8 S.C.R.

SUPREME COURT REPORTS 133

Val/ace and Co.(') was not intended to, and did not lay Jown that in every case, cancellation of an agency resulted Gillandm A.rb1 in loss of a source of revenue or that amounts paid to cornthnot :nd Co. pensate for loss of agency must be regarded as capital loss. ciT.

On a careful consideration of all the circumstances we agree with the High Court that cancellation of the comracr of agency did not affect the profit-making structure of the appellant, nor did it iinvolve a loss of an enduring trading

asset; it Iljerely deprived the appellant of a trading avenue, leaving him free to devote his energies after the cancellation to carry on the rest of the business, and to replace the contract lost by a similar cpntract. The compensation paid, therefore, d.id not represent 'the price paid for loss of a capital asset.

We therefore dismiss the appeals with costs.

Appeal dismissed.

MASALTI

STATE OF U. P.

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO. K. c. DAS

GUPTA AND RAGHUBAR DAYAL, JJ)

Criminal Appeal-Appeal by special leave-Scope-Murders committed by village faction constituting unlawful assembly-Sentence of death, if and when can be pas.Jed-Apprecilztion of evidence-T11t -Validity Prosecution-It must examine all witnesses cited.

Forty persons belonging to a village faction and constituting an unlawful assembly were put up on trial before the Ad'ditional Sessions lodge under s. 302 read with s. 149 of the Indiao Penal Code and other sections thereof for murdering 5 persons of the other faotion with gun1.

The trial lodge found 35 of them illy and sentenced 10 of them. who carried fire arms, to death and the rest to imprisonment for life. Three appeals were preferred by the convicted persons to the High Court anll !he sentences of death came up for confirmation under s. 374 of the

(I) L.R. 59 I.A. 206,

Shllh /.

lPM

May,4

Masalti ...

State of U.P.

Code of Criminal Procedure. The High Court acquitted 7 of the appellants and, concurring with the findings of the :rial court, dismissed tbe appeals of the rest. It confirmed the sentences of death passed on tbe 10 accused persons. The appeals to this Court were preferred by thoso 10 and 6 others by special leave.

HEco:-(i) In criminal appeals under Art. 136 of the Constitution involving sentences of death it would be improper to refuse to consider relevant pleas of fact or law on the ground that they had not been taken before the High Court. When any such point had actueUy been urged and not considered by the High Court, the party urging it was entitled as a matter of right to obtain a cfecision from this Court.

Evea otllerwise no hard and fast rule can be laid down prohibiting such pleas being raisetl in such appeals.

(ii) It would be unsound to lay down as a general rule that ever}' witness clted by the prosecution must be examined by it even though ltis evidence was not very material or he was known to have been v1on over or terrorised.

(iii) Evidence of a \\'itness could not be discarded only on the ground that Qe was a partisan or intereste1 witness, particularly in cases of

murdr c:ommitteC by a village faction, such mechanical rejection would invariably lea'd to failure of justice.

(iv) It was not improper for a criminal court having a large number of C1ffenders and victims to deal with to adopt the test that the conviction of any particular accused could be sustained only if a particular number of witnesses gave a consistent account against him. Such a test, even though mechanical, was not unreasonable:.

(v) Punishment prescribed by s. 149 of the Indian Penal Code was in a sense vicarious and that section does not necessarily require that the offence must have been actually committed by every member of the unlawful. assfmOly. The observations of this Court in Baladin v. State of U .P. had to be read in the context of that case and coufd not be treated as laying down an unqualified proposition of law.

Baladin v. State of Uttar Pradesh, A.I.R. 1958 S.C. 181. explained.

(vi) It was not eorrect to say that if a person was found guilty of murder under s. 302/149 of the lntlian Penal Codct and it was not show• that he himself bad committed the muI'der, no sentence of death coulti be inflicted on him.

Dalip Singh v. State of I'1111iab, [1954] S.C.R. 145, distinguished.

(vii) There was no error in the exercise of their discretion by the courts belo\V in the present ca"se in making a distinction between the ten persons who carried fire arms and were sentenced to death and the others, 'ovho did not carry fire and were sentenced to imprisonment for life, under a common char$• unHer ss. 302/149.

(viii) Regard being had to the 'circumstances of the present case, the ends of justice would be properly served if , the sentences of death passed on the three accused persons aged 18. 23 and 24, who had joined the unlawful assembly under pressure of their elders were modifie'd to life sentences.

CRIMINAL APPELLATE JURISDICTiON: Criminal Appeals Nos. 30-34 of 1964.

Appeals by special leave from the judgment and order dated October 22, 1963 of the Allakbad High Court in Criminal Appeals Nos. 77 and 78 of 1963.

M. S. K. Sastri, for the appellant (in Cr. A. No. 30 of 1964).

I. M. Lall and Ganpat Rai, for the appellants (in Cr.

A. No. 31 of 1964).

V. S. Snwhney, for the appeliants (in Cr. A. Nos. 32-34/64).

0. P. Rana. Atiqur Rehman and C. P. Lal, for the respondents.

May, 4. l 964.

TI1e Judgment of the Court was delivered oy

i\!a1alti

r•I• of U.P.

GAJI:HDRAGADKAR, C.

J. - Forty persons were Gai<ndra}ladkar charged with having committed several offences the

c. I. principal one of which wa3 under section 302 read with s. 149 of the Indian Penal Code.

The case ag1inst these persons was tried bv the first Additional Sessiom Judge at Jhansi.

The other charges framed against them were under s. 307/149, 201/149 & 511, 395, 396, 149 & 449, I. P. C.

The learned trial Judge held that r.one of the charges had been proved a1rninst five of the accused persons.

