STATE OF GUJARAT AND ANR. ETC. v.

MEHBOOB KHAN USMAN KHAN .ETC.

April 11, 1968

(M. HIDAYATULLAH, C. J., C. A. VAIDIALINGAM

AND A. N. GROVER, JJ.]

Jlombay Police Act 22 of 1951 ss. 56 and 59-Notice to show cause under s, 59 and order of externment under s. 56-validit, v of.-Whether notice n1ust contain detailed particullirs of allegations-if general nature of material allegations suffecint to provide a person w'1h reeironable opportunity of explaining his conduct.

' -"The Deputy Commissioner of Police, Ahrnedaba.d City served notice> on the respondents in the two appeals on August 13, 1964 and July 28, 1964 under s. 59 of Bombay Police Act XXII of 1951 informing them that various allegations had been made against them under s. 56 of the Act and th; it it was proposed to remove .them outside the District of Ahrnedabad City and cenain contiguous Districts. An opponunity was given to them of tendering their explanations in respect of the allegations on dates which werecommunicated to them in the noticea. Each of the notices contained allegations, inter alia, to the effect that the l'espondents consumed eatables f1'<J!ll place; of public entenainment without payment and when legal dues WWe demanded from them, they beat up the pe1'ons concerned; and that tbe'witnesses in. respect of the various incidents and allegalions were not willing to come forward to depose againat the respondents in public by reuon of apprehension on their PHI as regards the safety of their pewn and propeny. After the respondents had submitted their written explana• tiOlis and produced evidence in their defence, the Deputy Commissioner p-8sed Orders on November 9, 1964 and FebruHy 9, 1965 directing the retiik>ndents to remove themselves from ateas mentioned in the order for a period of two yeaJ> and not to enter the same without permission in writing obtained fro~ a competent authority.

The respondents thereafter challenged the orders of the Det,>uty Com missioner in writ petitions undr, r Ans. 226 and 227 of the Consti:ution and coiltended, .inter alia, that the notices on which the subseauent Orders of externment were passed were too vague both with regard to the time and plac.& of their alleged activities; the allegations made against them were so general that they could not effectively offer any ""planations or substantiate their defence:. and that in effect the material alleptions against them had not been set out in the notices -and there was therefore no proper compliance with the provisions of s. S9 so as to enable the Deputy Com milsJone'r to take action under s. 56 of the Act. The High Court allowed the petitions holding that the notices were invalid as they were too general and 'V!'t"e It also held that the definition of "a place of public entertainmeot" m the Act would take in the numerous placea mentioned ins. 2(10) aud accordingly the espondents could not have sufficient opponunitv of explaining their conduct not knowing what particular places of public en- .tertainment they were supposed to have visited where they were alleged to have committed various acts alleged against them. The High Court therefore quashed the notices under s. 59 as well as the orders of extern met p:issed against the respondents.

On appeal to this Court,

A HELD : The High Court was in error in holding that the notices uruler

s. 59 and the orders of cxternmcnt under s. 56 were invalid.

The view that the allegations against the respondents should have contained all the particulars of places of public entertainment or establishments Ibey were supposed to have visilcd, was not warranted by the pnwisions of s. 59. The notices referred to the periods during which the acts were stated to have been committed, as well as the area where they were

said to have been committed.

The mete fact that the definition of the expression 'place of public entertainment', in s. 2(10) of the Act takes in various types of places, dces not militate against the allegations in question being material allegations as contemplated under s. 59. [757 DE]

When a person against whom an order of extemment is proposed to be passed has to tender an explanation to a notice under s. 59, he can only give an explanation of a general nature. It may be open to him to take a defence of the action being taken due to mala fides, malice or mislaken idenlity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices issued under s. 59 as against the respective respondents conlained the general nature of the material allegations made against each of them in respect of which they had been given a reasonable opportunity of ten\lering an explanation. [757 G, HJ

Hari Khernu Gawali v. The Depu(v Comntissioner of Police, Bombay, [J 956] S.C.R. 506 and Bhagubhai Du/labhabliai Bhandari v. The District Magistrate, Thana, (1956] S.C.R. 533; relied upon. ·

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 167 and 168 of 1965.

Appeals by special leave from the judgments and orders dated April 8, 1965 of the Gujarat High Court in Special Criminal Applications Nos. 3 and 8 of 1965.

G. L:Sanghi and R.H. Dhebar, for the appellants (in both the appeals).

0. P. Malhotra and P. C. Bhartari, for respondents (in Cr. A.

No. 167 of 1965).

Arun H. Mehta and 1. N. Shroff, for respondents (in Cr. A.

No. 168 of 1965).

The Judgment of the Court was delivered by

Vaidialingam, J.-In these criminal appeals, by special leave, the State of Gujarat and its officer, the Deputy Commissioner of Police, Traffic Branch, Ahmedabad City, challenge the orders, dated April 8, 1965, passed by the Gujarat High Court, in Special Criminal Applications Nos. 3 and 8 of 1965, quashing the orders of extemment, passed against the respective respondents, uader s. 56, of the Bombay Police Act, 1951 (Born. Act XXII of 1951), (hereinafter referred to as the Act). Criminal Appeal No. 167 of 1965 is directed against the order in Special Criminal Application No. 3 of 1965, and Criminal Appeal No. 168 of 1965 is

748 SUPR!lME COURT REPORTS [1968 j 3 s.c.R.

directed against the order in Special Criminal Application No. 8 A of 1965.

The Deputy Commissioner of Police, Traffic Branch, Ahmedabad City, served a notice, dated August 13, 1964, on the respondent in Criminal Appeal No. 167 of 1965, under s. 59 read with s. 56, of the Act, in the following terms :

"Under Section 59 of the Bombay Police Act (Bombay XXII of 1951) you are hereby informed that the following allegations are made against you in a proceeding under Section 56 of the said Act, and it is proposed that you should be removed outside the District of Ahmedabad City and the contiguous District of- Ahmedabad Rural, Kaira and Mehsana and you should not enter or return to the said Districts for a riod of two years from the date of order proposed to btlpassed against you under Section 56 of the Bombay Police Act,

1951. You are also informed that I have been empowered by the Dy. Commissioner of Police, Speciru Branch, Ahmedabad City under his No. 40 P.C.B. dated .12/8/1964 to proceed according to Section 59(1) of the said Act.

In order to give you an opportunity of tendering your explanation regarding the said allegations, I have appointed 11.00 hours on 21-8-1964 to receive your explanation and to' hear you and your witnesses, if any, in regard to the said allegations and hence require you to appear before me at my office situated in Old Nurses Hostel, Patharkuva, Relief Road, Ahmedabad City on the said date and time for the said purpose lind to pass a bond in the sum of Rs. 500 with one surety in like amount for your attendance during the enquiry of the said proceedings. In case you fail to appear on the diie date an ex parte hearing and decision will be taken, that is, the inquiry will proceed against "you in normal 'Uanner and decision will be taken in your absence.

TAKE NOTE:- A/legations

It is alleged against you that you are a dangerous and desperate person and i!ldulge in acts involving force and violence. You terrorise the residents of the localities known as Rentiawadi, Halimkhadki and round about areas under Karanj and Madhavpura Police Stations.

Since the month of November 1963 till today you are engaged in the commission of the following offence in the above localities :- ·

ou.rARAT v. MllHBOOB KHAN (Vaidialingam, /.) 749

A I. You way-lay, rob and extort money iroo'! the.

persons at the point of knife and under thteats of violence;

2. You demand money from the persons and on their refusal to pay you beat them;

3. You consume eatables from the place of public entertainment without payment and when legal dues are demanded you beat the person.

You are engaged in several acts as mentioned in paras (I), (2) and (3) above and that the witn~ to. the above incidents are not Willing to come forward to c depose against you in public by reason of apprehension on their part as regards the safety of their person and property.

It is proposed to extern you for a period of two years. It is also proposed to extern you out of the contiguous Districts of Ahmedabad Rural, Kaira and

D Mehsana as )ou are likely to operate and indulge in your violent activities from the contiguous Districts also through your associates and agents if not so extemed."

The said notice was served on the party on August 20, 1964.

