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SETH GULABCHAND

SETH KUDILAL AND OTHERS

February 22, 1966

[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO,

M. HIDAYATULLAH, J.C. SHAH ANDS. M. S!KRI, JJ.]

Contract Act 1872, s. 23-Suit for specific performance of agre.ement- Finding that consideration for agreement was a bribe-Whether such finding required to be based on proof as In a criminal ca.re-Whether 1. 3 of Indian Evidence Act, 1872 applies same standard of proof in all civil cases.

G was one of a number of partners in a firm which carried on the business of acting as Managing Agents and Selling Agents of a company owning a textile mill in Indore. Serious disputes arose between tho partners and soon thereafter the Directcmo of the managed company appointed a committee in November 1940, of which the appellant was a member, to inquire into certain allegations made against G and two other partners of the managing agency firm.

In February 1941, G entered into an agreement with the appellant to sell to him a share in the partnership wblch was to be transferred to G by virtue of an arbitration award on the disputes between the partners.

In April 1941, the committee gave its final report which was favourable to G although the interim report of December 1940 had not been 10

favourable.

Upon G failing to transfer the share in the partnership as provided in the agreement of February 1941, the appellant filed a suit against the heirs and legal representatives of G for specific performance of the agreement. The High Court decreed the appellant's suit, but on appeal to the Division Bench of the High Court, the decree was set aside.

A further appeal to the Full Bench of the High Court was dismissed. Both the Dhi- 1wn Bench and the Full Bench held that the agreement to sell a •hare in

the partnership was a bribe offered by G to the appellant to write a report favourable to him.

In the appeal to this Court, it was contended on behalf of the appellant, inter alia, that there was no evidence in support of the finding relati•g to l>ribery arrived at by the Full Bench and that the said finding WaJ based on mere surmises; that the Full Bench had misdirected itself in not adopt ing a strict standard of proof and that where bribery is alleged in a civil case, the same standard of proof should be required as in a criminal case; that in case of c'.rcumstantial evidence, the circumstances must be such so as to exclude any other reasonable possibility and that if this principle was applied to the present case, the finding of bribery must be reversed as the facts were equally consistent with the appellant having acted honestly; and that immorality witbln Section 23 of the Indian Contract Act is confined to sexual immorality.

HELD : On the facts, the Full Bench did not rely on any surmiseo and its findings were not vitiated.

It is clear from Section 3 of the Indian Evidence Act that the •ame standard of proof applies in all civil cases. It makes no difference between cases in \Vhich charges of a fraudulent or criminal character are made

and cases in which such charges are not made.

But this is not to say A that the Coun will not, while striking the balance of probability, keep in mind the presumption of honesty or innocence or the nature of the crime or fraud charged. (629 0-H]

Weston v. Peary Mohan Dass (1913), I.L.R. 40 Cal. 898 at 916: disapproved.

Jara/ Kumari Da.rsi v. Bissesur : l.L.R. 39 Cal. 245 and Prasannamayl Debya v. Baikuntlra Nath Chattoraj: I.L.R. 49 Cal. 132; referred to.

It cannot be said that rules applicable to circumstantial evidence in criminal cases would apply where a party, in a civil case, ; s alleged to have accepted a bribe. The ordinary rules governing civil cases will continue to apply. (630 E] Rafa Si11gh v. Chachoo Singh : A.I.R., 1940 Patna 210; referred to.

It was unn=ary to consider whether the consideration for the &ifCOment of February 1941 was immoral or not.

The ca.se ol bribery i.o covered otherwise by Section 23 of the Contract Act (630 OJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 795 of 1963.

Appeal by special leave from the judgment and decree dated November 24, 1958, of the Madhya Pradesh High Court at D Indore in Civil Special Appeal No. 5 of 1949.

C. B. Agamala, J. D. Patel, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant.

M. P. Amin, C. B. Sang/ii, V. M. Amin and l. N. Shroff, for the respondents.

The Judgment of the Court was delivered by

Sikri, J, This appeal by special leave is directed against the judgment and decree of the Full Bench of the High Courl of Madhya Pradesh in Civil Special Appeal No. 5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram. Sanghi, J., decreed the suit on June 11, 1948.

Against this judgment and decree, the defendants filed an appeal to a Division Bench of the Madhya Bharat High Court and the plaintiff also preferred a cross appeal. The Division Bench accepted the defendants' appeal, reversed the judgment and decree of Sanghi, .I., and dismissed the plaintiff's suit as also his cross appeal.

Thereafter the plaintiff filed an appeal under s. 25 of the Madhya Bharat High Court of Judicature Act, 1949, as it stood before it was arr.ended by Madhya Bharat Act No. 3 of 1950. When this appeal came up for hearing before a Full Bench of the Madhya Pradesh High Court, a preliminary objection as to the competency cf the appeal was taken on behalf of the defendants-respon-

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dents. The Full Bench held that the appeal was not competent, but this Court, on appeal, held that the appeal was competent and remitted the case to the High Court for decision on merits. On remand the Full Bench upheld the decision of the Division Bench and dismissed the appeal. The matter is now before us.

In view of the arguments urged before us by learned counsel for the appellant, Mr. C. B. Aggarwala, it is not necessary to give in detail the history of the disputes between the parties, or all the points that were debated before the High Court. To appreciate the arguments addressed to us it is only necessary to give the following facts.

Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore. Serious disputes arose between the partners. The Board of Directors of the Company appointed a Committee in November 1940 to enquire into certain allegations made against Govindram Seksaria, Brijlal and Bilasrai. The Committee consisted of Mr. R. C. Jall as Chairman, and Seth Hiralal and the plaintiff as members. In the meantime, the partners referred their differences to the arbitration of Col. Dina Nath, the Prime Minister of the former Holkar State. On February 8, 1941, the Arbitrator gave an award, inter alia deciding that Govindram Seksaria should buy up the five-annas shares of Brijlal Ramjidas and Bilasrai Joharmal at par and that the latter should sell their respective shares of annas two and a half each in the rupee at par and also sell the debentures held by them to Govindram Seksaria at par. On February 12, 1941, Brijlal and Bilasrai instituted a suit in the Bombay High Court against Govindram and other partners of the Managing Agency contesting the validity of the award made by Col. Dina Nath. They failed before the Bombay High Court and ultimately before the Privy Council.

On November 5, 1947, a deed of assignment of the four-annas share of Brijlal and Bilasrai was executed in favour of the defendants as legal representatives of Govindram, who had died in the meantime in May 1946. On November 6, 1947, the plaintiff instituted the suit out of which this appeal arises.

Various issues were raised in this suit but it is only necessary to mention issue No. 4, which was as follows:

"Was the agreement to sell the two and a half annas share a bribe offered by the deceased Seth Govindram to the plaintiff to write a report favourable to him, the plaintiff being a member of the Committee of three persons appointed by the Directors of the Malwa Mills, Indore to

enquire into and report on the management of the Mills by Seth Govindram ?"

Both the Division Bench and the Full Bench on appeal have held this issue to be proved and it is common ground that if the decision of the Full Bench on this issue cannot be successfully assailed, no further point arises and the appeal must fail.

We may here state the primary facts and the findings of the Division Bench and the Full Bench. After the award was made Govindram addressed a letter to Mr. Jail as a member of the Enquiry Committee on February 13, 1941, intimating to him that the Prime Minister of the Holkar State had given an award on February 8, 1941, in his favour, and forwarding a copy of the award.

On the same date Govindram addressed a similar letter to the plaintiff. A day or two after the receipt of this letter by the plaintiff Govindram met him at his house and made him an offer of making him a partner of the managing agency firm by assigning two and half annas shares out of the share of Brijlal and Bilasrai which he was to get under the award. The next day the plaintiff accepted the offer and on February 28, 1941, the agreement was concluded between the parties. A day before the agreement was signed by the parties, Gulabchand, Plaintiff, addressed a Jetter to Mr. Jail, the Chairman of the Enquiry Committee, on February 27, 1941, for holding the meetings of the Committee daily so as to expedite its report. On February 8, 1941, Govindram met Mr. Jail, and offered to sell to him one anna share, which he rejected saying that "as he was the member of the Enquiry Committee, it would look as if he was making the offer to please him." The Committee gave its final report on April 7, I 94 I, which was favourable to Govindram, although the interim report dated December I 6, I 940, was none too favourable to him. The plaintiff had no previous experience of the working of any Mill and had never been a managing agent of any textile mill.

Govindram was a rich man and a millionaire. In 1942 Govindram suggested to the plaintiff that the share to be sold to him should be reduced to one and a half annas, hut the plaintiff did not accept the suggestion. Later, in 1942, when Mr. Jail questioned Govindram about the intended reduction in the share which was to be sold to the plaintiff, Govindram replied that he did not really intend to give any share to the plaintiff or anyone and that he proposed to give the entire four-annas share to the Holkar State by way of charity.

From all these facts the Division Bench inferred and concluded that the offer of two and a half annas share by Govindram

to the plaintiff, Gulabchand, was a bribe in order to induce him to H report in his favour and was accepted as such by Gulabchand.