He .1lso found that the charge~ under sections 395 & 396 were not proved against any of them. In regard to the remaining charges, he found that 35 out of 40 accused persons were guilty.

For the major offence charged under s. 302/149, he sentenced 10 accused persons to death and 25 others to imprisonment for life.

He also directed that the said accused persons should undergo different terms of imprisonment for the remaining offences; but for the purpose of the present appeals, it is unnecessary to refer to them.

MIUllbl

'f.

St•I• of U .P.

Gaitndragll<ika

C. I.

After the learned trial Judge pronounced his judgment on the 31st December. 1962, the 35 accused persons who had been convicted by him preferred three appeals between them before the Allahabad High Court, whereas the sentences of death imposed dn I 0 accused persons by the learned trial Judge were submitted to the said High Court for confirmation.

The High Court has held that 7 out of the 35 appellants before it were not proved to have committed any of the offences, and so, they were ordered to be acquitted.

In regard to the remaining 28 appellants, the High Court bas confirmed the orders of conviction and sentence imposed on them by the trial Court.

In the result, the reference made to the High Court for confirmation of the sentences of death imposed on the 10 accused persons by the trial Court was allowed.

It is against this decision of the High Court that the present five appeals have been brought to this Court by special leave, and the number of accused persons who have brought these appeals before us is 16.

Befo:e dealing with the points raised in tlrese appeals, it is necessary to set out very briefly the relevant facts on which the prosecution case against the appellants and their co-accused substantially rests.

The incident which has given rise to the present criminal proceedings took place on the 29th November, 1961 in village Bilati Khet in the district of Jhansi at about 8 a.m.

It is clear that this village is cursed with keen rivalry and enmity between two factions.

One group was led by Gayadin who and four other members of his family were murdered on the said date.

All these murders were committed, according to the prosecution, by the members of the rival faction amongst whom are included the present appellants before us.

Criminal proceedings have continued between the parties for several years almost without interruption.

The rival group was led by Laxmi Prasad alias Laxmi Narain who is one of the appellants in this Court.

In the last election of the village Panchayat Laxmi Prasad succeeded as Pradhan of the village and defeated the candidate set up by Gayadin.

On the 28th November, 1961, a boundary dispute led to an incident between the members of the two groups. This dispute related to two fields one of which belonged to Gayadin and

M""'ltl

the other to Laxmi Prasad.

Attempts were made to settle this dispute by arbitration, but they failed.

It appears that Laxmi Prasad and the members of his group did not agree to submit to any arbitration and they left the meeting called for the purpose threatening that they would see that the matter in dispute between them was settled the next day.

State of U .P.

is on this grim note that the incident of the 28th November ended.

On 'the 29th November in the e3rly morning, Bahoran, one of the sons of Gayadin, had gone out to ease himself.

He was then carrying a pharsa.

In the field he met Laxmi Prasad who attacked him with a Jathi.

Bahoran retaliated this attack with his own pharsa and in the scuffle the nose of Laxmi Prasad was injured and it began to bleed; in fact,

Gajendragadkar

C. I.

a part of the nose was actually cut. Infuriated by this injury, Laxmi Prasad went to his house and collected the whole crowd belonging to his faction.

Bahoran eased himself and returned to his house.

Soon thereafter he washed his hands and went to the north where his father, brothers and "!her relations were warming themselves by fire.

At that ~· 1ge, Ram Prasad and Dayaram rushed to the scene anrl infmmed them that Laxmi Prasad and his companions were all armed with guns, spears, swords, gandasas and lathis and were proceeding to the house of Gayadin determined to kill all the members of Gayadin's family.

On receiving this alarming infonnation, Gayadin and his friends and relatives thought of proceeding towards the house of Gayadin.

About that time, Lxmi Prasad and bis companions reached near the house of Gayadin whereon Laxmi Prasad fired a gun.

Bhagwati was carrying a large quantity of cartridges in the folds of his dhoti .and was instigating Laxmi Prasad to fire at everyone sitting near the fire to the north of the house and to extenninate the family of Gayadin.

On hearing this, everyone of the group sitting near the fire rushed into the house and closed the doors. 'J)ie assailants then broke open the doors of the house and entered the seh.an of Gayadin.

Inside the house the assailants pursued Gayadin on the upper storey and killed him there.

Brindaban, Radha Saran and Dayaram were hiding in different rooms of the house; the doors of these rooms

Mcualti ...

Stall of U.P.

Gajendragadkar

e.1.

were broken open and all the three of them were shot dead.

Bahoran and Shiroman Singh, both sons of Gayadin, escaped through the tiled roof into the cattleshed of Harbans which is situated towards the south-east of Gayadin's house.

Shiroman concealed himself in the godown whiie Bahoran concealed himself in the room in the upper storey where chaff had been .stored.

After killing Gayadin, Brindaban, Radha Saran and Dayaram, the assailants mercilessly dragged the bodies of the victims out of the house of Gayadin and began their search for Bahoran and other male inmates of the house.

When the dead bodies were thus being dragged, Gori Dulaiya wife of Gayadin rushed after the assailants and implored them not to take the dead bodies away.

One of the assailants, however, struck her with a stick and she was forced to retrace her steps. The dead bodies were then dragged towards the east of the house.

On reaching 'the cattleshed of Harbans, the assailants broke open th~

outer door of the house and entered into it.

They then injured Harbans and managed to discover Shiroman Singo who was promptly killed.

The five dead bodies were then taken into the field of Bhagwati.

In the field. two big riles of cowdung cakes were prepared.

On one of the piles the bodies of Gayadin, Brindaban, Radha Saran and Dayaram were placed and on the other Shiroman Singh's body was put.

