BHAGAT RAM

STATE OF RAJASIBAN

January 31, 1972

[J. M. SHELAT AND H. R. KHANNA, JJ.]

Crin1irwl Law-Practice and Procedure-Two accused charged with o11ences for conspiracy and other ofjences_..:..Acquitted by trial coutt-

Appelll heard by two Judges-Acquittal of one accused and the <Hher of ofiences of conspiracy etc. upheld-Difference of opinion with respect to offence under s. 161 I.P.C.-Reference to third Judge-Jurisdiction of ihird !11d.fle to reopen entire matter.

An Inspector of Police was charged with offences under ss. I 20B, 161, '.!18, 347 and 389 I.P.C. and also under s. 5(1)(a) read withs. 5(2) of the Prevention of Corruption Act. Another accused was charged along wiib him for offences under ss. I20B and J 65A, I.P.C. The trial dmrt acquitted both the accused. Jn appe:il to the High Court a Bench of two judges confirmed the acquittal of tho second accused and the acquittal of the Inspector with respect to offences under ss. 120B, 218, 349 and :\89, J.P.C., but with respec, t to offences under s. 161, l.P.C. ands. 5(1) (a) of the Prevention of Corruption Act, the two Judges differed and the matter was referred to a third Judge.

The third Judge held that the Jnspcctor s guilty of the offences under s. 161 and also under ss. 120B, 218 and 347 J.P.C.

In appeal to this Court by the Inspector and by the State against the acquittal of the second accused,

HELD : ( J) As regards the second accused there was nothing to justify an interference with his acquitta1. [310 HJ

(2) It was not permissible for the third Judge to reopen the molter and convict the Inspector for offences under ss. 120B, 347 and 389 l.P.C., bec'/iuse it was not a case where the entire matter had been left open for the opinion of the third Judge.

The difference of opinion between the two Judges was only with l'espec~ to the offences under s. 161 I.P.C. and s. 5(1) (a) of the Prevention of Corruption Act and the third Judge could only go into that aspect of the matter . .[309 B-D]

The Division Bench had upheld the ocquittal of the Inspector of Police f0r offences under ss. 120B, 347 and 389 and the State appeal in that respect had been dismissed by the Division Bench.

That order. unless set aside in appeal to this Court, was binding and conclusive in all suboequent proceedings between the parties. The principle of res judicata is also appltcable to ctiminal proceedings and it is not pennissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an crder fo'r his acquittal bas already been reoorded. [309 F-HJ

Pritam Singh v. State of Punjab, 1956 S.C. A.l.R. 415, followed.

Further when the second accused was acquitted of the charge under ' I 20B I.P.C. the bais of the charge against the Inspector for conspimcy

7-L!S7S1p. Cl/72

between him and the second accused disappeared.

It was not the ca.se A of the prosecution that he had conspired with some other person whose identity had not been e•l'ablished. [310 E-F]

In view of the acquittal of the second accused it is also not pclaiblo to maintain the conviction of the Inspector under s. 161 I.P.C. sinoe it was not the r.rosecution case that he had made any demand directly for payment ot 1llegal gratification.

On the contrary, the prosecution case was that the Inspector had attempted to obtain such gratification through B iustrumentality of the second accused. (311 B-C)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 36 of 1969 and 202 of 1970.

Appeal from the judgment and order dated January 17, 1969 of the Rajasthan High Court in D.B. Criminal Appeal No. 376 C of 1965.

A, S. R. Chari and Sobhagmal Jain, for the appellant (in Cr.

A. No. 36 of 1969),

K. B. Mehta, for the respondent (in Cr. A. No. 36 of 1969) (in Cr. A. No. 202 of 1970).

S. C. Gupta, Ramesh Chand, S. Bhandare and P. H. Parekh, for the respondent (in Cr. A. No. 202 of 1970).

The Judgment of the Court was delivered by

Khanna, J. This judgment would dispose of criminal E appeal No. 36 of 1969 Bhagat Ram v. State of Rajasthan and criminal appeal No. 262 of 1970 State of Rajasthan v. Ram.

Swaroop.

Both the appeals have been filed on certificate granted by the Rajasthan High Court.

Bhagat Ram during the year 1962 was posted as circle ins F pector of police at Ganganagar.

Ancestral village of Bhagat Ram is Mehna in Tehsil Moga, District Ferozepur. Ram

Swaroop also belongs to that viii.age.

Both Bhagat Ram and Ram Swaroop were tried in the court of special judge, Ganga nagar for offences under section 120B IPC for conspiring to extort bribe of Rs. 2,000 from PW 1 Niranjan Dass of Moga.

G Charges were also framed against Bhagat Ram for offences under sections 161, 218, 347 and 389 Indian Penal Code as also section 5 ( 1 )(a) read with section 5 (2) of Prevention of Corrup~ tion Act.

Additional charge under section 165A Indian Penal Code was framed against Ram Swaroop.

Both Bhagat Ram and Ram Swaroop were acquitted by the special judge, Ganganagar H in respect of all the charges.

The State of Rajasthan filed an appeal against the acquittal of the two accused.

The appeal WilS heard by a Division Bench consisting of Tyagi and Lodha, JJ.

The Division Bench dismissed the said appeal against the acquittal of Ram Swaroop.

The appeal of the State against Bhagat Ram in so far as it related to his acquittal for ollcnces under sections 347, 218, 389 and 120B IPC was also dismis9ed.

There was, however, a difference of opinion between the two learned judges on the point as to whether the acquittal of Bhagat Ram for offences under secti9n 161 IPC and 5(1)(a) of Prevention of Corru_ption Act should be maintained.

According to Tyagi,_J., the case against Bhagat Ram for the above mentioned two offences had not been proved and the State appeal in that respect also was liable to be dismissed.

As against that Lodha, J. took the view that Bhagat Ram was guilty of offences under section 161 Indian Penal Code and section 5 ( 1 )(a) of Prevention of Corruption Act.

He accordingly p.assed an order for the conviction of Bhagat Ram for the above mentioned two offences.

In view of the difference between the two judges regarding the acquittal of Bhagat Ram for offences under section 161 IPC and S(l)(a) of Prevention of Corruption Act, the case was placed under section 429 of the Code of Criminal Procedure before Jagat Narayan, J. Jagat Narayan, J. came to the conclusion that the material on record showed that Ram Swaroop and Bha1?; at Ram had entered into an agreement to extort bribe from Niranjan Dass and, as such, were guilty of an offence under section 120A punishable under section 120B of Indian Penal Code.

The learned judge, however, felt that in view of the decision of the Division Bench, he could not set aside the acquittal of Ram Swaroop.

As regards Bhagat Ram, the learned judge came to the conclusion that he could set aside the acquittal of Bhagat Ram for. offences under sections 120B, 218 and 34 7 IPC.

Bhagat Ram was found 1?; Ui!tv by Jaat Narayan, J. of the offences under sections 120B, 161, 218 and 347 IPC.

For the offence under section 161 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/· or in default to undergo rigorous imprisonment for a further period of three months.

For the offences under sections 218 and 34 7 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year on each .count.

These sentences were ordered to run concurrently with the sen tence imposed under section 161 IPC.

No sentence was award ed for the offence under section 120B IPC. Bhagat Ram has filed criminal appeal No. 36 of 1969 against his conviction and

sentene. while the State of Rajasthan has filed appeal No. 202 of 1970. against the acquittal of Rain Swaroop.

The prosecution case is that a case under sections 408 and

420. IPC was registered on June 14, 1962 at police station Ganganagar on a report made by the general manager of Ganganagar

Sugar Mills against Ramesh, an employee of the sugar mills.

Bhagat Ram, who was circle inspector of Ganganagar, took over A

the investigation of the above case.

Bhagat Ram during investigation came to know that Ramesh had sent the misappropriated amount to his brother Puran Chand at Ludhiana. Bhagat Ram also came to know that Puran Chand had entered into a transaction for the purchase of a truck from PW Niranjan Dass of Moga B for a price of Rs. 22,000.

Niranjan Dass received Rs. 7,000 from Puran Chand in that connection.