This conclusion was challenged before the Full Bench on various grounds, but the Full Bench upheld the decision. The Full Bench

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OULABCHAND v. KUDILAL (Sikri, /.) 621

found that in making the offer of the sale of two and a half annas share to the plaintiff Govindram did not care for the plaintiff's. money or his services in the management of the mill because "Govindram continued to manage the Mill without the plaintiff, putting him off by saying that the contract would be fulfilled after the end of the litigation initiated by Bilasrai and Brijlal, and after the Enquiry Committee gave its final report Govindram actually suggested a reduction in the share and even told Mr. Jail that he was not going to sell it to the plaintiff or to anyone. The ostensible reason given for the intended partnership of Gulabchand is 'too thin to hide the real reason', and its recital in the agreement is odd in itself." The Full Bench found that the balance-sheets tendered in evidence in the case showed that Govindram had earned enough money by way of selling and managing agency commission and it was not necessary for him to find a financial partner in the plaintiff and that Govin dram was prepared to give the entire four annas share he had obtained under the award to the Holkar State in charity was in itself an indication that the offer of two and half annas share to Gulabchand was not made by Govindram on account of his own financial stringency. After considering various facts the Full Bench concluded that "the share in the managing agency partnership of the mills was, therefore, not one which could be parted away easily by a partner or could be had by anyone for the mere asking and readiness to furnish the necessary proportionate capital and to purchase the debentures of the required amount, without any more. That "any more" in the present case, is, as the learned Judges of the Division Bench have suggested, nothing else than the anxiety of Govindram to get a favourable report from the Enquiry Committee and the willingness of the plaintiff to oblige him by making a favourable report. Taking into consideration the facts and circumstances narrated in the judgment of the Division Bench at pages 170 to 173 of the printed paper book, and those summarised above, the conclusion at which the learned Judges arrived that the transaction was in the nature of bribe to the plaintiff appears to us to have all the commendation which commonsense and the realities of the case can give it. It is one which legitimately can be drawn from the facts and circumstances proved in the case and in accordance with the probabilities of the case. It cannot, therefore, be maintained that the defendants have not discharged the burden of the proof that lay on them of establishing the plea of bribe. They were not required to prove that fact beyond reasonable doubt as in a criminal case."

Mr. C. B. Aggarwala, while admitting that concurrent findings of fact cannot ordinarily be assailed before this Court, contends that in this case there is no evidence in support of the findings arrived at by the Full Bench and that the findings are based on mere surmises.

He further says that the Full Bench has misdirected

628 su_pllEME CQUllT R.l!POP.TS

[1966) 3 S.C.R.

itself in not adopting a strict standard of proof in this case. He urges that where bribery is alleged in a civil case the same standard of proof should be required as in a criminal matter. He further urges that the High Court should have held that Hiralal's evidence was not admissible. Another argument urged by him is that there was no proof at all that the plaintiff was a party to the intention of Govindram to bribe him.

He says that there is presumption that the plaintiff acted honestly and no material has been placed to displace that presumption.

We see no force in Mr. Aggarwala's first contention that there is no evidence in support of the findings of the Full Bench or that

the findings are based on mere surmises. It is true that there is <listincti<m between a probability and a mere surmise. But in this C case we are satisfied that the Full Bench did not rely on any surmises.

The real complaint of Mr. Aggarwala in this case seems to be that as bribery was alleged the Full Bench should have gone into the question of bribery as if it was a criminal case.

Jn this connection he relied on the following observations made by Woodroffe, J., in Weston v. Peary Mohan Dass(l).

"And speaking for myself where, whatever be the form of the proceeding, charges of a fraudulent or criminal character are made against a party thereto, it is right to insist that such charges be proved clearly and beyond reasonable doubt, though the nature and extent of such proof must necessarily vary according to the circumstances of each case. There is a presumption against crime and misconduct, and the more heinous and improbable a crime is, the greater of necessity is the force of the evidence required to overcome such presumption. I cannot myself imagine a Court saying to a party, who, as in this case, may be a person holding a high and responsible position, with a previous unblemished record : "It is true that I have reasonable doubts whether you did the grossly criminal acts with which you are charged, but I find that you did so all the same." And this exclusion of reasonable doubt is all that the so-called "criminal proof" requires."

Fletcher, J., the Trial Judge, relying oh Jara/ K11mari Dassi v.

Bissemr(2) to which Woodroffe, J., was a party, had overruled the point that the standard of proof in a civil case, in which a charge of a criminal character is made, was the same as if the parties were being tried for a criminal offence.

He observed that in India, under the Indian Evidence Act, there is no rule that the standard 11 of proof in a case like the present must be the same as if the

(1) (t913) I.LR. 40 Cal. 898 at 916.

(2) J.L.R. 39 cal. 245 : 16 C.W.N. 265.

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A defendants were being tried on a criminal charge. This case (Jarat

~ KJPnari Dassi v. Bissesur)(l) was followed in Prasannamayi Debya

v. Baikuntha Nath Chattoraj(2). The Division Bench followed these observations of Jenkins, C. J., in Jara! Kumari Dassi's(1) " case:

B "Demonstrations, or a conclusion at all points logical cannot be expected nor can a degree of certainty be demantled of which the matter under investigation is not re- , asonably capable. Accepting the external test which ex- ,

perience commends, the Evidence Act in conformity with the general tendency of the day adopted the requirements of the prudent man as an appropriate concrete standard by c which to measure proof.

The Evidence Act is at the same time expressed in terms which allow full effect to be given to circumstances or conditions of probability or improbability, so that where, as in this case, forgery comes in question in a civil suit, the presumption against misconduct is not with- D out its due weight as a circumstance of improbability, • though the standard of proof to the exclusion of all rea- ' sonable doubt required in a criminal case may not be applicable." In s. 3 of the Indian Evidence Act, the words_"proved'', "disproved" and "not proved" and defined as follows :.

E "Proved.-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so prol:.able that a

prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

"Disproved.-A fact is said to be disproved when,

~ after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."

"Not proved.-A fact is said not to be proved when it G is neither proved nor disproved." It is apparent from the above definitions that the Indian Evidence "' Act applies the same standard of proof in all civil cases. It makes no difference between cases in which charges of a fraudulent or criminal character are made and cases in which such charges are not " made. But this is not to say that the Court will not, while striking H the balance of probability, keep in mind the presumption of honesty • or innocence or the nature of the crime or fraud charged. In our

(I) I.L.R. 39 Cal. 245 : 16 C.W.N. 265.

(2) l.L.R 49 Cal. 132.

opinion, Woodroffe, J., was v.Tong in insisting that such charges must be proved clearly and beyond reasonable doubt.

Hiralal's evidence was sought to be ruled out on the ground that what he had stated in his evidence had not been put to the plaintiff. Hiralal had deposed that after the award the plaintiff saw him and told him that there was some settlement between him and Govindram. It is not necessary to decide this point because the Full Bench did not base its findings on Hiralal's evidence.

Mr. Aggarwala, relying on Raja Singh v. Chairhoo Singh(') further urges that in case of circumstantial evidence the circumstances must be such so as to exclude any other reasonable possibility and he says that if this principle is applied to this case the c finding of bribery must be reversed as the facts are equally consistent with the plaintiff having acted honestly. Meredith, J., had observed as follows :

"Now it is well-settled that where fraud is to be inferred from the circumstances, and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility.

In other words, the criterion is similar to that which ts applicable to circumstantial evidence in criminal cases."

We are unable to agree with these observations. As we have said before, the fact that the party is alleged to have accepted bribe

in a civil case does not convert it into a criminal case, and the ordi- E nary rules applicable to civil cases apply. The learned counsel has not been able to cite any other authority to show that there is any such well-settled proposition, as stated by Meredith, J.

Coming to the next contention, the fact whether the plaintiff was a party to the intention of Govindram to bribe him has to be judged like any other fact on the balance of probability. We are F not satisfied that the Full Bench has misdirected itself in any manner in finding this fact.

In the end Mr. Aggarwala urges that immorality within s. 23 of the Indian Contract Act is confined to sexual immorality, but we are not concerned with the question whether the consideration is immoral or not. The case of bribery is clearly covered G otherwise by s. 23.

In the result we hold that the findings of the Full Bench are, not vitiated and must be accepted. The appeal, therefore, fails and is dismissed with costs.

Appeal dismissed.

(I) A.l.R. 194-0 Patna 210 at 203.