Kerosene oil was sprinkled on the bodies and fire was sei: to them.

That, in brief, is the story of the gruesome murders which have given rise to the present proceedings.

When the assailants had left the house of Gayadin dragging the dead bodies with them. Bahoran came out of his hiding place and rushed to the Police Station Krichh and lodged the First Information Report at about 11 o'clock.

In this report, he gave all the material details in regard to the commission of the offence and named the 35 persons as the assailants.

In fact, the first committal order passed on the 31st March, 1962 in the present proceedings referred to 35 assailants. Later. five more persons were added to the list of assailants by the committal order made on the 14th May, 1962.

On.receiving the first information report, the police party rushed to the scene of occurrence on cycles and they put 'off the burning fire and took out the half burnt

bodies of the five murdered persons.

These bodies were identified and were sent for post mortem examination. The injured persons Harbans, Ram Prasad, Mansa Ram and Smt.

Gori Dulaiya were sent for medical examination.

Post-mortem examination was then held on the dead bodies and statements of witnesses were recorded in the course of investigation.

That 1ed to the several charges framed against 40 persons and ultimately their trial in the Court of the First Additional Sessions Judge at Jhansi.

The case for the prosecution is sought to be established by the testimony of 12 eye-witnesses.

All the accused persons denied that they had anything to do with the offences charged.

Their main contention was that a false case h:l<l been made against them and it was attempted to be supported by evidence of witnesses who were hostile to them and who had no regard for truth.

The trial Judge, in substance. rejected the defence plea and .accepted the prosecution evidence. except in the case of five accused persons. In appeal, several contentions were raised on behalf of the appellants, but they were rejected and h1 the result, the findings of the trial Court against the appellants were confirmed.

The High Court, however. reversed the conclusion of the trial Court in respect of 7 accused persons with whose cases we are not concerned in the present appeals. The 12 persons who gave direct evidence against the appellants and their co-accused persons are: Bahoran P.W. 1; Basanti Lal P.W.2: Rameshwar Dayal P.W.3; Prabhu Dayal P.W.5; P.ancham P.W.6: Swarup Singh P.W.14; Kasturi P.W.15: Tha)mr Das P.W.16: Shyamlal P.W.17; Harbans P.W.18; Dropadi P.W.19: and Kishori Lal

P.W.20.

The High Court has critically examined the evidence given by these witnesses and has held that the evidence of Bahoran and Prabhu Day.al may be left out of account as it appeared to the High Court that the said evidence suffered from material infirmities.

The evidence given by the remaining 10 witnesses has, however, been accepted by the High Court as

subtantially true and correct.

In dealing with this oral evidence, the High Court took into account the fact that most of these witnesses beloneed to the faction of Gayadin and must, therdore, be regarded

l'IU

Jltualti

Stal• of U.P

Gajeisdragadkar

C. I.

M01altl

1'.

Stile of £1.P.

Gajendra1adkar

C. I.

as partisan. It also considered another feature which characterised the evidence of all the witnesses and that was that they gave their account of the incident substantiallv in similar terms and did not assign particular parts in resliect of overt acts to any of the assailants except Laxmi Prasad accused No. 1.

The approach adopted by the High Court shows that it decided to confirm the conviction of the accus ed persons against whom four or more witnesses eave a consistent account, and it is by the application of this test that 7 accused, persons have been acquitted.

As to the sentence, the High Court realised that IO persons had been ordered to be hanged and that it could not be said about all of them, except Laxmi Prasad, that they had actually fired a gun and caused the death of any of the five victims. Even so, the High Court held that since they all formed members of the unlawful assembly the common object of which was to exterminate the male members of the family of Gayadin, they were all equally guilty of murder under s.302/149, I.P.C. and it would not, therefore, be unreasonable to impose the penalty of death on such of the as>ailants as were shown to have carried guns in their hands <m that occasion.

Tb.at is how the High Court upheld the orders of conviction passed against 28 persons who had brought their cases before it in appeal and confirmed the sentences of death imposed on 10 of them.

In these appeals, Mr. Sawhney who has addrc; ed the principal argumt before us on behalf of the appellants, has urged that the High Court has failed in discharging its duty properly when it dealt with the appeals brought before it by the appellants and decided to confirm the senrMces of death imposed on 10 of the accused persons.

In support of this argument, Mr. Sawhney has relied upon the deci, ion of this Court in the case of Jumman & Ors. v: The State of Puniab. ( 1) In that case. this Court has emphasised the fact that the mandatory requirement prescribed by s.374 of the Code of Criminal Procedure shows that in dealing v:ith reference for confirmation of death sentence imposed by the

Sessions Judge, the High Court has to consider the entire case for itself before deciding whether the sentence of death

(I) A.I.R. 1957 S.C. 469.

lihould be confirmed or not.

Section 374 provides thl1t 1he sentence of death shall not be executed unless it is ontirmed by the High Court.

In other words, the sentence of death imposed by the Court of Sessions is not effecuve until md

unless it is confirmed by the High Court.

It is only wl:en the High Court confirms the sentence of death that it is capable of execution.

That is why this Court emphaied the solemnity of the proceedings brought before the High Court under s.374, and it pointed out that under s.375, the High Court is given the power to admit additional evidence if it thinks necessary to do so.

Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter fo• itself without being influenced by the conclusions recorded by the Court of Sessions.

The conclusions of the High Court on the merits in such proceedings must be independent, and so, the High Court inevilably has to go into the whole of the evidence, consider all the pros and cons of the cDse nd

satisfy itself that the offence charged under s. 302, I.P.C. is established beyond reasonable doubt and the sentence of. death submitted to it for its confirmation is fully justified.

