P. L. LAKHANPAL

UNION OF INDIA

April 19, 1966

[AK. SARKAR; C.J., M. HIDAYATULL/IH,

R.S.

BACHAWAT, J.M.

SHELAT AND RAGHUBAR DAYAL, JJ.J

Defe.nce of India Rules, 1962 r. 30(1) (b)-Jf ultra vires s. 3(2)(15)'

(i) of Defence of India Act-Constitution of India, Art. 352-Proc!amation-If to state, satisfaction of Emergency.

The petitioner, the editor of a newspaper, was detained u!'der r. 30(l)(b) of the Defence of India Rules, 1962. He filed a petition under Art 32 of the Constitution for a writ of habeas corpus char-. lenging th

0e legality of the detention order on various grounds. Dismissing the petition, HELD: Rule 30(1) (b) cannot be said to be ultra vires of s. 3(2)(15)

(i) of the Defence of India Act for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detentoon is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says.

This part does not contain any requirement as to satisfaction on reasonable grounds. The rule has clearly been made in terms of the section authorising it. [211 Fl Article 352 of the Constitution does not require the proclamation to state the sat:sfaction of the President about the Emergency.

The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words

"to that effect" can have no other meaning. A proclamation ceases to have effect only by one of the events mentioned in cl. 2 of Art. 352 of the Constitution. [212 CJ Section 3(2) (15)(iv) of the Defence of India Act and r. 30-A of the Defence of India Rules, does not g; ive a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. Rule 23 of the Defence of India (Delhi Detenus) Rules, 1964, states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. [213 C-D].

The fact that newspapers and men connected with them may be dealt with under other provisions of the Act and Rules does not prevent detention of such persons under r. 30(1)(b) of the Defence of India Rules. [213 H] The order need not mention the part of India which was to be prejudicially affected by the acts of the detenue.

ORIGINAL JURISDICTION: Writ Petition No. 47 of 1966.

Petition under Art. 32 of the Constitution of India for the en- H forcement of fundamental rights.

The petitioner appeared in person.

~](I IUl6tij srPr. s.c.1"

Niren D<', Ac/c/itiona/ Solicitor-General, N. S. Bindra, R. H.

Dhebar and B.R.G.K. Achar. for the respondent.

R. V. S. Mani. for !he intervener.

The Judgment of the Court """ delivered by

Sarkar, C.J. The petitioner.

Puran Lal Lakhanpal, was arrested and detained uuder cl. ibl ot sub-r. (J) of Ruic 30 of the Defence of India Rules. 1962 by an order passed on December IO, 1965 and directed to be detained in Centr<d Jail. Tehar. New Delhi.

The order state,: that:

"WHEREAS the Central Government is satisfied that c with a view 10 preventing Shri P.L. Lakhanpal. son of late Shri Diwan Chand Sharma from acting in a manner prejudicial to 1he Defence of India and Civil Defence. rublic safety and the maintenance of public order. it is necessary that h~ 'hould h~ detainerl:

NOW. THEREFORE. . .... the Central D Government hereby <lirects that the said Shri P. L. Lakhanpal be detained."

He has moved this Coun under An. 32 of the Constitution hv a

petition presented on December 24. 1965 for a writ of habeas corpus directing his release. He challenges the legality of the detention order on varieus grounds which we now proceed to consider.

The first ground is that r. JO(l)(b) is ultra vires s. 3(2)(15)(i) of the Defence of India Act under which the Rules were made. Sub-s. (!) of s. 3 contains the general power to make rules for certain purposes. Sub-section (2) states that the rules made may provide for and many empower any authority to make orders providing for all or any of the following matters. namely: --

"<15) notwithstanding anything in any other law for the ' time being in force.

(j) the apprehens'on and detention in custody of any person whom the authority empowered ............... suspects. on e grounds appearing to that authority to be reasonable . .. .. .. . .. .. acting. being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security af the State, the public safety or interest. the maintenance of public order, .................. or with respect to whom that authority is satisfied that his apprehension and B detention are necessary for the purpose of preventing him from acting in any such prejudicial manner."

LAKHANPAL

11. UNION (1'5a,.kor, ( ' . . 7.) 211

A Rule 30(l)(b) is in these terms:

"The Central Government ............... if fr is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the main- B tenance of public order... may make an orderc

(b) directing that he be detained."

It will be noticed that the rule does not say that the satisfaction mentioned in it shall be on grounds appearing to the authority concerned to be reasonable. It is said that by omitting these words the rule has gone outside the section which mentions them, and is, therefore, ultra vires. This contention is untenable. It overlooks the fact that the latter part of the section states that the rules made under it may also provide for the apprehension and detention of a person "with respect to whom that authority is satisfied that his apprehension and detention are necessary" for certain purposes; this part does not contain any requirement as to satisfaction on reasonable grounds. This part of the section is independent of the earlier part under which the apprehension and detention can be directed only when the authority suspects on certain grounds appearing to it to be reasonable that a person is about to act in a certain manner. It is of some significance to point out that the second part of the section is preceded by the word 'or'. That puts it beyond doubt that the rules made under it may provide for detention in two alternative cases, for the first of which only it is necessary that the authority should entertain a suspicion on grounds appearing to it to be reasonable. That requirement is absent in the case of a rule made under the second part of the section. Rule 30(l)(b) cannot be said to be ultra vires the section for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says. The rule has clearly been made in terms of the section authorising it.

It was next said that the Proclamation of Emergency made by the President under Art. 352 of the Constitution which prevented the Act from being illegal, was nm in terms of the article as it did not state that the President was satisfied that a grave emergency existed. It is true that the Proclamation did not do that. It stated:

"In exercise of the powers conferred by clause (!) of article 352 of the Constitution, I Sarvapalli Radhakrishnan, Presi- H dent of India, by this Proclamation declare that a grave emergency exists whereby tke security of India is threatened by external aggression."

SUPREMF. COURT RF.PORTS [1966] SGPP, s.o.R.

We, however, find nothing in the Article which requires the Pro- A clamation to state the satisfaction of the President about the emergency. Article 352(1) reads,

"If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or B internal disturbance, he may, by Proclamation, make a declaration to that effect."

The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words "to that effect" can have no other meaning. The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not sec that the Article 0 requires the condition precedent for the exercise c, f the power, that is, the President's satisfaction, to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly perfonned applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions, viz..

D Art. 3!1(2)(c) of the Constitution and r. 30(1 )(b) of the Rules and it was contended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did, the requirement of the statement of the President's satisfaction in the present case has to be decided on the terms of Art 352 alone. We have said that this Article does not contain any such requirement. It is of interest to point out here that the petitioner E stated in his petition that he exended his full support to the Govern ment on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on Octo- F ber 26, 1962 when. it is well known, India's integrity was threatened by China.

It was also stated that the continuGnce of Emergency which was declared over three years ago is a fraud on the Constitution.

We were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to G exist. The President's address has not been produced, and we do not know what it contained. However that may be, Art. 352 itself by cl. (2) provides that a Proclamation issued under cl. (I) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unlcs.~ before the expiration of that period it has been approved by resolutions of both Houses of H Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not

I I

II-·

~.

LAKHANPAL v.

UNION (Sarkar, c. J.) 213

been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation.

In this connection it was also said that 'external aggression' means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also faH on the ground which we have just mentioned.

Another challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention. Our attention was drawn in this connection to s. 3(2) (15)(iv) of the Act and r. 30-A of the Rules and also to r. 23 of the Defence of India (Delhi Detenues) Rules, 1964. The two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention.

It has not been stated in the petition that the petitioner was prevented from making any representation or denied the opportunity to consult a legal practitioner. All hat is said is that he had not been furnished particulars of his writings and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioner's writings, nor has out' attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detention.

Then it was said that the order of detention violated s. 44 of the Act and s. 3(2)(4)(b), (6), (7)(a)(b)(c) and (d) and rr. 41, 42, 44, 45 and 46 of the Rules. The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under r. 30(l)(b). This contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under r. 30(1)(b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under r. 30(1)(b). It was also said that r. 30(1)(b) requires that the part of India which is to be prejudicially affected by the acts of the detenue has to be mentioned in the order. This is an idle contention. The

214 •t:Pl\E>IE l'OURT REPORTS

[1966] BUPP. S.O.R.

rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be orderc<l for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of s. 44 have been violated. There is nothing to show that the detention interfered with the petitioner's avocation in life in a manner not justified by that section.