SETH GULABCHAND

SETH KUDILAL AND OTHERS

P. B. GAJENDRAGADKAR

K. N. WANCHOO

M. HIDAYATULLAH, J

C. SHAH

Contract Act 1872

s. 23

Indian Evidence Act, 1872

Indore

Section 23

Indian Contract Act

Section 3

Indian Evidence Act

Section 23

CIVIL APPELLATE JURISDICTION

Madhya Pradesh High Court at D Indore

B. Agamala

J. D. Patel

B. Dadachanji

0. C. Mathur

Ravinder Narain

M. P. Amin

V. M. Amin

l. N. Shroff

Sikri

Seth Gulabchand

Seth Govindram Seksaria

February 28, 1941

Govindram. Sanghi

June 11, 1948

Madhya Bharat High Court

Sanghi

s. 25

Madhya Bharat Act

Madhya Pradesh High Court

When this appeal came up for hearing before a Full Bench of the Madhya Pradesh High Court, a preliminary objection as to the competency cf the appeal was taken on behalf of the defendants-respon-
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C. B. Aggarwala

Govindram Seksaria

Brijlal Ramjidas

Bilasrai Joharmal

July 17, 1935

Indore Malwa United Mills Ltd.

Govindram Seksaria

Brijlal

Bilasrai

R. C. Jall

Seth Hiralal

Dina Nath

Holkar

February 8, 1941

February 12, 1941

Bombay High Court

Govindram

November 5, 1947

Govindram

November 6, 1947

Seth Govindram

Malwa Mills, Indore

Jail

February 13, 1941

Holkar State

28, 1941

Gulabchand

February 27, 1941

April 7, I 94 I

Holkar State

Hiralal

Aggarwala

Woodroffe

Fletcher

India

Indian Evidence Act

Jenkins

Jara! Kumari Dassi's(1

s. 3

Indian Evidence Act

Tong

Meredith

s. 23

Indian Contract Act

s. 23


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63 l

CALTEX INDIA LIMITED v.

PRESIDING OFF1CER, LABOUR COURT, AND ORS.

February 23, 1966

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH,

J. C. SHAH AND S. M. S1KRI, JJ.}

Bihar Shops and Estaulishment Act (B of 1954), s. 26(1) provloo- Power of States Government to prescrlue what kinds of misconduct could be punished by dismissal/ discharge without notice under s. 26(1 )- Provl90 whether ultra vires.

The appellant company held an enquiry into the misconduct of two of its permanent employees and dismissed one of them while discharging the other.

They made applications to the Labour Court under •· 26 of the Bihar Shops and Establishments Act 8 of 1954. The said court issued a notice to the appellant asking it to show cause why the di,.. missal/ discharge should not be set aside.

The appellant went to the High Coon under Art. 226 of the Constitution and, Inter alia challenged the validity of s. 26. The High Court having held that the section was valid the appellant came to this Court by special leave. It was contended that the proviso to s. 26(1) was ultra vires because it rolfcred from the vice of excessive delegation in as much as it gave unguided power to the State Government to prescribe what kinds of misconduct were punishable with clischarge or dismissal without notice under s. 26(1).

HELD : It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of d!smi,.al I discharge and (ii) minor misconducts which do not jmtify punishment of dismissal/ discharge but may call for lesser punishments.

Therefore when the legislature gave power to the State Government under cl. ( c) of s. 40 to specify which kinds of misconduct could be punished without notice under s. 26(1) it clearly indicated to the State Government to include in its list of isconducts such of them as are generally understood as major misconducts which justify the dismissal/ discharge of an employee.

This was sufficient guidance to the State Government and it is difficult to see what other guidance the legislature could have given to the rule-making authority in this behalf. [633 H-

634 CJ Looking at the list of the several items of misconduct which were prescribed by the State Government under r. 20( I) it was clear that the State Government properly understood the guidance.

In the circumstances it could not be said that the proviso to s. 26(1) was ultra vires because of the vice of excessive delegation.

[634 HJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1006 of 1964.

Appeal by special leave from the judgment and order dated August 7, 1963 of the Patna High Court in Misc. Judi. Case No. 343 of 1961.

Niren De, Additional Solicitor-General, A. N. Sinha and D.

N. Gupta, for the appellants.

N. S. Bi11dra and R. N. Sachthey, for respondent No. 4.

The Judgment of the Court was delivered by

Wancboo, J. The main question raised in this appeal y special leave against the judgment of the Patna High Court is the constitutionality of s. 26 of the Bihar Shops and Establishments Act, No. 8 of 1954, (hereinafter referred to as the Act).

The question arises in this way. The appellant is carrying on business in petroleum products in the Patna district.

Habibur Rahman was serving as a watchman and Abdul Rahim as a driver in the permanent employ of the appellant at the Dinapore depot.

They were charged with gross misconduct and an enquiry was held by the appellant in that connection. Habibur Rahman was discharged on May 5, 1960 and one month's pay in lieu of notice was offered to him. Abdul Rahim was dismissed on April 22, 1960.

These two employees made applications under s. 26 of the Act in December 1960 before the labour court. l11ese applications were obviously barred by time. The labour court condoned the delay without giving any notice to the appellant on the question and issued notice to show cause why the dismissal/discharge be not set aside.

On receipt of this notice, the appellant learnt that delay in making the applications had been condoned without hearing it.

Consequently the appellant moved the High Court at Patna under Art. 226 of the Constitution for quashing the order of the labour court condoning the delay on the ground that it had been passed without hearing the appellant.

Thereafter in March 1961 the appellant moved the labour court for recalling the ex parte order of condonation. The labour court heard the appellant on March 27, 1961 and decided on April 4, 1961 to condone the delay and confirm the ex parte order already passed. Thereupon the appellant filed another writ petition in the High Court out of which the present appeal has arisen. In this petition the order dated April 4, 1961 was attacked on various grounds. Besides the appellant also attacked the validity of s. 26 of the Act.

It may be mentioned that a number of other petitions had also been filed before the High Court attacking the validity of ~- 26 of the Act. AU these petitions were heard together and the High Court held tt s. 26 was constitutionally valid. It also held that the order of April 4, 1961 showed that delay had been condoned after hearing the appellant and therefore there was no cause for interference. with that order. The appellant moved the High Court for a cettficatc

to appeal to this Court, which was refused. It then applied for special leave, which was granted and that is how the matter has come before us.

The attack of the appellant is on the proviso to s. 26 (I) ?f .the Act, and the only ground that has been urged before us on its behalf is •hat that proviso suffers from the vice of excessive delega-

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CALTEX v. LABOUll. COURT (Wanchoo, /.) 633

A tion and should therefore be struck down. The relevant part of s. 26 is in these terms :

"26. Notice of dismissal or discharge-(!) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than six months except for a reasonable cause and without giving such employee at least one month's notice or one month's wages in lieu of such notice :

Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the

State Government, supported by satisfactory evidence recorded at an inquiry held for the purpose." It is not necessary to set out the rest of s. 26 for that is not under attack.

The contention on behalf of the appellant is that when the proviso lays down that no such notice would be necessary as is mentioned in the main part of s. 26(1) where services are dispensed with on the charge of misconduct and the State Government is. given full power to specify the nature of the mis-conduct which would eliminate the necessity of a notice, there is excessive delegation of its authority by the legislature in the matter of specifying the nature of such misconduct. It is urged that as the proviso stands it gives arbitrary and naked power to the State Government to specify any misconduct on proof of which notice could be dispensed with.

We are of opinion that there is no substance in this contention. Under s. 40 of the Act, the State Government has been given the power to make rules to carry out the purposes of the Act. Clause (c) of s. 40 (2) specifically empowers the State Government to frame rules to provide for the nature of misconduct of an employee for which his services may be dispensed with without notice. By virtue of that power, the State Government framed r. 20(1) which specifies as many as 11 acts which are to be treated as misconduct on proof of which no notice as required by s. 26 (I) would be necessary.

We are of opinion that there is guidance in the words of the section itself in the matter of specifying misconduct on proof of which no notice would be necessary. It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of dismissal/discharge, and

(ii) minor misconducts which do not justify punishment of dismissal/discharge but may call for lesser punishments. Therefore •

when the legislature indicated that the State Government will prescribe the kinds of misconduct on proof of which no notice will be required and services of an employe4 can be dispensed with it was clearly indicating to the State Government to include in its list of misconducts such of them as are generally understood as major misconducts which justify the dismissal/discharge of an employee. This in our opinion is sufficient guidance to the State Government to specify in the rule it was expected to make such misconduct as is generally understood in industrial law to call for the punishment of discharge/dismissal. It is difficult to sec what other guidance the legislature could have given to the rule making authority in this behalf. The only other way in which the legislature could have acted would be to indicate the list of several items of misconduct in the section itself; but apparently the legislature thought that by delegating authority to the State Government the matter of what misconduct should be sufficient to dispense with notice would remain flexible and the State Government would from time to time look into the matter and see what misconduct should be prescribed for this purpose. The authority was being delegated to the State Government and that is also a consideration which the legislature might have kept in its mind when it gave this flexible power to the State Government. The legislature must have known that in industrial law misconduct is generally of two kinds (namely, (i) major misconduct justifying punishment of discharge/dismissal, and (ii) minor misconduct justifying lesser punishment), and that appears to have been thought by the legislature to be sufficient guidance t , the State Government to prescribe by rule such misconduct as is major in nature and deserves punishment of discharge or dismissal. Looking at the list of several items of misconduct which have been prescribed by the State Government under. r. 20(1), we are of the opinion that the State Government also properly understood the guidance which was ;:ontaincd in the words of s. 26( I) and its proviso and has prescribed a list of what are clearly major misconducts for the purpose and has also included therein by the last clause "breach of the provisions of the Standing Orders applicable to the establishment and certified under the Industrial Employment (Standing Orders) Act,

1946". The last clause would thus include all other major misconducts which would justify an order of dismissal/discharge.

