JAMATRAJ KEWALJI GOVANI

THE STATE OF MAHARASHTRA

 April 4, 1967

[M, HIDAYATULLAH, s. M. Snau AND c. A. VAIDIALINGAM, JJ.J

.Criminal Procedure Code, 1898, s. 540-wltness called by court at imtance of prosecution after defence case closed-witness deposing to reasonable belief necessary under s. 123, Customs Act, 1962, for offence under s. 135 that goods were smuggled-whether calling such witness at that stage permissible-whether essential for just decision in the case.

Upon a .warrant issued under s. 105 of the Customs Act, 1962, the appellant&' shop was searched and a number of watches, clocks, etc., were seized.

As he could not prove that the goods had borne the necessary customs duty, the appellant was prosecuted on two counts under ss. 135(a) and 135(b) of the Customs Act,

1962. Tho appellant did not leod any evidence in his own behalf.

He filed a Written statement in which he claimed, inter alla, that no offence had been disclosed against him as under 1, 123 of the Act the burden would have been on him to prove that the1 aoods had been customed provided the aood• bad been aelzed under the Act In the reasonable belief that they were 1mugled aood1 but 110 witness bad depo1ed to 1uch belief. The day after thl1 statement was !lied, the pr01ecutlon applied for the e11mlnaUon of the Customs Ofllcer who waa In charge of the aearob u a court wltne11 In the Interest of justice.

Although tbl1 application was opposed by the appellant, the Magistrate ordered the examination of the olllcer under s. 540 of the Code in tho cour1e of which be stated that he bad seized tho watchea in the reasonable belief that they were smuggled. The appellant was. thereafter examined again and was given an opportunity to lead defence evidence but he stated that be had nothing further to add and no evidence to lead. The trial court then convinced the appellant under Sections !35(a) and 13S(b), An appeal to the High Court against this conviction was dismissed.

In the appeal to this Court by spel'ial leave, the question for deter minatlon was whether the evidence of the otllcer was improperly nceived by the Magi1trate and whether if excluded tlie conviction of Ibo appellant could be supported.

It was contended on beb'alf ot the appellant that the powers under

1. 540, hoWt!Ver wide, mull be reconciledwith the mandatory requirements of Chapter 21 laylna down the J)fOCedure of trial of warrant Cl* by Maai1trate1 and that as the trial had aone throuab the varloua 1tapa and had reached the 1tapa of 1. 258, the court could either acquit or oonvlot him; It w11 therefore 1ubmltted that the Matlatrate bad really al lowtd the pl'OllCluUon to flll a pp In the cue wblcb bad the elect of dl1Mn1in1 With the burden which was 011 tbe proaecutlon to prove the ca1e

under u. 135(a) and (b) of the Cuatomt Act and of placing the burden upon the appellant to rebut the presumption that the goods were amugled;

HELD : Dismissing the appeal,

The contention that Chapter 21 must limit the powers under Section S40 must be rejected. Offences under the Code of Criminal Procedure are

tried in different ways according to their gravity. The trials in the Magis trate's courts, the High Courts and Courts of Session as well as summary trials have their procedure laid down from one step to another till the state is reached for acquittal or conviction. If the argument advanced on the basis of the procedure laid down in Chapter 21 was 1X> be accepted, there would be no room for the exercises of the power under s. 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there. [419H-420B)

In the present case the trial Judge appeared to have exercised power conferred on him under the second part of section 540 I.e., to admit the evidence of the officer as essential to the just decision of the case. As the Section stands, there is no limitation on the power of the court arisin,1 from the stage to which the trial may have reached provided the court 11 bona fide of the opinion that for the just decision of the case steps autho rised by the Seetion may be taken. [420DEl

It was obvious that a just decision in the present case required findine whether the watches, etc., seized were smuggled or not. The circumstances already on record clearly established that some one mmt have sel7.ed the watches entertainin~ a belief that they were smuggled and this belief obviously was entertained by the Officer in charge of the search. This wu not a case in which the prosecution was trying tx> fill a gap in Its case. The court was right in thinking that a just decision of the case required that the nature and the plea underlying se12ure should be before it on oath of the person making the seizure so that the appellant might be required, as the policy of the Customs Act, 1962 requires, t.o prove his innocent poases sion. [423FHJ

Case law discussed.

CRIMINAL APPELLATE Juruso1cr10N : Criminal Appeal No. 217 of 1966.

Appeal by special leave from the judgment and order dated September 16, 1966 of the Bombay High Court in Criminal Appeal No. 1349 of 1965.

R. lethamalani, N. H. Hingorani and K. H/ngorani, for the appellant.

D. R. Prem and S. P. Nayyar, for the respondent.

The Judgment of the Court was delivered by Hidayatullah, J. On November 16, 1964, the shop of the ap pellant Govani situated in Suklaji Street, Bombay was searched by the Enforcement Branch of the Reserve Bank of India. Noth ing incriminating from the point of view of the Reserve Bank was found in the shop but a large number of watches, clocks, cigarette lighters, cameras, transistors, tape recorders, etc., were found. The officers of the Enforcement Branch appear to have informed the customs authorities. The Assistant Collector of Customs thereupon issued a warrant for the search of the premises under s. 105 of the Customs Act, 1962. This warrant was made out in the name of Preventive Additional Chief Inspector R. C. Dutta, Preventive Inspector P. N. Ramchandani ancJ Preventive Officers Ranade, Thakur and Menon. It was stated in the warrant that there were

KEWALJI v. MAHARASHTRA (Hidayatullah, 1.) 412

reasons to believe that prohibited and dutiable goods liable to confiscation and documents and things useful for and relevant to the proceedings were secreted in the shop. The officers were accordingly charged with the duty to search and seize such prohibited and dutiable goods, documents and things in the shop under s. 110 of the Act. The search was effected and the goods abovementioned were seized. Some of the watches were returned as they were old and given for repairs. The other watches were seized. Proceed ings for the confiscation of the goods and for penalties were started by Dutta and a summons under s. 108 of the Act was issued to Govani. He could not prove that the goods had borne the necessary customs duties. The Additional Collector of Customs, Bombay thereupon sanctioned his prosecution under s. 135(b) of the Act.

The trial took place before the Presidency Magistrate (19th Court), Bombay.

Govani was charged on two counts, under s. 135(a) ands. 135(b) of the Customs Act, 1962. Two witnesses were examined at the trial. Preventive Officer, Customs, Ranade deposed to the seizure of the goods. As the search was under the direction of Dutta, Ranade admitted in cross-examination that he was told by Dutta that information had been received that Govani had secreted some contraband articles in his shop. He admitted that Dutta decided which of the watches were to be seized and which were to be released. Ranade, however, stated that he had asked Govani to produce bills regarding the watches but Govani produced none. He had also asked Govani to produce the account books but Govani again did not produce any. The second witness Nanvani only proved the seizure of the contraband goods and the exhibits in the case. He was not cross-examined.

Govani did not lead any evidence in his own behalf. He was examined under s. 342 of the Code of Criminal Procedure and admitted that he had neither imported the watches nor paid customs duty on them. He stated that he had purchased the watches from certain customers, sometimes one and sometimes two or three from the same customer. He had no defence evidence to lead but filed a written statement and claimed that no offence had been disclosed against him in the prosecution case as laid before the court.

He analysed s. 135 of the Act and stated that the gist of the offence was that he should have known or have had reason to believe that the contraband goods had not been customed.

He stated that under s. 123 of the Act, the burden would have been on him to prove that the goods had been customed provided the goods had been seized under the Act in the reasonable belief that they were smuggled goods but no witness had deposed to such belief. This statement was filed on July 15, 1965. The following day, the prosecution applied for the examination of Dutta, Inspector of Customs, Bombay as a court witness in the interests of justice.

This application was opposed by Govani. The Magistrate, however, by his order dated July 2~ 1965, ordered the examination of Dutta under s. 540 of the code. Dutta stated that he had seized the watches in the reasonable belief that they were smuggled.

Govani was thereafter examined again and was given an opportunity to lead defence evidence. He stated that he had nothing further to add and no defence evidence to lead. The Magistrate. after considering the arguments, convicted Govani under ss. 135(a) and 135(b) of the Customs Act awarding him a sentence of one year's rigorous imprisonment arid a fine of Rs. 2,000/- (in default, further rigorous imprisonment for six months) on each of the two counts. The watches were also ordered to be confiscated.

Govani appealed to the High Court. His main contention was that the evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration. The High Court rejected these contentions and accepting the testimony of the witnesses on facts, upheld the convinction. Govani now appeals to this Court by special leave. The grant of special leave is limited to the questions whether the evidence of Dutta was improperly received by the Magistrate and whether, if excluded, the conviction of Govani can be supported.

The question falls to be considered under s. S40 of the Code of Criminal Procedure. That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as 'miscellaneous'.

It provides :

"s. 540 : Any Court may, at any stage of any inquiry, trial or other proceeding unaer this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine l)r recall and reexamine any such person if his evidence appears to it essential to the just decision of the case." The section gives a power to the court to summon a material witness or to examine a person present in court or to recall a witness already e:tamined.

It confers a wide discretion on the court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in s. 16S of the Indian Evidence Act which provides :

"s. 16S : The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or

KEWALJI v. MAHARASHTRA (Hidayatul.ah, J.) 419

thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question :

These two sections between them confer jurisdiction on the Judge to act in aid of justice .

The Presidency Magistrate, Esplanade, in, dealing with the peti tion to call Dutta passed an order on July 26, 1965 in which he remarked that there was no gap or lacuna in the prosecution case to fill because Dutta was named as one of the witnesses and as the officer who bad seized the watches. He held that the evidence of Dutta was necessary for the just decision of the case. He accord ingly granted leave for the examination of Dutta. In view of the fact that he spoke .in the language of the second part of s. 540, it is reasonable to think that he exercised the powers conferred on him under the second part although his order is not clear as to which part be had in mind. He, however, ruled that Govani would be further examined under s. 342 of the Code of Criminal Pro cedure and allowed to lead further evidence. This action of the Magistrate which was approved by the High Court, is challenged before us.