As Puran Chand could not pay the balance of the purchase price, the bargain regarding the purchase of the truck was cancelled and the amount received by Niranjan Dass was stated to have been returned to Puran Chand. It seems that Bhagat Ram took the stand that pat of Rs. 7,000 had been kept by Niranjan Dass with himself. Bhagat C Ram, therefore. summoned Niranjan Dass to police station Ganganagar. In obedience to the summons, Niranjan Dass went with his brother Manohar Lal PW to Ganganagar police station on July 27, 1962.

Niranjan Dass and Manohar Lal could not meet Bhagat Ram on that day but met him on the following day.

Bhagat Ram then behaved in an unduly rnde and harsh manner D to Ni ran jan Dass and kept him at the police station.

Manohar Lal apprehending trouble, returned to Moga and took with him Ram Swaroop accused and some other persons.

Manohar Lal and his companions reached Gariganagar on July 29, 1962. In the meanwhile, Bhagat Ram had gone to Hindumalkot. Accompanied by Niranjan Dass, Ram Swaroop and others. Manohar E Lal went to Hindumalkot Dak bungalow where Bhagat Ram was staying. It is stated that Rani Swaroop went inside the room in which Bhagat Ram was present. while others stayed outside.

After some time Ram Swaroop came out of the room and told Niranjan Dass and Manohar Lal not to feel worried.

Niranjan Dass was asked to give a statement which was thereafter recorded by Bhagat Ram.

Bhagl\t Ram then produced three documents relating to the agreement for the sale of truck and the receipt which Niranjan Dass had obtained from Puran Chand for the refund of Rs. 7 ,000.

Bhaat Ram then told Niranjan Dass to go back to Moga.

It was also mentioned by Bhagat Ram that if

the presence of Niranjan Dass was required for further investigation, he would be summoned again.

About 10 or 15 days after that, it is stated, Bhagat Rani went

to Moga in a jeep and stayed at the house of Niranjan Dass and Manohar Lal for the night. . While leaving Moga early next morning, Bhagat Ram told Niranjan Dass and Manohar Lal that tbey should have a talk with Ram Swaroop and act according to H Ram Swaroop's instructions.

After Bhagat Ram had left Moga.

Ram Swaroop met Niranjan Dass and informed him that Bhagat Ram wanted Rs. 2.000 ns bribe for having helped Niranjan Dass

A to get ut of the trobl<l and that otherwise, Niranjan Dass would be agam entangled m the case.

Niranjan Dass then told Ram Swaroop that h~ would consult a lawyer and give a reply.

. Ram Swaro?p, according to the prosecution case, came to N1ranian Dass m the first week of October 1962 and showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop from Alwar.

In the course of that letter it was stated "Kindly send that thing to Alwar.

This is very important and please do not be careless and slack in the matter." Ram Swaroop told Niranjan Dass that the words "that thing" in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it could be passed on to Bhagat Ram. Niranjan Dass expressed his inability to accede to this demand.

The Jetter was, however, retained by Niranjan Dass.

A few days thereafter Ram Swaroop again came to Niranjan Dass and showed him telegram P.3A dated October 19, 1962.

The telegram had been addressed by Bhagat Ram to Ram Swaroop and it was stated therein that Ram Swaroop should ask Niranjan Dass to see Bhagat Ram and D that otherwise, warrants of :UTest would be issued against him.

This telegram too was kept by Niranjan Dass, with himself.

On December 26, 1962, it is stated, Niranjan Dass came to know that warrants for his arrest had been received by the Moga police in the above mentioned case registered at Ganganagar.

Niranjan Dass then consulted a lawyer aud sent complaint dated E December 26, 1962 to the Inspector General of Police, Special

Police Establishment. A case was thereafter registered on the basis of the above complaint by DSP Umaid Singh of Anti Corruption Department.

After necessary investigation, Bhagat Ram and Ram Swaroop were sent up for trial.

F Jn his statement under section 342 of the Code of Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram and that he had gone to him on July 29, 1962 with Manohar Lal and Nlranjan Dass at Hindumalkot.

Ram Swaroop denied that Bhagat Ram had made any demand through him for illegal gratification.

According to Ram Swaroop, Bhagat Ram had asked G him to realise the embezzled amount from Niranjan Dass.

The other allegations made against him were denied by Ram Swaroop. he. however, admitted having received letter P. 2 and telegram p. 3A from Bhagat Ram and having handed over those documents to Niranjan Dass. Ram Swaroop added that he had asked Niranjan Dass to pay the embezzled amount which was with him.

B Bhagat Ram admitted that he had been entrusted with the investigation of the case against Ramesh and that he had called Niranjan Dass to Ganganagar in that connection. Bhagat Ram

SUPRBMB COURT RBPORTS [1972] 3 s.c.R.

denied having maltreated Niranjan Dass or having kept him A under unlawful detention. Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at Hindumalkot but he denied having made any demand through Ram Swaroop fqr the payment of Rs. 2,000 as bribe.

It was admitted by Bhagat Ram that he. had gone to Moga but the demand for any illegal gratification from Niranjan Dass at Moga was denied B by Bhagat Ram.

Bhagat Ram admitted having sent letter P. 2 and telegram P. 3A to Ram Swaroop.

As regards the words "that thing", Bhagat Ram stated that they referred to the embezzl ed amount which had been retained by Niranjan Dass.

The trial court, as stated earlier, acquitted both the accused, C' while the High Court maintained the acquittal of Ram Swaroop.

As regards Bhagat Ram, there was a difference between the two judges.

On the matter being referred to the third judge, Bhagat Ram was convicted and sentenced as above.

Arguments have been addressed in the two appeals by Mr.

Melita on. behalf of the State of Rajasthan, Mr. Chari on behalf D of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop. After hearing the learned counsel, we are of the opinion that the appeal filed by the State of Rajasthan merits dismissal, while that filed by Bhagat Ram should be allowed.

It would appear from theresume of facts given above that both Bhagat Ram and Ram Swaroop were acquitted by the spe E. cial judge.

On appeal filed by the State of Rajasthan against the acquittal of the two accused, Tyagi and Lodha, JJ. maintained the order relating to the acquittal of Ram Swaroop.

As regards Bhagat Ram, though there was a difference between the two judges regarding the correctness of his acquittal for offences under section S(l)(a) of Preve.ntion of Corruption Act and section 161 F of Indian Penal Code, they concurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B, 218, 347 and 389 IPC. The State appeal against the acquittal of Bhagat Ram was dismissed to that extent. The order which was made by. the learned judges of the Division Bench reads as under:

"BY THE COURT

The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop Is dis missed.

The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347 218, 389 and 120B Indian Penal Code is also disniissed. In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian

Penal CQde and section 5 (1 )(a) of the Prevention of Corruption Act, the matter may be laid before Hon'ble the Chief Justice for referring it to the third judge."

B In view of the fact that the State appeal against the acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC had been dismissed by the Division Bench, it was, in our opinion, not permissible for the third judge to reopen the matter and convict Bhagat Ram for offence.~ under sections 347, 389 and 1208 IPC. The matter had been referred under section 429 of the Code of Criminal Procedure to J agat Narayan, J.

C because there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the correctness of the acquittai of . Bhagat Ram for offences under section 161 IPC and section S(l)(a) of Prevention of Corruption Act.

Jagat Narayan, J. could go only into this aspect of the matter and arrive at his conclusion. The present was not a case wherein the entire matter relating to the D acquittal or conviction of Bhagat Ram had been left open because of a difference of opinion between the two judges. Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of. the order of acquittal made by the trial judge in respect of Bhagat Ram.

On the contrary, as mentioned earlier, an express E order had been made by the Division Bench upholding the acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed. The above decision of the Division Bench was binding upon Jagat Narayan, J. and he was in error in convicting

Bhaat Ram for offences under sections 120B, 218 and 347 IPC f despite the order of the Division Bench. It was, in our opinion, not within the competence of the learned judge to reopen the matter and pass the above order of conviction in the face of the earlier order of the Division Bench whereby the order of acquittal of Bhagat Ram made by the trial judge in respect of the said three charge1 had been affirmed. The order of the Division Bench c; unless set aside in appeal to this Court, was binding and conclu slve in all subsequent proceedings between the parties. The principle of .res fudlcata is also applicable to criminal proceed 1ngs and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict

a person for an offence in respect of which an order for his H acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedme is based upon the above wholesome principle.

In the case of Sambasivam v. Public Prosecutor, Federal of A Malaya('), Lord MacDermott observed :

"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.

B To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings.

