction-Death of accused-Revision ta High Court, after the death of the accused if maintainable- Appellate and Revisianal jurisdiction-Distinction between- Cade of Criminal Procedure, 1898 (Act V of 1898), ss. 481, 439.

One N, a cashier of a bank, was convicted of an offence under s. 381 of the Indian Penal Code on a charge of theft of a certain amount belonging to the Bank and was convicted to one year's rigorous imprisonment.

His appeal to the Sessions Court was unsuccessful.

On that very date within few hours after the pronouncement of the judgment by the

Sessions Court he died. A revision petition was filed in the High Court by his wife and his fwo minor sons under s. 439 of the Code of Criminal Procedure.

The High Court of Kerala set aside the conviction of the deceased accused. The

State of Kerala came up in an appeal to the Supreme Court by a certificate granted by the High Court.

The question is whether an application for revision under s. 439 of the Code

of Criminal Procedure could be entertained by the High Court after the death of the accused person against whom the order was made.

Held, that in a proper case the High Court can exercise its power of revision of an order made against an accused person even after hi• death, and the High C@urt was right in

March 19.

S. SERAJUDDIN & CO.

THEIR WORKMEN

ss. 2(a), 2(a)(i), 2(j), 2(k)

s. 2(a)

s. 2(a)(i)

s. 2(j)

Mines Act

s. 2(a)

s. 2(a)(ii)

s. 2(a)(i)

s. 2(a)

Mines Act

s. 2(a)(l)

section 2( a)

Industrial Disputes Act

s. 2(a)

s. 2(a)(i)

Section 2( a)

s. 2(k)

section 2

s. 2(a)(i)

s. 2(j)

s. 2(j)

section 2(j)

mines Act

s. 2(j)

s. 2(h)

s.3( d)

s. 2(a)

Mines Act

section 2(a)(i)

mines Act

mines Act

s. 2(a)(i)

section 2(a)(i)

Mines Act

section 2(a)(i)

ss. 481, 439

s. 381

Indian Penal Code

s. 439

Code of Criminal Procedure

s. 439


3 s.c.R.

SUPREME COURT REPORTS 943

some assistance in interpreting the word "mine" under section 2(a)(i).

Serajuddin &:: Co •.

•• T!ieir Workmen We must, therefore, hold that the Tribunal was right in coming to the conclusion that the reference by the State Govemment of West Bengal in the present case was valid.

The appeal accordingly fails and is dismissed with costs,

Gajtndragodk11r J.

Appeal dismissed.

THE STATE OF KERALA

NARAYAN! AMMA KAMALA DEVI

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

RAGHUBAR DAYAL, JJ.)

Criminal Trial-Conviction-Death of accused-Revision ta High Court, after the death of the accused if maintainable- Appellate and Revisianal jurisdiction-Distinction between- Cade of Criminal Procedure, 1898 (Act V of 1898), ss. 481, 439.

One N, a cashier of a bank, was convicted of an offence under s. 381 of the Indian Penal Code on a charge of theft of a certain amount belonging to the Bank and was convicted to one year's rigorous imprisonment.

His appeal to the Sessions Court was unsuccessful.

On that very date within few hours after the pronouncement of the judgment by the

Sessions Court he died. A revision petition was filed in the High Court by his wife and his fwo minor sons under s. 439 of the Code of Criminal Procedure.

The High Court of Kerala set aside the conviction of the deceased accused. The

State of Kerala came up in an appeal to the Supreme Court by a certificate granted by the High Court.

The question is whether an application for revision under s. 439 of the Code

of Criminal Procedure could be entertained by the High Court after the death of the accused person against whom the order was made.

Held, that in a proper case the High Court can exercise its power of revision of an order made against an accused person even after hi• death, and the High C@urt was right in

March 19.

l:MZ holding that the application for re.vision could be entertained under s. 439 of the Code of Criminal Procedure.

The State of Ktraia

•· Held, with regard to the revisional jurisdiction of the Nara; a11i Ammti High Court there is no prc)\ision siniilar to s. 431 of the Co<lc, J; amala Drri ior is there any provision \\hthcr a rc\isional application ra11 Ue or l:annot be made in.respect of an order of conviction when the convicted person is dead.

The opening words of s. 4:J9 of the Code, produce the result that revisional jurisdiction can be C)\ercised by the High Court by being moved either by the convicted person himself or by any other person or sue u1otu, on the basis of its own knowledge derived from any source whatsoever without being moved by any person at all.