On lhe date, fixed for hearing, i.e., August 21, 1964, the respon- ' dent Mebboob Khan appeared before the officer and, after making E a preliminary statement, at his fe<!Uest, the proceedings were adjourned, from time to time, for enabling him to file his written explanation and also a list of witnesses, piuposed to bC examined by him. Ultimately, on November 9, 1964, the Deputy Commissioner passed an order, directing the said Mehboob Khan Usman Khan to remove himself, within two days of the service of the order, i F outside the district of Abmedabad City and the contiguous Dis- ., tricts of Ahmedabad Rural, Kaira and Mehsana. The order of f externment contains recitals that, after consiclering the evidence before him, and the explanation, furnished by the respondent, the Deputy Commissioner of Police is satisfied that the responderii is a desperate and dangerous man, and is engaged in the commis-

8lOn of acts involving force or violence, and acts punishable under Chapters XVI and XVII, of the Indian Penal Code, within the localities known as Rantiawadi, Halimkhadki and round about areas, and that there are reliable materials to prove the allegatiiltts, c0ntained in paragraphs (I), (2) and (3), of the said order.

Those allegations, it may be stated, are identical with the three .ollences, referred to, in the notice, dated August 13, 1964. The H Deputy Commissioner further states that, in his opinion, 'the 'Witnesses io the above incidents are nOt willing to come forward to give evidence in public against him by reason of apprehCnsion on "

their part as regards the safety of their person and t>fOpCrty'. .,

750 SUPRE?d'.E COURT REPORTS [1968) 3 S.C.ll.

Finally, the order concludes by reciting that in exercise of the poWers, vested in the Deputy Commissioner, under s. 56 of the Act, he directs the respandent to remove himseffootside the District of Ahmedabad City and the contiguous Districts of Afunedabad Rural, Kaira and Mehsana, within two days from the date of service of the order. The order also concludes, bysaying that

the respondent should not return to or re-enter the places mentioned therein, for a period of two years from the date of the ordec, without obtaining the permission, in writing, of the competent authority.

The respondent in Criminal Appeal 167 /65 filed Special Criminal Application No. 3 of 1965, in the Gujarat High Court, under Arts. 226 and 227, of the Constitution, for quashing this oider of extemment, passed against him. The main ground, on which the order was challenged, appears to be that the notice, dated August

13, 1964, on. which the subsequent order of externment is based, was too vague and general, both with regard to the time and places of his alleged activities, and that the allegations made, therein, were so general that he could not offer, effectively, any explana tion; or substantiate his defence. In short, jJ: was th~ grievance of the respondent that, in the notice, issued under s. 59, the material allegations, had not been set out, and therefore, there had beCll no proper compliance with the provisiQ11li of that seetion, so as to enable the Deputy Commissioner, to !ake action, under s. 56 of the Act. The respondent raised certain other objectiOns, to the validity and legality of the order, Q1le of which wa.s that the order of externment, had not been passed, by the competent officer.

In the counter-affidavits, filed before the High Court, the Deputy Commissioner has stated that though the notice, under s. 59, was served on Augllb't 20, 1964, fixing the date of hearing as August 21, 1964, the resJX>ndent herein, appeared before the officer, on that date and, after making -a preliminary statement, at his request, the pi:iiceedings were adjourned to August 29. 1964, for submitting his writ\en explanation and also a list of witnesses, proposed to be examined by him. On the said date also, at the request of the respondent, further adjournment

was granted and, on September 14, 1964, the respondent submitted his written statement, traversing the averments made, in G the notice, dated August 13, 1964. He further examined witnesses, in his defence. Therefore, according to the Deputy Commissioner, the respondent had reasonable opportunity of tenderil!S his expla nation, regarding the matters, mentioned in the notice.

It is further stated that the witnesses, examined by the respondent, claimed no knowledge of the criminal activities, mentioned in the notice, and that the entire material •. consisting of the evidence of the victims, who had suffered at the hands of the respondent, which were before the officer, was considered, and the officer was also

satisfied that the respondent was indulging in offences, punishable under Chapters XVI and XVII, of the Indian Penal Code. The officer was further satisfied that those persons were not willing to depose against him, in public, by reason of apprehensio_n, on their part, as regards the safety of their person and property. The Deputy Commissioner has funher stated that, from the record and information available with him, the respondent was a wellknown bully, terrorizing law-abiding citizens, in the areas, mentioned in the notice, and that it was, after following the proeedure, indicated in s. 59, that an order was ultimately passed, under s. 56. It is further averred that the notice is explicit and contains the general nature of the material allegations, against the respondent, as is required, by s. 59 of the Act. The respondent, herein, it is further stated, has fully 'understood the nature of the allegations, made against him, as is clear from the nature of the defence, taken by him, and the evidence, adduced to support that plea. On these and other averments made, in the counter-affidavit, the Deputy Commissioner submitted that the order did not suffer from any infirmity, as alleged by the respondent.

The learned Judges of the Gujarat High Court, in the ordr under attack, have accepted the position that, under s. 59, the competent officer should inform the person, in writing, of the general nature of the material allegations against him. It is their view that the nature of the material allegations should not be so E general, as to make it vague, and not precise, and that it must be of such a character as to give the person, concerned, a reasonable opportunity of tendering an explanation, regarding the material allegations. Having held that this is the principle to be applied. the learned Judges held that ground No. 3, of the notice dated August 13, 1964, served on the respondent, was open to the objection of 'vaguertess'. In this connection, the learned Judges F refer to the definition of the expression 'place of public entertainment, as contained in s. 2 (10), of the Act. They further hold that to allege against any ini:tividual that he consumed, without payment, eatables, i.e., articles of food, from a place of public entertainment', which will take in the various places, mentioned in s. 2(10), of the Act, would not afford sufficient opportunity to G the respondent, as to what particular places of public entertainment, or what particular establishment he is rnpposed to have visited and consumed eatables, without payment, and had beaten persons, when legal dues were demanded. As a large number of establishments would fall within the definition of 'place of public entertainment', under s. 2 ( 10), of the Act, it is the further H view of the learned Judges that it would be impossible for the patty

to find out as to which particular place or places of public entertainment, in the localities mentioned in the notice, he is supposed to have visited and consumed eatables, without payment, and beat-

752 SuP:RBME COURT :RBPOllTS

(19~) 3 S.C.R.

en persons in charge of their management, when legal dues were A demanded from him. In this view, the learned Judges, ultimately held that und No. 3 of the notice dated August 13, 1964, wa; vague, as 1t could not have afforded a reasonable opportunity to the rpodent' herein, of offering his explanation, oi feading evidnce, m his defence. Inasmuch as this ground also, had been taken mto account, by the Deputy Commissioner, for passing the order of extemment, and as thi~ ground was held to be vague, the learned Judges ultimately quashed the notice, issued under s. 59, dated August 13, 1964, as well as the order of extemment, dated November 9, 1964, passed against the respondent.

This order, is the subject of attack, by !he State of Gujarat, in Crimin:i.lAppeal No. 167 of 1965.

Similarly, a notice, dated July 28, 1964, under s. 59 of tlae Act,. was served on Ahmed Noor Mohammad, respondent in Crim.inal Appeal No. 168 of 1965, by the Depury CommissiODl!C, Ahmed a bad City, stating that the said officer proposed to extmi the respondent, for a period of two years, under_s. 5"6 of the Act.

In the allegations, contained in this notice, . it was mentioned that 1he respondent was a desperate man, indulging in acts of violence .and force, and that since September 1963, till the date of the notice, he was engaged in the commission of the three acts, mentioned therein, in the localities, known as Kazi-na-dhaba, Maruwas, J amalpur and round about those places. It is enough only to refer to the first allegation, contained in this notice, which is substantially similar to the third allegation, mentioned in tk notice, issued against Mahboob Khan Usman Khan; and that allegation was to the effect that the respondent visited placeli of public entertainment and refu.sed to pay foL' the aiticles, consumed by him, under threats of VIOience. The riotice further stated that the Witnesses to the incident; mentioned therein, were not willing to come forward and depose agafnst the respondent in public, by reason of apprehension, on thir part, as regards the safety of their person and property.

It was hence stated in the notice that it was proposed to extern the respondent, from the areas, mentioned therein, for a period of two years. The notice also intimated that 11 a.m., on August 6, 1964, was fixed for receiving the explanation of the respondent. as well as for hearing him and any of the witnesses that he might produce, with reference to'the allegations, made in the notice. It is seen from the records that the respondent appeared before the officer and filed written statements, examined witnesses in support of his defence and that ari advocate appeared for him.

On February 9, 1965, the Deputy Commissioner passed an order, under s. 56 of the Act, directing the respondent to remove himself from the area8, mentioned in the order, for a period of two years and not to enter the same, without permission in writing, obtained from a cbnl-

GUJARAT v. MAHBOOB KHAN (Vaidialingam, /.) 753'

A petent authority.