It is submitted that the powers under s. 540, however wide, must be reconciled with the mandatory requirements of Chapter 21 laying down the procedure of trial of warrant cases by Magistrates. It is pointed out that the trial bad gone through the stage of taking evidence for the prosecution (s. 252), framing of the charge (s. 254), recording of the plea (s. 255) and the defence (s. 256) of the accused and as Govani did not wish to lead evidence (s. 257), it bad reached the stage of s. 258 and the court could either acquit or convict him. It is, therefore, submitted that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under s. 135(a) and (b) of the Customs Act and of placing the burden upon Govani to rebut the presumption that the goods were smuggled.

This, it is said, is not only unfair but unjust and cannot be regarded as falling within the powers of the court, however, wide the language of the section.

We shall consider these objections and refer to the rulings which were cited before us in support of them.

To begin with, we do not accept as sound the argument that Chapter 21 must limit the powers under s. 540. Offences under the Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and war- L S Sup, C.l./67-13

rnnt cases by Magistrates, trials before High Courts and Courts of Session and summary trials. All these trials have their procedure laid down from one step to another till the stage is reached for acquittal or conviction. If the argument advanced on the basis of the procedure laid down in Chapter 21 is accepted there would be no room for the exercise of the power under s. 540 because it would always b: impossible to fit it into any chapter without doing violence to the sequence established th.ere.

Section 5<'f0 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts.

The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference.

Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined.

The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only.

The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart.

The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in words which are oft-quoted :

"There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by cartain evidence that contradicts it. They stand or fall by the evidence they have given.

They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown." (Reg. v. Frost)(').

There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power

(1) 4 St. Tr. (N.S.) 85 at 386.

KBWALJI v. MAHARASHTRA (Hidayalullah, I.) 421

is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avery J. in Rex v. Dora Harris(1) :

"The cases of Reg. v. Chapman (8 C & P. 558) and Reg. v. Holden (8 C & P. 606) establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right."

However the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in Reg. v. Frost( 2 ) even in those cases where a witness is called by the Judge after the case for the defence is closed, and states, "that the practice should be limited to a case where the matter arises eximproviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise inj'llstice would ensue" and cites the case of Reg. v. Haynes(•) where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris's(') case, five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross-examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power.

Mr. Jethmalani relies strongly upon this case and cites several decisions of the High Courts in India in which this dictum was applied. In particular he relies upon In re K. V. R. S. Mani('), Shreelal Kajaria v. The State(•) and In re V. Mahadevan(').

In these cases it is laid down that the powers under s. 540 of the Code of Criminal Procedure, wide though they may be, must not be exercised to the disadvantage of the accused, particularly after his defence is over.

There is nothing new in these cases. They follow in. essence the decision in Reg. v. Frost( 2 ) as applied in Dora Harris(') case.

(I) [1927) 2 K.B. 587 at 594,

(2) 4St. Tr, (N, S.) 85 at 386.

(3) [l8l91 I F. & F. 666,

(4) l.L.R. [1951] Mad. 986. (S) l.L.R. [1963] Bom. 698.

(6) (1964) 2 M.L.J 581.

422 SUPRl!MB COURT RBPORTS

[1967] 3 S.C.R.

On the other side reliance is placed upon n re K, K. Narayanan

Nambiar('), State v. Sheikh Mohamad Abdullah and others('), Ratnakar Das v. The State and others(") and Ramjeet and others

v. State(') among others in which a liberal interpretation in favour of the court's powers is placed upon the section.

It is not necessary to refer to the cases cited on either side.

They illustrate the application of the general principle spoken to by AvoryJ. in the extract from Dora Harris(') case and the condition laid down in Reg. v. Frost(•) Dora Harris and Reg. v. Frost cases involved rebuttal of the defence evidence.

In neither case was there any unexpected move by the prisoner and the evidence was therefore, wrongly admitted. It is difficult to limit the power under our Code to cases which involve something arising eximproviso which no human ingenuity could foresee, in the course .of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial . legislation.

Cases that go that far are of course not quite right.

Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris(") case obtains, the powers of the Court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision.

In William Sullivan(') rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Mckenna ( •) it was held that a judge had complete discretion whether a witness should be recalled and that the Court of Criminal Appeal would not interfere llllless it was made to appear that injustice had been caused.

In that case (like the one here) the defence had closed the case and the accused had submitted that there was no case to go to the jury.

It would appear that in our criminal jurisdiction, statutory law <:onfers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision crf. the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accll6ed has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but

(I) A.I.R. 1942 Mad. 223. (21 [1964] 2 Cr. L.J. 88.

(3) A.I.R. 1966 Orissa 102.

(4) I.L.R. (1958] All. 52.

(5) (1927) 2 K.B. 587 at 594.

(6) 4 St. Tr. (N.S. l 85 at 386.

(7) (1922) 16 Cr. App. R. 121.

(8) (1956) '40 Cr. App. R. 65.

A ' ;~

KEWAL.JI v. MAHARASHT.11.A (Hidayatu/lah, I.) 423

if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.

In the present case the position is this. In 1955, by a notification under the Imports and Exports (Control) Act, 1947, the import of watches, clocks and parts thereof except under a licence was completely stopped [Notification No. 17/1955 dated December 7, 1955 known as Imports (Control) Order, 1955]. Govani was found on November 16, 1964 to be in possession of 305 watches of foreign make. The warrant of search issued by the Assistant Collector of Customs recited :

"Whereas there are reasons to believe that prohibited and dutiable goods liable to confiscation. . . . are secreted in ...... Premises of Shri G. K. Gowani, Shop No. 20, Suklaji Street, Bombay, etc."

The watches (among other articles) were seized by Dutta.

He separated the old watches from the new and asked to see any document which would show that the watches were legitimately imported.

Govani produced no document although a summons under s. I 08 of the Customs Act, 1962 was served upon him. The watches were, therefore, seized. There was evidence to show that in 1963

1,300 watches were seized from Govani's locker in a safe deposit vault but the prosecution then had resulted in acquittal. The Mngistrate and the High Court were of opinion that these circumstances might lead to a reasonable belief in the mind of the person seizing the watches, that they were smuggled. The prosecution examined Ranade, Prevention Officer, Customs who had assisted at the search but failed to examine Dutta who seized the watches and under whose direction the search was conducted. The question was why were the watches seized ? They were obviously not seized because they were stolen property or belonged to some other person. They were seized after search on a warrant which expressed the belief that they were smuggled and after affording Govani an opportunity by notice to explain his possession. It is obvious that the just decision of the case required a finding whether they were smuggled or not. The circumstances already deposed to by Mukund Ranade and otherwise on the record clearly established that someone must have seized the watches entertaining a belief that they were smuggled. This belief obviously was entertained by Dutta. This was not a case in which the prosecution was trying to fill a gap in the proution case.

The. court was right in thinking that a just decist?'I of 1he case required tht the nature of the belief underlying the

se!zure should be be_for~ 1t on oath of the person making the SCtZUre so that Govam might be required, as the policy of the Customs Act, 1962 requires, to prove his innocent possession. Govani had really no defence in view of the Control Order of 1955 and

the gap of time between the promulgation of the order and the

date of the seizures. He admitted this before and after Dutta's A evidence. In these circumstances it cannot be said that the court had exceeded its jurisdiction in acting under the second part of s. 540 of the Code of Criminal Procedure.

As Dutta's evidence was rightly taken and gone into, and as Govani had no defence beyond taking advantage of the inadvertent omission, the defence had no merit. The conviction was, therefore, rightly reached.

B The appeal fails and is dismissed.

R.K.P.S.

Appeal dismissed.

JAMATRAJ KEWALJI GOVANI

THE STATE OF MAHARASHTRA

April 4, 1967

HIDAYATULLAH

Criminal Procedure Code, 1898

s. 540

s. 123

Customs Act, 1962

s. 135

s. 105

Customs Act, 1962

ss. 135(a) and 135(b)

Customs Act

s. 540

Code of Criminal Procedure

s. 540

section 540

Customs Act, 1962

R. lethamalani

N. H. Hingorani

K. H/ngorani

D. R. Prem

S. P. Nayyar

Hidayatullah

s. 105

Customs Act, 1962

R. C. Dutta

P. N. Ramchandani

Ranade

Thakur

Menon

s. 110

Dutta

s. 108

Govani

Bombay

s. 135(b)

s. 135(a)

Customs Act, 1962

Ranade

Nanvani

s. 342

Code of Criminal Procedure

s. 135

s. 123

July 15, 1965

Dutta

Govani

July 2~ 1965

Dutta

s. 540

Govani

ss. 135(a) and 135(b)

Customs Act

Code of Criminal Procedure

s. 540

s. 16S

Indian Evidence Act

s. 16S

Hidayatul.ah, J.) 419

Presidency Magistrate, Esplanade

July 26, 1965

s. 540

s. 342

s. 540

s. 252

s. 254

s. 255

s. 256

s. 257

s. 258

s. 135(a)

Customs Act

s. 540

Code of Criminal Procedure

s. 540

Section 5

Tindal

Code of Criminal Procedure

Avery

Bramwell B.

Dora Harris

Dora

Jethmalani

India

V. Mahadevan

s. 540

Code of Criminal Procedure

Ramjeet

AvoryJ.

England

William Sullivan

John Mckenna

December 7, 1955

November 16, 1964

G. K. Gowani

Customs Act, 1962

Mukund Ranade

Customs Act, 1962

s. 540

Code of Criminal Procedure


INCOME-TAX OFFICER, ID.ORAS

BUDHA PICTURES, MADRAS

April 5, 1967

[J. C. SHAH, S. M. S!KRI AND V. RAMASWAMI, JJ.]