Here, the appellant having been acquitted at the first C trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correct ness of that verdict and was precluded from taking any steps to challenge it at the second trial."

The above observations were quoted with approval by this Court 0 in the case of Pritam Singh v. State of Punjab('). We are. there fore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has convicted Bhagat Ram for offences under sections

120B, 218 and 347 IPC cannot be sustained.

The matter can also be looked at from another angle. The charge under section 120B IPC related to conspiracy between E Bhagat Ram and Ram Swaroop for extorting Rs. 2,000 as illegal gratification from Niranjan Dass.

When Ram Swaroop was acquitted of the charge under section 120B IPC, the basis of the charge against Bhagat Ram for conspiracy between him and Ram Swaroop disappeared.

It is not the case of the prosecution that Bhagat Ram had conspired with another person and even though.

F the identity of the other person has not been established, Bhagat Ram would still be guilty for the olfcnce under section 120B

IPC.

On the contrary, the case of .the prosecution was that Bhagat Ram had conspired with Ram Swaroop to extort Rs. 2,000 as illegal gratification from Niranjan Dass.

Once Ram Swaroop was acquitted in respect of. the charge relating to conspiracy, the G charge against Bhagat Ram for conspiracy must necessarily fall t9 the ground.

So far as the State appeal against the acquittal of Ram Swa roop is concerned, we find that there are concurrent findings of the trial court and the High Court that the evidence on record had failed to prove that he was guilty of offences under sections 120B ff and 165A IPC.

Nothing hai; been brought to our notice at the

rn r10..-oi A C:. 458.

(2) [1956] S.C.R. 41S,

BHAGAT RAM v. RAJASTHAN (Kha11na, J.) 311

A hearing of the appeal as may justify interference with those concurrent findings by a fresh appraisement of that evidence. We are, therefore, of the view that the State appeal against the acquittal of Ram Swaroop is liable to be dismissed.

As regards the conviction of Bhagat Ram for the offence B under section 161 IPC, we find that it is not the prosecution case that. Bhagat Ram had made any demand directly to Niranjan Dass for payment of illegal gratification.

On the contrary, the High Court found that Bhagat Ram had not demanded bribe directly from Niranjan Dass. The case set up by the prosecution is that Bhagat Ram attempted to obtain illegal gratification from Niranjan Dass through the instrumentality of Ram Swaroop. In C view of the acquittal of Ram Swaroop, it is not possible to maintain the conviction of Bhagat Ram. The acquittal of Ram Swaroop would necessarily lead to the conclusion that the prosecution allegation about Ram Swaroop having made a demand of illegal gratification from Niranjan Dass for Bhagat Ram has not been proved. 'The case,. in the circumstances, against Bhagat D Ram .for asking for bribe through Ram Swaroop must consequently fail.

It would indeed be incongruous and inconsistent to acquit Ram Swaroop, for offences under sections 165A and 120B IPC and, at the same time, to convict Bhagat Ram for the offence under section 161 IPC for asking for bribe from Niranjan Dass

through the instrumentality of Ram Swaroop.

E We, therefore, accept the appeal of Bhagat :Ram and set aside his conviction and acquit him.

The appeal of the State of Rajasthan against the acquittal of Ram Swaroop is dismissed.

V.P.S.

Appeal allowed.

RAM

STATE OF RAJASIBAN

January 31, 1972

M. SHELAT

H. R. KHANNA, JJ.

s. 161

I.P.C

I.P.C

s. 5(1)(a)

Prevention of Corruption Act

I.P.C

ss. 120B, 218, 349

s. 161

Prevention of Corruption Act

s. 161

ss. 120B, 218 and 347

ss. 120B, 347 and 389

s. 161

I.P.C

s. 5(1)

Prevention of Corruption Act

ss. 120B, 347 and 389

I.P.C

s. 161

I.P.C

Rajasthan High Court

S. R. Chari

Sobhagmal Jain

K. B. Mehta

S. C. Gupta

Ramesh Chand

S. Bhandare

P. H. Parekh

Khanna

Bhagat Ram

Ganganagar

Ram

Swaroop

Ram Swaroop

section 120B

IPC

Niranjan Dass

Moga

Bhagat Ram

sections 161, 218, 347 and 389

Indian Penal Code

section 5

section 5

section 165A

Indian Penal Code

State of Rajasthan

Tyagi

Lodha

sections 347, 218, 389 and 120B

IPC

IPC

section 161

Indian Penal Code

section 5

Prevention of Corruption Act

section 161

IPC

Prevention of Corruption Act

section 429

Code of Criminal Procedure

Jagat Narayan

Niranjan Dass

section 120A

section 120B

Indian Penal Code

sections 120B, 218 and 34

IPC

Jaat Narayan

sections 120B, 161, 218 and 347

IPC

section 161

IPC

sections 218 and 34

IPC

section 161

IPC

section 120B

IPC

Rain Swaroop

sections 408 and

420

IPC

June 14, 1962

Ramesh

Puran Chand

Ludhiana

Moga B

Bhagat C Ram

Manohar Lal

Ganganagar police station

July 27, 1962

jan Dass

Gariganagar

July 29, 1962

Hindumalkot

Manohar E Lal

Rani Swaroop

Bhaat Ram

Bhagat Rani

H Ram Swaroop

Ram Swaro?p

N1ranian Dass

Alwar

October 19, 1962

December 26, 1962

Moga police

Umaid Singh

section 342

Code of Criminal Procedure

Nlranjan Dass

B Bhagat Ram

SUPRBMB COURT RBPORTS [1972] 3 s.c.R.

Melita

Chari

Gupta

section 161

Indian Penal Code

sections 120B, 218, 347 and 389

IPC

Bhagat Ram

Ram Swaroop

sections 347

Indian Penal Code

section 161

section 5

Prevention of Corruption Act

sections 120B, 218, 347 and 389

IPC

sections 347, 389 and 1208

IPC

section 429

Code of Criminal Procedure

J agat Narayan

section 161

IPC

Prevention of Corruption Act

sections 120B, 218, 347 and 389

IPC

sections 120B, 218 and 347

IPC

Bhagat Ram

section 403

MacDermott

sections

120B, 218 and 347

IPC

section 120B

IPC

E Bhagat Ram

section 120B

IPC

section 120B

IPC

Ram Swa roop

sections 120B

IPC

section 161

IPC

Bhagat D Ram

sections 165A and 120B

IPC

section 161

IPC

Bhagat :Ram


ISHARDAS v.

STATE OF PUNJAB

Jal!uary 31, 1972

(J. M. SHELAT AND H. R. KHANNA, JJ.)

Probation of Offenders Act, 1958, s. 4( !)-Conviction under Pre., n tion of Food Adulteration Act, 1954-Accused below 20 years-MlnimMm sentence of i1nprisonment and fine prescribed as punishment for oQence-- lf Probation of Offenders Act applicable.

The appellant, who was less thon 20 years was convicted for llll offence under s. 7(1) of the Prevention of Food Adulteration Act, 1954, c and waa ordered to furnish a bond under s. 4 of the Probation of Offenders Act, 1958. The High Court revised the sentence, because s. 16 of Ille Pl'evention of Food Adulteration Act prescribed a ntinimum sentence of imprisonment for 6 months and a fine of Rs. 1000.

Allowing the appeal to this Court, HELD : Seel ion 4 (I) of the Probation of Offenders Act eontains the non-obstante clause notwithstanding anything contained In any other law [) for the time being in force, and hence the section would have overridlna effect and shall prevail if Its other conditions are fuJJllled; especially when the Probation of Offenders Act waa enacted in 1958 subeequent to the enactment In 1954 of the Prevention of Food Adulteration Act. [317 A-C;

318 D-EJ

According to s. 18 of the Probation of Offenders Act, that Act aball not affect a. 5 (2) of the Prevention of Corruption A~ which also pres E cribes '" minimum sentence of imprisonment. The fact . that only Olle offence for which a minimum sentence of Imprisonment is prescribed, bu been specified shows that in the case of other such offencee, the prov!· sions of the Probation of Offenders Act can be invoked [317H; 3.18 A-CJ

&suming there is some ambiguity, the principle to he applied in construing a penal statute is that such doubt should be resolved in favour of the person who would be liable to the penalty. [318 DJ F

Adulteration of food i~ a 1 mence to public health and th~ Prevention of Food Adulteration Act has been enacted to eradicate the evil. 'Jbero. fore, courts should not li1htly resort to the provisions of the Probation

of Offenders Act in the case of pers00$ abov1 21 years of age; but the Act makes a distinction between offenders below 21 years and tbOM nbove th"t a1c.