In this order also the Deputy Commissioner has stated that, on the materials available before him and, after considering the explanation and thr. evidence, produced by the respondent, he was satisfied that the respondent was a desperate and dangerous person and was engaged in the commission of acts, involving violence and acts, punishable under Chapters XVI and B XVII, of the Indian Penal Code, in the areasL mentioned in the notice, and that the three allegations, mentioned therein, were established, and, in view of the fact that the witnes~ regarding the above incidents, were not willing .. to come forward to give evidence, the order of extemment was passed.

c The respondent challenged this order of extemment, passed against him, as well as the notice, issued under s. 59, before the Gujarat High Court, in Special Criminal ApplfcatiOli No. 8 of 1965, under Arts. 226 and 227, of the Constitution. Here again, the stand, taken by the respondent, was that the allegations, contained in the notice issued under s. 59, were very vague and indefinite and inconclusive and, as such, it could not be said that he was given a reasonable opportunity, to offer his explanation, .as D contemplated under the said section. Certain other objections, regarding the legality of the order, were also raised.

In the counter-affidavit, filed by the Deputy Commissioner, it is stated that the order, dated .February 2, 1965, w~ passed by him, under s. 56 of the Act, after a careful consideration, of all materials placed before him, l:ncluding the wntten statement and the defence evidence, adduced by the respo!lcle)lt. It w:a5 further stated that the notice, issued under s. 59, was in strict c:ionformity with the provisions of that section, and the respondent had a reasonable opportunity of tendering an explanation, regarding the allegations, made against him. The learned Judges of the Gujarat High Court, adopting the reasoning given in Special Criminal Application No. 3 of 1965, held that the notice, under s. 59; was invalid and, in consequence, the order of extemment, also, must fall to the ground. The learned Judges have held that allegation No. 1, in the notice, dated July 28, 1964, is analogous to ground No. 3, in the connected application, and that gt".lund had been heldto be vague. Jn consequence, the learned Judges struck down the order of externment, dated February 9, 1965, as well as the notice, dated July 28, 1964. This order is attacked, by the Deputy Commissioner, in Criminal Appeal No. 168 of 1965.

Mr. G. L. Sanghi, learned counsel, appearing for the appellants, in these appeals, has raised two contentions : ( 1 ) that both the

respondnts had a right of appeal, as provided under s. 60 of the Act, to the State Government, against the orders, pilSsed under s. 56 of the Act, and, therefore, the writ .petitions, filed by them, in .the High Court, should not have been entertained; (2) that the striking down, of the orders of xtemment, as containing vague

SUPREME COURT REPORTS

(19618) 3 S.C.R.

allegations, was not justified, as the notices were strictly in accord- A ance with s. 59, of the Act.

At the outset, it may be stated that the period of two years, for which the respondents were sought to be extemed, has already expired and, in one sense, it now becomes purely academic, to consider the correctness of the orders of extemment. 'But, counsel for the appellant has pointed out that the State is anxious to have a decision, from this Court, regarding the legal position, under s. 59, and therefore the correctness of the views, expressed by the High Court, may be considered by this Court. It has been made clear before us that no action will be taken against the respective respondents, in these appeals, on the basis of the orders, which are the subject of consideration.

No doubt, Mr. Malhotra and Mr.

I. N. Shroff, learned counsel, appearing for the re.spective respondents, tn the appeals, have urged that the views, expressed by th<.: High Court, are correct.

Regarding the first contention, we see no merit, especially when the High Court, in the exercise of its jurisdiction, under Arts. 226 and 227, has not chosen to reject the applications, filed by the respondents, on the ground that they had not exhausted their remedy of appeal, under s. 60, of the Act. That leaves us with the more important question, arising for consideration, viz., as to whether a proper interpretation has been placed, under s. 59 of the Act, by the High Court.

. Chapter V of the At deals with special measures ror maintenance of Public Order and Safety of the State.

Sections 55 to 63AA, occur in the said Chapter, under the second sub-heading : 'Dispersal of gangs and Removal of persons convicted of certain offences'. Section 56 relates to removal of persons about to commit offence.

Under s. 58, a direction, made under ss. 55, 56 or 57, shall, in no case, exceed a period of two years from the date on which it was made. Section 59 provides for hearing to be given, before an orderunder'ss. 55, 56 or 57, is passed. We may pause here for a moment and state that both the respondents, in response to the notice, .issued under this section, had filed written statements and also adduced evidence. In particular, the respondent in Criminal Appeal No. 168 of 1965, was also represented by an advocate, in those proceedings. ·

Section 60 provides for an appeal, to the State Government, against an order passed under ss. 55, 56 or 57.

Normally, we would have dealt with the scheme of these sec- H lions, and in particular, of s. 56 and 59, very elaborately; but, we are absolved from that task, in view of two decisions of this Court, in llari Khemu Gawali v. The Deputy Commissioner of Police

Bombay(') and Bhagubhai Dullabhabllai Bhandari v. The District Magistrate, Thana('). A writ petition, No. 272 of 1955; was filed, under Art. 32, challenging the Vires of the Act and, in particular the provisions of s. 57. Similarly, in two other writ petiUons, Nos. 439 and 440 of 1955, the provisions of s. 56,. of the Act, were challenged, and a particular attack was made, against tlie notice, B issued under s. 59, on the ground that the allegations, contained therein, were vague and too general. Though this Court delivered two separate judgments, which are reported, as above, one in respect of writ petition No. 272 of 1955 and the other in respect of writ petitions Nos. 439 and 440 of 1955, it is seen from the reports, that all these matters were heard together. We are referring to this aspect because the scheme of the Act and, in pariicular, of the provisions of ss. 55 to 57, have been dealt with in these judgments. c

The Act has been held to be valid and the sections, with which we are concerned, viz .• ss. 56 and 59, have also been held to be valid.

We do not find any reference, unfortunately, in the judgment of the High Court, to these two decisions of this Court.

In the first decision, it is stated at p. 518 of the Reports, that the Act is based on the principle that it is desirabfe, in the larger interests of society, that the freedom of movement, and residence of a comparatively fewer number of people, should be restrained, so th~ the majority of the community may move and live in peace and harmony, and carry on their.peaceful avocations untrammelled E by any fear or threat of violence to tlieir person or property. In particular, it is also stated that the individual's right to reside in and move fi:eely in any part of the territory of India, has to yield to the larger interests of the community. This Court further states that ss. 56 and 57 of the Act, broadly speaking, corresp0nd to s. 46 of Act IV of 1890 ands. 27 of Act IV of 1902. The scheme of

s. 59 is dealt with at p. 521, and the criticism, levelled agaill$t that section, is rejected. It is further emphasized, at p. 522, that the proceedings, contemplated by s. 57, or for the matter of that, sections 55 or 56 •. are not prosecutions for olfel\Ces or judicial proceedings, though the officer or authority, charged with the .duty aforesaid, has to examine the information, laid before him, by the police, and that the police force is charged with the duty, not only of dettion of offences and of bringing offenders to justice, but also of 1preventing the commission of offences, by persons With previous records of conviction, or with criminal propensities. ·

In particular, a contention appears to have been raised that as ·?nlY geneal 1_1ature of the material alleati?ns have to be given m the notice, 1SSUed under s. 59, and, as 1t did no~ flirther provide f~ particulars to be supj>li~ to such a person,. it would be very difficult for a party to urge, m appeal before the State Government

(I) (1956] S. C.R.. S06.

(2) (1956) S. C.R. 533.

756 SUPRBMB COUllT REPORTS

(1968] 3 S.C.R.

under s. 60, that there was no material, fore the authority con- A .cemed, upon which it could have based its order. This objection

was repelled by this Court, at p. 524, as follows :

"But in the very nature of things it cquld not have been otherwise. The grounds available to' an extemee had necessarily to be very limited in their SCope bCcause if evidence were available which could be adduced in B public, such a person could be dealt with unaer the preventive sections of .the Cede of Criminal Procooui't1, for example, under section 107 or section 110. But the special provisions now under examination proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as not to permit C the ordinary laws of t)J.e land, bein~ put in, fuOfion in the ordinary was, namely, of examimn~ witnesses in open court wpo should be cross-examined Of. the party ainst whom they were deposing. The. prov1sfons we are now examining are plainly intended to be used fu special cases requiring special treatment, that is, cases which cannot be D dealt with under the preventive SllCtions of the Coile of Criminal Procedure."