. Indian Income-tax Act, 1922, s. 46(5A )-Notice under section to who1n can be given-There must be subsisting relationship between asJtssee and person to whom notice is gi-., en.

The respondent a film producing company was served a notice under s. 46(5A) by the Income-tax Officer on June 18, 1957, asking it to pay to the Income-tax Officer any amount due from the company or held by it for or on account of 'B' an actor. On June 26" 1959 the company replied that it bad not engaged 'B' foc its current production and there was no contract with him and consequently it could not comply with the notice. On March 28, 1960 the company signed a contract with 'B' agreeing to pay him Rs. 20,000 for a role in its current production. Tho amount was paid to him in three instalments on March 28, 1960, February

~. 1961 and March 18, 1961.

On March 22, 1961 the Income-tax Offl cec sent to the company another notice under s. 46(5A) to which the company replied that there were no payment due and payable to 'B' on the date of receipt of the J}otice. The Income-tax Officer held that the payment of Rs. 20,000 to .'B' was in violation. of the notice under s. 46(5A) issued on June 18, 1959 and requested the company to pay the said amount to the Income-tax department. The company filed a writ petition in the High Court which decided in its favour holding that the section required the subsistence of a similar relationship as between a garnishee and the assessee. The department appealed to this Court.

HELD : Jn s. 46(5A) the legislature contemplates a subsisting relationship of which the Income-tax Officer gets information and which can reasonably lead to the re<:overy of arrears. [ 429C] The expression "may become due" or

11may subsequently hold money" suggest in the context a subsisting relationship between the person served with a notice and the assessee; e.g. assessee's employer or banker or debtor, or a person paying an annuity to him; they do not suggest a bank which he has never dealt with, a person he has never lent money to or dealt with, or all persons who may possibly in the future employ an asses.ee out of job or work. The section cannot apply to all possible employers or traders

[429F] Since there was no subsisting relationship between the company and 'B' at the time when the notice was issued the recovery of Rs. 20,000 from the company was not justified.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 401 of 1966.

Appeal by special leave from the judgment and order dated October 10, 1963 of the Madras High Court in Writ Petition No. 71 of 1962.

H T. V. Viswanatha Iyer, S. K. Aiyar, S. P. Nay.var for R. N.

Sachthey, for the appellants.

K. Srinivasan and R. Gopa/akrishnan, for the respondent.

426 SUPUMB COUllT REPORTS

[1967) 3 S.C.R.

The Judgment of the Court was delivered by Slkri, J. This appeal by special leave is directed against the judgment of the Madras High Court allowing the petition filed under art. 226 of the Constitution by Budha Pictures, Madras, respondent before us. The respondent had, inter alia, prayed for a writ of mandamus or such other appropriate writ, order or direction in the nature of a writ directing the 4th Income-tax Officer, City Circle V, Madras, to forbear from {; Ollecting from the respondent the sum of Rs. 20,000/- in pursuance of his notices dated June 18, 1959, and March 21, 1961, issued under s. 46(5A) of the Indian Income-tax Act, 1922.

These notices came to be issued in the following circumstances : One, T. S. Balaiah, a cine artist, was apparently in arrears of income-tax. The III Additional Income-tax Officer sent a letter dated Julie 18, 1959 to the respondent saying : "I understand that you have engaged the services of Shri T. S. Balaiah for a film being produced by you.

As the above gentleman is in arrears of income-tax, I herewith enclose a notice under Section 46(5A) of the I. T. Act, attaching the remuneration payable by you to Shri Balaiah. Please credit to the Government account all amount that is and will become payable to him." The first paragraph of the notice reads as under :

"A sum of Rs. 46819-15 is due from Shri T. S. Baliah on account of Income-tax and/ or penalty, I am to request you, under Section 46(5A) of the Income-tax Act, 1922, to pay to me forthwith any amount due from you to, or held by you for or on account of the said Shri T. S. Baliah of 4, Arulammal St. Madras-17 upto the amount of arrears shown above, and also request you to pay any money which may subsequently become due from you to him or which you may subsequently hold for or one account of him up to the amounfof arrears still remaining unpaid, forthwith on the money becoming due or being held by you as aforesaid as such payment is required to meet the amount due by the tax-payer in respect of arrears of Income-tax and penalty. I am to say that any payment made by you in compliance with this Notice is in law deemed to have been made under the authority of the tax-payer and my receipt will constitute a good and sufficient discharge of your liability to the person to the extent of the amount referred to in the receipt." TI1e respondent replied on June 26, 1959, as follows :

"We have not engaged Sri T. S. Baliah for acting in our production No. 2. Hence there is no contract with

I.T.O. v. BUPHA PICTURES (Sikri, J.)

said Shri T. S. Baliah, and consequently we are unable to comply with your request."

On March 22, 1961, another communication was sent enclosing a notice under s. 46(5A) of the Indian Income Tax Act.

The notice is in the same form except that the sum to be recovered had increased to Rs. 86111/12. The respondent replied on March 25, 1961, saying that "there are no payments due and payable to Shri T. S. Baliah, cine-artist, as on the date of receipt of your letter." The respondent enclosed a statement of account which showed that on March 28, 1960, a cheque for Rs. 7,000/- was given to T. S. Baliah; on February 9, .1961, cash amounting to Rs. 6,000/- was paid to him, and again on March 18, 1961, cash amounting to Rs. 7,000/- was paid to him. The respondent also enclosed a copy of the contract with T. S. Baliah. The contract shows that there was an agreement between T. S. Baliah and the respondent, signed on March 28, 1960, whereby T. S. Baliah agreed to a role in production No. 2 (Tamil) for a consolidated remuneration of Rs. 20,000/-. On April 26, 1961, the Income Tax Officer wro•e to the respondent stating that payment of Rs. 20,000/- made to T. S. Baliah was in violation of the notice under s. 46(5A) issued on June 18, 1959, and requested the respondent to pay the sum of Rs. 20,000/- to the Income Tax Department within three days from the receipt of the letter. On June 26, 1961, the respondent wrote to the Income Tax Officer protesting that the respondent was not liable to pay the sum of Rs. 20,000/- giving various reasons, which need not be mentioned at this stage. On August 29, 1961, the Income Tax Officer declined to accept the contention of the respondent and requested him to pay to the Department Rs. 20,000/- on or before September 7, 1961. On January 18, 1962, the respondent filed the petition under art.

226. After giving the above facts and the grounds the petitioner, in brief, alleged that according to law the demand made by the Income Tax Officer for the sum of Rs. 20,000/- was illegal and without jurisdiction.

The High Court, as we have already mentioned, held that the Department was not entitled to call upon Budha Pictures Ltd., the respondent, to make good the sum of Rs. 20,000/- already paid to Baliah as such payments did not contravene the notice under s. 46(5A) dated June 18, 1959.

Section 46(5A) reads as follows :

"(5A) The Income-tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the assessee at his last address known to the Income-tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold

SUPIU!MB COURT RBPORTS

(1967] 3 S.C.R.

money for or on account of the assessee to pay to the Income-tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax-payer in respect of arrears of income-tax and penalty or the whole of the money when it is equal to or less than that amount.

The Income-tax Officer may at any time or from time to time amend or revoke any such notice or extend the time for making any payment in pursuance of the notice.

A.ny person making any payment in compliance with a notice under this sub-section shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.

Any person discharging any liability to the assessee after receipt of the notice referred to in this sub-section shall be personally liable to the Income-tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.

If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Income-tax Officer, further proceedings may be taken by and before the Collector on tho footlri~ that the Income-tax Officer's notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub-section (2) of section 46.

Where a person to whom a notice under this sub section is sent objects to it on the ground that the sum demanded er any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Incometax Officer." The learned counsel for the appellant contends that s. 46(5 A) applies in four sets of circumstances :

(1) when money is due from a person to the assessee;

(2) when money may become due to the assessee;

l.T.O. V. BUDHA PICTURES (Sikri, J.) ~29

(3) when a person holds money for an assessee; and

(4) when a person may hold money on account of the assessee.

He says that there is no reason for cutting down the words in cate gorics (2) and (4); the words are plain and they do not suggest that at the time of notice a relationship, which may result in money being owed or being held on account of the assessee, should sub sist. Iil our view, if the assessee has no subsisting relationship with a person it would be speculative to think that that person may get into relationship with the assessee and start owing money to him or start holding mone~ for him. We can hardly believe that the Legislature framed this sub-section on speculative considerations.

It seems to us that the Legislature contemplated a subsisting rela

tionship of which the Income-tax Officer gets information and which could reasonably lead to recovery of arrears. Theoretically it would be possible for an assessee to enter into relationship with almost anybody, say in the town in which he resides.

We can hardly imagine that it was expected that the Income Tax Officer would issue notices to all the residents of a locality or a town to pay money In cast they begin to hold or owe money to the assessee.

It seems to us that the High Court was right in holding that what was contemplated was the subsistence of a similar relationship as between a garnishee and the assessee. This construction of the sub-section is strengthened by the last para in s. 46(SA). A person to whom the notice has issued has only to object that the sum demanded or part thereof is not due to the assessee or that be doea not hold any money on account of the assessee. He has not to say that he is not like!~ to owe or to hold money. It see11111 to u1 that the expreasions 'may become due" or "may subse quently hold money" suggest, in the context, a subsisting relation ship between the person served with a notice and the assessee; 1.g. assessee's employer, or banker, or debtor, or a person paying an nuity to him; they do not suggest a bank with which he has never dealt with, a person he has never lent money to or dealt with, or all rsons who may possibly in the future employ an assessee out of JOb or work. If the contention of the Department were to be accepted, the Income Tax Officer could send a circular letter under . s. 46(SA) in respect of all defaulters to all possible employers or traders. This would cast enormous burden on persons receiving such notices. We cannot sustain a construction which could lead to such results. We agree with the conclusion arrived at by the High Court.

In the result the appeal fails and is dismissed with costs.