As re1ards person undrr 21 years, the policy of the law is that such a person, even in the cue of conviction under the Pre\>eat!on G of Food Adultoratlon Act, ahould not be deprived of the advantap of the Probation of Offenders Act which la a beneJlclent meuure aad reflects and Incorporates the modern approach and latest trend in penoloaY.

f318 GH; 319 A-CJ

As the object of the Probation of Offenders Act ls to avoid imprisonment of n person covered by its provisions, that object C311110t he set at naught by 1mposihg a sentence of fine which would entail Imprisonment H in case of default. [319 DJ Rattan Lal v. Statt of Punjab [1964J 7 S.C.R. 676 and Ramil Mlssir

v. State of Bihar, [1962J Supp. 2 S.C.R. 745, referred to.

CRIMINAL APPELLATE JURISDICTION : Crigiinal Appeal No 64 of 1969.

Appeal by special leave from the judgment and order dated December 10, 1968 of the Punjab and Haryana High Court in Criminal Revision No. 1200 of 1967.

R. L. Kohli, for the appellant.

V. C. Mahajan and R.· N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Khamm, J. Ishar Das appellant was convicted by the C judicial magistrate 1st class Patiala for an offence under section 7 (I l of the Prevention of Food Adulteration Act, 1954 (Act N(• 37 of l9'54)read with section 16(l)(a)(i) of that Act and wu; onlered to furnish bond under section 4 of the Probation of Offenders Act.

Bedi, J. of the Punjab and Haryana High Court. du:ing the course of the inspection of the Court of trial magistrate, D toi:•k the view that an improper order had been made in the above case by the magistrate.

The High Court thereupon of its own motion directed that a notice be issued to the appellant.

The case was thereafter posted before Bedi, J.

The learned judge referred to the fact that a minimum sentence of imprisonment for a period of six months and a fine of Rs. 1,000 had been pres- E cribed by section 16 of the Prevention of Food Adulteration Act.

It was also observed that offences under the Prevention of Food' Adulteration Act were against the public and called for deterrent punishment.

Order was consequently made that the appellant instead of being released on his furnishing a bond, should be sentenced to undergo simple imprisonment for a period of six

F months and to pay a fine of Rs. 1,000. In default of payment of

fine. the appellant was ordered to undergo simple imprisonment for a further period of one and a half month. The appellant thrreafter filed this appeal by special leave to this Court. At the time .the leave was granted. it was ordered that the appeal would be litiilted to the question of sentence only.

G The prosecution case is that on August 1, 1966 the Food lrn.pectbr Patiala took a sample of two cups of ice cream from the appellant from Phu! Cinema canteen on payment of three rupees.

Part of the ice cream was sent for analysis to Public Analyst Chandigarh.

The Analyst reported that the ice crean1 was adulterated, being deficient in milk fat contents to the extent H of i7 per cent and total solid contents to the extent of 7 per cent.

The appellant was thereafter prosecuted on the allegation that he had committed an offence under section 7 (1) of the Prevention of Food Adulteration Act read with section 16(1 )(a){i) of that

Act.

Charge was framed on that count against the appellan[ and he pleaded guilty to the same.

The trial magistrate took the view that the appellant, who was aged about 20 years, was in a repentant mood.

The appellant was, in the circumstances, directed to furnish bond under section 4 of the Probation of Offenders Act.

The bond was thereafter furnished by the appel lant.

On revision, the sentence was altered by the High Court as mentioned above. ln appeal Mr. Kohli on behalf of the appellant has referred to the matriculation certificate which was produced on behalf of 1he appellant and according to which the date of birth of the appellant was May 8, 1947. It is argued that as the age of the appellant on the date of his conviction by the trial magistrate was less than 20 years, the appellant was rightly given the benefit of the provisions of the Probation of Offenders Act.

The High Court, according to the learned counsel, was in error in awarding

the sentence of imprisonment and fine to the appellant.

As against that Mr. Mahajan on behalf of the respondent has con tended that the provisions of the Probation of Offenders Act cannot be invokcJ by an accused convicted of an offence wider section 7 read with section 16 of the Prevention of Food Adullera

tion Act. Mr. Mahajan has not disputed that the age of the accused was less than 20 years on the date of his conviction by the trial magistrate, but, according to the learned counsel, that fact could make no difference.

There is, in our opinion, considerable force in the stand taken on behalf of the appellant by his learned counsel and we find ourselves unable to accede to the submission made on behalf of the respondent State. The Probation of Offenders Act received the assent of the President on May 16, 1958 and was published in the Gazette of India dated May 19, 1958. According to subsection (3) of section I of that Act, it shall come into force in a State on such date as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different parts of the State.

The fact that the Act was in force in the State of Punjab before the sample of ice cream was taken from the appellant has not been disputed before us.

Section 3 of the Act gives power to the court to release certain offenders after admonition. According to that section, where any person is found guilty of having committed an offence punisha ble under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both under the Indian Penal Code or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, .having regard to the circumstances of the case including the .nature

d the offence and the character of the offender, it is expedient '0 to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

The relevant part of sub-section (I) of section 4 and sub-section

i I ) of section 6 of the Act read as under :

"4(1) When any person is found guilty of having committed on offence not punishable with death or

imprisonmnt for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence

1 when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour."

"6 ( t) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life). the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so."

The Probation of Offenders Act, as observed by Subba Rao, J. (as he then was) speaking for the majority in the case of Ra1ta11 Lal v. State of Pun; ab( 1), is a milestone in the progress of the modern liberal trend of reform in the field of penology.

It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him.

Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are i; uilty of having committed an offence punishable with death. or nnprisonment for life and those who are guilty of a lesser offooce. While in the case of offenders who are above the -------------

(!) [1964] 7 S.C'.R. 676.

SUPREME COURT REPORTS (1972] 3 S.C.ll

age of 21 years absolute discretion is given to the court to release A .them after ~moniti?n or on .Probation of good conduct, subject to th~ conditions laid down m the appropriate provisions of the

ct, !n .the case of offenders below the age of 21 years, an injuncr tton 1s .1sued .to the court n?t to sentence them to imprisonment unless 1t 1s satisfied that, havmg regard to the circumstances of the case, including the nature of the offence and the character of the B offenders, it is not desirable to deal with them under sections 3 and 4 of the Act. .

It is manifest from plain reading of sub-section ( 1 ) of 1ection 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years.

On the contrary, the said sub-section is applicable to persons of all ages subject to certain conditions which have been specified therein.

Once those conditions are fulfilled and the other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on proba tion of good conduct.

Section 6 of the Act deals specifically with persons under twenty-one years of age convicted by a court for an offence punishable with imprisonment other than imprisonment for life.

In such a case an injunction is issued to the court not to sentence the young offender to imprisonment, unless the court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender (it would not be desirable to release him after admoni tion under section 3 or on probation of good conduct under section 4 of the Act.

Sub-section (1) of section 16 of the Prevention of Food Adulteration Act provides the punishment which may be awarded to a person found guilty of the various offences under that Act.

According to the above sub-section, such a person, in addition to a penalty to which he may be liable under section 6, with which we are not concerned, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees.

There follows a proviso, according to which the court may, in case of some of the offences under the Act, for adequate and special reasons to be mentioned in the judgmet, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.

The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed by the legislature for a person found guilty of the offence under

!SHAR DAS v. PUNJAB (Khanna, J.) 317

the Prevention of Food Adulteration Act, the court can resort to the provisions of the Probation of Offenders Act.

Jn this respect we find that sub-section ( 1) of section 4 of the Probation of Offenders Act contains the words "notwithstanding anything contained in any other law for the time being in force".

The above non-obstante clause points to the conclusion that the provisions of section 4 of the Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled.