Mr. Sawhney contends that this essential requirement of s.374 has not been complied with by the High Court when it dealt with the appeals brought before it in the present proceedings.

He also adds that since 10 persons have been ordered to be hanged, that itself is a reason why this Court should examine the evidence for itself and not hold that the appellants are concluded by concurrent findings of fact recorded by the Court below.

We are not impressed by this argument.

It is perfectly true that in a murder trial when an accused person stands charged with the commission of an offence punishable under s.302, he stands the risk oE being subjected to the highest penalty prescribed by the Indian Penal Code; and naturally judicial approach in dealing with such cases has to be cautious, circumspect and careful.

In dealing with such appeals 0r reference proceedings where the question of confirming a death sentence is involved, the High Court has also

Masalti

State of U.J'.

; ajendragadkm'

c. J.

MllMlltl

y, Stat• of U.P. -

to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of de.1th.

All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered before a final decision is reached.

The fact that I 0 persons had been ordered to be hanged by the trial Judge necessarily imposed a more serious and onerous res~ ponsibility on the High Court in dealing with the present appeals.

We have carefully considered the judgment delivered by the High Court in these appeals and we are satisfied that the criticism made by Mr. Sawhney that the High Court did not bestow due care and attention on the points involved in the case, cannot be regarded as wcllfounded.

The judgment shows that the arguments which were urged on behalf of the appellants, have been carefully examined, the evidence given by the respective witnesses has been accurately summarised and the infirmities in the said evidence closely scrutinised.

The relevance of the argument of the admitted enmity between the two factions. of the village bas been taken into account and the common features of the evidence tendered by the witnesses have not hccn overlooked.

After taking into account all the points which were urged before the High Court the High Court adopted what it thought to be a safe test before acting on direct evidence. It has held that unless at least four witnesses are shown to have given a consistent account .1gainst any of the appellants, the case against them cannot be said to have been proved beyond reasonable doubt.

Having regard to the manner in which the High Court has dealt with the appeals brought before it, we .1fe not prepared to hold that the general criticism made by Mr. Sawhney against the judgment of the High Court can be accepted.

In this connection, Mr. Sawhney strongly relied on the fact that the High Court has not considered one important point in favour of the defence, and that is in relation to the failure of the prosecution to tender three material :witnesses whose names had been shown in the witness-list in the calendar sent by the committing Magistrate to the trial Judge.

These witnesses are: Ram Prasad, Mansa Ram and

Rani Dulhan.

It appears that this contention was raised by the defence before the Trial Court and had been rejected by it. The Government counsel appearing for the prosecution had made an application to the trial Court expressing his inability to examine the three witnesses for the reason that Ram Pras.ad and Mansa Ram had been won over by the defence and Rani Dulhan, the widow of one of the victims, was suffering fro~:i such mental shock that she was unable to depose coherently.

After this application was made and granted, the learned trial Judge did not insist upon the prosecution examining the three said witnesses.

Then followed three other applications by the defence (Nos. 247B, 248B and 249B) in which it was urged that the said three witnesses should be examined under s.540, Cr. P.C.

The learned trial Judge rejected these applications, and so, the case concluded without the said three witnesss giving evidence before the trial Court. In rejecting the applications made by the defence, the learned Judge h.1s carefully examined the validity of the defence contention that the evidence given by the said witnesses before the Committing Magistrate showed that they were material' witnesses and the plea raised by them that the absence of their evidence would cause prejudice to the defence, and has held that the evidence which the said three witnesses may give was not essential for a just decision of the case and that it was unreasonable to suggest that the prosecution had an oblique motive in supressing their evidence.

This part of the judgment clearly shows that all relevant aspects of the matter were examined by .the trial Judge before he refused to exercise his powers under s.540, Cr. P.C.

It is obvious th1t this contention was not urged before the High Coun. and so, we find no discussion of the point in the judgment of the High Court.

We are not prepared to accept Mr. Sawhney's argument that eve.n if this point was not raised by the appellants before the High Court, they are entitled to ask us to consider that point having regard to the fact that IO persons have been ordered to be hanged. It may be conceded that if a point of fact which plainly arises on the record, or a point of iaw which is relevant and material and can be argued with-

196#

lll .. al1i .,, Still• of U.P.

Gai•ndragadkar

C. I.

Masalti v.

State of U .P.

GatendragadkRr

c. J.

out any further evidence being taken, was urged before the trial Court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be permissible to the appellants to ask this Court to consider that point in an appeal under Art. 136 of the Constitution; afteral! in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged . before the High Court and had not been considerer! by it, then, of course, the party is entitled as a . matter of right to obtain a decision on those pleas from this Court.

But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Art. 136.

In the present case, however, we are satisfied that there is no substance in the contention which Mr. Sawhney seeks to raise before us.

It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempis are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bonafide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court.

It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised.

In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice under s.540, Cr. P .C. As we have already seen, the defence did not examine these witnesses and the Court, after due deliberation refused to exercise its power under s .540, Cr. ' . '

P.C.

That is one aspect of the matter w!Pch we have to take into account.

The other aspect of the matter is that the trial Court has found that the evidence which these witnesses would have given was not essential for a just decision of the case.

What these witm:.:, ses might have said in the Sessions Court was judged by the tcial Court in the light of their previous statements .already recorded, and that is a finding which is purely one of fact. If this finding was not challenged by the appellants before the High Court, we do not see how they can claim to argue before us now that the said finding is erroneous.

Besides, so far as Rani Dulhan is concerned, it seems to us utterly unreasonable to insist that before permitting the prosecutor not to examine her, evidence should hJve been led to show that she was suffering from such mental shock that she was unable to give a coherent account of the tragic events that happened on that fateful morning.