G.C.

A.pptal dlsmls:rtd.

BUDHA PICTURES, MADRAS

April 5, 1967

C. SHAH

V. RAMASWAMI, JJ.

Indian Income-tax Act, 1922

s. 46(5A )

s. 46(5A)

June 26" 1959

March 28, 1960

March 18, 1961

22, 1961

s. 46(5A)

s. 46(5A)

June 18, 1959

s. 46(5A)

October 10, 1963

Madras High Court

H T. V. Viswanatha Iyer

S. K. Aiyar

S. P. Nay.var

R. N.

Sachthey

K. Srinivasan

R. Gopa

Slkri

art. 226

March 21, 1961

s. 46(5A)

Indian Income-tax Act, 1922

T. S. Balaiah

Julie 18, 1959

Section 46(5A)

Balaiah

T. S. Baliah

Section 46(5A)

Income-tax Act, 1922

June 26, 1959

March 22, 1961

s. 46(5A)

March 25, 1961

February 9, .1961

s. 46(5A)

June 26, 1961

August 29, 1961

September 7, 1961

January 18, 1962

art.

226

Budha Pictures Ltd.

Baliah

s. 46(5A)

Section 46(5A)

section 46

s. 46(5 A)

T.O. V. BUDHA PICTURES

Sikri

s. 46(SA)

s. 46(SA)


UNIKAT SANKUNNI MENON v.

THE STATE OFRAJASTHAN

April 5, 1967

(K. N. WANCHOO, V. BHARGAVA AND G. K. MITTER, JJ.J

Constitution of India-Articles 14 and 16-Rajasthan Secretariat Ser vice (Rationalisation of Pay Scales) Rules, 1956, providing for special and Higher Grade for an Assistant Secretary In the Ra/lllthan Secretariat Service on promotion as Deputy Secretary in the Secretariat-Also providing for a special pay but the same grade for a member of -rhe Ra/as titan Administrative Service on promotion as Deputy Secretary In the Secretariat-Whether amounting to discrimination or denial of equality o/ opportunity.

Under the Rajasthan Civil Services (Unification of Pay Scales) Rules & Schedule-;, 1950, a person serving in the Rajasthan Secretariat, on appointment as Deputy Secretary, was placed in a specified pay-scale and was, in addition, entitled to a Special Pay. Under the same Rules a member of the Rajasthan Administrative Service, on appointment as Deputy Secretary, was also entitled to draw salary in the same pay"'lcale and a similar Special Pay. The 1950 Rules were superseded by the Rajasthan Secretariat Service (Rationalisation of Pay Scales) Rules & Schedules, 1956, by which it was provided that for Assistant Secretaries in the Secretariat Service there would be a number of selection posts of Deputy Secretaries on an inC'reased pay scale without any Special Pay Furthermore, the scales applicable to the members of Administrative Service on appointment as Deputy Secretary were also revised upwards though not to the same extent as for those in the Secretariat Service and in their case the principle of Special Pay on such appointment was continued.

The rules were revised aain in 1961 and 1966 whereby higher pay"'lcales were introduced to apply to members of each service on ap pointment to the post of a Deputy Secretary but the system of a special pay on such appointment, )"as continued only for members of the Admi n istrative Service.

1be appellant, who was an Assistant Secretary in the Secretariat Service and had been promoted as a Deputy Secretary, filed a petition under Art. 226 of the Constitu'ion claiming that the words "without special pay" in the 1956 Rules, applicable in respect of his Service may be de clared invalid and violative of Articles 14 and 16 of the Constitution. The High Court dismissed the Petition.

In the appeal to this Court it was contended, inter al/a,, that Articles 14 and 16 were violated because, (i) the Rules, on the face of them, showed that in the case of members of the Secretariat Service appointed as Deputy Secretaries, no special pay was admissible, -while such par was admissible to members of the Administrative Service when holding similar posts; and (ii) the definition of ''Special Pay" in Rule 3(31) of the Rajasthan Civil Service Rule•, 1951, showed that it was meant to be additional pay in consideraHon, inter alia, of the specially arduous nature of duties and that if the post of Deputy Secretary was considered as in volving such duties for members of the Administrative Service, there was no reason to hold that the same post was not equally arduous for members of the Secretariat Service.

HELD : There was no discrimination under Article 14 or any denial

SANKUNNI V. RAJASTHAN 431

of equality of opportunity under Arti.cle !~. (i) The Rules, as applicable from time to time to members of the Secretariat Service on appointment to the posts of Deputy Secretaries, were, at no stage made Jess favourable than the Rules previously applicable to them and could not be held to be vitiated in any manner, if considered by themselves in the light of rights which the members of the Secretariat Service possessed from time to time. [435C-D; 438E-F]

The appellant came to the post of a Deputy Secretary from the Secretariat Service which is a service distinct and separate from the Administrative Service. The methods of recruitment, qualificatioo, etc., of the two Services are not identical. In their ordinary time-scale, the two Services do not carrv the same grades.

Even the posts, for which recruitment in the two Services is made, are to a major extent, different. The meml>era ot me :>eccet"1iat Service are meant to be emJ:>loyed in the Secretariat only, while members of the Administrative Service are mostly meant for posts which are outside the Secretariat though some posts in the Secretariat can be filled by members of that service.

In such a case, where appointment is made to the posts of Deputy Secretaries of government servants belonging to two different and separate Services, there can arise no question of a claim that all of them, when working as Deputy Secretaries, must receive identical salaries, or must necessarily both be given special pay. It is entirely wrong to think that every one, appointed to the same post, is entitled to claim that he must be paid identical emoluments as any other peraon appointed to the same post, disregarding the method of recruitment, or the source from which the Officer is drawn for appointment to that post.

No such equality is required either by Art. 14 or Art. 16 of the Constitution.

[435F-436B] All lndi11 Station Masters' and Ass/slant Station Masters' As:roclatlon & Other! v. General Manager, Central Railways and Others, (1960] 2 S.C.R. 311; Mohan/al Bakshi v. Union of India A.l.R. 1962 S.C. 1139, relied on.

Furthermore, under the various Service Rules themselves, a member of the Secretariat Service on appointment as Deputy Secretary was allowed a special hier grade, while a member of the Administrative Service continued on his old scale and only got an extra salary of Rs. 150/- per month by way of Special Pay. In such a case, no question can arise of holding that a member of the Secretariat Service must also be granted a special pay in addition to being placed in the higher grade. 'Special Pay' does not arise out of any inherent q.uality of being anluoua In the nature of the post itself. Thus, when special pay was granted to a member of the ¥ministrative Service en •PP<?iAtment as Deputy Secretary, the reason might be that the post was considered more arduous in nature than the post which would be held by him, if he had continued on a regular post J:>ome Oil the cadre of his Service. In the case of an Assistant Secretary in the Secretariat Serviee, the post of a Deputy SecTetary was already designated as a select; o':I post fo_r on a special and lllgher grade, and. there could be no question of his being granted a special pay on the baslS that the. post of Deputy Secretary is more arduous in nature than the post of AsSJstant Secretary. [437D-F; 438C-E] CML APPELLATE JURISDICTION : Civil ApJ1eal No 274 of 1967. - .

Appeal by special leave from the judgment and order dated Noyemr. 18, 1965 of the Rajasthan High Court in D. B. Civil Wnt Petition No. 336 of 1964.

Brijbans Kishore and D. P. Gupta, for the appellant.

432 SUPl.l!MB COURT REPORTS

(1967] JS.C.R.

G. C. Kas/iwa/, Advocate-General for the State of Rajasthan A and K. Ba/dev Mehta, for the respondent.

The Judgment of the Court was delivered by Bhargava, J. The appellant, Unikat Sankunni Menon, was in the service of the Rajasthan Government in the Secretariat after Rajasthan was constituted as a State. The pay and grades of the posts in the Secretariat were governed by the Rajasthan Civil Services (Unification of Pay Scales) Rules and Schedules framed by the Rajpramukh under Article 309 of the Constitution of India.

Under those Rules, an Assistant Secretary to Government drew pay in the scale of Rs. 250-25-400-B."..-25-SOO and was, in addi tion, entitled to a special pay of Rs. 'so;.. A Deputy Secretary to Government drew pay in the scale of Rs. S00-25 700 and was, in addition, entitled to a special pay of Rs. lOQ/·. Subsequently, the Rajasthan Secretariat Service Rules, 1954 were framed by the Rajpramukh under Article 309 of the Constitution of India and were brought into force with effect from 10th January, 1.955.

Under these Rules, the appellant became a member of the Rajasthan Secretariat Service (heremafter referred to as "the R.S.S."). He was, at that time, holding the post of an Assistant Secretary which carried the time-scale of Rs. 250-25-400-EB-25-500. He was also drawing a special pay of Rs. 75/- per month. By the notification dated 25th May, 1956, the Rajpramukh, again acting under Art. 309 of the Constitution of India, promulgated Rajasthan Civil Services (Rationalisation of Pay Scales) Rules and Schedules, 1956.