Those conditions are ( 1) the accused is found guilty of having committed an offence not punishable with deatli or imprisonment for life, (2) the court finding him guilty is of the opinion that having regard to the circumstances of the case. including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, and ( 3) the acc11sed in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behaviour. Sub-section (I) of section 6 of the above mentioned Act, as stated earlier, imposes a duty upon the court when it finds a person under 21 years of age, guilty of an offence punishable with imprisonment other than imprisonment for life, not to sentence him to impris<.>nment unless the court is satisfied that, having regard to the circumstances of the case, includhig the nature of the offence and the character of the offender, it would not be desirable to deal with him under sections 3 or 4 of the Act but to award a sentence of imprisonment to him.

The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation which be would lose in case he is incarcerated in prison and associates with hardened criminals.

So far as persons who are less than 21 years of age are concerned, special provisions have been enacted to prevent their confinement in jail at young age with a view to obviate the possibility of their being subjected to the pernicious influence of hardened criminals.

It has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted for an offence not punishable with imprisonment for life, he shall not be sentenced to imprisonment unless there exist reaons which justify such a course.

Such reasons have to be recorded in writing.

According to section 18 of the Probation of Offenders Act, the aforesaid Act shall not affect the provision of sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 (Act 2 of 1947). The last mentioned provision, namely, sub-section

(2) of section 5 of the Prevention of Corruption Act, prescribes, in the absence of special reasons, a minimum sentence of imprisonment for a term of not less than one year for those convicted

under section 5 of that Act. If the object of the legislature was that the provisions of the Probation of Offenders Act should not apply to all cases where a minimum sentence of imprisonment is prescribed by the statnte, there was no reason io,.specify su1>- section ( 2) of section 5 of the Prevention of Corruption Act in section 18 of the Probation of Offenders Act. The fact that out of the various offences for which the minimum sentence is prescribed, only the offence under sub-section (2) of section 5 of the Preventio.n of Corruption Act has bjeen mentioned in section 18 of tbe Probation of Offenders Act and not the other offences for which the minimum sentence is prescribed, shows that in case of snch other offences the provisions of Probation of Offenders Act can be invoked.

The provisions of Probation of Offenders Act, in our opinion,

 point to the conclusion that their operation is not excluded in the case of persons found guilty of offences under the Prevention of Food Adulteration Act. Assuming that there was reaonable . doubt or ambiguity, the principle to be applied in construing a penal act is that such doubt or ambiguity should be resolved in D favour of the person who would be liable to the penalty (see Maxwell on Interpretation of Statutes, p. 239, 12th Edition).

It. has also to be borne in mind that the Probation of Offenders Act was enacted in 1958 subsequent to the enactment in 1954 of the Prevention of Food Adulteration Act.

As the legislatnre enacted the Probation of Offenders Act despite the existence on the.statute book of the Prevention of Food Adulteration Act, the operation of the provisions of Probation of Offenders Act cannot be whittled down or circumscribed because of the provisions of the earlier enactment, viz. Prevention of Food Adulteration Act. Indeed, as mentioned earlier, the non-obstante clause in section 4 of the Probation of Offenders Act is a clear manifestation of the intention of the legislature that the provisions of the Probation of Offenders Act would have effect notwithstanding any other law for the time being in force.

We may also in .this context refer to the decision of this Court in the case of Ramji Missir v. State of Bihar( 1) wherein this Court while dealing with the Probation of Offenders Act observed that its beneficial provisions should receive wide interpretation and should not be read in a 'restricted sense.

Adulteration of food is 6 menace to public health.

The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food.

In view of the above object of the Act and the intention of the legislature as revealed by the fact that a H minimum sentence of imprisonment for a period of six months

(1) [1962] Supp. 2 S.CR. 745.

and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act.

As regards persons under 21 years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the Prevention of Food Adulteration Act, should not be deprived of the advantage of Probation of Offenders Act which is a beneficient measure and reflects and incorporates the modern approach and latest trend in penology.

Mr. Mahajan has argued that if the trial magistrate took the view .that the accused-appellant in view of his age, should not be .sentenced to undergo imprisonment, the learned magistrate should still have imposed the sentence of fine as prescribed by subsection ( 1 ) of section 16 of the Act. In this respect w_e are of the opinion that a sentence of fine also carries with if1lie consequence of imprisonment in case the accused fails to pay the fine.

As the object of Probation of Offenders Aot is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine.

The High Court in the present case did not consider t; e provisions of the Probation of Offenders Act and its attention does 1iot appear to have been invited to the mandatory provisions of section 6 of that Act. In view of the fact that the accused was Jess than 20 years of age and appeared to be in a repentant mood, the trial court took action under section 4 of the Probation of Offenders Act. The High-Court, in our view, was in error in interfering with the above order of the trial magistrate.

We, therefore, accept the appeal, set aside the order of the High Court and restore that of the trial magistrate.

V.P.S.

Appeal allowed.

S--cL887SuPCl/72

ISHARDAS

STATE OF PUNJAB

M. SHELAT

H. R. KHANNA, JJ.

Probation of Offenders Act, 1958

s. 4( !)

Food Adulteration Act, 1954

Qence-- lf Probation of Offenders Act

s. 7(1)

s. 4

Probation of Offenders Act, 1958

s. 16

Food Adulteration Act

Probation of Offenders Act

Probation of Offenders Act

s. 18

Probation of Offenders Act

Probation of Offenders Act

Prevention of Food Adulteration Act

Food Adultoratlon Act

Probation of Offenders Act

R. L. Kohli

V. C. Mahajan

R.· N. Sachthey

Khamm

section 7

section 16(l)(a)(i)

section 4

Probation of Offenders Act

Bedi

section 16

August 1, 1966

Food lrn.pectbr Patiala

Phu! Cinema canteen

Chandigarh

section 7

section 16(1 )(a)

section 4

Probation of Offenders Act

Kohli

Probation of Offenders Act

Probation of Offenders Act

section 7

section 16

Probation of Offenders Act

May 16, 1958

India

May 19, 1958

Punjab

Section 3

section 379

section 380

section 381

section 404

section 420

Indian Penal Code

Indian Penal Code

section 4

section 4

section 6

section 3

section 4

Probation of Offenders Act

Subba Rao

SUPREME COURT REPORTS (1972] 3 S.C.ll

sections 3 and 4

section 4

Section 6

section 3

section 4

section 16

section 6

Probation of Offenders Act

section 4

Probation of Offenders Act

section 4

Probation of Offenders Act

section 6

sections 3

section 18

Probation of Offenders Act

section 5

Prevention of Corruption Act, 1947

section 5

Prevention of Corruption Act

section 5

Probation of Offenders Act

section 5

Prevention of Corruption Act

section 18

Probation of Offenders Act

section 5

section 18

Probation of Offenders Act

Probation of Offenders Act

Probation of Offenders Act

Probation of Offenders Act

Probation of Offenders Act

Probation of Offenders Act

Prevention of Food Adulteration Act

section 4

Probation of Offenders Act

Probation of Offenders Act

Probation of Offenders Act

Probation of Offenders Act

section 16

Probation of Offenders Act

section 6

section 4

Probation of Offenders Act


VIDYA RAM MISHRA

,,,

MAi"'iAGING COMMITI'EE, SHRI JAi NARAIN COLLEGE.

JalfWJry 31, 1972

[K. s. llEGDE, P. JAGANMOHAN R, EDDY AND K. K. MATHEW, JJ.]

Contract of service-Whether Courl,< enforce specific performance of contract of service-;/ not, Its remedy.

'Tue appellant joined as a lecturer in a College in U.P. On the baaia of certain complaints received by the Manaser of the Collese, cbaraeo were framed '1gainst him and his explanation was called for. He submitted an explanation. The explanation was found unsatisfactory and the Managing Committee passed a molution for removal of the appellant from service. The relevant smtutes governing the present case are Statutes 151, 152 and 153 framed under tho provisions of the Lucknow University Act,

1920. The appellant filed a wnt petition before the HIJ!h Court challeng ing the validity of the reoolu.tion and a learned single Judge finding that the Managing Committee acted in violation of the principles of natrftl justice, qusshed the resolution and allowed the writ petition. On appeal, a Division Bench set aside the order of the learned single judge and dis miased the writ petition on the ground that no writ lies in the facts Cll!.d

c!rclll!\lltances of the case. The remedy of the appellant lay in a suit fol' damages.