The last ground taken was that the detention order was ma/a fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity fer the detention. There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioner's knowledge. This verification was plainly false and. therefore. the allegation in the petition required no answer. However. that may be. a Deputy Secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and. on a considera tion of those materials. the Minister was satisfied that the detention order was necessary.

The result is that this petition fails and it is accordingly dismissed.

Petition dismisJed.

• R

JI··

P. L. LAKHANPAL

UNION OF INDIA

AK. SARKAR

BACHAWAT, J

SHELAT

RAGHUBAR DAYAL, JJ

India Rules, 1962

s. 3(2)(15)

Defence of India Act

Constitution of India

Art. 352

Defence of India Rules, 1962

Art 32

s. 3(2)(15)

Article 352

cl. 2

Art. 352

Section 3(2)

Art. 32

Constitution of India

s. 3(2)(15)(i)

s. 3

Art. 352

article 352

Article 352(1)

Article 0

Art. 3

Art 352

Art. 352

s. 3(2)

s. 44

s. 3(2)(4)(b)

s. 44


UTTAR PRADESH CO-OPERATIVE FEDERATION LTD.

MIS SUNDER BROTHERS OF DELHI

April 20, 1966

(K. SUBBA RAO AND V. RAMASWAM!, JJ.]

Indian Arbitration Act, s. 34-Arbitration agreement-Parties how far bound to have dispute decided by agreed arbitrator-One of the parties filing suit-Court's discretion to stay such suit-Appellate Court's power to interfere with trial court's discretion under s. 34.

The appellant society carried on business as public carriers on the Kanpur-Delhi route. By an agreement in 1954 they appointed the respondents as their Managing Agents for a period of 3 years. But much before the expiry of that period they terminated the agreement. Disputes arising between the parties were under the agreement, to be decided by arbitration as provided in the Co-operative Societies Act II of 1912. According to the relevant provisions of the said Act disputes were to be decided by the Registrar of Co-operative Societies or by an arbitrator or arbitrators appointed by him.

The respondents however filed a suit against the Society asking for a declaration that the termination of the agreement by the society was illegal and for a mandatory injunction restraining the society from term.inati.ng the agreement. The Society thereupon filed an application under s. 34 of the Indian Arbitration Act praying for a stay of the aforesaid suit on the ground that the respondents had agreed to arbitration as provided in the Co-operative Societies Act.

The trial Court stayed the suit but the appellate Court set aside the trial Court's order and dismissed the application under s. 34.

The High Court upheld the appellate Court's order whereupon, by special leave, the society appealed to this Court.

HELD: (i) The High Court rightly refused to stay the suit. It rightly observed that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co-operative .

Societies Act are consistent with and which of those rules are not consistent with the provisions of the Indian Arbitration Act.

The suit, moreover, was filed as far back as 1954 and its stay would not be in the interests of it~ speedy disposal. [219 G-220 BJ

(ii) It is, of course. the normal duty of the court to hold the parties to the contract and to make them nresent their disputes to the forum of their choice, but the strict or:mciple of sanctity of contract is subject to the discretion of the Court under s. 34 of the Indi'an Arbitration Act. A party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or there is sufficient reason to suspect' that he will act unfairly or that he has been guilty of unreasonable conduct. [222 DJ In the present case the respondent had alleged that the Registrar Co-operative Societies had approved the termination of the contract of Managing Agency with the plaintifT and the Registrar was H the Chairman of the Defendant-Society. In the circumstances the High Court m_ust be hrld to hc:tve properly exercised it~ discretion under s. 34 of the Indian Arbitration Act in not granting a s!Ay of the proceedings in the suit. [222 EJ.

L/S5SCI-16

216 BcPREME COURT REPORTS [1966] SUl'P, 8, C, R.

Bristol Corporation v. Jolin Aird & Co. [19131 A.C. 241, referred A to.

(iii) Ii it appears to the appellate Court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the Appellate Court to intt>rfcre with the trial court's exercise o[ discretion, [222 HJ B Charles Osenton & Co. v. Johnston, [1942) A.C. 130, referred to.

CiVJL APPELLATE JURISDICTIOS: Civil Appeal No. 426 of 1964.

Appeal by special leave from the judgment and order dated February 22. 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Revision No. 311-D of 1958.

S. P. Sinha and lnder Sen Sawhncy, for the appellant.

K. K. Jain and Bishambar Lal, for the respondent.

The Judgment of the Court was delivered by Rallllllwami, J. This appeal is brought, by special leave, from

the judgment of the Punjab High Court dated February 22, 1962 in Civil Revision No. 33iD of 1958 whereby the High D Court upheld and confim1ed the judgment of the Appellate Court and set aside the judgment of the trial court staying proceedings in the suit.

The Uttar Pradesh Co-operative Federation Limited (hereinafter referred to as the 'Society') was registered under the Cooperative Societies Act No. II of 1912 at Lucknow and was carry- E ing on the business of plying public carriers on Kanpur-Delhi route. The Society had been granted, for this purpose, permits by the Uttar Pradesh Government and Delhi Administration for seven vehicles. In March, 1954. the Society entered into an agreement with the plaintiffs-MI s Sunder Brothers-through Bimal Kumar Jain and Ohan Kumar Jain by which they were appointed as Managing Agents for carrying on the business as public car- F riers. The terms of the Managing Agency agreement were embodied in a letter dated March 2, 1954 written by the Secretary of the Society. Clause 28 of the agreement rc.1ds as follows:-

"That in the event of there being any dispute regarding the terms and conditions of this agreement and your appointment hereunder as Managing Agents of the aforesaid business or any matter arising from and relating thereto or the subject G matter thereof. such dispute shall be decided by arbitration as provided under Co-operative Societies Act II of 1912 and you undertake and agree to be bound by the provisions for arbitration in the said Act".

The agreement was to last for a period of three years but on July B 5, 1954 the Society terminated the agreement by its letter dated July 5, 1954. The plaintiffs therefore brought a suit on August

COOP. FEDERATION v SUNDER BROS. (Ramaswaini, J.) 217

18, 1954 in the Court of the Subordinate Judge, First Class, Delhi praying for a declaration that the termination of the Managing Agency agreement by the Society was illegal and the plaintiffs were entitled to continue the business of Managing Agents in accordance with the terms and conditions of the agreement. The plaintiffs prayed for a mandatory injunction restraining the defendant-Society from terminating the agreement. The Society made an application under s. 34 of the Indian Arbitration Act, 1940 before the Subordinate Judge, Delhi, for an order for staying the suit. It was claimed by the Society that the suit was not maintainable because under s. 51 of the Co-operative Societies Act the dispute was to be adjudicated upon by the Registrar of Co-operative Societies. In the alternative it was alleged that by agreement between the parties the dispute was to be referred to arbitrati'on in accordance with the Co-operative Societies Act and consequently proceedings should be stayed. The trial court stayed the proceedings but on the appeal of the plaintiffs the order of the trial court was set aside and the application of the Society under s. 34 of the Indian Arbitration Act was dismissed. The Society moved the Punjab High Court in revision but the revision application was dismissed and the order of the lower appellate court was confirmed.

It is necessary at this stage to set out the relevant provisions of the Indian Arbitration Act (Act JO of 1940). Section 34 of this Act states:

"34. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings".

Section 46 provides as follows:

"46. The provisions of this Act, except sub-section (1) of H section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an L/S5SCI-16(nJ

218 SUPREllE COURT REPORTS [1966] SUPP. s.c.R.

arbitration agreement as if that other enactment were an A .irbitration agreement, except in so far as this Act is in consistent with that other enactment or with any rules made thereunder".

Section 47 reads as follows: "47. Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder:

Provided that an arbitration award otherwise obtained may with the consent of ail the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending".