Under these Rules, the grades of pay applicable to Deputy Secre taries and Assistant Secretaries were revised. The posts of Assis tant Secretaries were shown as belonging to the ordinary time-scale of the R.S.S., carrying the grade of Rs. 2S0-2S-SOO-BB2S1SO with a Apecial pay ofRs. 75/·. Further, it was laid down that there will be selection J'OSts for members of the R.S.S. which were lndl cated as posts of Deputy Secretaries to Government by putting this designation in brackets, and a new scale of Rs. 500-30·740-BB- 30-800-50-900 without special pay was prescribed for these selection posts. In the remarks column, there was a note that, on promotion as Deputy Secretary, an Officer will receive Rs. 500/ • or a minimum increase of Rs. 1 SO/- on his basic pay as Assistant Secretary whichever is higher. These were the Rules in force when, on 10th January, 1959, the appellant was appointed as Peouty Secretary. On that date, he was drawing a salary of Rs. 475/· p.m. in the ordinary time scale of the R.S.S. and was also getting a special pay of Rs. 75/-, as he was holding the post of an Assistant Secretary to Government. Consequently, on his appointment as Deputy Secretary, which was a selection post for the R.S.S., his salary was fixed at Rs. 650/-. Under the formula laid down in the remarks column, mentioned above, the salary admissible to him

came to Rs. 625 / ·, but, since in the new grade fixed for the selection. posts there was no stage at Rs. 625 / ·, his pay was fixed at Rs. 650/ • at the next higher stage above the amount calculated in his case on the basis of the formula laid down in the remarks column. This procedure was adopted under the Government in structions. Subsequently, the grades for the posts of Dy. Secretaries and Assistant Secretaries were again revised by the Governor of Rajasthan under the proviso to Article 309 of the Constitution by promulgating the Raiasthan Civil Services (Revised Pay) Rules,

1961. Under these Rules, the grade applicable to Assistant Secretary to Government belonging to the R.S.S. was prescribed as Rs. 360-25-560-30-590-EB-30-860-900. The Rules also indicated that this revised scale had been prescribed as a result of merging the special' pay in the grade pay itself. The grade for Deputy Secretaries to Government was also revised to Rs. 550-30-820-EB-30- 850-50-1100. It appears that, subsequently, there was another revision of scales of pay in the year 1966, and the latest grade applicable to the members of the R.S.S. holding the posts of Deputy Secretaries is Rs. 900-50-1500.

Apart from these various Rules which, from time to time, were applicable to members of the R.S.S., we may also indicate the Rules that were applicable to members of the Rajasthan Administrative Service (heremafter referred to as "the R.A.S. ") when holding E'?Sts of Deputy Secretaries. Under the Rajasthan Civil Services (Uni E ficatlon of Pay Scales) Rules and Schedules, 1950, which were in force until the year 1956, a member of the R.A.S., on appoint ment as Deputy Secretary, drew salary In the same grade of Rs. 500-25 700 with a special pay of Rs. 100/ • In the same way as a member of the R.S.S. When the Rajasthan Civil Services {Rationalisation of Pay Scales) Rules & Schedules, 1956 came into

force, this principle was departed from. While laying down the F grades of pay applicable to members of the R.A.S., their senior and junior scales were combined Into one scale shown as the timescale of Rs. 250-25-500-EB-25-750 with a selection grade of Rs. 500-30-740-EB-30-800-50-900 which was to be admissible personally to Officers who had been appointed substantively earlier to the $.rade of Rs. 500-25-700 vide Government Orders issued on 9th G Apnl, 1951 and 19th January, 1955. Then, it was further laid down that special pay would be admissible on certain posts to Officers of the R.A.S. on time scale or selection grade, and, amongst these, were the posts of Deputy Secretaries to Government. The Rules prescribed a special pay of Rs. 150/· for the members of the R.A.S. when appointed to posts of Deputy Secretaries to Gov- H ernment. In the subsequent revision of grades under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1961, the grade of the R.A.S. was revised to Rs. 285-25-510-EB-25-560-30-800 for the ordinary time-scale and Rs. SS0-30-820-EB-30-850-50-950 for

434 SUPll.l!MI! COURT REPORTS

[1967] 3 S.C.R.

posts in the senior scale, together with a selection grade of Rs. 650- 50-1250, Under these Rules again, it was laid down that an Officer of the R.A.S. holding a post in the senior scale on appoint ment as Dy. Secretary, will be entitled to a special pay of Rs. 150/-.

Under the last revision in 1966, a member of the R.A.S., on appointment as Dy. Secretary, was to draw salary in his regular timescale of Rs. 550-30-820-EB-30-850-50-1100, subject to a minimum of Rs. 640/-, with a special pay of Rs. 150/·. In the case of a member of the R.A.S. holding a post in the selection grade applicable to his service, he was to draw the pay in his selection grade with a special pay of Rs. 150/·. Thus, in the case of members of the R.A.S. appointed to posts of Deputy Secretaries, a special pay remained admissible, while the principle of granting special pay to members of the R.S.S. on appointment as Deputy Secretaries was abolished.

It was on the basis of these Rules that the appellant filed a petition under Art. 226 of the Constitution before the High Court of Rajasthan claiming that the words "without special pay" in the Rajasthan Civil Services (Rationalisation of Pay Scales) Rules & Schedules, 1956 may be declared as invalid and violative of Articles 14 and 16 of the Constitution.

The High Court dismissed the petition and, consequently, the appellant has new come up to this Court by special leave.

The claim of the appellant has to be examined in two different aspects. The first aspect is that the Rules, as applicable from time to time to members of the R.S.S. on appointment to the posts of Deputy Secretaries, were, at no stage, made less favourable than the Rules previously applicable. As has been mentioned earlier, under the Rajasthan Civil Services (Unification of Pay Scales) Rules & Schedules, 1950, a person serving in the Rajasthan Secretariat, on appointment as Deputy Secretary, was placed in the timescale of Rs. 500-25-700 and was, in addition, entitled to a special pay of Rs. 100 / •. When the Rules were revised for the first time under the Rajasthan Civil Services (Rationalisation of Pay Scales) Rules & Schedules, 1956, a member of the R.S.S., working on the ordinary time-scale as Assistant Secretary, became entitled, on appointment as Deputy Secretary, to pay in the scale of Rs. 500-30- 740-EB-30-800-50-900. It is true that, on such appointment under these Rules, he was not entitled to any special pay; but the principle for fixation of pay given in the remarks column ensured that the pay admissible to the Officer would certainly be higher than tlie pay which would have been admissible if the earlier Rules had continued in force.

The scale of pay prescribed for the post of Deputy Secretary was higher than the previous scale. Further, on promotion as Deputy Secretary, every Officer of the R.S.S. received a minimum increase of Rs. 150/- on bis basic pay as Assistant Scretary.

The fact that the special pay as Assistant Secretary was

ignored in fiXing the pay on appointment to the post of Deputy Secretary did not result in any reduction of the emoluments to be received under the new scales, as compared with the emoluments which he would have received if the old scales had continued to remain in force. The subsequent revisions in 1961 and 1966 also observed this principle, so that the Rajpramukh or the Governor of Rajasthan, in promulgating these various Rules revising the pay scales applicable to Deputy Secretaries, ensured that no revised Rule operated to the prejudice of a member of the R.S.S., as compared with the earlier Rules under which rights had vested in him. Further, it-as, at no stage, urged that the Rajpramukh or the Governor was incompetent to promulgate these revised Rules from time to time in exercise of his power under Article 309 of the Constitution.

The Rules thus applicable to the member of the R.S.S. on appointment to the post of Deputy Secretary, against which the appellant made his grievance in the High Court, cannot be held to be vitiated in any manner, if considered by themselves in the light of rights which the members of the R.S.S. possessed from time to time.

The second aspect, and the one on which reliance was mainly placed by learned counsel for the appellant in this appeal, is that the Rules, on the face of them, show that, in the case of members of the R.S.S. appointed as Deputy Secretaries, no special pay is admissible, while special pay is admissible to members of the R.A.S. when holding similar posts. It is on the basis of this apparent differentiation that the appellant urged that Articles 14 and 16 of the Constitution were violated when special pay was denied to the members of the R.S.S., while special pay was admissible to members of the R.A.S.

There are two reasons why this grievance put forward on behalf of the appellant has to be rejected. The first is that the appellant comes to the post of a Deputy Secretary from the R.S.S., which is a service distinct and separate from the R.A.S. The methods of recruitment, qualifications, etc., of the two Services are not identical. In their ordinary time-scale, the two Services do not carry the same grades. Even the posts, for which recruitment in the two Services is made, are, to a major extent, different. The members of the R.S.S. are meant to be employed in the Secretariat only, while members of the R.A.S. are mostly meant for posts which are outside the Secretariat though some posts in the Secretariat can be filled by-members of the R.A.S. In such a case, where appointment is made to the posts of Deputy Secretaries of government servants belonging to two different and separate Services, there can arise no question of a claim that all of them, when working as Deputy Secretaries, must receive identical salaries, or must necessarily both be given special pay. It is entirely wrong to think that every Olle, appointed to the same post, is entitled to claim that he

LSSup.CI/67-14

SUPREME COURT REPORTS

must be paid identical emoluments as any other person appointed to the same post, disregarding the method of recruitment, or the source from which the Officer is drawn for appointment to that post. No such equality is required either by Art. 14 or Art. 16 of the Constitution. This principle was explained by this Court first in the case of All India Station Masters' and Assistant Station Masters' Association & Others v. General Manager, Central Railways and Others(1 ). In that case, the question arose about the rights of promotion of Assistant Station Masters and Guards already employed in the Railway Service.

The Assistant Station Masters claimed equality of opportunity for promotion qua the Gnards on the ground that they were entitled to eqnality of oppor• tunity in the matter of employment or appointment to any office of the State under Art. 16(1) of the Constitution. This Court held: "It is clear that, as between the members of the same class, the question whether conditions of service are the same or not may welJlarise. If they are not, the question of denial of equal opportunity will require serious consideration in such cases. Does the concept of equal opportunity in matters of employment apply, however, to variations in provisions as between members of different classes of employees under the State ? In our opinion, the answer must be in the negative.

The concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment, or have obtained the same employment." Proceeding further, the Court held : "There is, in our opinion, no escape from the conclusion that equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes." The same principle was later confirmed in the case of Kishori Mohan/al Bakshi v. Union of India( 2 ). In that case, persons appointed to Class II of Income-tax Officers claimed that there was discrimination against them in the matter of pay-scales, as compared with Income-tax Officers recruited directly to the Class I Service. The Court, rejecting this argument, held : "The only other contention raised is that there is discrimination between Class I and Class II Officers inasmuch as, though they do the same kind of work, their pay scales are different. This, it is said, violates Art. 14 of'the Col16titution. If this contention had any validity, there could be no incremental scales of pay fixed dependent on the duration of an officer's service. The abstract doctrine of equal pay for equal work has nothing to do with Art. 14. The contention that Art. 14 of the Constitution has been violated, therefore, fails." The claim of the appellant in the present case that,

(1) [1960! 2 S.C.R. 311.