On behalf of the appellant it was contended that the appellant had a statutory status, that his services were terminated in violation of the provisionA Of the statutes pas!ed under the Lucknow University Act, 1920 and therefore, the High Court was wrong in its conclusions that no writ of certiorari would lie against the respondent It was further 111bmitted that the appellGDt was not given a reasonable opportunity of defending hirmelt

against the charges. Statute 151 provides that a teacher of an associated College shall be o.ppointed on a written contract and the contract ahall provide the conditions mentioned there in addition to such other condl tions as the associated College may include in the agreement Oause S

of the agreement provides that the Managing Committee may dispense with the services of a lecturer without notice if the Committee is satisfied that it is neoess:iry to remove the said lectu= for misconduct or other wi•e, provided, an opportunity is given to him by the Committee to give his explanation before a decision is arrived at.

Dismissing the appeal.

HELD : (I) When there is a purported termination of a contract of service, a declaration that o. contract of service still subsisted would not be made in the absence of special circumstances and courts do not ordi narily enforce specific performance of a contract of service. The remedy of the victim lies in a claim for d'3.ntages, not a claim for a declaration that the contract of service still subsisted. [322 E-F]

Executive Committee of U.P. State Warehousing Corporation Ltd. v.

Chandra Kiran Tyagi, [1970] 2 S.C.R. 250; and Indian AMlnes Corp01wtlon v. Sukh Dev Rai, A.I.R. 1971 S.C. 1828 followed.

(2) On a plain meaning of statute lSl, it is cilear that it only provides that the telrms and conditions mentioned therein must be incorporated in

v. ll. MISHRA v. JAi NARAIN COLLBGB (Mathew, I.) 321

A the contract to be entered into between the College and the teacher con cel'ned. It does not say that the terms and conditions have any legal force,

until and unless they are embodied in an '1greement. The terms and con ditions of service. mentioned in Statute I 51 have proprio vigore, no fon:e

of law.

They becom~ terms of ice only by virtue of their being in• corporated in a contract. Without the cpntract, they have no vitality and can confer no legal right.

Therefore, the 3ppellant cannot find a cause of action of any breach of law, but only on the breach of the contract, B for which a writ in the nature of ceritiorari will not lie [327 H]

(3) A writ will lie when the order is the order of a statutory body <!Cling in brea.Cti of a mandatory obligation imposed by a statute.

The College or the Managing Committee in question, is not a statutory body and f'O the High Court is right is dismissing the petition. f328 DJ

Further, since the High Court has no jurisdiction, it is not necessary to go into the question as to whether the 3ppellant was given sufficient opportunity to meet the charges against him. [328 G)

CIVIL APPBLLATB JURISDICTION : C.A. No. 2 Of 1972.

Appeal by Special Leave from the judgment and order dated April 13, 1970 of the Allahabad High Court in Special Appeal No. 1074 of 1968.

M. C. Seta/vad, P. N. Tiwari, I. B. Dadachanji and Co. for the appellant.

R. K. Garg and S. C. Agarwal, for the respondents.

The Judgment of the Court was delivered by

Mathew, J, The appellant filed a writ petition before the High Court of Allahabad, Lucknow Bench, challenging the vali- . dity of a resolution passed on 12-11-1967 by the Managing Committee of the Jai Narain College, Lucknow, formerly known as Kanyakubja Degree College, an associated college of the Luck now University, terminating his services, and praying for issue of an appropriate writ or order quashing the resolution. A learned single judge of that Court, finding that in terminating the services, the Managing COlllDlittee acted in violation of principles of natural justice, quashed the resolution and allowed the Writ petition: The Managing Committee appealed against the order. A Division Bench of the High Court found that the relationship between the College and the appellant was that of master and servant and that even if the service of the appellant has been terminated in breach of the audi alteram partem rule of natural justice, the remedy of the appellant was to file a suit for damages and not to apply under Article 226 of the Constitution for a writ

or order in the nature of certiorari and that in fact no principle A of natural justice was violated by terminating the services of the appellant as the appellant was given an opportunity of submitting his explanation to the charges.

The Bench, therefore, set aside the order of the learned single judge and dismissed the writ petition. It is from this judgment that the appeal has been preferred by special leave.

The appellant joined the service of the college as lecturer in

1946. He was promoted to the post of Head of the Department of Z.Oology in 1959 .. on the basis of certain complaints against him received by the Manager of the College, charges were framed against him and his explanation was called for.

He submitted an explanation. The explanation was found not to be satisfac- C tory and the Managing Committee . passed a resolution on 12-11-1967 for removal of the appellant from service.

As already stated, this was the resolution challenged by the appellant in the writ petition.

On behalf of .the appellant, Mr. M. C. .Setalvad, contended D that the appellant had a statutory status, that his services were terminated in violation of the provisions of statutes passed under the Lucknow University Act, 1920 and, therefore the High court was wrong in its conclusions that no application for a writ or order in the nature of certiorari would lie.

He further submitted that the appellant was not given a reasonable opportunity of defending himself against the charges.

It is well settled that, when there is a purported termin@on of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special circumstances, because. of the principle that Courts do not ordinarily enforce specific performance of. contracts of service [see • Executive. Committee of U.P. State.Warehousing Corporation Ltd.

v. Chandra Kiran Tyagi(')] and Indian Alr/ine, r Corporation v.

Sukhdeo Rai('). If the master "rightfully ends the contract, .there can be no complaint. If the master wrongfully ends the

contract, then the servant can pursue a claim for ·. damages.

So even if the master wrongfully dismisses the 11Crvant in breaCh. of the contract, the employment is effectively terminated. In G Ridge v. Baldwin(•), Lord Reid said in his Speech:

''The law regarding master and servant is not in doubt.

There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none.

But if he does so in a manner not

(I) (1970) 2 S.C.R 250.

(l) A.I.R. 1971 S.C. 1828,

(3) (l!l6S) Weekly Law Report!, Vol I, 79.

v. Jt. MISlllA v. JAi NARAIN COLLEGE (Mathew, J.) 323

warranted by the contract he must pay damages mr brcach of contract.

So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its ser~ vants, or the grounds on which it can dismiss them."

A teacher appointed by a University constituted under a statute was held n.ot to be holding an office or status in Vidyo- C daya University v. Silva(') In tha: case the services of the respondent was brought to an end by a resolution of the University Council set up under the statute establisliing the University. The resolution was admittedly passed without hearing the teacher.

Under the statute, the Council was empowered to institute professorships and every a.{lpoinment was to be by an agreement in D writing between the Umversity and the professor and was to be for such period and on such terms as the Council might resolve.

Under section 18 ( e) of the Act, the Council had the power to disiniss an. officer or a teacher on grounds of incapacity or con• duct which, in the opinion of not less than two-thirds --of the mem\lers of the Council, rendered him unfit to be an officer or a

E teacher of the University. Such a resolution with the requisite majority was passed. The Act gave no right to the teacher of being heard by the Council. The Privy Council held that the mere circumstances that the University was established by the statute and was regulated by statutory enactments contained in the Act did not mean that the contracts of employment made with teachers, though subject to section 18 ( e), were other than ordi- nary contracts of master and servant and, therefore, the procedure of being hearcl invoked by the respondent was not available to him and no writ could be issued against the University.

The decision in this case has been criticised by academic writel'S {see Jaffe, English and American Judges as Law Makers, G p. 26; S.A. de Smith, Judicial Review of Administrative Action, pp. 214-215; G. Ganz, Public Law Principles applicable to Dismissal from Employment, Modern Law Review, Vol. 30 pp. 288- 291). Recently the House 0f Lords considered the question in Malloch v. Aberdeen Corporation('). That case concerned a teacher in Scotland who was dismissed by the Education Committee for the reason that he was not registered in tenns of para- H graph 2 of schedule 2 to the Teachers' (Education, Training and Registration) (Scotland) Regulations, 1967, made under section

!I) !1964] 3 All E.R. 865.

(2) (1971) 1 W.L, Q.. IS7S,

2(1) of the Education (Scotland) Act, 1962, and the amending A regulation 4(2) of the Schools (Scotland) Code, 1956. In an action against the education authority, he claimed that the purported dismissal was a nullity in that it was contrary to natural justice since he had not been given a hearing.. It was held (Lord Morris and Lord Guest dissenting) that the teacher had a right to be heard before he was dismissed as according to the U: majority he was holding an office.

In the course of his speech, Lord Wilberforce made certain observations :

"A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon is denied protection which is given to a hospital doctor; a University professor, as a servant, has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied [see Barber v.