In the second decision, .where this Court had to consider :specifically the scope of s. 56, it has been held that the common

arguments; regarding ss. 56 to 59, had already been.dealt with and -discussed in the first decon. The parties against whoin the order E -of externment had been passed, under s. 56, specifically challenged the notice, issued under s. 59, on the groiind that the particulars of 1he evidence, against them, and of their alleged activities, had not 'been mentioned and that amounted tonot giving a reasonable

oppoitunity to explain, as envisaged, under s. 59. 'l'hi! conten- 1ion was disposed of, by this Court, on the ground thiit' it had been F dealt with, in the judgment, given by it, in the earlier decision, to which we have already referred. Ultimately, s. 56 was held to be valid and the notice, issued under s. 59, was als<'> held to be valid.

In, our opinion, in considering as to wJ:tether the notices, issued in the present cases, um!er s. 59, suffer from any infirmity, the G observations of this Court, in Hari Khemu Gawali's case('), extracted above, will have to be borne in mind.

During the course of the arguments, counsel for ilie respondent, have drawn our attention to a decision of the Bombay High Court in 1'1 re: Govtnd Pandurang(1) and that of the Gujarat High Court, in lawaher v. Sub-Divisional Magistrate('), inter- 11

(I) [19'61 S. C. R. S06.

(2) A. J. R. 19S6 Dom. 61.

(3) (1962) 3 Guj. L R. 1041.

GUJARAT v. MEHBOOB KHAN (Vaidialirtgam, J.) 757

preting s. 59 of the Act.

But, we are not adverting to those decisions, in view of the decisions of this Court, referred to above.

In the instant case, the learned Jtidges of the Gujarat High Court, accept the position that under s. 59, of the Act, the notice should inform the person, in writing, of the general nature of the material allegations, against him, arid it need not contain particulars. But they have held that the allegations, regar\iing the two respondents, consuming eatables, from places of public entertainment, without payment, and beating persons, when legal dues were demanded, contained in the two notices, are vague. The reasoning of the learned Judges that the said allegations should have contained all the particular places of public entertainment, or what particular establishment the respondents Were supposed to have visited, is not warranted, by the provisions of s. -59. In faot, if we may say so, with respect, there is a slight inconsistency in the reasoning of the learned Judges, because, in the later part of the judgment they say that a party is nOt entitled to be supplied with particulars of the allegations made against him. We are therefore. not inclined to accept the above reasoning of the Gujarat High Court . The notices, referred to the periods during which the acts are stated to have been committed, as well as the area where they are said to have been committed. No doubt, the expression 'place Of public entertainment', is defined ins. 2(10) of the Act; but the mere fact that the said definition takes in various types of places, does not militate against the allegation No. l, in Special Criminal E Application No. 3 of 1965, or allegation No. 3, in the connected application, being of a general nature of the material allegations. as contemplated, under s. 59. Without attempting to be exhaustive we may state that when a person is stated to be a 'thief', that allegation is vague. Again, when it is said that 'A stole a watch from X on a particular day and at a particular place', the allegation can F be said to be particular. Again, when it is stated that 'X is seen at crowded bus stands and he picks pockets' it is of a general nature of a material allegation. Under the last illustration, given above, will come the allegations, which, according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be pased, it must be enipnasized that when he as to tender an explanation to a notice, under s. 59, he G

can only give an explanation, which can be of a general nature.

It may be 1open to him to take a defence, of the action being taken, dne to mala fides, malice or mistaken identity, or he may be able ; H to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The alle.1:iiiions made in •the notices, issued under s. 59, aS against the re11pective respondents, in our opinion, contain the general nature of the material allegations made against each of

758 Slll'IUIME COUllT llEPOllTS [1968] 3 S.CJt.

them, in respect of which the responileots had been. gi'Vlll & a reasonable opportunity of tendering an, on, regarding them. Therefere, it follows'that the view of the Gujarat lligb.

Colirt that the notices, under s. S9, and tho oolers of externment, passed under s. 5 6, are invalid, cannot be , mstaiMl. The orders of the Gujarat High Court are, accordingly, set aside, and thee criminal appeals, allowed. But, we may make it again clear, that B in spite of our decision, in favour of the appellantS, no action can be taken against the respondents, in these appeals, on the basis of the orders, which are now held to be valid.

R.K.P.S.

Appeals allowed.

STATE OF GUJARAT AND ANR. ETC

MEHBOOB KHAN USMAN KHAN .ETC

April 11, 1968

M. HIDAYATULLAH

A. N. GROVER, JJ.

Jlombay Police Act

ss. 56 and 59

s. 56

28, 1964

s. 59

Bombay Police Act

s. 56

Ahrnedabad City

November 9, 1964

FebruHy 9, 1965

s. 56

s. 59

s. 59

s. 56

s. 59

s. 2(10)

s. 59

s. 59

s. 59

G. L:

R.H. Dhebar

P. Malhotra

P. C. Bhartari

Arun H. Mehta

N. Shroff

Vaidialingam

Ahmedabad City

Gujarat High Court

s. 56

Bombay Police Act, 1951

s. 59

s. 56

Section 59

Police Act

Section 56

Kaira

Section 56

Bombay Police Act

Section 59(1)

Ahmedabad

Ahmedabad Rural

August 20, 1964

Mebboob Khan

Mehboob Khan Usman Khan

Abmedabad City

Indian Penal Code

Halimkhadki

August 13, 1964

s. 56

Afunedabad Rural

Arts. 226 and 227

August

13, 1964

s. 59

s. 56

s. 59

Augllb't 20, 1964

September 14, 1964

Indian Penal Code

s. 59

s. 56

s. 59

s. 59

s. 2

s. 2(10)

s. 2

RBME COURT :RBPOllTS

s. 59

s. 59

Ahmed Noor Mohammad

Maruwas

amalpur

Mahboob Khan Usman Khan

August 6, 1964

February 9, 1965

s. 56

Indian Penal Code

s. 59

Arts. 226 and 227

s. 59

.February 2, 1965

s. 56

s. 59

s. 59

July 28, 1964

G. L. Sanghi

s. 60

s. 56

s. 59

s. 59

Malhotra

I. N. Shroff

Arts. 226 and 227

s. 60

s. 59

Sections 55 to 63A

Section 56

s. 58

ss. 55, 56

Section 59

ss. 55, 56

Section 60

ss. 55, 56

s. 56 and 59

Art. 32

s. 57

s. 56

s. 59

ss. 55 to 57

ss. 56 and 59

India

ss. 56 and 57

s. 46

s. 59

s. 57

sections 55

s. 59

s. 60

section 107

section 110

sections 55, 56

s. 56

ss. 56 to 59

s. 56

s. 59

s. 59

s. 56

s. 59

s. 59

Hari Khemu Gawali

Bombay High Court

s. 59

s. 59

s. 59

s. 59

s. 59

s. 5


DHANKI MAHAJAN

RANA CHANDUBHA WAKHATSING & ORS.

April 11, 1968

[R. S. BACHAWAT AND K. S. liEGDE, JJ.]

Sdurashrra Agricullurd Debtors' Relief Act 23 of 1954, •· 2(6)(i)- Debtor, definition of-Person with liability over Rs. 25,000 not a debtor- /oint liability of umfructury mortgagoro for an amount llD'.ger than Rs. 25.000-Whether each of them ccn be regarded as liable /or only hi• share of debt and rrta1ed as >debtor for purposes of Act.

Respondents 1 to 3 executed in 1940 a usufructury mortgal!e of their land in favour of the al'l"'llant and certain others. The liability under the mortgage was a joint bability and under the terms of the deed each one of the mortgagors was liable fo'r the entire debt due under the mortgage.

The respondents claiminB to be 'debtors' under the Satirashtra Agricultural

Debtors' Relief Act 1954 prayed for a scaling down of their debts. The Debt adjustment Board and the B!>pellate court held that the respondents were not 'debtors'. under s. 2(6)(i) of the Act as their total liability ex• ceeded Rs. 25,000 and therefore they were not entitled to the benefit claimed. A learned Single Judge of the High Court however held that in computin' the debts due from the respondents each one of them should be held liable only for on&-tbird of the mrirtgage debt and in that event the total debt duo from each WClOlld not exc=I Rs. 25,000. The learned JUdge in bis judgment also considered the question as to bow far a Single Judge of a High Court is bound b)r earlier decloions of the COurt.