Therefore as we read th~ words of s. 26(1) and its proviso, we have no doubt that there is sufficient guidance there for the State Government to define misconduct on proof of which no notice would be necessary. Further if we look at what the State Government has done by r. 20 (I), it is clear that the State Government also rightly understood the guidance contained in the words of the section and has acted accordingly. In the circumstances we are of opinion that the proviso to s. 26(1) is not ultra vires because of the vice of excessive delegation.

• .

--.._

' • I

l ' -

CAI.TEX v. LABOUR COURT (Wanchoo, /.) 635

Learned counsel for the appellant also wanted to urge that the order of the labour court condoning delay was bad. We have not allowed him to pursue this point. It is true that t)" first order condoning delay made in December 1950 was ex parte; but after the writ petition was filed against that order by the appellant in the High Court, the labour court gave an opportunity to the appellant and heard it on March 27, 1961. After hearing both partiei, the labour court confirmed the order condoning delay which it had already made. It cannot therefore be said now that the order was made without hearing both the parties. The High Court hai not thought fit to interfere with the order condoning delay after hearing both parties made on April 4, 1961. We cannot see how the appellant can ask us to interfere in the matter in an appeal by special leave.

The appeal therefore fails and is hereby dismissed with coi; tl; to reipondent No. 4, namely, the State of Bihar.

Appeal dismissed.

l

CALTEX INDIA LIMITED

February 23, 1966

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

M. HIDAYATULLAH,

J.

C. SHAH

Bihar Shops and Estaulishment Act

s. 26(1)

s. 26(1 )

Art. 226

s. 26

s. 26(1)

s. 26(1)

s. 40

s. 26(1)

s. 26(1)

Niren De

A. N. Sinha

D.

N. Gupta

N. S. Bi11dra

R. N. Sachthey

Wancboo

Patna High Court

s. 26

Patna

Habibur Rahman

Abdul Rahim

Dinapore

May 5, 1960

April 22, 1960

s. 26

High Court at Patna

Art. 226

March 27, 1961

April 4, 1961

s. 26

s. 26

s. 26

s. 26

s. 26

s. 26(1)

s. 40

s. 40

s. 26

s. 26( I)

s. 26(1)

s. 26(1)

State of Bihar


DURGACHARAN NAIK AND ORS.

STATE OF ORISSA

February 23, 1966.

[K. SUBBA RAO Al'D V. RAMASWAMI, JJ.j

Cod• of Criminal Procedure (Act 5 of 1898), s. 195-Facts clisc/D1ing offences under ss. 186 and 353, Indian Penal Cod..-Pro"cution for off•nce under .r. 353 without written complaUit of public urvant- Maintainabi/ity.

The appellanls were charged with offences untrer s. 143/402, 186 and 353, Indian Penal Code for having obstructed and assaulted two public "'1"Vants in the discharge of their 11ublic duty of executing the decree of a Civil Court. They were acqmtted by the trial Court, but on appeal, the High Court convicted them under s. 353, acquitted them urder ss. 143/ 402 and held that the prosecution under s. 186 wu barred by s. 195, Criminal Procedure Code, which requires a complaint in writing by the public servant before a court could take cognizance of the offence.

lo appeal to this Court, it was contended that the prosecution under s. 353, Indian Penal Code, was also barred by s. 195 Criminal Procedure Code.

HELD: Sections 186 and 353, Indian Penal Code. relate to two distinct offences and s. 353 is not referred to in s. 195 Cr.P.C. Section

195, Criminal Procedure Code, does not bar the trial of an accused

I!: pe11on for a distinct offence disclosed by the same set of facts, but which is not within tho ambit of that section, when there is no camouflage or evasion to circumvent the Section. Therefore tbe trial of the appellants

for the distinct offence under s. 353 was not barred though it was based practically on the same facts as for the prosecution under s. 186, and the High Court wa. justified, on the evidence, in interfering with tho order of acquittal pa.sect by the trial Court in regard to that charge.

[640 E, G; 641 EJ JI

Sanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120 and Agarwal and Kulkarni v. Stat, of Maharashtra, A.I.R. 1963 S.C. 200, followed.

Basir.ul-Huk v. State of West Bengal [1953], S.C.R. 836 and Hori Ram Singh v. Th• Crown, (1939] F.C.R. 159, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67 of 1964.

Appeal by special leave from the judgment and order dated March 2, 1964 of the Orissa High Court in Government Appeal No. 49 of 1963.

R. K. Garg, S. C. Agarua/a, M. K. Ramamur1hy and D. P.

Singh, for the appellanls.

II. R. Khanna and R. N. Sachthey, for the respondent ..

• .

' ;

The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Orissa High Court dated March 2, 1964 in Government Appeal No. 49 of 1963 by which the High Court set aside the order of acquittal passed by the Assistant Sessions Judge of Puri and convicted the appellants under s. 353 of the Indian Penal Code and sentenced them to 4 months' rigorous imprisonment.

The decree-holders Panu Sahu and Naba Sahu levied execution of the decree (Ex. Case No. 125/62) in the Court of the Munsif, Puri against the appellants and a writ of attachment of the moveables of the judgment-debtor was issued for execution through P.W. 2, Sadhu Charan Mohanty, a peon of the Civil Court, Puri, returnable by August 10, 1962. P.W. 2 reached the village of the judgment-debtors on August 10, 1962 at 10 a.m. with the warrant of attachment and asked the judgment-debtors to pay the decretal dues of Rs. 952·10 nP, and when he was going to seize some of the moveables, the appellants came there with lathis and resisted him. P.W. 2 sent a report-Ex. 4-to the Court through Nabaghan requesting the Court to give necessary police help. Accordingly on the same day the Munsif wrote a letter, Ex. 2, requesting the Superintendent of Police, Puri to direct the Officer-in-charge, Sadar Police Station, to give immediate police help to the process server. In pursuance of this letter, P.W. 1, the Assistant Sub- Inspector, Sadar Police Station, Puri was deputed along with two constables including P. W. 3, Constable no. 613. They went to the village Sanua where the writ of attachment was to be executed.

P.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar of the village Chhaitna also accompanied them. On reaching the spot, they found P.W. 2 sitting in front of the house of Durga Charan Naik-One of the judgment-debtors. The A.S.I. then called out Fakir. Charan Naik, father of Durga Charan Naik one of the judgment-debtors, who opened the door and paid Rs. 952 10 nP to the process server, Sadhu Charan Mohanty and obtained a receipt from him. After the money was paid, all of them left the village and at about 7 p.m. while they were crossing a river nearby in a boat, P.W. I saw the appellant Dnrga Charan with 10 or 12 persons coming from the opposite direction. On seeing them, P.W. I apprehended some trouble and directed P.W. 2 to hand over the money to the chowkidar, P.W. 8. When all of them got down from the boat, appellant Durga Charan forcibly dragged the A.S.I.

A number of other persons including the other appellants assembled at the spot. Durga Charan threatened to assault tlle A.S.I if he did not return the money. Durga Charan also searched hi pockets and Netrananda threatened the A.S.I. by saying that he would not leave the place until the money was returned. When P.W. I wanted to write a report to his police station, Netrananda MllSup.Cl/66-9

obstructed him by holding his right hand.

Bipra and Jugal caught A hold of the hands of P. W. 2 and took him to the river bank and ,,,,... demanded return of the money. Then at the intervention of some outsiders the appellants left the spot.

P.W. I lodged the first "' information report at the police station next morning and after investigation the appellants were chargeshected and committed to the court of Sessions. e

The appellants were charged under ss. 143/402, Indian Penal Code on the allegation that they formed an unlawful assembly with the common object of committing dacoity. Durga Charan, Jugal, Bipra along with three others were further charged under s. 186, Indian Penal Code for having voluntarily obstructed P.Ws l and 2 in the discharge of their public duty.

Durga Charan and Netrananda were also charged under s. 353, Indian Penal Code for having used criminal force against P.W. I and Bipra Charan and Jugal were similarly charged under s. 353, Indian Penal Code for having used criminal force against P. W. 2 while both of them were discharging their duty as public servants. The Additional Sessions Judge acquitted the appellants of all the charges. The State Government took the matter in appeal to the Orisia High Court which set aaide the order of acquittal with regard to the 4 appellants and conYicted them under s. 353, Indian Penal Code. The High Court, however, held that there was no satisfactory evidence to convict tile appellants under ss. 143/402, Indian Penal Code. As regards the charge under s. 186, Indian Penal Code, the High Court expressed the view that the prosecution was barred under the provisions of s. 195, Criminal Procedure Code.