One has merely to recall the fact that five male members of her family were butchered to death by the assailants to realise that the prosecutor's statement that she was mentally unbalanced must be true.

Then, as to Ram Prasad and

Mans~ Ram having been won over by the defence, that again is a matter on which the trial Court appears to have been satisfied; otherwise it would have readily acceded to the request of the defence to exercise its powers under s. 540, Cr. P.C. We are inclined to think that it is because this part of the defence contention was felt to be inarguable that the Advocate for the appellants did not raise this point before the Court.

Therefore, we are not prepared to allow Mr.

Sawhney to take us through theevidence in the case on the ground that one important contention raised by the defence has not been examined by the High Court.

Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling.

There is no doubt ihat when a criminal Court has to .appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence.

51 S.C.-10 ·

Mt11altl

~ Stat. of UP.

Gajendraga.tkar

c. J.

Masalti

"· State of UP.

Ga/endragadkar

c. 1.

Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable are all matters which must be taken into account.

But it wuld, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.

Often enough, where factions prevail in villages and mur- . ders are committed as a result of enmity between such factions criminal Courts have to deal with evidence of a parti- • . . san type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably . lead to failure of justice.

No hard and fast rule ca? be laid d?"."n as to how much evidence should be appreciated.

Judicial approach has to be c; iutious in dealing with uch evidence: but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assail.ants, that evidence should not have been accepte<;!.

This criticism again is not wellfounded.

Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants.

Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault.

In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons.

In such a case, it would be unreasonable to contend th; it because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected.

AppreciAfion of evidence in such a complex case is no doubt a difficult task: but criminal courts have to do their bes"t in dealing with such cases and it is their duty to sift the evide:1ce carefully and decide which paxt of it is true and which is not.

In the

present case, the High Court has in fact refused to act upon the evidence of Bahoran and Prabhu Day11I, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infirmities.

Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical.

He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to con vict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction.

That, no doubt is true; but where a criminal court has to deal with evidence pertain ing to the commission of an offence involving a large num•

ber of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident.

In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.

Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be .entitled to say thltt the seven accused persons were acquitted because their cases did not satisfy the mechanical test qf four witnesses, and if the said test had not been applied; they might as well have been convicted.

It is, no doubt, the quality of the evidence that matters and not the number of. witnesses who give such evidence.

But, sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.

Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin

v. State of Uttar Pradesh('). In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under s.142, I.P.C. The argument is

(1) A.I.R. 1956 S.C. 181

llJIU

Jl-111

"· sof V.I.

Mtualtl

Y.· Slllte of U.P.

Gajendragadkor

C. I.

that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful .aSsembly. The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act 1s proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly.

In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It .appears that in the case of Baladin('), the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses.

Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly.

What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s.141, I.P .C.

Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly.

The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s. 14 i: While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive '4'itnesses and had

present case, the High Court has in fact refused to act upon the evidence of Bahoran and Prabhu Dayal, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infinnities.

Mr. Sawhney also urged that the test applied by the High Court , in convicting the appellants is mechanical.

He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction.

That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident.

In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.

Therefore, we do not think that any grievance can be made by the appellants against tJ?-e adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test qf four witnesses, and if the said test had not been applied, they might as well have been convicted.

It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence.

But, sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.

Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin v.

State of Uttar Pradesh('). In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case mils under s.142, I.P.C.

The argument is

(1) A.I.R. 1956 S.C. 181

Miualti

Stal• of U .P.

Gaje"'1ragad/ru

c. J.

1'DMlltl ...

S111,. of U.P.

GaJ1ndragadk•

C, 1.

would be no occasion or justification for this Court to consider the evidence for itself.

That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons.

Mr. Sawhney argues that in confirming the sentences of death imposed by the trial Court on 10 accused persons in this case, the High Coun has adopted a mechanical rule.

The High Court has held that the 10 persons who carried ftre-arms should be ordered to be hanged, whereas others who have also been convicted under s. 302/ 149, should be sentenced to imprisonment for life.

It is true that except for Laxmi Prasad, the charge under s. 302/149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawful assembly of which they were members, and the argument is that unless it is shown that a particular accused person has himself committed the murder of one or the other of the victims, the sentence of death should not be imposed on him.

In other words, the contention is that if a person is found guilty of murder under s. 302/ 149 and it is not shown that he himself committed the murder in question, he is not liable to be sentenced to death.

In support of this argument, Mr. Sawhney has relied on certain observations made by Bose J. who spoke for the Courr-in Dalip Singh v. State of Punjab('). In that case, what this Court observed was that the power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons; and it was added that it is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised.

These observations have no relevance in the present Mse, because we are not dealing with a case where the High Court has enhanced the sentence imposed by the trial Judge at all.

In fact, both the trial Court and the High Court are agreed that the sentences of death imposed on 10 persons are justified by the circumstances of the case and by the requirement~

(1) ['9~41 s.c.R. 145

of justice.

As a mere proposition of law, it should be diffi cult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself.

Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they ·\j'ere members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which had to be decided on the facts and circumstance~

of each case.

In the present case, it is clear that the whole group of persons belonged to Laxmi Prasad's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin, 10 of these persons were armed with fire-arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assesmbly.

The conduct of the members of the unlawful assembly both her fore and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with fire-arms.

It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court. Therefore we see no reason to accept the argument urged by Mr. Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable.

There are, however, three cases in which we think we. ought to interfere.