There was some controversy in the lower courts as to whether the arbitration under cl. 28 of the agreement was a statutory arbitration and whether s. 46 of the Indian Arbitration Act was applicable to the case. It was argued by Mr. Sinha on behalf of the appellant-Society that no statutory arbitration is created by

cl. 28 of the agreement but the parties had merely agreed to act in accordance with the provisions of the Co-operative Societies

Act (Act II of 1912) and the Rules made thereunder. It was contended that the parties had merely incorporated the statutory provisions by reference in their agreement and s. 47 of the Indian Arbitration Act will. therefore, be applicable to the case.

This legal position was not controverted by Mr. K. K. Jain appearing E on behalf of the respondent. The only question in debate was whether the lower court rightly exercised their jurisdiction under s. 34 of the Indian Arbitration Act in not granting the stay of the

proceings of the suit.

If the arbitration agreement is not to be treated as a statutory arbitration under s. 46 of the Arbitration Act but an arbitration agreement under s. 47 of the Act, then the procedure to be F followed for the arbitration under that agreement will be that provided under the Co-operative Societies Act and the Rules framed thereunder. Under s. 47 of the Indian Arbitration Act the arbitration will be governed only by such rules of the Co-operative Societies Act and rules framed thereunder as arc not inconsistent with the provisions of the Indian Arbitration Act. In this connection it is necessary to refer to Rules 115, 116 and 117 of tile Co-operative Societies Rules framed under s. 43 of the Co-operative Societies Act. Ruic 115 states as follows:

"Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past H member. (iil or between a member or a past member or persons so claiming and the society or its commiuee or

COOP. FEDERATION v. SUNDER BROS, (Ramaswami, J.) 219

any officer of the society, (iii) between the society or its committee and any officer of the society, and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar".

Rule 116 provides :

"The Registrar on receipt of a reference shall either decide the dispute himself, or refer it for decision to an arbitrator or to two joint arbitrators appointed by him or to three arbitra.tors, of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as chairman".

Rule 117 states:

"In case it is decided to appoint three arbitrators-

(i) The Registrar shall issue a notice calling on each ot the parties to nominate one person as its nominee within 15 days of the receipt of the notice.

(ii) if a party consists of more than one person, such persons shall jointly make only one nomination.

(iii) if more than one person is nominated by a party the Registrar shall appoint either one of the nominees or some other person of his own choice as the nominee E of that party,

(iv) if a party fails to nominate an arbitrator within the appointed time or if its nomination is not valid the Registrar may himself make the nomination,

(v) if one of the arbitrators fails to attend or refuses to work as an arbitrator, the remaining arbitrators may decide the dispute. If two of the arbitrators fail to attend or refuse to work as arbitrators and the claim is not admitted the remaining arbitrator shall refer the case to the Registrar who may authorise him to give an award or appoint one or more arbitrators to proceed with the reference or he may decide the case himself".

It has been observed by the High Court that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co-operative Societies Act are consistent with and which of those rules are not consistent with the provisions of the Indian Arbitration Act and therefore it was, a fit case in which discretion of the court under s. 3·4 of the Indian Arbitration Act should be exercised in not staying the proceedings of the suit. In our opinion, the reasoning of the High Court has much substance.

220 St:PREME COt:RT REPORTS

(1966] SUPP. B.C.R.

There is also another reason why there should not be a stay A of the proceedings under s. 34 of the Indian Arbitration Act. The suit was filed in 1954 and, though 12 years have elapsed, nothing has been done in the suit and it will not be in the interest of speedy disposal of the suit between the parties if the proceedings in the suit are further stayed and the parties are referred to arbitration.

There is also another ground why the proceedings in the suit should not be stayed in the present case. If Rules 115 and l 16 of the Co-operative Societies Rules are applicable then the reference

of the dispute has to be made to the Registrar of the Co-operative

Societies who may either decide the dispute himself or refer the o dispute to an arbitrator or two joint arbitrators appointed by him or to three arbitrator" of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as Chairman. It is alleg. ed by the respondent that the Registrar of Co-operative Societies is ex-officio President of the Society "nd it was with his approval that the agreement in dispute was terminated. It was also pointed out that the Registrar was the chief controlling and supervising officer of the Society under its bye-Jaws. It was submitted for the respondent that the Registrar may not. therefore. act fairly in the matter and it is improper that he should be an arbitrator in the dispute between the parties. In our opinion, there is much validity in this argument. The legal position is that an order of stay of suit under s. 34 of the Indian Arbitration Act will not be granted if it can be shown that there is good i,'Tound for apprcheading that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute between the parties. It is. of course, the normal duty of the Court to hold the parties to the contract and to make them present their disputes to the forum of their choice but an order to

stay the legal proceedings in a Court of law will not be granted if it is shown that there is good ground for apprehending that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute. Reference may be made, in this connection, to the decision of the House of Lords in Bristol Corporatio11 v. John Aird & Co.('). This case was concerned with an application for stay of proceedings under s. 4 of the English Arbitration Act which is similar to s. 34 of the Indian Arbitration Act. Upon the settlement of the final account there arose a bona fide dispute of a substantial character between the contractor and tho engineer. who was the arbitrator under the contract. involving a probable conflict of evidence between them. The House of Lords held, affirming the decision of the

- ------·--- (') [1013] A, C. 24t.

COOP. FEDERATION v. SUNDER BROS. (Ramasuami, J.) 221

A Court of appeal, that the fact that the engineer, without any fault of his own, must necessarily be placed in the position of a Judge and a witness is a sufficient reason why the matter should not be referred in accordance with the contract. At pp. 247-248 of the report Lord Atkinson stated as follows:

"Whether it be wise or un)¥ise, prudent or the contrary, he has stipulated that a person who is a servant of the person with whom he con tracts shall be the judge to decide upon matters upon which necessarily that arbitrator has himself formed opinions. But though the contractor is bound by that contract, still he has a right to demand that, notwithstanding those pre-formed views of the engineer, that gentleman shall listen to argument and determine the matter submitted to him as fairly as he can as an honest man; and if it be shown in fact that there is any reasonable prospect that he will be so biased as to be likely not to decide fairly upon those matters, then the contractor is allowed to escape from his bargain and to have the matters in dispute tried by one of the ordinary tribunals of the land. But I think he has more than that right. If, without any fault of his own, the engineer has put himself in such a position that it is not fitting or decorous or proper that he should act as arbitrator in any one or more of those disputes, the contractor has the right to appeal to a Court of law and they are entitled to say, in answer to an application to the Court to exercise the discretion which the 4th section of the Arbitration Act vests in them, "We are not satisfied that there is not some reason for not submitting these questions to the arbitrator". In the present case the question is, has that taken place"?

Lord Moulton after tracing the growth of the law of arbitration made the following observations in his speech:

"But, My Lords, it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing Jaw of the land, and the law of the land applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases. Therefore to say that if we refuse to stay an action we are not carrying out the bargain between the parties does not fairly describe the position. We are carrying out the bargain between the parties, because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced".

SUPREME COUR1' REPORTS [1966] Sl'l'P. S.C, R,

Lord, Parker, .after pointing out that s. 4 of the Arbitration Act A gave a discretionary power to the Court to be exercised after it was satisfied that there was no sufficient reason why the matter should not be referred in accordance with the submission, expressed the fol!O\Ving viC\\S:

"In making up its mind on this point the Court must of course B give due consideration to the contract between the parties, but it should. I think, always be remembered that the parties may have agreed to the submission precisely because of the discretionary powr vested in the Court under the Arbitration Act They may, very well, for instance, have said to themselves, 'If in any particular case it would be unfair to allow the arbitration we arc agreeing c to proceed we shall have the protection of the Court".

It is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under s. 34 of the Indian Arbitration Act. for there must be read in every such agreement an implied term or condition that it would he enforceable only if the Court, having due regard to the other surrounding circumstances. thinks fit in its discretion to enforce it. It is obvious that a party may he D released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct. As we have already stated. the respondent has alleged in the present case that the Registrar, Co-operati1e Societies has approved the termination of the contract of Mana&ing Aency with the plaintiff and the Registrar was the chairman of the defen- E dant-Society. We are accordingly of the opinion that the High Court properly exercised its discretion under s. 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit.