In iupport of this appeal Mr. Garg submitted, in the first place, that the High Court had no justification for interfering with the order of acquittal passed by the Additional Sessio•s Judge and that it has not applied the correct principle in a matter of this description. Learned Counsel took us through the judgments of the High Court and of the trial court and stressed the argument that there was no evidence upon which the High Court reached the finding that the appellants used criminal force against P.Ws I and 2. We arc unable to accept the argument of Mr. Garg as correct. The High Court has mainly relied upon the evidence of P.Ws I, 2 and 3 and P.Ws 9 to 13 for holding that the appellants used criminal force against P.Ws I and 2.

The High Court has also observed that P.W. 2 was entrusted with the execution of the writ of attachment. He was also entrusted with the official cheque book (Ex. 5) to give the receipt in token of payment of the dccretal dues.

In the co11rse of his official business P.W. 2 was carrying the money realised from the judgment-debtors for necessary deposit in Court.

So far as P.W. I was concerned, he was deputed to render assistance to P.W. 2 in executing the writ of attachment. ll is manifest that both P.Ws. I and 2 were assaulted by the appellants when they

B ' t

• D

were discharging their duties as public servants. The High Court has also accepted the evidence of P.W. I that Durga Charan caught hold of his hands and demanded money on the threat of assault.

P.W. 2, the process server stated that Bipra Charan and Jugal caught hold of his hands and Durga Charan told him that he would not let anybody go unless the money was returned. P.W. 2 added that Bipra and Jugal also snatched away his bag. The High Court analysed the evidence of P.Ws 9 to 13 and reached the conclusion that the appellants used criminal force against P.Ws I and 2 in the course of the performance of their duties. Ille Hii:h Court Juu; also dealt with the reasoning of the trial court and has pointed out that the order of acquittal of the appellants with regard to s. 353, Indian Penal Code was not justified. In Sanwat Singh &

Others v. State of Rajasthan(1) it was pointed out by this Court that an appellate court has full power to review the evidence upofl which the order of acquittal is founded and that the principles laid down by the Judicial Committee in Sheo Swarup's case (2) afford a correct guide for the appellate court's apJilroach to a case disposing of such an appeal. It was further observed that different phraseology

ullCd in the judgments of this Court, such as "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in arriving at a conclusion on those facts, but should express the reasons in its judgment, which led it to hold that the acquittal was not justified. The same opinion has been expressed by this Court in a later decision in M. G. Agarwal and M. K. Kulkarni v. State of Maharashtra (3). It was pointed out in that case that there is no doubt that the power conferred by

cl. (a) of s. 423(1) which deals with an appeal against an order of acquittal is as wide as the power conferred by cl. (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whethertheappeal in question is one against acquittal or against conviction. It was observed that the test suggested by the expression "substantial and compelling reasons" for reversing a judgment of acquittal, should not be construed as a formula whicJI.

has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Tested in the light of these principles laid down by these authorities, we are satisfied that the High Court was justified, in the present case, in interfering with the order of acquittal passed by

(!) [1961] 3 S.C.R. 120.

(2) 61 I.A. 398.

(3) A.l.R. 1963 S.C. 2'JO.

the Additional Sessions Judge with regard to the charge under s. 353, Indian Penal Code and the judgment of the High Court is not vitiated by any error of law. We accordingly hold that Mr. Garg is unable to make good his argument on this aspect of the case.

We pass on to consider the next contention of the appellants that the conviction of the appellants under s. 353, Indian Penal Code is illegal because there is a contravention of s. 195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.SJ. It was submitted that the charge under s. 353, Indian Penal Code is based upon the same facts as the charge under s. 186, Indian Penal Code and no cognizance could be taken of the offence under s. 186, Indian Penal Code unless there was a complaint in writing as required by s. 195(1) of the Criminal Procedure Code. It was argued that the conviction under s. 353, Indian Penal Code is tantamount, in the circum- 'tances of this case, to a circumvention of the requirement of s. 195(1) of the Criminal Procedure Code and the conviction of the appellants under s. 353, Indian Penal Code by the High Court was, therefore, vitiated in law. We axe unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences arc also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code docs not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis

Chandra Chakravarti v. Ram Dayal De(1) it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 211, Indian Penal Code, which is an offence against public justice, and the other an offence under s. 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court

(I) 24 C.W.N. 982.

\ '

for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the court under s. 195, Criminal Procedure Code, while in the other, cognizance can be taken of the offence on the complaint of the person defamed.

It is pointed out in the Full Bench case that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those orily which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of ss. 195 to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has been quoted with approval by this Court in Basir-ul-Huq and Others v. The State

of West Bengal (1) in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him.

In the present case, therefore, we are of the opinion that s. 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under s. 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under s. 186, Indian Penal Code.

Reference may be made, in this connection, to the decision of the Federal Court in Hori Ram Singh v. The Crown (2). The appellant in that case was charged with offences under ss. 409 and 477-A, Indian Penal Code. The offence under s. 477-A could not be taken cognizance of without the previous consent of the Governor under s. 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under s. 409, Inidan Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under s. 477-A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing on the merits as regards the charge under s. 409, Indian Penal

(1) [1953] S.C.R. 836.

(2) [1939] F.C.R. 159 .

SUPRBMB COURT REPORTS

(1966] 3 S.C.R.

Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under s. 409 and the other an offence under s. 477-A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered by the Federal Court as a bar to the trial of the appellant with respect to the offence under s. 409.

We have expressed the view that s. 195, Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of s. 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned ins. 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of s. I 95 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under s. 353, Indian Penal Code was by way of evasion of the requirements of s. 195, Criminal Procedure Code. But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case.

For these reasons we hold that the judgment of the High Court dated March 2, 1964 must be affirmed and this appeal must be dismissed.

Appeal dismissed.

DURGACHARAN NAIK AND ORS

STATE OF ORISSA

February 23, 1966

K. SUBBA RAO Al'D V. RAMASWAMI, JJ

s. 195

ss. 186 and 353

s. 143

Indian Penal Code

s. 353

ss. 143

s. 186

s. 195

Criminal Procedure Code

s. 353

Indian Penal Code

s. 195

Criminal Procedure Code

Sections 186 and 353

Indian Penal Code

s. 353

s. 195

Cr.P.C

Section

195

Criminal Procedure Code

s. 353

s. 186

(1939] F.C.R. 159

R. K. Garg

S. C. Agarua

M. K. Ramamur1hy

D. P.

Singh

R. Khanna

R. N. Sachthey

Ramaswami

Orissa High Court

s. 353

Indian Penal Code

Panu Sahu

Naba Sahu

Court of the Munsif, Puri

Sadhu Charan Mohanty

August 10, 1962

Nabaghan

Munsif

Puri

Sadar Police Station

Sadar Police Station, Puri

Sanua

Naib Sarpanch

Chhaitna

Durga Charan Naik

A.S.I.

Fakir. Charan Naik

Durga Charan Naik

Sadhu Charan Mohanty

Dnrga Charan

Durga Charan

Durga Charan

Netrananda

Bipra

Jugal

ss. 143

Indian Penal Code

Jugal

Bipra

s. 186

Indian Penal Code

Netrananda

s. 353

Indian Penal Code

Bipra Charan

Jugal

s. 353

Indian Penal Code

Orisia High Court

s. 353

Indian Penal Code

ss. 143

Indian Penal Code

s. 186

Indian Penal Code

s. 195

Criminal Procedure Code

Garg

s. 353

Indian Penal Code

Sheo Swarup

s. 423(1)

[1961] 3 S.C.R. 120

s. 353

Indian Penal Code

s. 353

Indian Penal Code

s. 195(1)

s. 353

Indian Penal Code

s. 186

Indian Penal Code

s. 186

Indian Penal Code

s. 195(1)

s. 353

Indian Penal Code

s. 195(1)

s. 353

Indian Penal Code

s. 353

Indian Penal Code

s. 186

Indian Penal Code

ss. 186 and 353

Indian Penal Code

Section 186

Indian Penal Code

s. 353

Indian Penal Code

Section 186

Indian Penal Code

s. 353

s. 195

Calcutta High Court

s. 211

Indian Penal Code

s. 499

s. 195

Criminal Procedure Code

ss. 195 to 199

Code of Criminal Procedure

Calcutta

s. 195

Criminal Procedure Code

s. 195

Criminal Procedure Code

s. 353

Indian Penal Code

s. 186

Indian Penal Code

ss. 409 and 477

Indian Penal Code

s. 477

s. 270(1)

s. 409

Inidan Penal Code

s. 477

s. 409

[1939] F.C.R. 159

SUPRBMB COURT

s. 409

s. 477

s. 409

s. 195

Criminal Procedure Code

s. 195

Indian Penal Code

Criminal Procedure Code

s. 353

Indian Penal Code

s. 195

Criminal Procedure Code

March 2, 1964


D ' _,

LAKHAN MAHTO & ORS. v.

STATE OF BIHAR February 24, 1966 (K. SUBBA RAo AND V. RA.MAsWAMI, JJ.]