These are the case of accused No. 9 Ram Saran who is aged 18; accused No. 11 Asha Ram who is aged 23 and accused No. 16 Dea prasad who is aged 24, Ram Saran and Asha Ram are the sons of Bhagwati who is accused No. 2. Both of them have been sentenced to death.

Simiiarly, Deo prasad has also been sentenced to death.

Having regard to" the circumstances under whkh the unlawful assembly came to be formed, we are satisfied that these

Masaltl

State of U.P.

Gajendragadka1

C. J.

1'64

Mualtl

"· Stat• of U.P.

Ga1endragadkar

c. J.

May, 4

young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families. The list of accused persons shows that the unlawful assembly was constituted by members of different families and having regard to the manner in which these factions ordinarily conduct themselves in villages, it ould not be unreasonable to hold that these three young men must have been compelled to join the unlawful assembly that morning by their elders, and so, we think that the ends of justice would be met if the sentences of death imposed on them are modified into sentences of life imprisonment. Accordingly, we confirm the orders of convictio:i and sentence passed against all the appellants except accused Nos. 9, 11 and 16 in whose cases the sentences are altered to those of imprisonment for life. In the result, the appeals are dismissed, subj.:ct to the said modification.

Appeals dismissed.

C. V. K. RAO

DENTU BHASKARA RAO

(P. B. GAJENDRAGADKAR, c. J., M. HIDAYATULI.AH, K. c.

DAS GUPTA, J. C. SHAH AND RAGHUBAR DAYAL, JJ.)

Representation of the People Act (XLlll of 1951), s. 1(d)-Scope of-

"ln tla1 cour1e of trade or businesl'', Mea1ting of-Mining lca.Yt- Right of Government to pre-emption of minerals-If a contract for 1upply of good• ~1 leuee.

The respondent obtained a mining lca.se from the State Government.

Clause 21 of the lease reserved to the Government the right to prior purchase of the minerals raised by the lessee. While the lease was subsisting, the respondent stood for election to the State Legislative Assembly and was elected. The appellant, his closest competitor, challenged the election by an election petition on the ground, inter alia, that the respon'dent was disqualified under section 7(d) of the Representation of People Act (XI.Ill ot 1951), because he had a contract with the Government for 1upply of goocla.

MASALTI

STATE OF U. P

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

GUPTA

RAGHUBAR DAYAL, JJ

s. 302

s. 149

Penal Code

s. 374

L.R. 59 I.A. 206

Masalti

State of U.P.

Code of Criminal Procedure

Art. 136

s. 149

Indian Penal Code

s. 302

ss. 302

Allakbad High Court

M. S. K. Sastri

I. M. Lall

Ganpat Rai

V. S. Snwhney

P. Rana. Atiqur Rehman

C. P. Lal

HDRAGADKAR

section 302

s. 149

Indian Penal Code

s. 307

sections 395 & 396

s. 302

MIUllbl

Allahabad High Court

29th November, 1961

Bilati Khet

Jhansi

Gayadin

Laxmi Prasad alias Laxmi Narain

Laxmi Prasad

28th November, 1961

State of U

Bahoran

Gajendragadkar

Ram Prasad

Dayaram

Lxmi Prasad

Bhagwati

Brindaban

Radha Saran

Bahoran

Shiroman Singh

Shiroman

Brindaban

Gori Dulaiya

Harbans

Shiroman Singo

Bhagwati

Police Station Krichh

31st March, 1962

14th May, 1962

Harbans

Mansa Ram

Bahoran

Basanti Lal

Rameshwar Dayal

Prabhu Dayal

P.ancham

Swarup Singh

Kasturi

Tha)mr Das

Shyamlal

Dropadi

Kishori Lal

Prabhu Day.al

I.P.C

Sawhney

Code of Criminal Procedure

Section 374

s. 302

I.P.C

Indian Penal Code

Masalti

State of U.J

Ram Prasad

Mansa Ram

Rani Dulhan

Ram Pras.ad

Rani Dulhan

Art. 136

Art. 136

s. 540

Sawhney

Gajendraga.tkar

State of UP

Prabhu Day11I

Sinha

I.P.C

Baladin

Section 142

s. 141

s. 14

I.P.C

Miualti

s. 302

s. 302

s. 302

Bose

Ram Saran

Asha Ram

Dea prasad

Simiiarly

C. V. K. RAO

DENTU BHASKARA RAO

M. HIDAYATULI.AH

DAS GUPTA

C. SHAH

Representation of the People Act

s. 1(d)

Clause 21

section 7(d)


1'64

Mualtl

"· Stat• of U.P.

Ga1endragadkar

c. J.

May, 4

SUPREME COURT REPORTS

young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families. The list of accused persons shows that the unlawful assembly was constituted by members of different families and having regard to the manner in which these factions ordinarily conduct themselves in villages, it ould not be unreasonable to hold that these three young men must have been compelled to join the unlawful assembly that morning by their elders, and so, we think that the ends of justice would be met if the sentences of death imposed on them are modified into sentences of life imprisonment. Accordingly, we confirm the orders of convictio:i and sentence passed against all the appellants except accused Nos. 9, 11 and 16 in whose cases the sentences are altered to those of imprisonment for life. In the result, the appeals are dismissed, subj.:ct to the said modification.

Appeals dismissed.

C. V. K. RAO

DENTU BHASKARA RAO

(P. B. GAJENDRAGADKAR, c. J., M. HIDAYATULI.AH, K. c.

DAS GUPTA, J. C. SHAH AND RAGHUBAR DAYAL, JJ.)

Representation of the People Act (XLlll of 1951), s. 1(d)-Scope of-

"ln tla1 cour1e of trade or businesl'', Mea1ting of-Mining lca.Yt- Right of Government to pre-emption of minerals-If a contract for 1upply of good• ~1 leuee.