HELD : (i) A Single Judge of a High Court is ordinarily bound to accept as ccrrect judgments of courts of CO-Ordinate jurisdiction, of Division Benches and Fiil! Be:nches of bis Olurt. [762 DJ

Tribhovandas Purshottllmdas Thakkar v. Ratilal Alotlla/ P"'e/, A.1:R. 1968 s.c. 372, re-affiimed. . .

(ii) Thero could be no dispute that under the Ttansfer of Property Act each of tho respondents must be held to be liable fo'r the entire mOrtgag<i debt There was nothing in the special provisions of the Sau!ashtra Act which would justify a departure from the said rule. The High Court therefore erred in treating die respondents as 'debtors' under that Act. [763 A-Fl

V. Rcma.rwaml Ayyangar v. T. N. V. Ka/Iara Thavar, [1951] S.C.R.

291. distinguished.

Ambu Rama Mhatro v. Bhau Halya Patel, A.l.R. 1957 Bom. 6 and Dave Sadashiv JayakrishM v. Rana Govubha, (1962) 3 Guj. L. R. 1007, approved.

(iii) While aj, plying the provisions of the Saurashtra Act with the provisiom of the Transfer of Picperty Act or the Contract Act in cettain ca8es s0me difficulty may arille.

All these difflculties can be resolved by R reasonably -lnt"preting the relevant provisions of the Act. (764 CJ

CrvlL APPELLATE Ju11.1so1cT10N : Civil Appeal No. 38 of 1965. 8 Sap. Cl/6S-'J

Appeal by special leave from the judgment and order dated Febf1:1al)'. 12, 1963 of the Gujarat High Court in Civil Revision Application No. 477 of 1960.

I. N. Shroff, for the appellants.

I. A. Baxi, K. L. Hathi and Atiqur Rehman, for respondents Nos. 1 to 3.

The Judgment of the Court was delivered by Hegde, J. This appeal by special leave arises out of the decision of Raju, J. of the Gujarat High Court in an application under s. 115 of the Code of Civil Procedure. That application was filed by respondets Nos. 1 to 3 herein. As they are the only contesting respondents m this appeal, they will hereinafter be referred to as the respondents.

The respondents are Bhayats and Girasdars of Dhanki village in Lakhtar Taluka of fre Saurashtra region of the Gujarat State.

On December 19, 1940, the respondents executed a joint usufraotury mortgage in favour of Thakker Jethalal Dosabha (the third appellant herein) and another for a sum of Rs. 17,725. The liability incurred under the mortgage was a joint liability and under the terms of the deed each of the mortgagers was liable for the entire debt due under the mortgage. Till January 25, 1950, Dhanki village was a part of the former State of Bombay. As from January 26, 1950, that village became a part of the State of Saurashtra in view of the provisions in the Provinces and States

(Absorption of Enclaves) Order, 1950. Prior to that date, the Bombay Agricultural Debtors' Relief Act, 1939, (Bombay Act No . .XXVIlI of 1939), hereinafter referred to as the Bombay Act, was in force in Dhanki village. As long back as 1945, respondent No. 2 had filed an application before the Civil Judge (Junior Division) Viramgam both on his behalf as well as on behalf of his minor cousin, the third respondent, for adjustment of their debts.

At the same time, respondent No. 1 had also filed an application under the Bombay Act for adjustmt of his debts.

These applications were consolidated for the purpose of trial.

Ultimately they were dismissed as the debts due from each of those pers.ons were held to exceed Rs. 15,000 and that being so they could not be considered as "debtors" under the Bombay Act. In those proceedings it was further held that the debt due from the respondents under the mortgage is a joint debt and each one of them was liable for the entire debt. No appeal was preferred against that decision. At the time of the merger of Dhanki village in Saurashtra, in that State there was no statute similar to the Bombay Act. The Saurashtra Agricultural Debtors' Relief Act (Act No. XXIlI of 1954) came to be enacted in 1954.

This Act will hereinafter be referred to as "the Act". By and

large the provisions of the Act are similar to those of the Bombay Act. In 1955, the respondents again made applications before the Debt Adjustment Board for scaling down their debfs under the provisions of the Act The appellants resisted those applications principally on two grounds, viz. : ( 1) The respondents cannot be considered as "debtors" under the Act as the total debts due from each of them exceeded Rs. 25,000 the limit fixed, under the Act, and ( 2) their applications are barred by the principles of res judicata in view of the decision given earlier under the Bombay Act.

C Both the Board as well as the appellate court upheld the contentions of the appellants that the respondents were not "dbtors" as defined in the Act and that their present applications were barred by the principles of res judicata, in view of the earlier decision rendered under the Bombay Act.

They held that the debt due under the mortgage is a joint debt and each of the mort- D gagers is liable for !he entire debt. They repelled the plea of the respondents that the debt in question is liable to be split up under the provisions of the Act. But t11e High Court reversed the above findings. It held that in computing the total debts due from the respondents each one of the mortgagers should be held to be liable only for one-third of the mortgage debt and in E that event the total debt due from each of them does not exceed Rs. 25,000. It may be noted that under the Act, a person whose debts exceeded Rs. 25,000 cannot be considered as a "debtor".

It is admitted that if each of the respondents is held liable for the entire mortgage debt, the debts due from each of them would exceed Rs. 25 ,000 and in that event, they are not entitled to

11 any relief under the Act. But it is equally true that if each one of them is liable only for one.third of the mortgage debt, then the total debts due from each of them do not exceed Rs. 25,000 and in that event their debts are liable to be scaled down and adjusted nuder the provisions of the Act. Therefore, the main question for decision is whether each one of the respondents can be held liable for the entire debt due under the mortgage. If G the answer is in the affirmative, as opined by the Board as well as the appellate court, then the decision of the High Court is incorrect. But on the other hand, if we agree with the High Court that each of the respondents is only liable for one-third of the mortgage debt then the respondents' applications1 should have been.

H entertained by the Board and dealt with according to law. As, in our opinion, the decision of the Board and of !he appellate court that each of the respondents is liable for the entire mortgage debt is correct in law, it is not necessary for us to consider the other question whether the applications from which this appeal anses

762 SUPl.EMB COUllT REPORTS [196ll] 3 S.C.R.

are barred by the principles of res judicata. For the same reason A we are also not going into the question whether on the facts of this case it was competent for the High Court to revei:se the decision of the appellate court by having recourse to its powers under s. 115 of the Code of Civil Procedure.

Before going into the question whether the respondents can be considered.as "debtors" under the Act, it is necessary to disa pose of a subsidiary controversy which appears to have troubled Raju, J. unnecessarily. Major portion of his judgment was de voted to the question whether a Single Judge of a High Court is bound by an earlier decision of another Judge of that High Court and whether the opinion expressed by a Full Bench of that Court is binding on Single Judges and Division Benches of that court. c We think that matters so obvious as those should not have troubled any Judge of a High Court. His conclusions on. those questions are rather startling. But there is no need to go into them in view of the decision of this Court in T1 ibhovandas Purshottamdas Thakkar v. Ratilal Motilal Pa:el. (') That case also arose from one of the decisions of Raju, J. wherein the learned Judge had reached conclusions similar to those reached by him in the pre- D sent case.

This Court over-ruled those conclusions and held that a Single Judge of a High Court is ordinarily bound to accept as correct judgments of courts of co-ordinate jurisdiction, of Division Benches and Full Benches of bis Court. ·

. Reverting back to the principal point in issue, i.e. whether each of the respondents is liable for the entire mortgage debt, it may be noted that the term "debt" is defined in s. ~

5) of the Act as meaning any liability in cash or kind, whether secured or unsecured, due from a debtor, whether payable under a decree or order of any civil court or otherwise, and includes mortgage money the payment of which is secured by the usufractury mortgage, or by an amalous mortgage in the nature of pura chhoot Qf immovable property, but does not include arrears of wages payable in respect of agricultural or manual labour. "Debtor" is. defined in s. 2(6){i) and that definition to the extent material for this case says--

"6. 'Debtor' means an agriculturist- ( i) whose debts do not exceed Rs. 25 ,000 on the date of filing an application to the Board under section 4; and

" ,

'The definition of "debt'' takes in debts under usufractury mortgages as well. As mentioned earlier, the usufractwy mortgage in H question was executed by all the respondents jointly. The debt

(I) A. I. R. 1968 S. C. 372.