All that is necessary to bring the High Court's powers of revision into operation is such inforn1ation a:-> n1akes the High Court think that an order made by a Subordinate Court is fit for the exercise of its po\vers of revision.

DosJ.

1, hc important <lictinction bct\\'Ccn ss. 1-31 and 439 is that while the appellate jurisdictio11 can be exercised only after an appeal is filed by the convicted person or against an order of acquittal under ss. 41 I or 417, there is no such limita

tion on the court's revisional jurisdiction.

Impcratrix v. Dongaji Andaji, (1878) I.L.R. llom. 564 referred to.

l'ranab Kumar Mitra v .. State of .lresl Bengal, (1959) Supp. 1 S.C.R. 63, relied on.

Cu.u.!INAL APPELLATE Jumsn1cTrn~ : Criminal Appeal No. 55 of 1961.

Appeal from the judgment and order dated October 5, 1960, of the Kerala High Court in Criminal Revision Petition No. :rn7 of 1959.

G. S. Pathak and V. A. Seyid Muhammad, for tho appellant.

C. K. Siva.sankara Panickar, R. Malu:ilingier and M. R. K. Pillai, for the respondents.

1962. l'vlaroh 19.

The Judgment of tho Court

WWI delivered by

DAS GUl'TA, J .-Can an application for revision under e.439 of the Criminal Procedure Code be entertained by the High Court after the death of

the accused person agajnst whom the order was made ? That is the important question raised in this appeal.

Gobindankutty Nair, a Cashier of the Trivandrum Branch of the State Bank of India was convicted by the Sub-Divisional Magistrate, Trivandrum, of an offence under section 381 0£ the Indian Penal Code on a charge of theft of an amount of Bs. 10,000/- belonging to the Bank. A Fiat Car which has been purchased by the' accused was seized by the police duringthe investigation of the .case and it was alleged that this had been purchased with the money stolen by the accused.

The car was sold under the orders of the Court and the sale proceeds deposited in Court. The Magistrate sentenced the accused to ri1wrous imprisonment for one year and also ordered that the sale proceeds of the car would be withdrawn by the Head Cashier of the Bank for appropriation towards the amount proved to have been stolen by the

accused.·

The accused's appeal to the Sessions Court was unsuccessful.

Though no separate order W.'J.S made by the Sessions Court in respect of tli e Magistrate's order for withdrawal of the sale proceeds of the car by the Head Cashier, that order was also by implication affirmed bv him. The Sessions Court delivered judgment on August 13, 1959, and on that very date within a few hours of the pronouncement of judgment the accused Gobindankutty Nair died. On November 11, 1959, the widow of the accued and his two minor sons presented an application under s.439 in the High Court of Judicature of Kerala against this judgment of the Sessions Court.

They prayed that the order of conviction and sentence passed against the accused and also the order as regards the sale proceeds of the mer &hould be set aside. The High Court rejected a preliminary contention raised on behalf or the State of Kerala that the accused

1Y62

The State of Kera/a

Jlaravani Amma K a1llo.la Dvi

DasJ.

J9fi2

The Stare of lie1a/rr

• v.

J{taJani Amm J

Kat)ia/a Dti i

Das J.

Gobindankutty Xair having died, this application for revision was not maintainabl". It then considered the application on its merits and set aside the convietion oft.he accust'd and also the order dirt•cting the payment of the sale proci>eds of the motor car to the Head Cashier. The High Court however granted a certificate under Art. 134(I)(c) of the Constitution that this was a fit caso for appeal to this Court and on hat certificate this appeal has been preferred by the State of Kerala.

The principal point urged in Rupport of the appeal is that after the death of the accused no revision application lay to the High Court againt the order of the Sef!Bion~ Court maintaining his conviction.