It is well-establishoo that where the discretion vested in the Court under s. 34 of the Indian Arbitration Act has been exercis- F ed by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary

conclusion. If the discretion has been exercised by the trial court G reasonably and in a judicial manner the fact that the appellate

court would have taken a different view may not justify interference with the trial court's exercise of (bcretion. As is often said. it is ordinarily not open to the appel13te court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate court that in excrcisinf( its discretion the trial H court has acted unreasnnably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court

,; T--

COOP. FEDERATION v. SUNDER RROS. (Ramaswami, J.) 223

A to interfere with the trial court's exercise of discretion. This principle is well-established; but. as has been observed by Viscount

Simon, L. C., in Charles Osen/on & Co. v. Johnston('):

"The law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case".

For these reasons we hold that the appellan~ has made out no case for our interference with the order of the High Court refusing stay of the proceedings in the suit under s. 34 of the Indian c Arbitration Act. The appeal accordingly fails and is dismissed with costs.

Appeal dismissed .

MIS SUNDER BROTHERS OF DELHI

K. SUBBA RAO

Indian Arbitration Act

s. 34

s. 34

Societies Act II of 1912

s. 34

s. 34

s. 34

s. 34

Clause 28

Co-operative Societies Act

s. 34

Indian Arbitration Act, 1940

s. 51

s. 34

Section 34

Section 46

section 6

sections 7, 12, 36 and 37

Section 47

section 46

cl. 28

s. 46

cl. 28

s. 47

s. 34

s. 46

s. 47

s. 47

Co-operative Societies Rules

s. 43

s. 3

s. 34

s. 34

s. 4

s. 34

s. 4

s. 34

s. 34

s. 34

s. 34


WAR PROFITS TAX COMMISSIONER, MADHYA PRADESH,

INDORE

MIS. BINODRAM BALCllAND OF UJJAIN

A pri/ 20, 1966

(K. N. WA~CllOO. J. C. SHAH ANDS. M. SIKRI, JJ.J

Gwalior War Prifits Tax Ordinance, Samvat 2001, as amended by Amendment Ordinances of Samvat 2002 and Samvat 2004, First Schedule, r. 3(1) and (2) aHd Explanation-Explaruition, if retroSl)eC C tive-If applies tor. 3(1).

The assessec was the managing agent of a Textile Mill in Ujjain. In 1944, the Gwalior State promulgated the Gwalior War Profits Tax Ordinance. In !!HG, by the Gwalior War Profits Tax (Amendment) Ordinance, an Explanation was added after r. 3(2) of the First Schedule to the Ordinance of 1944. In 1947, another Amendment Or dinance was promulgated whereby a comma was inserted in the Explanation. In July 1944. the assessee received about R<;. 11 lacs as dividend on its shares in the Textile Miil. The War Profits Tax Officer included the amount in the assessec's taxable income, and the order was upheld by the Appt'Uate Assistant Commissioner and the Commissioner. On the question: whether the dividend income was chargeable to war profits tax, the High Court held, on a reference, that the Explanation applied and that under the Explanation the dividend income was not liable to be included in the asscssee's taxable income.

In appeal to this Court, it was contended that the Explanation was not applicable, because, (!) it was not retrospective: and (ii) it was only an Explanation to r. 3(2) and not to r. 3(1) which was the rule applicoble to the assessee.

HELD: The Explanation applies to the computation of the profits of the chargeable accounting period, because: (i) the Ordinance

of 1947 expressly assumes that the Explanation was in existence F from the date when the War Profits Tax Ordinance came into force in 1944; and (ii) on the language of the Explanation it was meant to be an Explanation not only tor. 3(2) but also tor. 3(1). By the words "in r. 3(2) the following shall be added", in the amending Ordinance of 1946. all that was meant was that the Explanation should be added below r. 3(21. (228 H-229 E]

CivIL APPELLATE JuR1so1cr10:-;: Civil Appeal No. 225 of 1965.

Appeal by special leave from Ihc judgment and order dated September 6, 1962 of the Madhya Pradesh High Court in Misc.

Civil Case No. 108 of 1958.

I. N. Shroff, for the appellant.

S. T. Desai, S. N. A11dley, Ramesl11rnr Nath, P. L. Vohra, and Mahi11der Narain, for the respondent.

COMMR, WAR PROFITS TAX v. MjS BINODRAM (Sikri, J.) 225

A The Judgment of the Court was dilevered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh in a reference made to it under s. 46 of the Gwalior War Profits Tax Ordinance, Samvat 2001-hereinafter called the Ordinance. Three questions B were referred to the High Court by the War Profits Tax Commis- . sioner, but we are only concerned with question No. 1, which reads as follows: -

"Whether the dividend income of Rs. 11,09,332/- received from the Binod Mills was chargeable under the War Profits Tax?" When the reference was first heard by the High Court three contentions were raised by M/ s Binodram Balchand of Ujjain, respondents before us, hereinafter referred to as the assessees.

They were:

"(!) The assessees did not deal in shares and their holdings in the Binod Mills Limited were purely in the nature of investments, having no connections with their business as defined in Section 2(5) read with Rule 1 of Schedule I of the Gwalior War Profits Tax Ordinance.

The business of the secretaries, treasurers and agents of the Binod Mills Limited, which was carried on by them did not require any holding of the shares ofthe company and was not dependent on their investment in the said company.

(2) The dividend income accrued or arose from the profits of the Binod Mills Limited, and as the Ordinance applied to the business carried on by this company, the dividends were excluded under the explanation to Rule 3(]) of Schedule l.

(3) The dividend income should be considered as income of the full accounting period, i.e., from Diwali of 1943 to Diwali of 1944 and should be apportioned on that basis".

The High Court by its judgment dated April 19, 1957, accepted the first contention of the assessees and accordingly answered the question in their favour. lt did not deal with contentions Nos. 2 and 3. The Commissioner appealed to this Court and this Court by its judgment dated December 20, 1961, set aside the judgment of the High Court and answered the first con tention in relation to question No. I against the assessees and remanded the case to the High Court for the consideration of the other two contentions with reference to that question. The High Court on remand accepted the second contention of the assessees and answered question No. 1. set out above, in favour of the assessees. The Commissioner having obtained special leave, the appeal is now before us for disposal.

22G SUPREME conn l\EPORTS (1966] sut>P. s.c.n.

A few facts may be given in order to appreciate the point A that has been argued before us. The asscssees were, at the relevant time, the Managing Agents of the Binod Mills Ltd., Ujjain, which was a private limited company carrying on the business of manufacturing and sdling textile goods in 1944. The Ruic! of the Gwalior State promulgated !he Gwalior War Profits Tax Ordinance. Samvat 2001, for the purpose of imposing tax on B excess profits arising out of certain businesses. The Ordinance came into force on July I. 1944. and applied originally to the acounting period falling within the period commencing on July I,

1944. and ending on June 30, 1945. By virtue of a notification the period was extended to June 30. 1946.

The assessees carried on the Managing Agency business during the aforesaid period in Gwalior State and being liable to be assessed to war profits submitted a return for the period commencing from July I. 1944. to October 16. 1944. It appears that Rs.

I 1.09,332/- was received by the asscssccs on July 5. 1944, on account of dividend on shares of the llinod Mills for the year

1943. The assessees inter a/ia contended before the War Profits Tax Officer that this sum was not liable to be charged. The War Profits Tax Officer, however, by order dated July 9, 1951, included this sum of Rs. l I.09.J32/- in the taxable income and his view was upheld in appeal by the Appellate Assistant Commissioner and the Commissioner. As stated above, the Commissioner, at the instance of the assessces, referred three questions, including the one with which we arc concerned, to the High Court.

It appears that before the High Court the learned counsel for the Commissioner did not seriously dispute the contention of the assessccs that the dividend income which the assessees had received was exempted by the Explanation to r. 3 of Schedule I

of the Ordinance. The ruk as it existed originally was as follows: - F

"3( I) Income received from investments shall be included in the prolits of a business liable to the War Profits Tax. unless it is proved to satisfaction of the War Profits Tax Officer that the investments have no connection whatever with. the business.

(2l In the case of business which consists wholly or mainly in the dealing in or handling of investments, income received from investments shall be deemed to be profits of that businc'5. and in the case of a business, a specific part only of which consists in dealing in investments. the income received from investments held for the purposes of that part of the business shall be deemed to be profits of that part of the business".