A . borrowed under it was a joint debt; each one of th.!l mortgagors was Jointly liable for the entire debt. That being so, unde~ tbD provisions of the Transfer of Property Act, each of the respondents must be held to be liable for the entire mortgage debt, This position is not disputed. Therefore, we have to see whether there are any provisions in the Act which alter the position in law. As

11 seen earlier, neither the definition of "debt" nor of "debtor'' is of any assistance to the respondents in support of the conte1_1tion

that each of them is liable for one-third of the mortgage debt.

The learned counsel for the respondents invited our attentiQ_n to

ss. 7(1), 16, 19, 20(1)(a), 20(l)(c), 20(3), 21 and 29.

Section 7 ( 1) provides that if the payment of debt due by a debtor is guarantel:d by surety or if a debtor is otherwise jointly and C severally liable for any debt along with other person, and if the surety or such other person is not a debtor, the delitor may make an application under s. 4 for relief in respect of such .debt and the Board after consideration of the facts and circumstances of the case proceed with the adjustment of debts under the Act in so far as such applicant is concerned.

We do not think that this D provision lends support to the contention of the respondents that a joint mortgage debt gets split up. It is not necessary fC)r us in this case to consider as to what would han in a case where some of the co-mortgagors are "debtors" allcl the others not "debtors". In the present case, all the respondents are held to be not "debtors". Section 16 merely provides that the question whether an applicant is debtor or not should be decided as a E preliminary issue.

Section 19 provides for the examination of creditor and debtor.

Section 20 provides for taking accounts.

Section 21 prescribes that in certain cases rent may be charged in lieu of profits.

Section 29 provides for scaling down debts of debtors.

None of these provisions lends anysupport to the contention that the debt due from the respondents under the mort- F gage is liable to be split up under the Act.

It was next urged by Shri Baxi, learned counsel for the respondents, that .s._ 7 of the ct permits one of the joint debtors to apply for adjustment of his debts, and if he so does the Board is ound to scale down his debts so far as he is condmed. That G bem~ so unless we old that for. th~ purpose of the Act joint debts

re hab!e to be split up, complications would arise. He gave an tllustration of a debt owned by three joint debtors each of whom

s a ."debtor" within. te meaning of the Act.

Acording to him, m Vie~ of the prov1s1ons of the Act, if the total debt due from them 1s Rs. 30,000; the same may w scaled down in respect of one debtor to Rs. 18,000 another to Rs. 17,000 and the third to Rs. 16,000. As the awards against the several debtors are independent awards, each ?f those awards can be executed against

the concerned debtor; 1n that event the creditor will be entitled

to realise, instead of Rs. 30,000 due to him, Rs. 51,000. We do not think that there is any basis for this apprehension. It is not necessary for our present purpose to find out the true scope of s. 7 or what would be the effect of scaling down a joint debt on the application of one of the debtors. One possibility is that the debt as a whole may be scaled down and the creditor not entitled to collect more than the scaled down debt from any of the debtors .

Another possibility is that thougli the creditor cannot collect more than what is due to him jointly from all debtors, his right to proceed against an individual debtor and his property has to be determined on the basis of the provisions of the Act. We do not think that there is any need to go into these complications in the present case. It is likely that while applying the provisions of the Act along with the provisions of the Transfer of Property Act 'or the , Contract Act, in certain cases, some difficulties may arise.

All these difficulties will be solved by reasonably interpreting the relevant provisions of the Act.

For our present purposes, all that we have to see is whether on the basis of the _provisions of the Act, there is any justification for departing from the ordinary ntle that in the case of a joint debt, each one of the debtors is liable for the entire debt. We see no such justification.

The learned Judge in support of his conclusion that the mortgage debt in this case is liable to be split up has placed reliance on the decision of this -Court in V. Ramaswami Ayya11gar v.

T. N. V. Kai/asa Thavar. (1) That was a case arising under the Madras Agriculturists' Relief Act, No. IV of 1938. The facts of that case were these : In a suit to enforce a mortgage executed by defendent No. 1 on his own behalf and on behalf of defendants Nos. 2 to 7, the defendant No. 1 remained ex parte and the others contested the suit. A decree for Rs. 1,08.098 was passed by the trial court.

The Madras Agriculturists' Relief Act was passed during the pendency of an appeal and cross appeal, and on the application of defendants Nos. 2 to 7 under the said Act the amount of the decree was scaled down to Rs. 49,255 so far as defendants Nos. 2 to 7 were concerned. So far as defendant No. 1 was concerned, the decree for the full amount remained as it was.

defendant No. 1 thereupon applied. for scaling down, but his application was rejected.

Defendants Nos. 2 to 1 deposited certain amounts and got their properties released.

Defendant No. 1 deposited the balance of the amount that remained due under the decree as scaled down on the application of defendants Nos. 2 to 1 and prayed that full satisfaction of the decree may be recorded.

The Subordinate Judge rejected this application and the High Court, on appeal, held that defendant No. 1 was entitled to the benefit of the scaling down in favour of defendants Nos. 2 to 7 as the mortgage debt was one and indivisible. On further

(I) {1951] S. C.R. 292.

appeal, this Court reversed the judgment of the gh Court and restored that of the Subordinate Judge. Mukheqea, J. (as be then was), speaking for the Court, observed in the course of judgment,,"The learned Judges (of the High Court appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree but under the guise of interpretation they cou)d not make a new decree for _the parties." From this observation, it is clear that the main consideration which influenced this Court to reverse the decree of the High Court was that whether the decree passed in the suit was correct or not, the executing court could not have gone behind it. This Court also noticed yet another reason for departing from the normal rule that each one of the joint debtors is liable for the entire joint debt.

Section 14 of the Madras Agriculturists' Relief Act provides for separation of debt incurred by a joint Hindu family, some of the members of which are agricqlturists while others are not.

Our attention has not been drawn to any such provision in the Act, nor is it the case of the respondents that they belong to a joint Hindu family. Hence the ratio of the decision in V. Ramaswami Ayyangar's case(') is inapplicable to the facts of the present case.

The provisions of the Bombay Act in material particulars are similar to the provisions of the Act.

Interpreting the provisions of the Bombay Act in Ambu Rama Mhatro v.

Bhau Ha/ya Patel(2 ), the Bombay High Court, speaking through Shah, J. (as then was) held that it cannot be disputed that when a mortgage is created jointly on property in which several persons are in terested each of the mortgagors is liable in the absence of a contract to the contrary to pay the entire debt, and the Jiabilitv of a mortgagor is not proportionate to the extent of his interest 'in the

mort, gged property; and that position is not altered under the

provmos of the Bombay Act.

This decision was followed by Bhagwat1, J. (as he {hen was) of the Gujarat High Court in Dave Sadashiy J ayakrishna ".· Rana Govubha ('). We are in agree ment with that conclus10n .

. For the reasons mentioned above, we allow the appeal, set aside the orer of the High Court and restore that of the appellate court with costs throughout.

G.C.

(I) [1951] S. C.R. 292.

(2) A. I. R. (1957) Born. 6.

(3) (1962) 3 Guj. L.R. 1007.

Appeal allowed.

DHANKI MAHAJAN

RANA CHANDUBHA WAKHATSING & ORS

April 11, 1968

R. S. BACHAWAT

Relief Act 1954

s. 2(6)(i)

I. N. Shroff

I. A. Baxi

K. L. Hathi

Atiqur Rehman

Hegde

Raju

s. 115

the Code of Civil Procedure

Lakhtar Taluka

December 19, 1940

Thakker Jethalal Dosabha

January 25, 1950

Dhanki village

Bombay

January 26, 1950

Saurashtra

Relief Act, 1939

Civil Judge (Junior Division) Viramgam

s. 115

the Code of Civil Procedure

s. 2(6)

section 4

Transfer of Property Act

Section 7

s. 4

Section 16

Section 19

Section 20

Section 21

Section 29

Baxi

s. 7

Transfer of Property Act

Mukheqea

Section 14

V. Ramaswami Ayyangar

Bombay High Court

Shah


BHALCHANDRA alias BAPU & ANR. v.

STATE OF MAHARASHTRA

April 11, 1968

[M. IIIDAYATULLAH, C.J., C. A. VAIDIALINGAM

AND A. N. GROVER, JJ.] Indian Penal Code (45 of 1860) ss. 304A and 331--Storage of e:tpl01ives of higher degree-Explosion-Whether licensus liable criminally.

In an explosion which took place, the persons who were working in the factory of the appellants where crackers were being manufactured died or were injured.