Code of Criminal Procedure (Act 5 oJ 1898), s. 423-Appial azainst conviction, no appeal again.rt acquittal-Power of Apllate Court.

Indian Penal Code, 1860 (Act 45 of 1860), s. 149-Substantive offence, if.

The trial court acquitted L, one of the appellantls of the charge under s. 302 I.P.C. but convicted him and the other appellants under s. 149 I.P.C. and ss. 302/ 149 I.P.C. 'The State Government did not prefer an appeal to the High Court against the acquittal of L under s. 302 but on appeal preferred by L against his conviction, the High Court altered the conviction from s. 302/ 149 to a minor offence under s. 326 and maintained the sentence of life imprisonment imposed upon him. In appeal to this Court : HELD : The High Court acted without jurisdiction in altering the finding of acquittal of L on the charge under s. 302 I.P .C. and convicting him on the charge under s. 326 I.P.C. and imposing a sentence of imprisonment on that charge.

If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the O<"dCf' of conviction that falls to be considered by the Appellate Court and not the order of acquittal. In exercising tho powers conferred by s. 423(1) (b) of Code of Criminal Procedure the High Court could not convert the order of the acquittal into one of conviction and that result can be achieved only by adopting procedure prescribed under s. 439 of the Criminal Procedure Code.

[647 D-FJ State of Andhra Pradesh v. Thadi N<JTayana, A.I.R. 1962 S. C. 240. applied.

The High Court erred in taking the view that s. 149 I.P.C. did not constitute a substantive offence and that it was only an enabling oection for imposition of vicarious liability and that the conviction on vicarious liability could, therefore, be altered by the appellate court to conviction for direct liability even though there wa• an acquittal by the trial court of the direct liability for the offence. There is a legal distinction between a charge under s. 302 I.P.C. and a charge of constructive liability under s. 302/ 149, I.P.C., i.e., being a member of an unlawful assembly, the common object of which was to kill a person.

[647 G, HJ Barendra Kumar Ghosh v. Emperor, I.L.R. 52 Cal. 197, Queen v. $abid Ali and Ors. [1873] 20 W.R. (Cr.) 5 Nanak Chand'"· State of Pu,.. ; ah, [1955] 1 S.C.R. 1201 and Suraj Pal v. State of Uttar Pradesh, [1955] 1 S.C.R. 1332, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 214 of 1963.

Appeal by special leave from the judgment and order dated September 18, 1963 of the Patna High Court in Criminal Appeal No. 368 of 1961.

~44 SuPREME COURT REPORTS

(1966] 3 S.C.R.

Nur-ud-din Ahmed and D. Goburdhun, for the appellants.

The respondent did not appear.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of 1961.

The appellant, alongwith 13 others, was tried by the Additional Sessions Judge of Patna who by his judgment dated April 22, 1961 convicted all the accused under ss. 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life.

Lakhan and Indo were convicted under s. 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was convicted under s. 147, Indian Penal Code and sentenced to rigorous imprisonment for one year. Inda was also convicted under s. 326, Indian Penal Code and Gopi was convicted under s. 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years. Appellant Lakhan was convicted under ss. 326/149, Indian Penal Code but no separate sentence was awarded on this charge.

Lakhan and I ndo were convicted under s.19(f) ofthe Arms Act and sentenced to undergo rigorous imprisonment for two years each. Five of the accused persons were acquitted and 8 of them were convicted on charges under ss. 302/149, 326/149, 148 and 147, Indian Penal Code.

The appellants alongwith 8 others who were so convicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications: The conviction of the appellants under ss. 302/149, Indian Penal Code, s. 148, s. 147 and ss. 326/149, Indian

Penal Code was set aside and the appellants were acquitted of those charges. The conviction of Lakhan under s. 302/149, Indian Penal Code was altered into a minor offence under s. 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained. The conviction and sentence of Inda under a. 326, Indian Penal Code and of Gopi under ss. 326/109, Indian

Penal Code were upheld. The conviction and sentence of Lakhan and Inda under s. 19(f) of the Arms Act were also upheld.

The case of the prosecution is that on October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha. On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges. Sheosahay protested and there was an altercation between the parties. Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village. Sheosahay then repaired the ridge of the

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field and after weeding some grass he was returning to the village along the Bazerachak Road. While he was passing by the si.de f a brick-kiln, appellant Lakhan suddenly emerged from behind t with a pistol in his hand and fired at Sheosahay hitting him on his chest. Sheosahay staggered for a few steps and fell down at the house of one Baiju. There were 15 or 20 other persons vaously armed in the company of Lakhan. Mst. Akhji P.W. 3 wife of Jitu P.W.7 heard the report of a gunfire while she was in her house situated near the house of Baiju. She came out of her house and saw Sheosahay lying fallen in the village Jane. She protested to Gopi who became furious and ordered that she should be assaulte~.

Upon his order, Rajendra who was carrying a gun fired at AkhJI, P.W.3 on her left arm. After committing the assault all the members of the mob fled away. On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant Sub-

Inspector of Police, P.W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning.

The appellants pleaded not guilty to the charges and alleged that they were falsely implicated on account of previous enmity.

The trial court held that it was unsafe to convict appellant Lakhan on the specific charge under s. 302, Indian Penal Code for causing the death of Sheosahay as it appeared from the dying declaration of the deceased (Ex. 8) that accused Ishwar had also shot at him and as such appellant Lakhan was entitled to benefit of doubt.

The trial court accordingly acquitted Lakhan on the charge under s.302, Indian Penal Code but convicted him and 2 other appellants under s. 148, Indian Penal Code and ss. 302/149, Indian Penal Code. The State Government did not prefer an appeal to the High Court against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code but on appeal preferred by the appellant against the judgment of the Sessions Judge, the High Court altered the conviction of Lakhan from s. 302/149, Indian Penal Code to a minor offence under s. 326, Indian Penal code and maintained the sentence of life imprisonment imposed upon him. The view taken by the High Court was that the evidence of P.Ws. l, 6, 7 and 8 should be accepted as true and it must he held that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone who fired the pistol shot and not lshwar. The High Court held that it was competent to it in the appeal preferred by the appellant to alter the conviction of Lakhan from the constructive offence under s. 302/149, Indian Penal Code to the substantive offence under s.302, Indian Penal Code, but "in order. to obviate any technical objection" the High Court altered the conviction under s.302 read with s. 149 to a minor offence under s. 326, Indian Penal Code and regard being had to the gravity of the offence, the High Court maintained the sentence imposed upon Lakhan.

646 SUPllBME COUil T REPOll TS

(1966] 3 S.C.R.

On behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial court on the specific charge under s. 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was convicted under ss. 302/149, Indian Penal Code for being a member of an unlawful assembly, the common object of which was to kill deceased Sheosahay. It was pointed out that the State Government had not preferred an appeal against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code. It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, convict Lakhan again under s. 302, Indian Penal Code or under s. 326, Indian Penal Code for the overt act of shooting. It was also pointed out for the appellant that there was the finding of the High Court that there was no unlawful assembly and consequently Lakhan was acquitted of the charge under s. 302, l.P.C. read with s. 149, 1.P.C. The argument, therefore, presented on behalf of appellant Lakhan is that the conviction and sentence of Lakhan for a substantive offence under s. 326, I.P.C. was illegal and must be quashed.

The powers of the appellate court in disposing of an appeal are D prescribed by s. 423 of the Criminal Procedure Code which states :

"423.(l) The Appellate Court shall then send for the record of the case, if such record is not already in Court.

After perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411-A, sub- J: section (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from conviction, (I) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding maintaining the sentence or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance the same;"

Section 423(l)(a) expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to reverse the

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order of acquittal and direct that further inquiry be made or that the accused may be tried or committed for trial, as the case may be, or it may find him guilty and pass sentence on him according _to law. Section 423(l)(b) in terms deals with an appeal from a con".1ction, and it empowers the Appellate Court to reverse the findi!1g and sentence and acquit or discharge the accused or order a retnal by a Court of competent jurisdiction subordinate to such Appellate Court or , committed for trial. It has been held by this Court in The State of Andhra Pradesh v. Thadi Narayana(I) that s. 423(l)(b), Criminal Procedure Code is clearly confined to cases of appeals preferred against orders of conviction and sentence, and that the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. It was also pointed out in that case that where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court.

If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal. In exercising the powers conferred by s. 423(1 )(b) the High Court cannot therefore convert the order of acquittal into one of conviction and that result can be achieved only be adopting procedure prescribed under s. 439 of the Criminal Procedure Code. In our opinion, the principle of this decision applies to the present case and it must accordingly be held that the High Court acted.without jurisdiction in altering the finding of acquittal of Lakhan on the charge under s. 302, Indian Penal Code and convicting him on the charge under s. 326, Indian Penal Code and imposing a sentence of imprisonment on that charge.

In this connection the High Court has taken the view that s. 149, I.P.C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence. In our opinion, the view taken by the High Court is not correct. There is a legal distinction between a charge under s. 302, I.P.C. and a charge of constructive liability under ss. 302/149, I.P.C., i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased Sheosahay.