,,..

-~-

CfJMMR. WAR PROFITS TAX V. M/S. BINODRAM (Sikri, J.) 227

By s. 2 of the Gwalior War Profits Tax (Amendment) Ordinance, Samvat 2002-hercinafter referred to as Ordinance 2002, r. 3 of the First Schedule to the Ordinance was amended as follows:-

"In rule 3(2) of the First Schedule to Ordinance the following shall be added, namely:-

Explanation-"The income from investments to be included in the profits of the business under the provisions of this rule shall be computed exclusive of all income received by way of dividends or distribution of profits from a company carrying on a business to the whole of which the Section of the Ordinance imposing the War Profits Tax applies''.

This Ordinance was promulgated on February 28, 1946. Another Ordinance called the Gwalior War Profits Tax (Amendment) Ordinance, Samvat 2004-hereinafter referred to as Ordinance 2004-was promulgated on September 6, 1947. This Ordinance amended the Explanation to sub-rule (2) of rule 3 of Schedule 1 as follows: -

"In the explanation of sub-rule (2) of Rule 3 of Schedule I of the Gwalior War Profits Tax Ordinance.

Samvat 2001 a comma is added after the words "from a company carrying on a business" and before the words "to the whole of which" and shall be always deemed to be there from the date from which the said Ordinance came into force".

The High Court felt no difficulty in holding that the explanation applied, and that on its plain terms the dividend income which the assessees received from the profits of Binod Mills Ltd. was not liable to be included in the taxable income. The High Court observed: -

"The language of the explanation is very plain, and it means that if income is received by way of dividends or profits from a company carrying on a business, to the whole of which the section of the Ordinance imposing the War Profits Tax applies, then the income has to be excluded in the assessment to War Profits Tax of the assessee receiving that mcome.

The object of the explanation is clearly to avoid double taxation. Here it is not disputed that the dividend income which the assessee received was from the profits of the Binod Mills Limited and the Mills were subject to the burden of the War Profits Tax under the Ordinance. That being so, the explanation in terms applies to the case, and the assessee is entitled to claim that the dividend income of Rs. 11,09,332/- received from Binod Mills could not

228 Sl"PREME COURT I\EPOI\TS

(1966) SUPP, s.c.n..

be included in the computation of its profits for the purposes of War Profits Tax and was consequently not chargeable under the War Profits Tax Ordinance.

Learned Advocate-General appearing for the State did not dispute this position".

Mr. Shroff. the learned counsel for the Commissioner, contends, B first, that the explanation was not in existence at the relevant .-- time, and, therefore, cannot be taken into consideration; secondly, that the explanation is an explanation to r. 3(2) and not to r. 3(1) and, therefore, cannot be used to explain r. :1(1).

Mr.

Shroff complains that the High Court was wrong in thinking that the explanation formed part of Ordinance 2001, as it was originally promulgated. The High Court seems to have been under this c impression because in the order refusing leave to appeal to this Court the High Court observed:-

"There was no omission at all on our part to con sider the question whether the explanation was prospective or not. Indeed, this question was never raised by the learned Advocate-General. appearing for the Department and it was rightly not raised as the Explanation was not added subsequent lo the promulgation of the Ordinance and the very basis of the assessment of the income of the asses.see was that rule 3 of Schedule I of the Ordinance together with the Explanation applied to the income received by the assessee during the period from Isl July 1944 to 16th October 1944".

It seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance.

But even if it was added subsequently. in our opinion, the explanation applies to the computation of the profits of the F chargeable accounting period July I. 1944 to October 16. 1944.

If we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective be comes clear. Apart from Ordinance

2004. it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing G authorities after February 28. 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to s. 2 of Ordinance 2004 because by deeming that the comma shall be deemed to be there from the date from which the Ordinance H came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to

COMMR. WAR PROFITS TAX V. Mjs. :BINODRAM (Si/cri, J.) 229

A accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July I, 1944 to October 16, 1944.

Regarding the second contention, Mr. Shroff says that Ordinance 2002 expressly provides that the explanation shall be added in r. 3(2) of the First Schedule to the Ordinance. He further says that this explanation is referred in Ordinance 2004 as "explanation of sub-rule (2) of rule 3 of Schedule 1". There is no doubt that Ordinance 2002 did purport to add this explanation to r. 3(2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to r. 3(2) but to r. 3(1) also. First, the words "the income from investments to be included in the profits of the business under the provisions of this rule" are comprehensive and include income from investments both under r. 3(1) and r. 3(2). Secondly, there is no reason why any distinction should have been made between investments mentioned in r. 3(1) and investments mentioned in r. 3(2). Rule 3(1) is general and deals with all investments from profits of all businesses and would include investments mentioned in r. 3(2). Rule 3(2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in r. 3(1) and income from investments mentioned in r. 3(2). At any rate, the language of the explanation is quite clear and it seems to us that by the words "in rule 3(2) of the First Schedule to the Ordinance, the following shall be added" what was really meant was to add the explanation below r. 3(2).

In the result we agree with the High Court that the answer tp the question referred should be in the negative. The appeal accordingly fails and is dismissed with costs.

Appeal dismissed.

MIS. BINODRAM BALCllAND OF UJJAIN

C. SHAH ANDS. M. SIKRI, JJ

Gwalior War Prifits Tax Ordinance

First Schedule

First Schedule

s. 46

Section 2(5)

Gwalior War Profits Tax Ordinance

Schedule I

of the Ordinance

s. 2

First Schedule

First Schedule

Schedule 1

Schedule I of the Ordinance

s. 2

First Schedule

Schedule 1

First Schedule


DOLAI MOLLIKO & ORS.

KRUSHNA CHANDRA PATNAIK & ORS.

March 23, 1966

IK. N. WANCllOO, J. c. SHAH A~O s. M. S!KRI, JJ.I

Code oj Civil Procedure, 1908 (Act 5 of 1908), O.XXII r.3-0m1ssio1t to bring on record all legal representatives-Effect.

On the death of one of the plaint:ffs-appcllants in an appeal pending before the Subordinate Judge, an application was made for bringing on record his heirs and these heirs were two, viz., his widow and a major son. No objection was made to this application and conse quently the \vido\v and the major son v.:cre substituted on record as heirs. Later, when the respondent's further appeal was pending in the High Court. it was di9Covered that the deceased had left some other heirs besides the two who had been brought on record as his heirs. Consequently the respondents raised an objection that as some of the heirs of the deceased had been left out and there could be no question of want of knowledge of the existence of these heirs on the part of the "dow and the major son who had applied for being brought on rceord, the appeal abated. The High Court upheld the objection. In appeal, this Court.

HELD: The est<:te of the deceased was full;· reprrspnte<l b.v the heirs who had been brought on the record and these heirs represented the absent heirs also. who would be equally bound by the result

_I\

Even where the plaintiff or the appellant has died and all his E heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs. the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings f24 F-25B].

Further, in this case, the respondents themselves did not object that some heirs of the deceased had been left nut. f25 C-Dl.

Case law referred to.

OV!L APPELLATE JURJSDICTIO'i: Civil Appeal No. 836 of 1963.

Appeal by special leave from the judgment and decree dated January 4. 1962 of the Orissa High Court in S.A. No. 90 of 1960.

R. Gopa/akrislman, for the appellants.

B. Partl1asaratlzy, S. N. Prasad. J. B. Dadachanji, 0. C.

H Matlz11r and Ral'inder Narain, for respondent No. I.

' ..

B ).

DOLA! ll!OLLIKO v. K. o. PATNAIK (Wanchoo, J.) 23

The Judgment of the Court was delivered by Wanchoo, 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. A suit was brought by eleven plaintiffs

(who are appellants before us) including Dolai Molliko for a decla ration that the plaintiffs were tenants with occupancy rights in the lands in dispute. The suit was resisted by the defendants who are now respondents. The Munsif dismissed the suit. Thereupon there was an appeal by the plaintiffs. During the pendency of that appeal, Dolai Molliko, appellant, died in March 1958. An application was made within time for bringing on record his heirs, and these heirs were two, namely, the widow and a major son of the deceased. No objection was made to this application and consequently the widow and the son of the deceased were substituted on record as heirs.