The appellants were convicted under ss. 304A and 337 I.P.C. In appeal to this Court, the appellants contended that criminal liability could not be imposed upon them under ss. 304A and 337 as it had not been established that the deaths cir injuries caused were the direct result of any rash or negligent act on the part of the appellants or that any such act had been proved which was the proximate and efficient cause of the explosion without the intervention of another's negligence. ·

HEID : The appellants were rightly convicted. [773 CJ

Although there was no direct evidence of the immediate cause of the eitplosion but the explosives the possession of which was prohibited under the notifications issued undel' the Indian Explosives Act were found in the shops or the premises where the appellants carried on their business and the substances which were of highly hazardous and dangerous nature were apparently being used in the manufacture of. the fire works, since thev wel'e found at the scene of the explosion.

These explosives had sensitive composition and even friction or percussion could came Ol<plosion.

In the factory itself where the explosion took place the per• sons who were employed were mostly women who brought their small children with them and young children below the age of 18 had been employed in the manufacture of fire works. It became therefc/re, all the more incumbent on all appellants to have completely avoided the use of highly sensitive compositions.

The appellants had, undoubtedly displayed a high degree of negligence by allowing or causing to be used dangerous and prohibited compositions and substances which must he held to have bees the efficient cause of the explosion. [771 A.C; 773 C]

Rustom Sharior Irani v. State of Maharashtra.

Cr. A. No. 72165; Balachandra Waman Pathe v. The State of Maharashtra, Cr. A. 62 of 1965 decided on 20-11-1967, followed.

Regina v. David Dant., 169 English Reports (C.C.) 1517; Rex v.

G Pittwood .. (1902) 19 T.L.R. 37, applied.

Kurban Hussein Mohammedali Rangwalla v. State of Maharashtro. [1965] 2 S.C.R. 622; Suleman Rahiman Mulani & 'Another v. The State of Maharashtra Cr. A. 50 of 1965 decided on 1-12-1967, distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193 of 1965.

H Appeal by special leave from the judgment and order dated October 19, 1965 of the Bombay High Court in Criminal Revision Applications Nos. 193 and 194 of 1965.

K. Hingorani and N. H. Hingorani, for the appellants.

P. K. Chatterjee and S. P. Nayyar, for the respondent.

The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave in whic~ the main question for decision is whether the appellants were ngtly convicted for offences under ss. 304A and 337 of the Indian Penal Code.

The facts lie within a narrow compass. The appellants held licences under the Indian Explosives Act 1884, hereinafter called the Act and the Rules framed thereunder to manufacture, possess and seli fire works and gun-powder not exceeding 200 pounds and to possess and sell safety fuses.

It appears that the appellants had a factory for manufacturing explosives in a house on Shad Road in Latur town.

It is said that an explosion occurred in that place on May 5, 1962 at about 12 O'clock as a result of which 11 persons died and 7 persons were injured. The appellants along with one B. G. Kamble were tried for offences under the various provisions of the Act and the Rules as also for offences under ss. 304A and 337 of the Code. The trial judge

acquitted B. G. Kamble but convicted the appellants 'of the var10us charges framed against them and imposed fine for offences under the provisions of the Act and awarded a sentence of one year under s. 3-04A and three months under s. 337 of the Indian Penal Code with. a direction that they were to run concurrently. The learned Additional Sessions Judge dismissed the appeal preferred by the appellants against their conviction and sentence.

The appellants then moved the High Court on the revisional side.

The order of conviction was confirmed by the High Court as also the sentence on all the counts except. that under s. 304A the substantive sentence was reduced to one of rigorous imprisonment for six months but for the reasons mentioned in the judgment of the High Court the appellants were directed, in addition, to pay a fine of Rs. 1,500 each.

Now there can be no manner of doubt and it has been so found that in the explosion which took place the persons who were working in the so called factory of the appellants where cracker;; et9. were being manufactured died or were injured.

ccordmg to t1!e courts Jx:low he appellants had, in their possession, unauthonsed explosives 1n contravention of the Act and the rules and had committed a number of breaches of those rules and the conditions of the licences issued to them. The principal contention on behalf of the appellants is that even on the facts found it is not possible to hold that they were responsible for the explosion or had done anything which could be regarded as a direct and immediate cause of the explosion.

Thus criminal

768 SUPIU!MB COUllT RBPOl.TS [1968] 3 s.c.R.

liability could not he imposed on them under ss. 304A and 33.7 of the Code as it has not been established that the deaths or in juries caused were the direct result of any rash or negligent act on the part of the appellants or that any such act had been prowd which was the proximate and efficient cause of the explosicin without the intervention of another's negligence. In the High Court emphasis was laid on the abnce of any positive evidence pointing to the presence of the appellants at the material time.

The High Court while holding that there was no direct evidence in respect of the immediate cause of the explosion referred to the conclusion of the courts below that the appellants had committed a number of hazardous breaches of the rules framed under the Act and the conditions of the licences issued to them, particularly the storage of prohibited explosives and employment of children below the age of 18. This, it was pointed out, showed a callom disregard for the safety of the employees.

It was noticed that the Assitant Inspector of Explosives had also attributed the explosion to the storage of prohibited explosives of a high degree.

Therefore the appellants were found to have been rightly convicted under ss. 304A and 337 of the Indian Penal Code.

Our attention has been invited by the learned Counsel for the appellants to certain decisions of this Olurt. In Kurban Hunrin Mohammedali Rangwa/la v. State of Maharashtra(') a factm::y was licensed on certain conditions to manufacture paints. 1be manager and the working partner did not have a license for manufacturing wet paints but nevertheless the factory manufactured them. Certain burners were used for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree.

While this process was going on froth overflowed out of the barrel and because of heat, varnish and turpentine which were stored at a short distance caught fire and resulted in the death of seven persons working in the factory. The question was whether the manager and the working partner of the firm which ran the factory was guilty under ss. 304A and 285 of the Indian Penal Code. It was held that the mere fact that the burnCllll were allowed to be used in the same room in which varnish and turpentine were stored even though it might be a negligent act would not be enough to make the appellant before this Court responsible for the fire which broke out. The cause of the fire, it was observed, was not merely the presence of burners in the room in which the varnish and turpentine were stored though this circumstance was indirectly responsible for the fire which bro:\ce out. The requirement of s. 304A was the causing of death bv doing any rash or negligent act and this meant that the death must be the direct or -proximate result of the rash or negligent

(I) (1965] 2 S. C. R. 622.

A act. It was found that the direct or proximate cause of the fire which resulted in seven deathS was the act of a labourer who acted in a hurry and who did not wait until the bitumen or rosin cooled down and thus it was his negligence which was the direct and proximate cause of the fire breaking out The appellant, namely, the manager and the working partner of the firm could B not be held to have committed the offence under s. 304A of the Code.

The ratio of the above decision was . applied in Sman Rahiman Mulani & Another v.

The State of Maharashtra(').

In that case the question was whether the first appellant who had only a learner's licence and was driving a jeep which knocked down the deceased had been rightly convicted of an offence under s. 304A of the Code read with certain provisions of the Motor Vehicles Act. On the material on the record the court found it impossible to. discover under what circumstances the accident had taken place.

This Court held that it was not known what was the proximate cause of the accident and the possibility that it bad been caused due to the fault of the deceased could not be ruled out. The mere fact that the appellant in question held a learner's licence did not establish that he did not know driving. His proficiency might furnish a defence which the learner could not have but the absence of proficiency did not make him guilty.

His conviction under s. 304A was therefore set aside.

The fact' of the present case are somewhat different and distinguishable from those of the above two cases as will be clear from a close examination of the material evidence relating to the substances which were being used in the manufacture of the fire works etc. in the factory of the appellants.

It appears that soon after the explosion the Inspector of Explosives, West Circle, Bombay, proceeded to Latur for investigation.

He took into possession certain substances from the scene of the accident. By means of a letter, dated May 11, 1962 sent from the office of the Inspector of Explosives these substances were forwarded to the Chemical Examiner, Government of Maharashtra for examination, the samples were as follows :-

1. A white substance in a packet suspected to. be potassium chlorate.

2. An orange yellow substance suspected to be arsenic sulphide.

3. A round stone piece containing smears with orange yellow chemical adhering to it. (This was to

(I) Cr. A. 50 of 1965, decided on 1-12·67.

770 SUPllBMB COURT llBPOP.TS

(1968] 3 S.C.R•

be examined for the presence of arsenic sulphide and potassium chlorate).