Manchester Regional Hospital Board (1958) 1 W.L.R. 181, Palmar v. Inverness Hospitals Board of Management, [1963], S.C. 311, Vidyodaya University Council

v. Silva (1965) 1 W.L.R. 77, Vine v. National Dock Labour Board [1957] A.C. 488, Glynn v. Keele University (1971) 1 W.L.R. 487].

One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assure that this is inevitably so), these must be confined to what have been called "pure master and servant cases", which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedu-· ral requirements to be observed, and failure to observe: them may result in a dismissal being declared to be void."

and then he said as regards the decision in Vidyodaya University Council v. Silva(') : ·

"It would not be necessary or appropriate to <.m- .. agree with the procedural or even the factual bas~ en H which this decision rests : but I must confess that I

(!) [1964] 3 All E.R. 865.

could not. follow it in this country in so far as it involves a denial of any remedy of administrative law to anologous employments. Statutocy provisions similar to those on which the employment rested would tend to show, to my mind, in England or in ScOtland, that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an office, to attract appropriate remedies of administrative law." Whether the decision in Vidyodaya University Council v.

Silva ( 1) is correct or not, in this case, we think there was no element of public employment, nothing in the nature of an office or status which is capable of protection.

In S. R. Tewari v. Disll:ict Board, Agra('), this Court formulated the exceptions to the general rule that when there is a termination of a contract of service, a declaration that the conract of service still subsisted would not be made, by saying :

"But this rule is sub.iect to certain well recognised exceptions. It is open to the Courts, in an appropriate case, to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly, under the industrial law, jurisdiction of the labour and. -- industrial tribunals t:O compel the employer to employ a worker, whom he does not desire to employ, is recognised. _ The Courts are also mvested with the power to declare invalid the act of a statutocy body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the statute, even if by malcing the declaration the body is compelled to do something which it does not desire to do." Mr. Setalvad contended that since the con.e in queetion Is affiliated to a statutocy body, namely, the University of Lucknow, and is governod by the relevant statutes and ordinances framed under the provisions of Lucknow University Act, 1920, &n)' violation of the statute or the ordinance in the matter of termi nating the services of a teacher would attract the jurisdiction ol the High Court under Article 226 of the Constitution as. statutes and ordinances have the force of law. In support of this, counsel relied upon the decision of this Court in Prabhakar Ramakrishna Jodh v. A. L. Pande and another('). The , appeJlant before this Court in that case was a teacher in a college affiliated to the University of Saugar and managed by the Governing Body

(I) (19641 3 All E.R. 865,

(2) (19641 3 S.C.R. SS.

(3) (19651 2 S.C.R. 713,

established under the provisions of the relevant ordinance made A under the University of Saugar Act. Certain charges were framed against the appellant by the Principal of the Collc:ge and he was asked to submit his explanation. The appellant in his explanation denied all the charges and requested for particulars on which one of the charges was based.

The particulars were not supplied and the Governing Body ter\ninated his services a without holding any enquiry. The appellilnt moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement.

He contended that the Governing Body had made the order in violation of the provisions of Ordinance 20, otherwise called the 'College Code', framed under section 32 of the University of Saugar Act read with section 6(6) of that Act.

Clause 8(vi) (a) C of the College Code provided that the Governing Body of the college shall not terminate the services of a confirmed teacher without holding an enquiry and without giving him an opportunity of defe9ding himself.

The High Court held that the conditions of service of the appellant were governed not by the 'College Code' but by the contract made between the Governing Body and D the appellant under clause 7 of the College Code-which stated that all teachers of the college shall be appointed under a written contract in the form prescribed-, that the provision8 of the 'College Code' were merely conditions prescribed for affiliation of colleges and that no legal rights were created by the 'College Code' in favour of the teachers of the affiliated colleges as against E the Governing Body.

The High Court, therefore, dismissed the petition.

In appeal to this Court it was held that the 'College Code' had the force of law and that it not merely regulated the legal relationship between the affiliated colleges and .the University but also conferred legal rights on the teachers of affiliated colleges.

The Court further said F "It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be 'appointed on a written contract in the form prescribed in Sch. A but th_at does not mean that teachers have merely a con- tractual remedy against the Governing Body of the College.

On the other hand, we are of opiniqn that the

G provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers' service conditions ...... "

When once this Court came to the conclusion that .the • 'College Code' had the force of law and conferred rights on the teachers H of affiliated colleges, the right to challenge the order terminating the services of the appellant, passed in violation of clause 8(vi)

(a) of the 'College Code' in a proceeding under Articls 226

A followed 'as the night the day' and the fact that the appellant had entered into a \)Ontract was considered as immaterial.

In the case in hand, the position is entirely different, The relevant statutes governing this case are statutes 151, 152 and

153, framed under the provisions of the Lucknow University Act,

1920. Statute 151 provides that teachers of an Associated B College including the principal shall be appointed on written contract and that the contract shall inter alia provide the conditions mentioned therein in addition to such other conditions not inconsistent with the Act and the statutes as an Associated College may include in its own form of agreement.

Then the conditions as regards salary, age of retirement, etc., are enume- C rated, The statute then goes on to specify the grounds on which a teacher's services can be terminated.

Statute 152 states that the form of agreement to be adopted by each college shall be approved by the Executive Council before it is put in force.

Statute 153 provides for a form of agreement which shall serve as a model.

It may be noted that statute 151 does not provide D for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract. Nor does the model fotm of. contract lay down any particular procedure for that purpose.

The appellant had entered into an agreement when he was employed in the college.

Clause 5 of the agreement pr<wlded that:

''the period of probation shall be one year unless .ixtended by the Managing Committee and the College may at any time during the said period of probation put an end to this engagement, or if service shall continue beyond the said term, at any time thereafter, dispense with the services of the said Lecturer without notice, if the Managing Committee oLthe said College is satisfied that it is necessary to remove the said Lecturer for misconduct, insubordination or habitual neglect of duty on the part of the said Lecturer or in case any of the conditions herein specified have been broken by the said Lecturer provided that an opportunity is given to him by the. said Managing Committee to give his explanation before a decision is arrived at."

On a plain reading statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in ·the contract to be entered into between the H college and the teacher concerned. It does not say that the terms and conditions have any legal forcie, until and unless they are embodied in an agreement.

To put it in other words, the terms and conditions of service mentioned in Statute 151 have proprio

vigore no force of law. 'They become terms and conditions of A service only by virtue of their being incorporated in the contract.

Without the contract, they have no vitality and can confer no legal rights.

Whereas in the case of Prabhakar Ramakrishna J odh v. A.

L. Pande and another('), the terms and conditions of service B embodied in clause 8(vi)(a) of the 'College Code' had the force of Jaw apart from the contract and conferred rights on the appellant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract.

Therefor!l, appellant cannot found a cause of action on any breach of the Jaw but only on the breach of the contract.

AB c already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract; So, clause 5 of the contract can, in no event, have even a statutory flavour and for its breach, the appellant's remedy lay elsewhei:.

Besides, in order th11t the third exception to the genenil rule D that no writ will lie to quash an order tennlnating a contract of service, albeit illegally, as stated in S. R. Tewari v. District Board,

Agra(') might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obliga tion imposed by a statute.

The college, or the Managing Com mittee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand will fall under the third excep- I tion cannot be accepted.

The contention of counsel that this Court has sub silentio sanctioned the issue of a writ under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh v.

A. L. Pande and another( 1), and, therefore, the fact that the college or the managing committee was not a statutory body was r no hindrance to the High Court issuing the writ prayed for by the appellant has no merit as this Court expressly stated in the judgment , that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court.

In this view of the matter, it is quite unnecessary to go into the question whether the appellant was . given sufficient opportu G nity to meet the charges agamst him.

We hold that the High Court was right in its view that the writ petition was incompetent.

We, therefore, dismiss the appeal but, in the circumstances, we make no order as to cos_ts.

S. N.

(I) [1965] 2 $.C.R.. 7!3,

Appeal dismissed

(2) [1964] 3 S.CR. 6SS.