(2) A.1.R. 1962 S.C. 1139.

SANKUNN! v. RAJASTHAN (Bhargava, /.) 437

on appointment as Deputy Secretary, he must be held entitled to receive special pay on the ground of being placed on parity with the members of the R.A.S., has, therefore, to be rejected.

The second ground, which shows that the claim made on behalf of the appellant has no basis, is that, under the various Service Rules themselves, a member of the R.S.S., on appointment as Deputy Secretary, is given pay in a grade specially and separately fixed for the posts of Deputy Secretaries, while a member of the R.A.S., is not placed in that grade at all. Thus, under the latest Rules, a member of the R.S.S., on appointment as Deputy Secretary, draws salary in the grade of Rs. 900_-50-1500. On the other hand, a member of the R.A.S., appointed as Deputy Secretary, is not granted pay in this scale. In his case, he continues to draw his salary in the scale applicable to him in the R.A.S. and is allowed a special pay of Rs. 150/-. This special pay allowed to a member of the R.A.S. is, therefore, not in addition to the pay in the grade specially prescribed for the posts of Deputy Secretaries.

That grade is much higher than the grade applicable to the member of the R.A.S. which continues to apply to him on his appointment as Deputy Secretary, and it is only in addition to that lower timescale that a member of the R.A.S. is allowed the special pay of Rs. 150/-. It is thus clear that the method of fixation of salary for members of the two Services, on appointment as Deputy Secretaries, is quite different.

A member of the R.S.S. is allowed a special higher grade, while a member of the R.A.S. continues on his old scale and only gets an extra salary of Rs. 150/- per month.

In such a case, no question can arise of holding that a member of the R.S.S. must also be granted a special pay in addition to being placed in the higher grade of pay prescribed for the post of Deputy Secretaries when that post is held by the member of the R.S.S.

In this connection, learned counsel for the appellant drew our attention to Rule 7(31) of th~ Rajasthan Civil Service Rules, 1951, framed under Article 309 of the Constitution, defining special pay.

The definition given in the Rule is that "Special Pay" means an addition of the nature of pay, to the emoluments of a post or of a government servant, granted in consideration of :-

(a) the specially arduous nature of the duties,

(b) a specific addition to the work or responsibility; or

(c) the unhealthiness of the locality in which the work is performed.

It was urged by learned counsel that, if the post of Deputy Secretary was considered as involving specially arduous nature of duties for members of the R.A.S., there is no reason to hold that that post is not equally arduous for !llembers of the R.S.S. and, consequently, there would be no justification for denying special pay

SUPREMI! COURT REPORTS

(1967]3 S.C.R.

to members of the R.S.S. holding such a post, when special pay is granted to members of the R.A.S. It appears to us that this submission is made on a misconception of the scope of this Rule. The Rule, in defining special pay, envisages an addition of the nature of pay to the emoluments of either a post or of a government servant and, consequently, it is clear that a special pay is to be granted, if a person is appointed to a post which is specially arduous in nature as compared with the earlier post held by him. Similarly, it may be granted to a government servant who is appointed to a post involving specially arduous duties as compared with the posts to be held by him ordinarily, while continuing in the Service in which he holds his permanent _appointment. Special pay does not arise out of any inherent quality of being arduous in nature of the post itself. Thus, when special pay is granted to a member of the R.A.S. on appointment as Deputy Secretary, the reason may be that the post is considered more arduous in nature than the post which would be held by him, if he had continued on a regular post borne on the cadre of his Service. In the case of a member of the R.S.S., the post of a Deputy Secretary is already designated as a selection post for him and in view of this difference between the post to which he is appointed, as compared with the post of an Assistant Secretary earlier held by him, he is granted a special and higher grade, so that there is no quastion of his being granted a special pay on the basis that the post of Deputy Secretary is more .arduous in nature than the post of Assistant Secretary. The Rules, as framed, are, thus, based on well-recognised principles for granting salary to members of different Services, even when they are appointed to the same post. In these circumstances, no question arises of any discrimination under Art. 14 of the Constitution, or of any denial of equality of opportunity under Art. 16 of the Constitution. The appeal has no force and is dismissed, but, in the circumstances of this case, we make no order as to costs.

R.K.P.S.

Appeal dismissed.

UNIKAT SANKUNNI MENON

THE STATE OFRAJASTHAN

April 5, 1967

K. N. WANCHOO

V. BHARGAVA

G. K. MITTER, JJ

Constitution of India

Articles 14 and 16

Art. 226

Articles 14 and 16

Articles 14 and 16

Article 14

SANKUNNI V. RAJASTHAN 431

Art. 14

Art. 16

(1960] 2 S.C.R. 311

Rajasthan High Court

Brijbans Kishore

D. P. Gupta

K. Ba/dev Mehta

Bhargava

Unikat Sankunni Menon

Article 309

Constitution of India

Rajpramukh

Article 309

Constitution of India

10th January, 1.955

Rajasthan Secretariat Service

25th May, 1956

Art. 309

Constitution of India

R.S.S.

10th January, 1959

Rajasthan

Article 309

Rajasthan Administrative Service

R.A.S.

9th G Apnl, 1951

19th January, 1955

Art. 226

High Court of Rajasthan

Articles 14 and 16

Rajasthan Secretariat

Article 309

Articles 14 and 16

Art. 14

Art. 16

Art. 16(1)

Art. 14

Art. 14

Art. 14

Rajasthan Civil Service Rules, 1951

Article 309

Art. 14

Art. 16


MADAN LAL v.

STATE OF PUNJAB

April 5, 1967

(R. S. BACHAWAT AND J. M. SHELAT, JJ.)

Indian Penal Code, 1860 (Act 45 of 1860), ss. 120B, 196(2) and 409--0ffecer authorised his clerk to receive and disburse moneys- Moneys not paid to persons concerned-Clerk admits receipts but alleges handing over to officer-Value of admission-Both charged for conspiracy and criminal breach of trust--Officer acquitted-If clerk could be convicted for criminal breach of trust-Sanction nol obtained-If convicUon for criminal breach of trust vitiated.

J had authorised the appellant a clerk under him, to withdraw moneys from Bank for payments to different persons. J, discovering that the raoneys were not paid to persons concerned, lodged a report. The appellant admitted to have withdrawn the moneys, but stated that he had handed them over to J, and made entries in the register showing disbursement at J s instance, and J had initiated them. J was charged under s, 409 and the apt under ss, 409, 465, 477A and 120-B I.P.C. The Trial Court conVJcted both under ss. 120-B and 409 but the Sessions Judge acquitted J and convicted the appellant under s. 409 only. The High Court, too, maintained the appellant's conviction holding that the moneys having been admittedly received by the appellant, the burden of proof was upon him to show what he had done with them and there being no evidence that he handed them over to J, except his bare allegation he had failed to discharge that burden. 1n appeal to this Court, the appellant contended that (i) the case proceeded erroneously as if the appellant had to prove his case beyond reasonable doubt that he had handed over the moneys to J and a reasonable doubt could have been raised in the prosecution evidence if the document called for by the appellant had been produced and his application for their production had not been rejected; (ii) it was not his duty as a clerk to receive these moneys and that he had only received them at the instance of J; (iii) the charge as to criminal breach of trust against the appellant and J being one under s. 409 read with s. 120-B and there being no charge under s. 409 simplicitor a conviction under s. 409 only was not valid; (iv) the trial suffered from misjoinder of charges in that there were six items of moneys in respect of which misappropriation was alleged and three entries in respect of which falsification of accounts was charged against the appellant; and

(v) though he was charged 1D1der s. 120-B and s. 477-A no sanction under s. 196, A(2) of the Criminal Procedure Code was obtained and, therefore, the entire trial was vitiated.

HELD : The appeal must be dismissed.

(i) There was no question of the appellant raising any reasonable doubt in view of his admission that he had received the moneys. There was no substance in the contention that if the documents had been produced the appellant could have made out a reasonably probable case that he had handed over the moneys to J.

[444A-BJ

(ii) There was evidence that the appellant not onlv used to receive lM!leys but also used to disburse them. Whether it was done by him as part of his d11ties would clearly be a matter of evidence, which cannot be gone into in this Court as it was not raised in the High Court. J

authorised the appellant to draw and receive the moneys in question for A the express purpose of payment to different parties. There was, therefore, entrustrnent to the appellant of the said moneys for an express pur pose. [4440, Fl

Budha Lal v. State of Rajasthan, [Cr. A. No. 156 of 1962 decided on 27th January 1965], referred to.

(iii) If the charge of conspiracy to commit criminal breach of trust is followed by a substantive charge of criminal breach of trust in pursuance of such conspiracy there is nothing to prevent the court convicting an accused under the second charge even if the prosecution fails to establish conspiracy. In any event, there was no prejudice caused to him as he was aware that there was a substantive charge under s. 409 against him.

[444H-445B]

Kizhakkeppa//ik Moosa v. State, A.I.R. 1963 Kerala 68, disapproved.

Willie Slaney v. State of Madhya Pradesh, [1955] 2 S.C.R. 1140, referred to.

(iv) The appellant did not at any earlier stage take objection to the charges under ss. 409 and 477-A on the ground that he was likely to be embarrassed in his defence. He has also not shown that any prejudice was caused to him and that being so this contention also must fail. [4450]

(v) Though the charge under s. 120-B required sanction no such sanction was necessary in respect of the charge under s. 409. At the most, therefore, it can be argued that the Magistrate took illegal cognizance of the charge under s. 120-B as s. 196(2) prohibits entertainment of certain kinds of complaints for conspiracy punishable under s. 120-B without the required sanction. The absence of sanction does not prevent the court from proceeding with the trial if the comJ!laint also charges a co.conspirator of the principal offence committed In pursuance of the conspiracy or for abatement by him of any such offence committed by one of the conspirators under s. 109 of the Penal Code. The fact that sanction was not obtained in respect of the complaint under s. 120-B did not vitiate the trial on the substantive charge under s. 409.