4. A contraption to test the explosibility of a mixture of potassium chlorate and sulphur.

Dindeshchandra P. W. 10 Assistant inspector of Explosives also went to the scene of the explosion along with the Inspector on May 9, 1962 and various samples were collected from the shops of the appellants as well.

All these were forwarded to the Chemical Examiner for examination. The report of the Chemical Examiner (Ex. 87) which is to be found on the original record gives the following analysis in respect of the above substances :- , "Exhibit ( 1 ) is potassium chlorate.

Exhibit (2) is arsenic sulphide.

Exhibit (3) has ediment containing arsenic sulphide and sulphur adhering to it.

Exlu'bit ( 4) has Potassium Chlorate and Sulphur in its cavity."

Apart from the origins: record these facts stand established from the evidence of Dindeshchandra P. W. 1 O and the report (Ex. 3 8) which he had submitted on November 2, 1962 which was duly proved by him when he appeared as a witness. He has further stated that when he inspected the premises of the factory on May 9, 1962 he noticed half burnt raw material like sulphur white powder the ingredients of which he coald not ascertain. There were grinding stones as also empty tubes for manufacturing exhibition fire works. As regards the cause of the explosion his opinion may be given in his own words :-

"Probable cause of the explosion must have been the large quantities of the raw materials gun powder and finished fireworks and the raw materials for the same were stored in the premises. At the time of the explosion there were large quantities of the fireworks, finished as well as in the process of prepartion, loose compositions and the gun-powder. There were being dried in the open court yard of the premises.

Some of the items contained very sensitive explosive compositions which might have exploded due to the spark, percussion or friction or fire." Although there was no direct evidence of the immediate cause of the explosion but indisputably the explosives the possession of which was prohibited under the notifications issued under tl\e Act were found in the shops or the premises where the appellants carried on their business and on the substances that have been mentioned which were of a highly hazardous and dangerous

A nature were apparently being used in the manufacture of the fire works sinee they were found at the scene of the explosion, ( vide the evidence mentioned before and the finding o~ the trial court and the Additional Sessions Judge). As stated by Dindeshchandra P. W. 10 these explosives had sensitive compositions and even friction or percussion could cause explosion. It is further proved B that in the factory itself .where the explosion took place the persons who were employed were mostly women who brought their small children with them and young children below the age of 18 had been employed in the manufacture of the fire works etc.

The factory was situate in close proximity to residential quarters.

It became therefore all the more incumbent on the appellants C have completely avoided the use of highly sensitive compositions of the nature mentioned above.

 The decision which is apposite to the present case is the one recently delivered by this Court on April 3, 1968 in Rustom Sher/or Irani v. State of Maharashtra('). There the chimney of a bakery had collapsed and 11 persons were killed and certain persons were injured. The appellant had submitted no plan for the alteration of the chimney for the third time and had asked just a mason to temove the iron pipe which had corroded and to bring the height of the chimney to 65 feet. The mason had told him that while the work was being executed it was unnecessary to completly keep the bakery closed except during the period the repair work was being done.

After the chimney fell down a number of officers visited the spot and inspeeted the bakery.

The Chief Inspector of Boilers was of the opinion that the cause of the collapse of the chimney was the explosion which occurred in it because of the products of combustion and gases not being permitted to escape. freely as a pipe of 6 inche~ diameter had been put instead of 12 inches diameter. It is unnecessary to refer to the detailed discussion of the evidence.

It was established that the construction of the new chimney had been done without the advice of a properly qualified person. The argument raised was on the lines similar to the one which had been advanced in Kurban Hussein Mohammedali Rangwa/la v. State of Maharashtra('). It was maintained that no negligence on the part of the appellant had been estllb!ished and it was on account of the negligence of the mason that the chimney had fallen down. This Court was of the view that the proximate and efficient cause of the deaths was the negligence of the appellant in choosing a pipe of 6 inches diameter and asking a mason (who was apparently not a qualified person) to carry out the alterations and also continiuing working at least one oven there during the period while the alterations to the chimney were being made. ·

(I) Cr. A. No. 72/65.

(2) [196SJ 2 S. C.R. 622 ..

SUPREME COURT R!!PORTS

(1968] 3 S.C.R

In another recent decision, Balachandra Waman Pathe v. The State of Maharashtra, (1) this Court referred with approval to what was said by Straight, J. in Empress of India v. Indu Beg(") that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an indi vidual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. In Queen Empress v.

Bhutan(•) the lessee of a government ferry having the exclusive right of conveying passengers across a certain river was held to be guilty under s. 304A when he had committed the negligent act of putting a boat in the ferry which was in an unsafe condi tion and which sunk resulting in some of persons getting drowned.

The Punjab Chief Court found a person guilty under ss. 304A and 338 in Kamr-ud-din v. King Emperor(') when he had consigned two boxes containing fire works to the Railway falsely declaring them to contain iron locks with the result that in load ing one of the boxes exploded killing one coolie and injuring another.

The inadvertence to the results of concealing the true character of the contents of the box which was the failure of duty to the public at large and the knoW!edge of the dangerous nature of the contents which must be inevitably presumed coupled with the consequences were regarded as constituting a complete offence under the sections.

Adverting to English law, the case of Regina v. David Dant(•) is highly instructive. This is what Erle, C.J. observed :

''The defendant turned a dangerous anin\al on to a common where there was a public footpath. This has been found by the jury to be culpable negligence, and the child's death was caused by it. Ordinarily speaking these are all the requisites of manslaughter. It is contended, however, that 1no offence was committed, because as we must take it, the child was not on the path. the jury having found that it was very near. but that they could not say whether it was on or off. In my opinion the defendant is responsible for having brought so great a danger on persons exercising their right to cross the common; and it is not a ground of acquittal that the child had strayed from the path."

In another case, Rex v. Pittwood(0) the prisoner was charged with

manslaughter on the ground that he had been negligent in not

(I) Cr. A. 62 of 1965 decided on 2().11-67.

(3) I. L. R. XVI All. 472. (S) 169 English Reports CC: C.) 1517.

(2) I. L. R. III All. 776.

(4) 1905 P. R. 22. (Cr.)

(6) (1902) 19 .T. L. R. 37.

closing a gate when a train passed which it was his duty to do with the result that White who was in a hay cart was killed while the cart was struck by the train which came when it was crossing the line. Wright, J. was of the opinion that the prisoner had been

guilty of gross and criminal negligence as he was paid to keep the gate shut when the train came and protect the public. It was

11. clear case of misfeasance as the prisoner directly contributed to the accident and he was guilty of manslaughter.

All the above cases show that criminal negligence can be found on varying sets of circumstances.

The tests which have been applied appear to be fully applicable to the facts of the present case including the one of direct and efficient cause.

The appellants had, undoubtedly displayed a high degree of negligence by allowing or causing to be used dangerous and prohibited compositions and substan, es which must be held to have been the efficient cause of the explosion.

The appellants were therefore rightly convicted and sentenced under ss. 304A and 337 of the Indian Penal Code. As no other point has been pressed or arises for consideration, the appeal is dismissed. The appellants shall forthwith surrender to their bail bonds.

Y.P.

Appeal dismissed.

BHALCHANDRA alias BAPU & ANR

STATE OF MAHARASHTRA

April 11, 1968

A. N. GROVER, JJ.

Indian Penal Code

ss. 304A and 331

ss. 304A and 337

I.P.C

ss. 304A and 337

Explosives Act

[1965] 2 S.C.R. 622

Bombay High Court

K. Hingorani

N. H. Hingorani

P. K. Chatterjee

S. P. Nayyar

Grover

ss. 304A and 337

Indian Penal Code

Latur town

May 5, 1962

B. G. Kamble

ss. 304A and 337

s. 3

s. 337

Indian Penal Code

s. 304A

ss. 304A and 33

ss. 304A and 337

Indian Penal Code

Kurban Hunrin Mohammedali Rangwa

ss. 304A and 285

Indian Penal Code

s. 304A

(1965] 2 S. C. R. 622

s. 304A

s. 304A

Motor Vehicles Act

s. 304A

Bombay

Latur

May 11, 1962

Dindeshchandra P.

May 9, 1962

Dindeshchandra

November 2, 1962

April 3, 1968

SUPREME COURT R!!PORTS

(1968] 3 S.C.R

Straight

s. 304A

Punjab Chief Court

ss. 304A and 338

Erle

Wright

ss. 304A and 337

Indian Penal Code