The Subordinate Judge allowed the appeal and decreed the suit and gave the declaration prayed for by the plaintiffs. Then followed a second appeal to the High Court by the defendants-respondents.

When the appeal was pending in the High Court, it was discovered that Dolai had left three other heirs, namely, a minor son, a married daughter and an unmarried daughter besides the widow and the major son who had been brought on reoord as his heirs. Consequently an objection was raised in the High Court on behalf of the present respondents that as ail the heirs of the deceased Dolai had not been brought on record, the appeal before the Subordinate Judge had abated in toto. The High Court accepted this contention and held that as three heirs had been left out and as there could be no question of want of knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record, the appeal abated, as it was not disputed that in the present case the appeal would abate in toto. Jn consequence the appeal before the High Court was allowed holding that the appeal before the Subordinate Judge had abated and the judgment of the Munsif dismissing the suit was restored. Thereupon the appellants obtained special neave from this Court; and that is how the matter has come before us.

The only question therefore which falls for consideration is whether the estate of Dolai deceased appellant was sufficiently represented before the Subordinate Judge by the widow and the major son. The question whether in similar circumstainces an appeal abates came up for consideration before this Court in Daya Ram v. Shyam Sundari('). In that case it was held that "where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legid representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them bn record will bind not merely those impleaded but the entire estate including those not brought

(') (1965] lS.C.R. 231.

L/S4SCI-4

SUPRJ:ME COURT REPORTS

[1966] BUPP. s.c.R.

on record. In a case where the person brought on record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating."

The matter was again considered by this Court in N. K. Mohd.

Sulaiman Sahib v. N. C. Mohd. Ismail Saheb('). That was a mort- B gage suit, though the facts were slightly different from Daya Ram's case('). In Daya Ram's case ('), the sole respondent had died and an application was made in time for bringing his heirs on the record but two heirs were left out in this application. The remaining heirs were brought on record and a preliminary objection was rdised that as all the heirs had not been brought on record, the appeal had abated, and it was this objection which this Court rejected in Daya Ram'.1 case('). In Mohd. Sulaiman's ca1e('l, however, the mortgagor had died before the suit was brought by the mortgagee against some of the heirs of the mortgagor but he left

out two minor sons. The question then arose whether the two minor sons who had been left out from the array of defendants would also be bound by the decree passed in that suit. This Court followed the judgment in Daya Ram's case(') and it was held that D if the plaintiff had proceeded bona fide and after due enquiry and under a belief that the persons who were sued were the only legai representatives, the whole estate would be bound including those heirs who were not arrayed as defendants. This Court further pointed out that "this rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate B that there has not been a fair or real trial, or that the absent heir had a special defence which was not and could not be tried in the earlier proceedings." It has been contended on behalf of the appellants that the principle of these cases applies to the present case and the fact that three of the heirs were left out would make no difference as the entire estate of Dolai, deceased, must be held to be represented by the widow and the major son who were brought on the record. It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of

the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is

no question of any diligent or bona fide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstanOes which indicate that there has not been a fair or real trial or that against the H

aent heir there wa1 a special case which was not and could not

!') [19661 l S.O.R. 93;. !'l [1965] r s.c.R. 231.

·~

' ...

DOLAI MOLLIKO v. K. o. PATNAIK (Wanchoo, J.) 211

be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be eld to represent the entire estate including the interests of the herrs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out.

But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist.

In the present case there is no question of any fraud or collusion; nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the absent heir there was a special case which was not and could not be tried in the proceeding in his absence. It may also be noticed that the respondents themselves did not object in the court of the Subordinate Judge that some of the heirs of deceased Dolai had been left out and the case proceeded there. as if the estate of Dolali deceased was represented in full by the heirs brought on record. It was only in the High Court that it was discovered that Dolai had left three other heirs who had not been brought on the record. In the circumstances we are of opinion thalt the estate of Dolai was fully represented by the heirs who had been brought on the record in the Subordinate Judge's court and that these heirs represented the absent heirs also who would be equally bound by the result, and there is no reason to hold that the appel before the Subordinate Judge had abated on that ground.

We may in this connection refer to certain cases where a similar view has been taken. In Abdul Rahman v. Shahab-ud-Din('), the appellant had died and only his sons were brought on the record and not his widow and daughters, though the appellant was a Mohammadan. It was held that as the heirs who had applied for F being brought on record as heirs and legal representatives of the deceased appe.Uant bona fide believed that they were the sole heirs and legal representatives of the deceaed. the appeal did not abate notwithstanding that in Mohammadan Jaw other persons would be co-heirs of the deceased.

In Mohd. Zafaryab Khan v. Abdul Razaq('), it was held that "when by an order which has become final, a certain person's G name has been brought on to the record of an appeal as the legal

representative of the deceased appellant, it is not open to the respondent to urge that the appeal has abated because some other heirs have been left out."

In Ram Charan v. Bansidhar('), the sole appellant had died H leaving two daughters. One of his daughters was brought on record

(') I.L.R. (1920) I Lah. 481.

L'85SCI-4 (a) (') I.L.R (1928) I All. 857.

(1) I.L.R. (1942) All. 671.

26 BUPRBllE COURT llEPOBTS

(1966) BUPP. 8.0.11.

as his legal representative but not the other. It was held that the A substitution of one of the daughters as legal representative of the deceased must be deemed to have been for the benefit of the entire inheritance which came into being on his death, and the entire estate was represented by her and there was no abatement of any part of it.

In Babuie Shanti Devi v. Khodai Prarad Singh('), on the death of the plaintiff in a suit to enforce a mortgage his sons were brought on record but not his widow who had herself filed a petition stating that she was not in possession of the properties of the deceased plaintiff nor did she desire any interest in the family properties, it was held that the failure to bring the widow on the record was a mere technical defect and the suit did not abate.

c In Jshwar/al Laxmichand Patel v. Kuber Mohan Lawar('), on the death of the appellant, his son was brought on record as heir on his application and the widow who also was an heir was left out, it was held that it was proper that both the son and the widow should have applied for being brought on the record but that the appeal did not abate merely because the widow had not applied as the estate was fully represented by the son.

We are of opinion that these cases have been correctly decided and even where the phrintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be. does not abate and the heirs brought on the record fully represent the estate unless there are circum E 5tances like fraud or collusion to which we have already referred above.

. I ~

The appeal is therefore allowed and the judgment of the High Court set aside. The case will now go back to the High Court for - decision on the merits after bringing the heirs left out earlier on the record. The costs of this Court will abide by the final result.

...

Appeal allowed.

\ 1) A.I.R. (19i2) Pntna 340 (') A.LR. (1843) Dom. m.

DOLAI MOLLIKO & ORS

KRUSHNA CHANDRA PATNAIK & ORS

c. SHAH


KALARIMADATlllL UNNI

STATE OF KERALA

April 22, 1966

(M. HIDAYATULI.All A~D V. RAMASWAMI, JJ.J

Indian Penal Code, ss. 300 and 34-Ingredients of the four clauses of the section-Tests-Victim dying of asphvxiation, his mouth and nose having been ph1aged--Offence whether murder or cu/.pable

homicide-"Injury sufficient in the ordinary course of nature tq caus., death" in terms of cl. 3 proof of-Common intention of acCl/l; fd in a case covered by cl. 3.

The appeUants were convicted of murder under s. 302 read with s. 34 I.P.C. on the allegation that they had laid their victim in a drain after closing his mouth with adhesive tape and plugging his nose with cotton wool soaked in chloroform. as a result of whilh death was caused. They apptaled to this Court by special leave. It was contended on their behalf: (i) that their offence did not amount to murder but only to culpable homicide under the second part of s. 304, (ii) that it could not be inferred from the mere fact of death that the injury caused by the appellants was sufficient in the ordinary course of nature to cause death; this had to be proved bv further evidence and (iii) that th<' ingredients of s. 34 I.P.C. were not satisfied.