Learned Counsel for the appellant has based his argument in support of this contention on the principle cmbodiod in the maxim actio persanali,.~ moritur cum. persrma and has urgf'd that except where the stn, tute has stepped in to make any special provisions no proceedings either against the accused or on behalf of the accucd can be entertained or continued in t.he Court in respect of any crime said to have been committ.ed by a person after the death of such person. He has dra.wn our attention to Salmond's obAOITationA in his "Jurisprudence" Ele"Ventb Edition, page 442 : That criminal responsibility muAt dit• witb wrong

door himself, and has urged that as all criminal proceedings 1tre personal actions, proceedins in connection with a crime can, in the absence of any statutory provision, neither be comm<'nced or continued against an accused person or on his bPhalfunlcss hn is. in existence. It may be noted however tha.t Salmond himself goes on to say in discusing the matter that the modern opinion rejects the conclusion based on the received ma.xim actio personalis morit11r cum persona, that all actions for penal redress mut be brought against a living offender and must die with him. "'hat is more important to notice is th1't we are not concerned here with the question of

criminal proceedings being continued or commenced against a person but with the question whether when a criminal proceeding has ended unfavourably to an accuaed person, an action can be take~ in the

Court in respect thereof. On this question the common law maxim is of little, if any, use and the answer to the question must be found in other provisions of law.

The Criminal Procedure Code gives a right of appeal to the convicted person in certain cases. if, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convicted person, he dies, is provided for in s. 4:ll of the

Criminal Procedure Code. That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appella, nt. The High .Court or the Court of Sessions cannot therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine. ·

As regards the revisional jurisdiction of the High Court there is no provision similar to s. 431.

Nor is there any provision whether a revisional application can be or cannot be made in respect of an order of conviction when the convicted person is dead. We cannot but notice the important distinction that while the appellate jurisdiction can be exercised only after an appeal is filed by the convicted person -or against an order of acquittal under s. 411 ors. 417, there is no such limitation on the Court's revisional jurisdiction. ·

The opening words of s. 439 of the Criminal Procedure Code, viz., "in the ca.se of any proceedings the record of which ha3 been called for by itself or which has been reported for orders or

Tiu Stata of Kuala •• • Narayon: Amma

Kamila Devi

DasJ.

Tht .Slate Qj Kuala

v, JVara1a11i Amina

K11malr:: Dt1:i

DasJ.

which otherwise come8 to its knowledge", produce the result that rcvisional jurisdiction can be exercised hy the High Court by being moved either by the convicted person himself or by any other person or suo morn, on tho basi8 of its own knowledge deriver! from any source whatsoever without being moved by any person at all.

All that is necessary to bring tho High Court's powers of revision into operation is, such information as makes the High Court think that an order made by a Subordinate Court. is fit for the exercise of its powers of revision.

But, says llfr.

Pathak, look at the words that follow in this section stating what powers can he cxerdscd.

Thest\ words, viz., tho High Court may in its discretion exercise any of the powers conferred on a court of appeal by es. 42a, 426, 427, and 128 ........ make it clear that a High Court's power of nwision docs not extend to anything more than what the court of appeal can do. When therefore a court of appeal cannot give any rolief in respect of. an order of conviction and sentence of fine or anv other order made against an accused person after the accused person is dead, how cn, n the High Conrt in revision give any such relief a.fter the accuRed person's death. This argument confuses the definition of the extent of power with the conditions for the exercise of the power.

The conditions for the exercise of the power of revision are laid down in the opening clauses of s. 439 which has ju8t bel'n set out above, while the next clause thn, t the High Court may exercise any of the powers conferred on a court of appeal undor s. 4:!3, s. 426, s. 427 and s. 428 ......... define the extent of the power. The fact that the extent of the power of a court in rnvision docs not extend-except as regards the power of the courts by s. 4:39 to enhancement of the sentenm to more than what the appellate court's po1rnr, does not effect tho position that while the conditions for the exercise of the powers of courts of appeal is

that an appeal must be preferred by the convicted person, that condition is conspicuous by its absence where the conditions of the exercise of the powers of revision are laid down in s. 439.

Tlte State of Kera/a v.

Narayani A.mma

Kamala Devi It appears to us therefore that in a. proper Das J. case the High Court can exercise its power of revision of an order made against an accused person 11ven after his death.

This view was expressed by the Bombay High Court in I mperatrix v. DongaJ°i Andaji\ 1).

The direct question in that case was whether the appeal lodged by a convicted person abates on his death.

Melvill J. and Kem ball J. differed on this question.

Melvill J. being of the opinion that on the death of the appellant the appeal abated while Kemball J. came to a contrary conclusion. Chief Justice Westropp, to whom the case was referred agreed with Melvill J. that the appeal abated. All the three !ear- , ned Judges appear to have however been of opinion that the death of convicted person would be no impediment in the way of the court's exercising its power of revision. Melvill J. observed :-

"In a recent case the Chief Justice and myself did consider the proceedings in a criminal case after the death of the convict.