The respondent obtained a mining lca.se from the State Government.

Clause 21 of the lease reserved to the Government the right to prior purchase of the minerals raised by the lessee. While the lease was subsisting, the respondent stood for election to the State Legislative Assembly and was elected. The appellant, his closest competitor, challenged the election by an election petition on the ground, inter alia, that the respon'dent was disqualified under section 7(d) of the Representation of People Act (XI.Ill ot 1951), because he had a contract with the Government for 1upply of goocla.

HELD: the petition must be dismissed.

The disqualifi:ation which rcsulta from the section b conditioned by three circumstance.. First, there must be a subsisting contract betwocn the appropriate Government and the candidate. Then the contract must be in the course of the trade or busineso of the candidate and, finally it n•ust be int<r alia for the supply of goods to such Government. Held in the case th8.t as the mining lease was subsisting. the contract if any, was also subsisting. Further that the mining lease, if it wa.s a contract, wu in the course of the business of the respondent It was not necessary that a course of business based upon other transactiom must have lint existed hr.fore .the offending contract could be sa:d to be in the course of business. fhe contract itself could be the start of the business.

Held therefore that the mining leas<i WM not a contract to supply &oods to the Government. There was only a right in the Government to pre.empt the minerals and iessee could not begin delivery to the Government until Governmnt served a notice on him stating the quantity pre-empted and the time within which the supply should be made. This was only

a reservation of a right of pre-emption which did not amount to a contract for the supply of goods which could be said to subsist between tho partieo.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1072 of 1963.

Appeal from the judgment and order dated April l 0. 1963 of the Andhra Pradesh High Court in Special Appeal No. 52 of 1962.

K. R. Chaudhuri, for the appellant.

A. V. Viswanatha Sastri and T. V. R. Tatachari, for the respondent.

May 4,

1964. The Judgment of the Court was delivered by

19"

c. v. K. • .....

Dent• B~

Rao

HIDAYATULLAH, J.-The respondent Dentu Bhaskara HidaJat11l1"" I Rao was returned to the Andhra Pradesh Legislative Assembly from Kakinada constituency at the last general election. The appellant C. V. K. Rao was his closest competitor. There were two other candidates but they obtained very few votes and they have not shown any further interest. The appellant filed an election petition to question the election of the respondent on many grounds: one such ground was that the respondent was disqualified

-.:. V. K. Rao v.

O>entu Bhaskara

Rao

Sfidayatullah J.

under s. 7 ( d) of the Representation of the People Act, 1951 (43 of 1951). The respondent had obtained a mining lease from the State of Andhra Pradesh on Apri, 13, 1960, though on the date he filed his nomination paper he had not begun operations under that lease. The appellant took objection to the nomination of the respondent on the ground that he held a contract from the Andhra Pradesh Government within the prohibition of s. 7 ( d) of the Act, but the Returning Officer over-ruled his objection.

The Election Tribunal later _held that he was disqualifkd J, mder s. 7 ( d) of Act 43 of 1951 and declared the election void.

On appeal, the High Court of Andhra Pradesh reversed the decision and the present appeal has been filed on a certilicate granted by the High Court.

Section 7(d) reads as fol!ows:--

"7. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State--

(a) (b)

(c)

• • •

• • • • • •

(d) if there subsists a contract entere<l into in the course of his tradi: or business by him with the appropriate Government for the supply of goods to, or for the executi(ln of any works undertaken by, that Government;"

The mining lease was in the standard form and after secting out the consideration for the lease, it described in Pai ts I tc III, the area of the lease, the description of lile area, liberties, powers and privileges to be exercised and enjoyed by the lessee and the restrictions and conditions as to their exercise. In Part IV it described the liberties, powers and privileges reserved to the. State Government and in Parts V and VI the rents and royalties reserved by the lease and certain other provisions relating tg them.

Part VII then dealt with the covenants of the lessee in respect of payment

of rents, royalties, taxes etc. One such covenant was in clause 21 and was headed "Right of Pre-emption" and it conferred on the State Government a right of pre-emption of the minerals lying in or upon the land dei; nised or elsewhere under the control of the lessee. ThJlt clause was interpreted by the Tribunal as a contract entered in the course ot' trade or business by the respondent with the State Government for the supply of goods to that Government.

The High Court held that there was no such contract.

The disqualification which results from s. 7 ( d) is conditioned by a number of circumstances. First, there must be a subsisting contract (this is to say in actual existence) between the appropriate Government and the candidate.

Then the contract must \>e in the course of the trade or business of the candidate and, finally, it must be inter alia for the supply of goods to such Government The appropriate Government according to the definition of the expression is te Government of Andhra Pradesh.

The High Court in reaching its conclusion interpreted cl. 21 of Part VII of the lease and held that the mining lease was not a contract, that clause 21 did not amount to a contract and that cl. 21 even if a contract was not a contract for the supply of goods to the Government.

This conclusion is assailed by the appellant. It is convenient to quote the clause at this stage:

"21. (a) The State Government shall from time to time and at all times duing the said term have the right (to be exercised by notice in writing to the lessee) of pre-emption of the said minerals (and all products thereof) lying in or upon the said lands he!eby demised or elsewhere under the control of the lessee and the lessee shall with all possible expedition deliver all minerals or products or minerals purchased by the State Government under the power conferred by this provision in the quantities, at the times in the manner and at the

place specified in the notice exercisin11 the said right. '

C. V. K. Rao

Dtntu Bhaskaro

Rizo

Hidayatullah 1.

oC. V. K. Rao

v. ofJ•ntu Blaaskaro

Rao

Hidayatullah I.