HELD : (i) What distinguishes the ofTenccs of murder and culpable homicide is the prPsence of a special 1nens rea \\'hich consists of four mental attitudes in the presence of any of which the les9er offence becomes the greater. These four mental attitudes arc stated in the four clauses of s. 300 I.P.C. (235 BJ

(ii) The first clause of s. 300 says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved. the offence is murder unless one of the exceptions applies, in \Vhich case the offence is reduced to culpable homicid not amounting to murder. On the facts of the present case an intention to cause death \Vas not proved against the appellants and the clause thereforl' did not apply. [235 CJ

(iii) The second clause of the section deals with acL< done with. thP. intention of causing surh bodily injury as the offt'nder knows to ,

be likely to cause tho dl'aLh of the pcr!l<m to whom harm is caused.

The mental attitude here is two-fold. There is first the intention to G

cause bodily harm and next there is the subjective knowledge that death will be the likely consequence. EnRlish Common Law made A no clear distinction bct\veen intention and recklessness but in our

law tne loresight of the death must be present. Thn mental attitude is thus made of t\vo elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. The present case could not fall under this clause either.

H bccau~. it could not be said that the appellants who only wanted to make their victim uncons<'ious had the subjective knowlcc of the fatal consequences of the bodily harm they were causing. [235 Fl

UNNI V.

STATE 231

(iv) The appellants were however guilty of murder under the third clause of s. 300. [237 G-H]

The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be intlicted is sufficient in the ordinary course of nature to cause death. In this clause _the result of the intentionally caused injury must be viewed objectively, If the injury that the offender intends causing and does cause is sufficient to cause death in the ord; nary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequen

ces or not. [236 BJ

For the application of this clause it must be first established that an injury is caused, next it must be established object; vely what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied.

Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. [236 C-D]

Virsa Singh v. State of Punjab [19581 S.C.R. 1495, referred to.

The bodily injury caused by the appellants was deliberate and preplanned and the subjective test involved in the clause was therefore satisfied. The other test namely whether the injury was suffi cient in the ordinary course of nature to cause death w&s also satisfied in the case as in the circumstances it would have been a n1iracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants. [236 EF]

(v) The fourth clause of s. 300 comprehends generally, the com mission of imminently dangerou8 acts which must in all probability cause death. What the appellants did may well be said to satisfy the requirements of this clause also, although it is ordinarily applicable to cases in which there is no intention to kill anybody in parti cular. (Obiter). [238 Al

(vi) The sufficiency of an injury to cause death in the ordinary course of nature in the terms of cl. 3 need not in every case be required to be proved by separate evidence in that regard. Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else it is hard ly necessary to prove more than the acts themselves and the causal connection between the acts and the end result. The sufficiency of the injury in the present case was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts. There was no need to establish more than this in the case. [237 B-G]

Anda v . .51tate of Raiasthan, A.I.R. 1965 s.c. 148 referred to.

(vii) All the acts were done after deliberation by the appellants.

They were of a type which required more than one person to perpetrate. That there was a common intention admits of no doubt and as clause 3 of s. 300 views the consequence of the act objectively all those who shared the common intention of causing the bodlly injury which was sufficient to cause death in the ordinary course of nature must be held responsible for the resulting offence. [238 CJ

L/S5SCI- 17

St:PRliMB OOURT llBPOJITil [1966) iUPP. li.0.1\.

CRIMINAL

APPELLATB

JURISDICTION: Criminal Ap~ A Nos. 102 & 103 of 1965.

Appeals by special leave from the judgmenli and orders dated October 12, 1964 of the Kerala High Court in Criminal Appeal No. 80 of 1964, and Criminal Appeal No. 70 and Referred Trial No. 13 of 1964 respectively.

Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant (in Cr. A. No. 102/65).

Harbans Singh, for the appellant (in Cr. A. No. 103/65).

A. S. R. Chari, V. Narayana Menon and M. R. K. Pillai, for the respondent (in both the appeals).

The Judgment of the Court was delivered by

Hidayatullah, J. This judgment will also govern the dls; x>sal

of Criminal Appeal No. 102 of 1965 (Rajwani Singh v.

The State of Kerala). The appellants in these two appeals have been convicted under ss. 302/34, 364, 392. 394 and 447 of the Indian Penal Code. Unni (appellant in this appeal) has been D sentenced to death and Rajwani Singh (appellant in the other appeal) has been sentenced to imprisonment for life. No separate sentences under the other sections have been imposed on Unni but Rajwani Singh has been sentenced to four years' rigorous imprisonment under ss. 392 and 394. Indian Penal Code, with a direction that the sentences shall run concurrently with the sentence of imprisonment for life. The High Court of Kerala has E dismissed their appeals and confirmed the sentence of death on Unni. They now appeal by special leave of this Court.

These appellants were tried with three others, of whom two were acquitted. One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life. He has not appealed to this Court. We are not concerned with them. The case relates to the death of one Lt. Commandec Menianha of the Naval Base. l.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963. Unni was attached as a rating to this Naval Base and at the time of

the offence was on leave. Taylor, who has not appealed was an ex-sailor and Rajwani Singh was attached to I.N.S. Vikrant. The case of the prosecution was that these persons conspired together G to burgle the safe of the Base Supply Office on the eve of the pay-day, when a large sum of money was usually kept there for distribution on the pay-day. They collected varioll! articles such as a Naval Officer's dress. a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes. On the night in question they decoyed the Lt. Commander from his 8 house on the pretext that he was wanted at the Naval Base, and in a lonely place caught bold of him. They covered hill moutli

][.

UNNI ~. STATE (Hidayatul/, ah, J.) ~33

with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform.

They tied his hands and legs with rope and _deposited hnn_ m a shallow drain with his own shirt put under his head as a pillow.

They then went up to the sentry, who was induced to part with his rifle to one of the accused who had dressed himself as an officer, and attacked him. The sentry would have received the same treatment as his Lt. Commander but he raised a hue and cry and attracted the attention of the watchman. Fearing detection the assailants released the sentry and took to their heels. The sentry after escaping informed the Officer-on-duty at the Base and stated that he had recognised Rajwant Singh as one of his assailants. Next morning the dead body of the Lt. Commander was discovered in the drain where he had been left by the assailants.

Investigation followed and five persons were placed on trial before the Session Judge, Ernakulam Division, who convicted three and sentenced them as stated above and acquitted the other two. The appeals of these persons before the High Court failed.

In these appeals the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder.

It is also contended that s. 34 of the Indian Penal Code could not be used against any of the accused. Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two. We shall deal with these arguments. Our attention has been drawn to the inquest and postmortem reports to establish what was actually done to the Lt. Commander.

From these, it is established that the legs of the victim were tied with rope and his arms were tied behind his back. A large adhesive plaster was stuck over his mouth and completely sealed it.

A handkerchief was next tied firmly over the adhesive plaster to secure it in position. The nostrils were plugged with cotton soaked in chloroform. Counsel for the appellants submit that all this shows that the assailants did not intend to kill the Lt. Commander but to render him unconscious. It is admitted that the closing of the mouth with the adhesive plaster and the handkerchief was complete and that it must have been impossible for the Lt. Com mander to breathe through his mouth. The description, however, shows that the nostrils were also plugged with cotton wool soaked in chloroform. This was clearly stated in the inquest report and also in the postmortem report and was established not only by the witnesses proving the inquest report but also by the doctor who performed the autopsy. In addition the prosecution has exhibited and proved numerous photographs of the dead body from various angles and these things are clearly seen in the L/85801-l 7 (•)

SUPRED OOOllT RBPORT8

(1966) SUPP, 8,0, B.

photographs. According to the doctor death was due to asphyxia- A tion.

In addition to the other evidence establishing the connection of Unni and Rajwani Singh with this crime there is a confession by Rajwani Singh before the Sub-Magistrate, Cochin in which he graphically describes the part played by him and Unni. Rajwani I Singh also stated that they only wanted the Lt. Commander and the sentry to remain unconscious while they rifled the safe and took away the money.

It is contended that we must accept the confession as a whole and must hold on its basis that the intention was not to kill, and that the offence of murder is therefore not established. As this is the most important point in the case we shall consider it first. 0

This point was argued by Mr. J. G. Sethi on behalf of Rajwant Singh and his arguments were adopted by Mr. Harbans Singh on behalf of Unni. Mr. Sethi argued that the offence was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under s. 304 (second part) of the Indian Penal Code. It is quite plain that the acts of D the appellants resulted in the death of the victim and the offence cannot be placed lower than culpable homicide because the appellants must have known that what they were doing was likely to kill. The short question, therefore, is whether the offence was murder or culpable homicide.