VIDYA RAM MISHRA

MANAGING COMMITIEE, SHRI JAI NARAIN COLLEGE

K. K. MATHEW, JJ.

Lucknow University Act

Lucknow University Act, 1920

[1970] 2 S.C.R. 250

CIVIL APPBLLATB JURISDICTION

Allahabad High Court

M. C. Seta

P. N. Tiwari

I. B. Dadachanji and Co.

R. K. Garg

S. C. Agarwal

Mathew

High Court of Allahabad, Lucknow Bench

Article 226

M. C. .Setalvad

Lucknow University Act, 1920

Reid

(1970) 2 S.C.R 250

section 18

section 18

S.A. de Smith

Judicial Review of Administrative Act

G. Ganz

Scotland

Morris

Wilberforce

England

ScOtland

Article 311

Setalvad

University of Lucknow

Lucknow University Act, 1920

Article 226

University of Saugar

Article 226

section 32

section 6(6)

Clause 8(vi)

clause 7

Clause 7

Clause 8

clause 8(vi)

Lucknow University Act

Clause 5

clause 8(vi)(a)

clause 5

Article 226

[1964] 3 S.CR. 6


321>

HARU DAS GUPTA

STATE OF WEST BENGAL February 1, 1972

[J.M. SHBLAT AND H. R. KHANNA, JJ.J

West Bengal (Prevention of Violent Activities) Act, (Presidenfs Act 19 of 1970), ss. 12 and 13-Period of three months from the date of detention-Method of computation.

The petitioner was arrested and detained on February 5, 1971 under C s. 3 of the West Bengal (Prevention of Violent Activities) Act, 1970.

After receipt of the report of the Advisory Board, the St>te Government confirmed the detention order on May 5, 1971.

On the question whether the c"'1firmation was made one day after the expiration of the period of 3 months from the date of detention.

HELD : The

0 effect ol defining a period from such a day until such a day within which an '1Ct is to he done is to exclude the first day and to include the last day; and tberefdre, in the present case, the order of confirmation was made before the expiration of the period of three months. from the date of detention. [331 E-FJ

Young v. Higgon, 6 M & W 50 = 151 E.R. (Ex.) 317, RadcliDe v •.

Bartholomew, [1892) 1 Q.B. 161. Williams v.

Burges 10 L.J.O.B. 10, Hardy v. Rlye, 9 B & C 603, English v. CliD, [1914) 2 Ch. 376, Goldsmiths' E Co. v. West Metropolitan Rly. Co. [1904] 1 K.B. 1, S, Cartwright v.

MacCormac, [1963] 1 All E.R. U; 13, Marren v. Dawson Bentley cl CO.:

Ltd., [1961) 2 Q.B. 135, Stewart v. Chanman, U951) 2 K.B. 792, In re: .

North, Ex parte Hasluck, , H895] 2 Q.B. 264 and Halsbury's Laws of Eng-· land 3rd ed. Vol. 37, pp. 92 and 95) refererd to.

ORIGINAL JURISDICTION: Writ Petition No. 287 of 1971 ..

Under article 32 .of the Constitution of India for a writ in the, nature or habeas corpus.

N. N. Goswami, for the petitioner.

D, N. Mukherjee, Sukumar Basu and G. S. Chatterjee, for the respondent.

The Judgment of the Coun was delivered by

Shelat, J.

The petitioner was arrested and detained on February 5, 1971 in pursuance of an order of detention passed on that very day by the Qistrict Magistrate, 24 Parganas under sec. 3(1) and (3) of the West Bengal (Prevention of Violent Activities)· Act, President's Act 19 of 1970.

There is no dispute that, as required by !he Act, his case was: referred to the Advisory Board and on receii>t of its rep<>.\'t that

330.

SUPREME COURT REPORTS

[1972] 3 S.C.R.

there was sufficient cause for his detention, the State Government under sec. 12 of the ct made an order or decision confirming the said deten1ion order and continuing his detenion thereunder.

The order of confirmation and continuation was made on May 5, 1971. .

The only contention raised in this petition was that the order or decision of confirmation of the said detention order was made one day after the explra11ion of the period of three months from the date of detention, that the said period of three months would end on the midnight of May 4, 1971, and that any confirmation .. and continuation of detention made othereaher would not oo valid.

The question is when can 1ihe period of three months from the date of detention be saic\ to have expired. . When a period of tiine running from a given day or event to another day or event is prescribed by law or fixed by contract and the qiiestion arises whether the computaticin is to be made inclusively or exclusively of the first-mentiQned Qr of the last-mentioned day, regard must be had to the context and to the purpose for which the computa- . tion has to be made. (Halsbury's Laws of Eng/and, (3rd. ed.) vol 37, p. 92).

There is, however, a volume of authority in England showing that where a certain thing has to be done within a specified period, the day on which the cause of action arose is to be excluded from computation and the day on which such action is taken is to be included. As early as 1840, Parke, B. laid down this rule in Young v. Higgon('). In Radc(ifje v. Bartholomew(2 ), Wills, J., relying on Williams v. Burgess(') and Hardy v. Ryle('), held that a complaint under the Prevention of Cruelty to Animals Act, filed on June 30, in respedt of an act alleged to have been committed on May 30, was "within one calendar monllh after

the cause of such complaint shall arise". He held so on the principle that the day on which the cause for the complaint arose had to F be excluded while computing the period within which under the Act othe complaint had to be filed. In Williams v. Burgess,( 8 ) the staJtute directed warrants of attorney to be filed "within twentyone days after their execution", and it was held that a warrant executed on the 9th day of the month would be regarded as having been filed in proper time if filed on the 30th, the day of execution being one which had to be excluded.

On the other hand, in a case where a settler by a settlement, dated May 13, 1892, conve}OO real estate unto anil to the use of the trustees upon trust !hereinafter declared and it was thereby declared that they should stand possessed of the said premises during the term of twentyone years from 1; he date thereof upon trust to apply the rents and

(1) 6 M & .w 50-151 English Reports (Ex) 317.

(2) [18921

I Q.B. 161.

(3) JO L.J. Q.B. 10. c(4) 9 B . & C 603.

H. D. GUPTA V. WEST BENGAL (She/at, ].) 331

profits as therein mentioned and it was further declared that the trustees should at the expiration of the said term of twenty-one years sell the said premises and pursuant the said trust for sale the trustees contracted to sell the real estate on June 20, 1913, it was held tllat the term of twenty-one years commenced from

the midnigh' of May 12, 1892, and therefore, the trust was not void for remoteness on the ground of exceeding a term of twentyone years from its creation. [see English v. Cliff(1)].

These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. [see Goldsmiths' Company v. The West Metropolitan Railway Company(')]. This rule was followed in Cartwright v. Mac- Cormack('), where the expression "fifteen days from.the date of commencement of the P.olicy" in a cover note issued by an insur7 ance company was cons.trued .as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Co. Ltd.,(4) a case for compensation for injuries received in the course of employment, where for purposes of computing' the period of limitation the date of tho accident, being the date of the cause of action, was excluded. [see also Stewart v: Chanman(') and In re North, Ex parte Hasluck(')]. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (see Halsbury's Laws of England, (3rd ed.) vol. 37, pp. 92 and 95) There is no reason why the aforesaid mle of construction followed consistently and for so long should not also be applied here.

In computing the period of three months from the date of detention, which was February 5, 1971, before the expiration of which the order or decision for confirming the detention order and continuation of the detention therennder had to be made, the date of the commencement of detention, namely, February 5, 1971, has to be excluded.

So done, the order of confirmation was made before the expiration of the period of three months from the date of detention.

The contention rais¢ on behalf of the petitioner, thus, cannot be sustained. Accordingly the writ petition is dismissed.

V.P.S.

(I) (19141 2 Ch 376.

(3) [1963] I All E.R. II at p. 13.

(5) (1951] 2 K.B. 792.

Petition dismissed.

(2) (1904) IK.B. I, at p. 5.

(4) [1961] 2Q.B. 135.

(6) [18951 2 Q.B. 264.

HARU DAS GUPTA

STATE OF WEST BENGAL

February 1, 1972

H. R. KHANNA, JJ

Prevention of Violent Act

ss. 12 and 13

s. 3

Prevention of Violent Act

article 32

Constitution of India

N. N. Goswami

D, N. Mukherjee

Sukumar Basu

G. S. Chatterjee

Shelat

sec. 3(1)

Prevention of Violent Act

sec. 12

May 5, 1971

England

Parke

Wills

Prevention of Cruelty to Animals Act

May 13, 1892

May 12, 1892