(b) Should tile Jight to pre-emption conferred by this present provision be exercised and a vessel chartered to carry the minerals or products thereof procured on behalf of the State Gov ernment or the Central Government be detained on demurrage at the port oCloading the lessee shall pay the amount due for demurrage according to the terms of the charter party of such vessel unless the State Government shall be satisfied that the delay is due to causes beyond the control of the lessee.

( c) The price to be paid for all minerals or products of minerals taken in pre-emption by the State Government in exercie of the right hereby conferred shall be the fair market price prevailing at the time of pre-emption provided that in order to assist in arriving at the said fair market price the lessee shall, if so required, furnish to the State Government for the confidential information of the Government particulars of quantities, desqiptions and prices of the said minerals or producu for carriage oI the same and shall produce to such officer or officers as may be directed by the State Government original or authenticated copies of contracts and charter parties entered into for the sale of freightage of such minerals or products.

(d) • • • .,,

Mr. K.' R. Chaudhury contended that under this clause there was a standing contract for the supply of goods and all that Government had to do was to send !1 notice to the respondent and he was compelled to supply the goods to Government. He pointed out that from the time the lease was granted Government was asking the respondent to commence operations to raise the minerals but the respondent avoided working the mine probably to save himself from the disqualification. According to Mr. Chaudhury, it mattered not whether the mine was worked or not, but

what mattered was that there was a subsisting contract for the supply of minerals to the appropriate Government.

Mr. A. Vishwanatha Sastri, in reply, contended that the mining lease could not be regarded as a contract and further that it was not 'in the course of' the trade or business of the respondent, and finally that, in any event, it was not a contract for the supply of goods.

That it was in the course of business of the respo.ndent almost goes without saying.

It is not necessary, as Mr. Sastri suggested, that a course of business ba, ed upon other transactions must first exist before the offending contract can be said to be in the course of business. That contract may itself be the start of the business and the words 'in the course of the business' would still be apt. As the mining lease ; as subsisting, the contract, if any there be, was also subsisting and there is no doubt on that aspect of the matter. The question is whether the provisions of cl. 21 bring about a contrJct for the. supply of goods.

This question can be broken into two which are: (a) whether cl. 21 can be regarded as a contract and (b) whether it can be regarded as a coatract for supply of goods. Clause 21 is invariably inserte.d in every mining lease. It reserves to the Government the right to the minerals which vest in Government bu( which are allowed to be raised by the lessee holding the lease.

The lease is, in one sense, a contract be!v:ccn the Government and the Jessee because there is consideration on both sides and an offer and acceptance. There are obligations created by it. some of which are contractual even though some may be regarded as arising from the conditions of the grant.

The mining lease without cl. 21 cannot possibly be described as a contract for the supply of goods.

Without that clause there would neither be a mention of goods nor of their supply. If the lease is to be read as satisfying the disqualification ins. 7(d), cl. 21 alone can satisfy it. Clause 21 speaks of a right of the Government to pre-empt the minerals and all products thereof lying in or around the land demised or elsewhere under the control of the lessee.

There is, however, no concluded contract in respect of any goods because it hardly needs to be said that relying upon this clause the lessee cannot begin delivery of the ore to the Govent. He can do so only if the Government

C. V. K. Rao

Dentu Bhiukara

Rao

Hidayatullah J.

C. V. K. Rao v.

Dtntu Bhaskara

Rao

Bidayatullah J.

May 5

serves a notice on him stating the quantity pre-empted and the time within which the supply is to be made. The clause, however, does not make it obligatory on Government to prC-empt any quantity of mineral or at all.

There is no obligation to buy nor is there any compulsion on the pan ot the lessee to sell unless asked.

In these circumstances, the clause does no -more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others.

Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word 'subsists' is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.

Taking the most liberal view of the matter it is clear that

cl. 21 did not bring into being a contract for the supply of goods. All that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent.

The rese11; ation of such rights docs not amount to a contract for the supply of goods which can be said to subsist between the parties. The High Court was, therefore, right in reversing the decision of the Election Tribunal. The appeal fails and is dismissed with costs.

Appeal dismissed.

UNION OF INDIA v.

ABDUL JALIL AND ORS.

(M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.)

Forest Act-"Reserved forest"-Tripura Act replaced by Indian Forest Act-No preliminaries prescribed under Tripura Act-Notification under it whether can he deemed to be under Indian Forest Art-

Tripura Act and Indian Forest Act, object and purpose-Corresponding provisions-Indian Forest Act, 1927 (Act 16 of 19271,

RAO

DENTU BHASKARA RAO

P. B. GAJENDRAGADKAR

DAS GUPTA, J.

C. SHAH

RAGHUBAR DAYAL, JJ.

Representation of the People Act

s. 1(d)

Clause 21

section 7(d)

K. R. Chaudhuri

V. Viswanatha Sastri

T. V. R. Tatachari

K.

Dentu Bhaskara HidaJat11l1"" I Rao

C. V. K. Rao

s. 7

Representation of the People Act, 1951

State of Andhra Pradesh

Andhra Pradesh Government

s. 7

s. 7

Section 7(d)

clause 21

s. 7

Government of Andhra Pradesh

cl. 21

clause 21

cl. 21

C. V. K. Rao

K.' R. Chaudhury

Chaudhury

A. Vishwanatha Sastri

Sastri

cl. 21

cl. 21

Clause 21

cl. 21

cl. 21

Clause 21

C. V. K. Rao

Dentu Bhiukara

Hidayatullah

Bidayatullah

cl. 21

M. HIDAYATULLAH

N. RAJAGOPALA AYYANGAR

Indian Forest Act

Indian Forest Act