But the proceedings in that case had been called for under s. 297, and we were sitting as a Court of Revision. No person has any right to be heard before the High Court in the exercise of its powers of revision. The Court is.not supposed to be _acting on the application of the convict, hut in the exercise of its power of supervision over subordinate courts, and with a view to correcting their errors. I think that we should have power to interfere in the present case, as a Court of Revision, if we saw any error, in law, invalidating the conviction, or if the sentence were too severs

(1) (1878) I.L.R. (Born.) 564.

Tiu Stott of Keralo

N., ayani Ammo

KunaU 1. tvi

DOJJ.

for the offence which has been he l<l by the Sessions Court to be proved. But I can Ree no error in law, nor is the sentence excessive. if the facts be as th11 Sessions Court has found thorn. ?le cannot therefore exercise our powers of revision ......... "

Kemball J. has also observed :- "I have no doubt that, as a Court of Reviaion, wo could dispose of this caso " Chief Justice Wcstropp, after expressing his opinion that the appeal has abated, went on to observe : -

"I think that the High Court lms, howcvm-, the right to call for the record, and make such order thereon as it may deem to ht> due to justice. I do not understand that my oµiniu11 is required by my brothers i\lelvill and Komball on the question whether such a case

has been made as to render it desirable that the record should be brought up." It is thus clear thRt though apparently the High Court's powers of revisions were not exercised in that case, all the three judges agreed in thinking that in a proper case this could and should Le done even after the death of the convicted person.

This case was considered Ly this Court in Pranab Kumar Mitra v. 'l'he Susie of IVe..st JJenyal (1).

The question in Pranab Kumar Mitra's case was whether where the Pccuse<l has been sentenced to a fine and imprisonment till the rising of the Court and the convicted persorr ha<l served out his nominal sentence of imprisonment and died when his application in revision was pen<liug before the High Court, the High Court could exercise its powers uf revision in respect of the question of conviction and sentence. It was held that such powers could be

(1) (1959) Supp. 1 s.c.R. 63.

3 S.(\R.

SUPREM~ COURT REPOH.TS

!J51

exercised and could not be limited on the analogy of s. 431 of the Code which did not apply to a revision case. After referring to the decision of the Bombay High Oourtin Dongaji Andaji's Case (1) and the distinction drawn bJ the learned Judges therein between the High Court's power to deal . with an appeal on the death of a convicted person and its power to exercise revisional jurisdiction even after such death, this Court went un to observe at p. 70 of the Report :-

"We may assume that the Legislature was aware of the decision of the Bombay High Court, referred to above, when it enacted s. 431 for the first time in the Code of 1882.

If the Legislature intended that an application in revision pending in a High Court, should be dealt with on the oame footing as a pending appeal it would have enacted accordingly.

But in the absence of any such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched-to be exercised according to the exigencies of each case." It appears to us that though in Pranab Kumars Case (') thIB Court was directly concerned with the effect of a convicted person's death on a pending revisional application, the judgment also expresses the view that a revisional application could be entertained even after the deat'h of the convicted person. On this authority and also for the reasons discussed earlier, we have come to the conclusion that the High Court was right in holding that the application for revision could be entertained under s. 439 of the Code of Criminal Procedure.

We see no reason also to interfere with the order made by the High Court in exercise of such power of revision.

The appeal is accordingly dismissed.

Appe, al dismissed.

(I) ( 1878) I.L.R. (Bom.) 564.

(2) (1959) Supp. 1 s.c.R.63.

19(}2

The State nf Kerala

Noraponi Amma

Kafflala Devi

DosJ.

section 2(a)(i)

THE STATE OF KERALA

NARAYAN! AMMA KAMALA DEVI

L. KAPUR

K. C. DAs GUPTA

RAGHUBAR DAYAL, JJ.

ss. 481, 439

s. 381

Indian Penal Code

s. 439

Code of Criminal Procedure

s. 439

s. 439

Code of Criminal Procedure

s. 431

s. 4

ss. 1

ss. 41

section 381

Indian Penal Code

Art. 134(I)(c)

s. 4

s. 431

s. 411

s. 439

s. 439

s. 4

s. 426

s. 427

s. 428

s. 4

s. 439

s. 297

s. 431

s. 431

s. 439

Code of Criminal Procedure