In Barendra Kumar Ghosh v. Emperor (2) Lord Sumner dealt with

(I) A.l.R. 1962 S.C. 240.

(2) I.LR. 52 Cal. 197.

'648

SUPREME COURT RBPORTS

(1966] 3 S.C.R.

the agrument that if s. 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then ss. 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, s. 149 was certainly not otiose, for in any case it created a specific and distinct offence. It postulated an assembly of five or more persons having a common object, as named in s. 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object. Lord Sumner referred, in this connection, to the decision of the Calcutta High Court in Queen v. Sabid Ali and Others('). The observation of Lord Sumner was quoted with approval by this Court in Nanak Chand v. The State of Punjah(2) in which it was pointed out that by framing a charge under s. 302, read with s.149, Indian Penal Code against the appellant it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under s. 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. It was accordingly held that the conviction 0f the appellant under s. 302, l.P.C. was illegal. The same 'iew has been reiterated by this Court in a later case in Suraj Pal v. The State of Utlar Pradesh.(')

For these reasons we hold that the conviction and sentence imposed by the High Court on Lakhan under s. 326, Indian Penal Code is illegal and must be set aside.

On behalf of the appellants it was also contended that the prosecution had not been able to establish the other charges of E which they have been convicted, but having heard learned Counsel we are not satisfied that the convictions on the other charges are vitiated by any illegality and we see no reason for interfering with the judgment of the High Court.

As already pointed out, we set aside the conviction and sentence imposed on Lakhan on the charge under s. 326, Indian Penal Code; F otherwise we affirm the decision of the High Court as regards Lakhan and also as regards the other two appellant~ and dismiss this appeal.

(I) (1873) 2il W.R. (Cr.) 5.

(2) (1955) 1 S.C.R. 12ill.

(l) (1955) 1 S.C.R. 1332

Appeal dismissed.

Conviction and sentence modified.

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LAKHAN MAHTO & ORS

STATE OF BIHAR

1966 (K. SUBBA RAo

Code of Criminal Procedure

s. 423

Indian Penal Code, 1860

s. 149

s. 302

I.P.C

s. 149

I.P.C

ss. 302

I.P.C

s. 302

s. 302

s. 326

s. 302

s. 326

I.P.C

s. 423(1)

Code of Criminal Procedure

s. 439

s. 149

I.P.C

s. 302

I.P.C

s. 302

I.P.C

Nanak Chand

[1955] 1 S.C.R. 1201

[1955] 1 S.C.R. 1332

D. Goburdhun

Ramaswami

Additional Sessions Judge of Patna

ss. 302

Indian Penal Code

Lakhan

Indo

s. 148

Indian Penal Code

Gopi

s. 147

Indian Penal Code

Inda

s. 326

Indian Penal Code

s. 326

Indian Penal Code

ss. 326

Indian Penal Code

Arms Act

ss. 302

Indian Penal Code

High Court of Patna

ss. 302

Indian Penal Code

s. 148

s. 147

ss. 326

Penal Code

Lakhan

s. 302

Indian Penal Code

s. 326

Indian Penal Code

Inda

Indian Penal Code

Gopi

ss. 326

Penal Code

s. 19(f)

Arms Act

October, 7, 1959

Sheosahay Mahto

Belwa Khandha

Ishwar

Sheosahay

Baiju

Akhji

Jitu

Jane

Rajendra

AkhJI

Nawadah hospital

s. 302

Indian Penal Code

Indian Penal Code

s. 148

Indian Penal Code

ss. 302

Indian Penal Code

s. 302

Indian Penal Code

s. 302

Indian Penal Code

s. 326

Indian Penal code

s. 302

Indian Penal Code

Indian Penal Code

s. 149

s. 326

Indian Penal Code

s. 302

Indian Penal Code

ss. 302

Indian Penal Code

s. 302

Indian Penal Code

s. 302

Indian Penal Code

s. 326

Indian Penal Code

s. 302

s. 149, 1

s. 326

I.P.C

s. 423

section 411

section 417

section 106

Section 423(l)(a)

Section 423(l)(b)

s. 423(l)(b)

Criminal Procedure Code

s. 423(1 )(b)

s. 439

s. 302

Indian Penal Code

s. 326

Indian Penal Code

s. 149

I.P.C

s. 302

I.P.C

ss. 302

I.P.C

s. 34

Indian Penal Code

ss. 114 and 149

Sumner

s. 149

s. 141

Indian Penal Code

Calcutta High Court

s. 302

Indian Penal Code

s. 302

Indian Penal Code

s. 302

s. 326

Indian Penal Code

s. 326

Indian Penal Code

(1955) 1 S.C.R. 12

(1955) 1 S.C.R. 1332


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MUNICIPAL CORPORATION OF DELlll v.

SUBHAGWANTI & OTHERS

(With connected Appeals) February 24, 1966 [K. SUBBA RAO AND V. RAMAsWAMI, JJ.]

Negligence-Clock tower belonging to Mnicipal Comm!ttee fallin~ Causing death of persons by-Whether doctrine of res ipsa loq'!'tu_r applies-Fatal Accidents Act, 1885, s. l-Damages-Quantum-Prmc1ples for determining.

Three suits for damages were filed by the respondents as heirs of thr~ persons who died as a result of the collapse of the Clock Tower m Chandni Chowk, Delhi, belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi. The trial court held that it was the duty of the Municipal Committee to take proper care of buildings so that they should not prove a source of danger to persons using the highway as a matter of right, and granted decrees of Rs. 25,000, Rs. 15,000 and 20,000 respectively to the plaintifl'> in each of the three suits.

On appeal to the High Court, although the decree for Rs. 25,000 in one of the suits was maintained, the amounts of Rs. 15,000 ancl Rs. 20,000

in the other two decrees were reduced to Rs. 7,200 and Rs. 9,000 respectively. The High Court held that the principle of res ipsa /oquitur applied to the case and considered that it was the duty of the Municipal Committee to carry out periodical examination for the purpose of determining whether deterioration had taken place in the structure of the building and whether any precaution was necessary to strengthen it. Apart from superficial examination from time to time. there was no evidence of an exami:.. nation ever made with a view to seeing if there were any latent defects making the building unsafe.

In the appeal to this Court, it was contended on behalf of the appellant that the High Court was wrong in applying the doctrine of res lpsa /oquitur to this case and that the fall of the clock tower was due to an inevitable accident which could not have been prevented by the exercise of reasonable care or caution; that since the defects which led to the collapse were latent, the appellant cGuld not be held guilty of negligence, and that in any event the damages awarded were excessive.

HELD : The High Court was right in applying the doctrine res ipsa loquitur as in the circumstances of the case the mere fact that there was a fall of the clock tower, which was exclusively under the ownership and control of the appellant, would justify raising an inference of negli- &enco so as to establish a prima facie case against the appellant.

[652 F, HI

There is a special obligation on tho owner of adjGining premises for the safety of the structures which he keeps besides the highway. If these atructures fall into disrepair so as to be of potential danger to the passersby or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known al the danger. Jn other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect.

[653 E-G]

SUPREME COURT REPORTS

[ 1966] 3 S.C.R.

Wrlnge v. Cohen, [1940] 1 K.B. 229, Mint v. Good,

[19511 1. K:.B.

A 517 and Wal.sh v. Holst and Co. Ltd. and OTI. [1958] 1 W.LR. 800, referred to.

The High Coun had applied the correct principles in estimation of the damages in all the three appeals.

Davia v. Powell Dufjreifl Assoclo!ed Collieries Ltd. [19421 A. C. 601 and Nance v. Briti<h Columbia Electric Rm/way Company Lrd. 11951] B A.C. 601, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1102-1104 of 1963.

Appeals from the judgments and decrees dated November 27, 1959 of the Punjab High Court (Circuit Bench) at Delhi in Civil Regular First Appeals Nos. 69-D, 71-D and 85-D of 1963.

Bishan Narain, Sardar Balradur and Arun B. Saharya, for the appellant (in all the appeals).

N.D. Bali and Din Dayal Sharma, for the respondents (in C. As. Nos. 1102 and 1103of1963).

.A.G. Ratnaparkhi, for respondent (in C.A. No. 1104 of 19e3).

The Judgment of the Court was delivered by

Ramaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi.

Suit No. 552of1952 was filed by the heirsofShri RamParkash, suit No. 930 of 1951 was filed by the heirs of Smt. Panni Devi and suit No. 20 of 1952 was filed by Kuldip Raj whose father, Gopi Chand was killed hy the fall of the Clock Tower. All the suits were tried by the Court of Subordinate Judge, !st Class, Delhi who disposed of all the suits by a common judgment dated July 9, 1953. The Subordinate Judge granted a decree for a sum of Rs. 25,000 to Shrimati Subhagwnti and other heirs of Ram Parkash in suit No. 552 of 1952, a sum of Rs. 15,000 to the heirs of Shrimati Panni Devi in suit No. 930 of 1951 and a sum of Rs. 20,000 to Kuldip Raj in suit No. 20 of 1952. It was held by the trial court that it was the duty of the Municipal Committee to take proper care of buildings, so that they should not prove a source of danger to persons using the highway as a matter of right. The trial court rejected the plea of the Municipal Committee that in the case of latent defects it could not be held liable and the Municipal Committee, as the owner of the buildings abutting on the highway, was liable in negligence if it did not take proper care to maintain the buildings in a safe condition. It was submitted against

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the Municipal Committee before the trial court that, apart from superficial examination of the Clock Tower from time to time by the Municipal Engineer, no examination was ever made with a view to seeing if there were any latent defects making it unsafe.