No prejudice could be said to have resulted in view of the appellant's confession.

[447C-F]

Abdul Mian v. The King, A.LR. 1951 Pat. 513, Govindram Sunder Das v. Emperor, A.LR. 1942 Sind. 63 and Nibaram Chandra Bhallacliaryya v. Emperor, A.LR. 1929 Cal. 754, referred to.

Suk1unar Chatterjee v. Mosizuddin Aluned, 25

C.W.N. 357, Syed Yawar Bhakat v. Eniperor, 44 C.W.N. 474, Ran1 Pat v. Entperor, (1962) 64 P.L.R. 519 and Mohd. Bacha/ Abdulla v. The Emperor, A.LR. 1934 Sind. 4, approved.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. l 16 of 1964.

Appeal by special leave from the judgment and order dated December 20, 1963 of the Punjab High Court in Criminal Revision No. 824 of 1963.

K. Ba/dev Mehta, G. D. Gupta and lndu Soni, for the appel- H

t .-.

lant. ;,.

Bikramjit Mahajan and R. N. Sachthey, for the respondent.

• '

A The Judgment of the Coun was delivered by

Shelat, 1. In 1961 Ravi Datt Joshi was the Assistant District Inspector of Schools at Kamal and the appellant was then working under him as a clerk. Between March to December 1961, Joshi authorised the appellant to draw certain amounts from the State Bank of India, Karna!. Accordingly, on March 11, 1961, the appellant drew Rs. 979.12 for payment to M/s. Joti Pershad Gupta & Sons. On March 31, 1961, he drew a further sum of Rs. 1449.38 out of which Rs. 1404 were to be paid to the Indian Red Cross Society.

He made an entry in the cash book showing as if that amount was paid to the said Society and got that entry initialled by Joshi. On July 3, 1961, he encashed a bill for Rs. 424, the amount being payable to two teachers, Ishwar Datt and Chand Ram. The appellant made an entry in the acquittance roll showing as if he had paid Rs. 200 to Chand Ram.

On November 15, 1961 he received Rs. 281.15 in respect of arrears of salary of one teacher, Harbhajan Kaur and on December 2, 1961, he received Rs. 42.66 and Rs. 494, the first amount being the salary of Ram Sarup, another teacher and the other as contingent fund payable to the staff. None of these amounts was paid to any of the aforesaid persons for payment to whom they were received by him. On M/s. Joti Pershad Gupta & Sons complaining to Joshi that the amount due to them was not paid, Joshi looked into the matter and finding that that amount and other amounts were embezzled, he lodged a complaint before the Police. The police thereupon registered a case under s. 409

against the appellant and under ss. 409, 465, 477-A and s. 120-B of the Penal Code against Joshi. The trial Magistrate convicted Joshi and the appellant under s. 120-B and under s. 409 for criminal breach of trust in respect of Rs. 3414.53 and also under s. 477-A and awarded different sentences and fines directing the sentences to run concurrently. In appeal, the Additional Sessions Judge acquitted Joshi of all the charges. He also acquitted the appellant on charges under s. 120-B and s. 477-A but upheld his conviction under s. 409.

The appellant filed a revision in the High Court where he conceded that the aforesaid amounts were received by him from the Bank but pleaded that he had handed them over to Joshi and that it was Joshi's duty to disburse those amounts and to maintain accounts as Joshi was in charge of the office. The High Court held that the said moneys having been admittedly received by the appellant, the burden of proof was upon him to show what he had done with them, that there being no evidence that he handed them over to Joshi except his bare allegation, the appellant had failed to discharge the burden and was, therefore, rightly convicted under s. 409. The High Court relied upon the evidence of Sukhrninder Singh, the District Inspector of Schools that the appellant had confessed before him that

SUPREME COURT REPOR.TS . [1967J 3 S.CJl.

out of the said sum of Rs. 3414.53 he had misappropriated Rs. 2500 and that Joshi had misappropriated the balance of Rs. 979 ancl that the appellant was prepared to deposit the amount of Rs. 2500.. The evidence of the District Inspector of Schools also was relied upon as showing that when approached for payment, the appellant had falsely represented to M/s. Joti Pershad Gupta & Sons and the Assistant Secretary of the Red Cross Society that he had remitted to them the two amounts payable to them.

Before the Higli Court, the appellant contended that the trial suffered from misjoinder of charges, that Joshi being the draw- . ing 'llnd disbursing officer, it was he and not the appellant who was responsible for the said misappropriation, that he had applied to the trial Magistrate for production of certain documents, that those documents were not produced and that he was prejudiced by the said non-production as he could have shown from those documents that he had handed over the said amounts to Joshi as Joshi was the officer responsible for disbursements.

The High Court rejected these contentions and on merits accepted the finding both of the Magistrate and the Additional Sessions Judge that the appellant had misappropriated the said amounts and dismissed the revision. Hence this appeal by special leave.

Mr. Mehta for the appeilant first contended that the High Court erred in proceeding with the case as if the appellant had to prove his case beyond reasonable c!oubt that he had handed over the said moneys to Joshi. In support of his contention he relied upon Woolmington v. The Director of Public Prosecutions(') and argued that if the appellant could show that his case was reasonably probable and could cast a doubt on the prosecution case that would be enough to entitle him to the benefit of reasonable doubt.

There was, however, no question of the appellant raising any reasonable doubt in view of (a) his admission that he had received the said moneys, (b) the evidence of the District Inspector of Schools that he had confessed before him of having misappropriated Rs. 2500 at least and was prepared to deposit the said amount, and (c) the evidence as to. his false representations to M/s. Joti Perhad Gupta & Sons and the Assistant Secretary of the Red Cross Society that moneys due to them had already been remitted.

But the argument of Mr. Mehta was that he could have raised a doubt on the prosecution evidence if the .documents called fot by the appellant had been produced and his application for tneir production had not been rejected . • In his statement under s. 342 of the Code of Criminal Procedure the appellant admitted that he had drawn the said amounts from the Bank. His case, howevi; r, was that he did so on Joshi

-OJ rt9l5] A.C. 462. .~-

' "

MADAN LAL V. STATB (She/at, J.) 443

authorising him to do so and that he had handed theni over to Joshi. He pleaded that he had made entries in the remittance transfer register showing disbursement of these amounts but those entries were made by him at the instance of Joshi and Joshi had initialled those entries. The argument was that in order to prove his case the production of the said documents was necessary.

The appellant had called for five documents, 'viz., ( l) A Memo dated June 27, 1960. from the Secretary to the Finance Department to al! heads of Departments showing that it was the head of office, i.e., Joshi, who was responsible for disbursement,

(2) Instructions issued in 1962 according to which a clerk could make disbursement only if he had furnished security of Rs. 600,

( 3) the Bill book which witness Des Raj admitted was maintained and which if produced would have shown that the appellant had handed over the said moneys to Joshi, { 4) the remittance transfer register admitted by the District Inspector of Schools could be found in the office, and (5) the sub-voucher for Rs. 494 which the District Inspector assured the trial Magistrate he would send for but failed to produce. Regarding item No. l a copy of the Memo was in fact filC!d in the court .and admitted in evidence.· For the rest of the it.ems, the trial Magistrate passed an order directing the prosecuting police inspector to make a report. On December 29, 1962, the officer made the report that there was no bill book, i.e. item No. 3, that item No. 4, the remittance transfer regi, ter was part of the record of the Assistant District Inspector's office and that the same could be found there and that ·

the sub-voucher item No. 5 was not traceable.

No w.ievance remained in respect of items l and 2 as a copy of the said Memo was adm:tted in evidence. Therefore, there would be no dispute that Joshi was the disbursing authority. But in view of the extrajudicial confession made by the appellant that he had in fact misapproJ?riated Rs. 2500, the fact that Joshi was the disbursing authonty would not be of any importance. Items 3 and 5, accord ing to the said report, could not be traced. No point, therefore, can be made on the score of their non-production. There remain ed, therefore. only the remittance transfer register.

The order sheet of th~ Magistrate shows that at the time when the prosecu ton closed its case and the statements of the appellant and Joshi were recorded under s. 342 of the Code, no objection was taken' by .the appellant that the case should not proceed until the said register was producd. The case was adjourned to December 29, 1962 for defence evidence. On that date also no objection appears to have been taken and the case was allowed to proceed.

Ulti mately on Jana'.y 14, 1963, the Magistrate passed his aforesaid order o'. conv1cl!on. part from that, since the moneys were not rem1.tted to the partis concerned !here can be no question of there bemg any R.T.R. m respect of them.

Evidentially that

document was called for by the appellant in order to create confusion knowing full well that it was not there. We find, therefore, no substance in the contention that 'if these documents had been produced the appellant could have thrown some doubt on the prosecution evidence and could have made out a reasonably probable case that he had handed over the said amounts to Joshi.

Mr. Mehta next argued that under s. 409 assuming that the .said moneys were entrusted to the appellant, such entrustment must be in his capacity as a public servant. Being a clerk in the office of the Assistant District Inspector of Schools the appellant undoubtedly was a public servant. But the contention was that it was not his duty as a clerk to receive these moneys and that he had only rece:ved them at the instance of Joshi.

Not being his duty so to receive the said moneys, it cannot be said that it was in his capacity as a clerk or as part of his duties that the said moneys were entrusted to him.

There was, however, evidence that the appellant not only used to receive moneys but also used to disburse them. Whether it was done by him as part of his duties, would clearly be a matter of evidence. This contention was not raised in the High Court and being dependent on evidence, he is not entitled now to raise it befor.~ us.