11 Mr. Sethi submits that of the three clauses of s. 299, which define the offence of culpable homicide, the first deals with intentional killing and the second with injuries which are intentionally caused and are likely to cause death. He submits that these two clauses form the basis of the offence of murder and culpable homicide punishable under he first part of s. 304 and the third clause, which involves the causing of death with the knowledge that by r his act the offender is likely to cause death, is the foundation of offence of culpable homicide not amounting to murder punishable under the second part of s. 304. He submits that the appellants did not intend causing the death of the Lt. Commander but took action to keep him immobilised and silent while they rifled the safe. To achieve their purpose they tied the victim and closed his mouth and plugged the nostrils with cotton soaked in G chloroform. Each of these acts denoted a desire to keep the Lt.

Commander out of the way for the time being but not to kill him. Nor can the acts be described as done with the intention of causing such bodily injury as was likely to kill.

At the most. says he. it can be said that the death was caused with the knowledge on the part of the appellants that by their acts they were B likely to cause death and that brings the matter within s. 304 II.

1.P.C.

K. UNNI v. STATE (HidayatuUah, J.) 235

The argument requires close examination. Two offences involve the killing of a person. They are the offence of culale homicide and the more henious offence of murder. What d1stmguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in s. 300, I.P.C. as distinguishing murder from culpable homicide Unless the offence can be said to involve at least one such mental attitude it cannot be murder. We shall consider the acts of the appellants in relation to each of the clauses of s. 300.

The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty.

Once the intention to kill is proved, the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder. As there is no question of any of the exceptions they need not be mentioned.

But it is plain that the appellants did not contemplate killing the Lt. Commander. No part of their preparations shows an intention to kill. Had they so desired, they had ample time and opportunity to effectuate that purpose without going to the trouble of using cotton soaked in chloroform to stuff the nostrils. They had only to hold his nose closed for a few minutes. The confession to which we have referred also shows that the news of the death of the Lt.

Commander came to them with as much surprise as shock. In these circumstances, the first clause of s. 300 cannot apply.

The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused.

The mental attitude here is two-fold.

There is first the intention to F cause bodily hanp and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. Here the injury or G . harm was intended. The appellants intended tying up the victim, closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform. They intended that the Lt. Commander should be rendered unconscious for some time but they did not intend to do more harm than this. Can it be said that they had the subjective knowledge of the fatal conse- H quences of the bodily harm they were causing? We think that on the facts the answer cannot be in the affirmative. To say that the act satified the test of subjective knowledge would be really

236 BUPREMll COURT REPORTS

(1966) 8UPP. 8.C.11.

tantamount to saying that the appellants intended to commit the murder of the Lt. Commander which, as said already, was not the case.

The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to

a person and the bodily injury intended to be intlictcd is sufficient B in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and d':'.es cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the oilender had a subjective knowledge of the consequences or not. As IKS laid down in Virsa Singh v.

The State of Punjab(') for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nnture of that iniury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.

Applying these tests to the acts of the appellants we have

to see first what bodily injury has been established. The bodily injury consisted of tying up the hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate B acts which had been pre-planned and they, therefore, satisfy the subjective test involved in the clause. The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death. In our judgment they were. The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton. All in all it would h~1ve been a miracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants.

Mr. Sethi suggested that the victim must have struggled to free himself and had rolled into the drain and this must have pushed up the cotton further into the nostrils. This is not correct.

The victim was placed in the drain by his assailants because his & folded shirt was placed under his head and had obviously fainted

by that time. No one seems to have been aware of his presence; otherwise discovery would have taken place earlier. This leads to the only conclusion that there was no change in the circumstances in which the victim was left by the assailants. The bodily injury proved fatal in the ordinary course of nature. The ordinary course B ------

.l-

I. YNNI v.

IT.I.TE (Hidayaturtah, J.) 237

of nature was neither interrupted nor interfered with by any intervening act of another and whatever happened was the result of the acts of the as&ailants, and their acts alone.

Mr. Sethi argueii that the sufficiency of the injury to cause death in the ordinary course of nature is something which must be proved and cannot be inferred from the fact that death has in fact taken place. This ill true of some cases. If a blow is given by reason of which death ensues, it may be necessary to prove whether it was necessarily fatal or in the language of the Code suffiC!l'ent in the ordinary course of nature to cause death. In such a case it may not be open to argue backwards from the death to the blow, to hold that the sufficiency is established because death did result. As death can take place from other causes the sufficiency is required to be proved by other and separate evidence.

There are, however, cases and cases. Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else, it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result. Mr. Sethi contends that the concentration of chloroform, the quantity actually used and its effect on the victim ought to have been proved. Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the manner of plugging should have been established before a finding can be given that the bodily injury was sufficient in the ordinary course of nature to cause death. This would, of course, have been necessary if it could at all be thought that not the acts of the assailants but some other intervening circumstance might have led to the death of the victim. But there was none.

There was no interference by anyone else. Death was due to asphyxiation whether caused by the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent, or both. Whichever way one looks at it, the injury which caused the death was the one inflicted by the assailants. The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts.

There was no need to establish more than this in the case. As was pointed out in Anda v. State of Rajasthan(') "the emphasis in clause thirdly is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues, and if the causing of the injury is intended, the offence is murder". In this case the acts of the appellants were covered by the third clause in s. 300.

As we are satisfied that this case falls within clause thirdly we need hardly consider whether it falls also within the fourth clause or not. That clause comprehends, generally, the commission of

1 A. I. R. !9M e. 0. 148 at 161.

---~~- ----------

. - --

- 238

SUPREME COURT REPORTS (1966] SUPP. a.o.R.

-, imminently dangerous acts which must in all probability cause A -

death_ To tie a man so that he cannot help himself, to close his mouth completely and plug his nostrils with cotton _wool soaked in chloroform is an act imminently dangerous to life, and it may

- well be said to satisfy the requirements of the last clause also,

although that clause is ordinarily applicable to cases in whichthere is no intention-to kill any one in particular. We need not, B ;; however, discuss the point in this case. We accordingly hold that tbe offence was murder. All the acts. were done after deliberation by the appellants. They were of a type which required more than one person to peqietrate.

What was done had already been discussed and the execution of . the plan was carried out as contemplated. That there was a . o common intention admits of no doubt and as clause 3 of s. 300 views the consequence of tbe act objectively all those who shared'.

the common_ intention of causing the bodily injury .which was . sufficient to catise death in the ordinary course of nature must be held responsible for the resulting offence. Even if the consequence was different from what was actually intended, those who abetted (and the appellants were either_ offenders prindpally or abetters) _ D ~! would be equally responsible under s. 113 of . the Indian Penal .

Code provided tbey knew that the act whichtbey were abetting was likely to cause that effect. On the argume'nt of_ the appellants tbat s. 304 II applies, it is obvious that the above provision must be attracted. In our judgment tbe appellants were rightly adjudged guilty under s. 302/34, Indian Penal Code. ·

As regards the sentence of death passed on Unni, we see no.· reason to interfere. He was the master mind beh; nd the whole

affair and the sentence of death was, therefore, appropriate. We see no force in either appeal. They will be dismissed.

Appeals dismissed.

. . r

------~==--,--·-----------

E -;

KALARIMADATlllL UNNI

STATE OF KERALA

M. HIDAYATULI.All A~D V. RAMASWAMI, JJ

Indian Penal Code

ss. 300 and 34

cl. 3

cl. 3

s. 302

s. 34

I.P.C

s. 304

s. 34

I.P.C

s. 300

I.P.C

s. 300

s. 300

s. 300

cl. 3

clause 3

s. 300

ss. 302

Indian Penal Code

ss. 392 and 394

Indian Penal Code

s. 34

Indian Penal Code

s. 304

Indian Penal Code

s. 299

s. 304

s. 304

s. 304

s. 300

I.P.C

s. 300

s. 300

s. 300

clause 3

s. 300

s. 113

s. 304

s. 302

Indian Penal Code