Aggrieved by the decree of the trial court, the Municipal Committee filed appeals in the High Court in all the three suits. On November 27, 1959 the High Court disposed of all the appeals by a common judgment. The decree for Rs. 25,000 in suit No. 552 of 1952 was maintained, the amount of Rs. 15,000 awarded in suit No. 930of1951 in favour of Munshi Lal and others was reduced to Rs. 7,200, and the amount of Rs. 20,000 awarded in suit No. 20 of 1952 was reduced to Rs. 9,000. The High Court held that the principle of res ipsa loquitur applied to the case. The High Court considered that it was the duty of the Municipal Committee to carry out periodical examination for the purpose of determining whether deterioration had taken place in the structure and whether any precaution was necessary to strengthen the building. The High Court mainly relied on the evidence of Shri B. S. Puri, Retired Chief Engineer, P.W.D., Government of India who was invited by the Municipal Committee to inspect the Clock Tower after its collapse and who was produced by them as their witness. Tp.e facts disclosed in his statement and that of Mr. Chakravarty, the Municipal Engineer were that the building was 80 years old and the life of the structure of the top storey, having regard to the type of mortar used, could be only 40 to 45 years and the middle storey could be saved for another 10 year~. The High Court also took into consideration the statement of Mr. Puri to the effect thal the collapse of the Clock Tower was due to thrust of the arches on the top portion. Mr. Pnri was of the opinion that if an expert had examined this building specifically for the purpose he might have found out that it was likely to fall. The witness further disclosed that when he inspected the building after the collapse and took the mortar in his hands he found that it had deteriorated to such an extent that it was reduced to powder without any cementing properties.

These appeals are brought by the Municipal Corporation of Delhi against the decree of the High Court dated November 27, 1959 in First Appeals No. 69-D of 1953, No. 71-D of 1953 and No. 85-D of 1953.

The main question presented for determination in these appeals is whether the appellant was negligent in looking after and maintaining the Clock Tower and was liable to pay damages for the death of the persons resulting from its fall.

It w!ls contended, in the first place, by Mr. Bishen Narain on behalf of the appellant that the High Court was wrong in applying the doctrine of res ipsa loquitur to this case. It was argued that the fall of the Clock Tower was due to an inevitable accident which could not have been prevented

652 SUPUME cour.r RBPOl.TS

[1966] 3 S.C.R.

by the exercise of reasonable care or caution. It was also submitted that there was nothing in the appearance of the Clock Tower which should have put the appellant on notice with regard to the probability of danger. We are unable to accept the argument of the appellant as correct. It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it.

But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part. The principle has been clearly stated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671 as follows:

"An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant'snegligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part."

In our opinion, the doctrine of res ipsa /oquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It is also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant.

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We shall proceed to consider the main question involved in this case namely, whether the appellant, as owner of the Clock Tower abutting on the highway, is bound to maintain it in proper state of repairs so as not to cause any injury to any member of the public using the highway and whether the appellant is liable whether the defect is patent or latent. On behalf of the appellant Mr. Bishen Narain put forward the argument that there were no superficial signs on the structure which might have given a warning to the appellant that the Clock Tower was likely to fall.

It is contended that since the defects which Jed to the collapse of the Clock Tower were latent the appellant could not be held guilty of negligence. It is admitted, in this case, that the Clock Tower was built about 80 years ago and the evidence of the Chief Engineer is that the safe time-limit of existence of the building which collapsed was 40 or 45 years. In view of the fact that the building had passed its normal age at which the mortar could be expected to deteriorate it was the duty of the appellant to carry out careful and periodical inspection for the purpose of determining whether, in fact, deterioration had taken place and whether any precautions

were necessary to strengthen the building. The finding of the High Court is that there is no evidence worth the name to show that any such inspections were carried out on behalf of the appellant and, in fact, if any inspections were carried out, they were of casual and perfunctory nature. The legal position is that there is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. In Wringe v. Cohen (!)the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendant's house collapsed owing to a storm, and fell through the roof of the plaintiff's shop. There was evidence that the wall at the gable end of the defendant's house had, owing to want of repair, become a nuisance, i.e., a danger to passers-by and adjoining owners. It was held by the Court of Appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable

(I) [1940] 1 K.B. 229.

M11Sup. CI/66-10

1;54 IUPllEME COURT RllPOl.TS

(1966] 3 S.C.R.

whether he knew or ought to have known of the danger or not.

At page 233 of the Report Atkinson, J. states:

"By C-Onunon law it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous condition owing to non-repair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson ({1703) 2 Ld.

Raym. 856]. In Reg. v. Bradford Navigation Co. [(1865) 6 B. & S. 631, 651] Lord Blackburn (then Blackburn J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. Jn Attorney-General v. Tod Heatley ((1897) I Ch. 560] it was clearly laid down that there is an absolute duty to prevent premises beC-Oming a nuisance. 'If I were sued for a nuisance, 'said Llndley L. J. in Rapier

v. London Tramways Co. [(1893) 2 Ch. 588, 599], 'and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it.' ••

The ratio of this decision was applied by the Court of Appeals in a subsequent case in Mint v. Good (1) and also in Walsh v. Holst and Co. Ltd. and Ors. (2) In our opinion, the same principle is applicable in Indian law. Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out.

The last question is regarding the quantum of damages which requires separate C-Onsideration in each case.

Section 1 of the Fatal Accidents Act, 1855 (Act XIII of 1855) reads:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the C-Ourt

(I) (1951] I K.B. 517.

(2) (19S8j I W.L.R. IOO

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may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."

This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Viet.

Ch. 93, known as the Lord Campbell's Acts. The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (') At page 617 of the Report Lord Wright has stated the legal position as follows:

"It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceasea

was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there. is an estimate of ho"Y 1; lluch was required or expended for his own personal and livmg expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance that the widow might have again married and thus cea'sed to be dependent, and other like matters of speculation and doubt."

The same principle has been reiterated by Viscount Simon in Nance

v. British Columbia Electric Railway Company Ltd. (2) In the present case of Subhagwanti etc. there is evidence that Ram Parkash deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. The evidence adduced regarding the income of Ram Parkash and the amount of loss caused to his widow and children was not satisfactory but the High Court considered that the widow and children must have been receiving at least a monthly sum of Rs. 150 for their subsistence and for the education of the children from the deceased Ram Parkash. The income was capitalised for a period of 15 years and \he amount of Rs. 27,000 which was arrived at was more than what the trial court had awarded.

The High Court accordingly saw no reason for reducing the amount of damages awarded by the trial court. In the case of Tek Chand and bis four children, the High Court has estimated that the pecuni-

(I) [1942] A.C. 601.

(2) [1951] A.C. 601.

SUPREME COUil T 11.EPOll TS [ 1966] 3 S.Cll.

ary loss caused by the death of his wife should be taken to be Rs. 40 A p.m. and if a period of 15 years is taken for the purpose of calculating the total sum, the amount will come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the pecuniary loss at the rate of Rs. 50 p.m. and the amount of damages calculated for a period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied the correct principle in esti- B mation of the damages in all the three appeals and learned Counsel has been unable to show that the judgment of the High Court on this aspect of the case is vitiated for any reason.

For the reasons expressed, we hold that there is no merit in these appeals which are accordingly dismissed with costs.

Appeals dismissed. c

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MUNICIPAL CORPORATION OF DELlll

SUBHAGWANTI & OTHERS

K. SUBBA RAO

V. RAMAsWAMI, JJ.

Fatal Accidents Act, 1885

CIVIL APPELLATE JURISDICTION

Bishan Narain

Sardar Balradur

Arun B. Saharya

N.D. Bali

Din Dayal Sharma

.A.G. Ratnaparkhi

Ramaswami

Ram Parkash

Panni Devi

Sant Gopi Chand

Delhi

RamParkash

Kuldip Raj

Gopi Chand

Subordinate Judge, !st Class, Delhi

July 9, 1953

Shrimati Subhagwnti

Shrimati Panni Devi

November 27, 1959

Munshi Lal

B. S. Puri

Government of India

Chakravarty

Puri

Pnri

Municipal Corporation of Delhi

Bishen Narain

England

Sheffield

Cohen

Atkinson

S. 631, 651

Blackburn

Llndley

Section 1

Fatal Accidents Act, 1855

Campbell

Wright

Viscount Simon

Subhagwanti

Tek Chand