The decision of this Court in Budha Lal v. The State of Rajashan(') rested on different facts a' there was clear evidence that entrustment of moneys deposited in the complainant's savings account in the post office was to the accused's brother who was the post master and not to the accused. In the present case the position h that Joshi authorised the appellant to draw and receive the moneys in question for the express purpose of payment to different parties.

There was, therefore, entrustment to the appellant of the said moneys for an express purpose. The decision in Budha Lal's(') case cannot apply.

The third contention of Mr. Mehta was that the charge as to criminal breach of trust against the appellant and Joshi being one under s. 409 read with s. 120B and there being no charge under s. 409 simplicitor a conviction under s. 409 only is not valid. He argued that as the prnsecution failed to establish conspiracy !lie

appellant could not be convicted of the offence under s. 409 s1mplicitor. In our view, there is no substance in this contention. If the charge of consplracy to commit ?riinal breach of trust. is followed by a substantive charge of crmunal breach of trust m pursuance of such conspiracy there is nothing to prevet the court convic; ting an accused under the second charge even 1f the prosecution fails to establish conspiracy. In any event, there was no. prejudice caused to him as he was aware that there was a sub-

(!) Criminal Appeal 156of1962 d<cided on 27th Janary, 1965

stantive charge under s. 409 against him. Mr. Mehta, however,

relied upon a decision of the Kerala High Court in Kizhakeppallik Moosa v. The State.('). That decision cannot be of any avail as it is directly contrary to this court's decision in Willie Slaney

v. The Sttite of Madhya Pradesh( 2 ).

It was then argued that the trial suffered from misjoinder of charges in that there were six items of moneys in respect of which misappropriation was alleged and three entries in respect of which falsification of accounts was charged against the appellant. There is some conflict of judicial opinion as to whether a charge of misappropriation where a lump sum consisting of several items together with a charge of falsification of several entries made with a view to screen the misappropriation is correct. We need not in the present case decide which view is correct. The appellant did not at .any earlier stage. take objection to the charges under ss. 409 and 477-A on the ground that he was likely to be embarrassed in his defence.

He has also not shown that any prejudice was caused to him and that being so this contention also must fail.

The last contention was that though he was charged under s. 120-B ands. 477-A no sanction under s. I 96-A(2) of the Criminal Procedure Code was obtained and, therefore, the entire trial was vitiated .. We may observe that the Additional Sessions Judge found that sanction was not obtained though the appellant and the said Joshi were charged under the aforesaid two sections along with the charge under s. 409.

Reliance in this connection was placed on a decision of the Patna High Court in Abdul Mian v. 'The King(8 ), where. it was held that sanction to prosecute is a condltion precedent to the institution of prosecution and that it is the .sanction which confers jurisdiction on the court to try the

case.

The charge-sheet in that case was under s. 295-A of the Penal Code and sanction having not been obtained for prosecution the High ourt held that even though the Magistrate trying lhe. accused ultimately convicted him under s. 298 which did not

require sanction. the. trial was vitiated a~ the Magistraie could not proceed .with the charge-sheet without the requisite sanction. The

decision in:Govindram Sunder Das v. Emperor(') was also called in aid as it hag been observed there that where the offence of conspiray to commit forgery is charged against a person and the gr.evious consent of the local Government under s. I 96A though required is not obtained, the court cannot lake cognizance of the comi:>laiAt. Th8Se decisions, however, are in respect of cases where a., Sinale chare in respect of an offence requiring sanction was preferred apmst the accused and previous sanction was not obiained and: the court held that in the absence of such sanction the .court could not take. co2nizance of the complaint. (I} I.A.Jl. 1!163 Kerak68.

(21 [19551 2 S.C.R. 1140.

(l) A.I.IL 1951 Pat. 513

4) A.1.R. 1942 Sind 63.

446 SUPREMI! COURT Rl!PORTS

(1967) 3 S.c.R.

Section 196A ( 2) provides that no court shall take cognizance of the offence of criminal conspiracy punishable Under s.

120-B in a case where the object of the conspiracy is to commit any noncognizable offence or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings. It is clear that the court cannot take cognizance without the necessary consent in the case of a charge of criminal conspiracy under s. 120-B of which the object is as stated therein. The conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into.

Such an offence, if actually committed, would be the subject-matter of a separate charg_e. If that offence does not require sanction though the offence of conspiracy does ani~

sanction is not obtained it would appear that the court can proceed with the trial as to the substantive offence as if there was no charge of conspiracy. In Sukumar Chatter; ee v. Mosizuddin Ahmed(') where the charge was under s. 404 read with s. 120-B and no sanction was obtained it was held that the case could proceed though only under s. 404.

Similarly, in Syed .Y awar Bakht v.

The Emperor('), the accused was charged under s. 120-B read with s. 467 and also under s. 467 read with s. 109 of the Penal Code.

No sanction was obtained. It was held that Lhe consequence of not obtaining the sanctio.n was as if the charge under s. 120B read with s. 467 had never been framed but the accused could be convicted under the other charge viz., under s. 467 read with s. 109 of the Penal Code.

The same view has also been taken by the Punjab High Court in Ram Pat v. State(') where it was held that where a complaint discloses more offences than one, some of which can be inquired into without sanction and others only after sanction has been obtained, there can be no objection to the inquiry being carried on in respect of the first category of offences.

Reference may be made to the decision in Nibaran .Chandra Bhattacharyya v. Emperor('). The two petitioners were convicted under s. 120B.

They were also convicted under s. 384 and s. 384 read with s. 114 of the Penal Code respectively.

The learned Judge accepted the contention that the trial was vitiated as no sanction was obtained in respect of the charge under s. 120-B and set aside the conviction also under s. 384 ands. 384 read with s. 114 passed against petitioners 1 and 2.

But the report of the decision shows that he did so because he felt that by proceeding with the charge under s. 120-B admitting evidence on that charge and that charge resulting in conviction prejudice was caused to t'!_e_petitione~ in the matter of the other charges and

(I) 25 C.W.N. 357.

(2) 44 C.W.N. 474.

(3) (1962) 64 P.L.R. 519.

(4) A.l.R. 1929 Cal. 754.

MADANLAL v. STATE (She/at, /.) 447

A that therefore the trial could not be said to be severable.

No such question of prejudice can be said to arise in the present case in view of the extra-judicial confession of the appellant of having misappropriated Rs. 2,500 out of Rs. 3,414 and dd in question.

There was in the instant case not only a charge for conspiracy under s. 120-B but also two other separate charges for offences under ss. 409 and 477-A alleged to have been committed in pursuance of the conspiracy.

Though the charge under s.

120B required sanction no such sanction was nsary in respect of the charge under s. 409. At the most, therefore, it can be argued that the Magistrate took illegal cognizance of the charge under s. 120-B ass. 196-A(2) prohibits entertainment of certain kinds of complaints for conspiracy punishable under s. 120-B without the re11uired sanction. The absence of sanction does not prevent the court from proceeding with the trial if the complaint also charges a co-conspirator of the principal offence committed in pursuance of the conspiracy or for abetment by him of any such offence committed by one of the co-conspirators uniler s. 109 of the Penal Code. (See Mohd. Bacha/ Abdulla

v. The Emperor('). In our view, the fact that sanction was not obtained in respect of the complaint under s. 120-B did not vitiate the trial on the substantive charge under s. 409. No prejudice could be said to have resulted in view of the appellant's confession that he had in fact misappropriated Rs. 2,500 and was prepared to deposit that amount.

The appeal is dismissed.

Y.P.

Appeal dismissed.

~I) A.1.R.1934 Sind4.

MADAN LAL

STATE OF PUNJAB

April 5, 1967

R. S. BACHAWAT

M. SHELAT, JJ.

Indian Penal Code, 1860

ss. 120B, 196(2) and 409

I.P.C

ss. 120

s. 409

s. 409

s. 120

s. 409

s. 409

s. 120

s. 477

s. 196

27th January 1965

s. 409

[1955] 2 S.C.R. 1140

ss. 409 and 477

s. 120

s. 409

s. 120

s. 196(2)

s. 120

s. 109

Penal Code

s. 120

s. 409

K. Ba/dev Mehta

G. D. Gupta

lndu Soni

Bikramjit Mahajan

R. N. Sachthey

Ravi Datt Joshi

Kamal

Joshi

State Bank of India, Karna

March 11, 1961

Joti Pershad Gupta & Sons

March 31, 1961

Indian Red Cross Society

July 3, 1961

Ishwar Datt

Chand Ram

November 15, 1961

Harbhajan Kaur

December 2, 1961

Ram Sarup

Joti Pershad Gupta & Sons

s. 409

ss. 409, 465, 477

s. 120

Penal Code

s. 120

s. 409

s. 477

s. 120

s. 477

s. 409

s. 409

Sukhrninder Singh

SUPREME COURT REPOR.TS . [1967J 3 S.CJl

Higli Court

Mehta

Joti Perhad Gupta & Sons

s. 342

Code of Criminal Procedure

MADAN LAL V. STATB

June 27, 1960

Des Raj

December 29, 1962

s. 342

Jana'.y 14, 1963

s. 409

Budha Lal

s. 409

s. 120B

s. 409

s. 409

s. 409

27th Janary, 1965

s. 409

Kerala High Court

ss. 409 and 477

s. 120

s. 409

Patna High Court

s. 295

Penal Code

s. 298

Section 196A

s.

120

s. 120

s. 404

s. 120

s. 404

s. 120

s. 467

s. 467

s. 109

Penal Code

s. 120B

s. 467

s. 467

s. 109

Penal Code

Punjab High Court

s. 120B

s. 384

s. 384

s. 114

Penal Code

s. 120

s. 384

s. 114

s. 120

s. 120

ss. 409 and 477

s.

120B

s. 409

s. 120

s. 120

s. 109

Penal Code

s. 120

s. 409