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MUNSHI RAM AND ORS.

MUNICIPAL COMMITTEE, CHHEHARTA

March 6, 1979

[R. S. SARKARIA, P. S. KAILASAM AND 0. CHINNAPPA REDDY, JJ.j

Punjab Municipal Act. 1911, Sections 84,86- Jurisdiction of the Civil Court, of levy of profession tax on the firm and also its partners-Punjab General Clauses Act Sec. 2(40) and Cqnstitution Art. 276(2) .

Punjab, Municipal Acf, 1911, Sections 84-86-Juri.sdictiori of the Civil Court, whether a bar to hear and deternzine suit relating to levy of profession tax under the Act.

Under section 61(1)(b) of the Punjab Municipal Act, 1911 the responde<>t by its Notification dated May 15, 1946 levied a profession tax ot Rs. 15/- per annum on each of th'e partners of a firm.

Bharat Industries Chheharta i.e. the appellants in the appeal.

By the Notification dated July 4, 1958 the tax was rai5ed to Rs. 200/- per annum. The validity of the demand made by the respondent at the rate of Rs. 200 /- from each of the partners of the firm was

challenged, pleading that the Municipal Committee in levying the tax on the D individual partners had exceeded its statutory powers under section 61 ( 1) (b) of the Municipal Act in as much as the term 'person' occurring in section 61 (I) (b) of the Punjab Municipal Act, 1911, const111ed in the light of the definition given in sectioo 2(40) of the Punjab General Oauses Act included a 'firm' and since the trade carried on by the firm is one, the tax could be levied only on the firm, and not on the partners individually. The Trial Court dismissed the suit. First appellate court reversed the decree llnd the High E Court in Second Appeal confirmed it. A Letters Patent Appeal, preferred by the respondent was allowed and the Trial Court's decision dismissing the suit was restored.

Dismissing the appeal by special leave, the Court

HELD: 1. It is clear, from 2' plain reading of Section 61(1)(b) that a tax leviable under clause (b) is in terms, a tax on 'persons', which expression F includes natural persons. Its incidence falls on individuals, who belong to a class practising any profession or art, or carrying on 10.• trade or calling in the municipality. To hold that persons who are collectively carrying on a trade in the municipality cannot be taxed .individually, would be to read into the statute words which are not there.

There are no words in c1ause (b) or else\\'here in the stntute which expressly• or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from G being taxed as individuals.

To attract liability to a tax under this clause it is sufficient th6'1 the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnernhip with others.

[467G, 468H, 469A-B]

2 'Partnership' as defined in Section 4 of the Indian Partnership Act, 1932, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of alt. A firm or partnership is not a legal entity separate and distinct from the partners. Firm

11}-253SC1/79 463

A is only a compendious description of the individuals \Yho 1; ompose the firm.

The business being carried on by all or any of the partners, all of them are jointly and severally responsible for the liabilities incurred in the course of the business as each one is considered as an agent of the other. Such partner5 can be taxed as persons, in their individual. [468 D-H]

3. In order to be authorised a tax under clause (b) of Section 61(1) must B satisfy two conditions : First. it must be a tax on persons.

Second, such persons must b'e practising any profession or art or carrying on any trade; or calling in the municipality.

Both the conditions necessary for levying a tax under clause (b) of sub-section (1) of Section 61 of the Municipal Act existed in this case. The appellants are

1persons 1 and they are carrying on a trade in Chheharata Municipality.

[467H, 468A-CJ , C 4(i) Where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that imnner, and an other forumSo and modes of seeking it are excluded.

[470D-E]

(ii) From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by D an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a paticular forum and a specific mode of bQving this remedy, which is analogous to that provided in Section 66(2) of the Indian Income-tax Act, 1922 Section 86 forbids in clear terms the person aggrieved. by an assessment from seeking his r'emedy in any other forum or in a.ny other manner than that provided in the Municipal Act. Therefore, Sections 84 and 86 of the Municipal E Act bar by inevitable implication_, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessrncnt under the Act.

[470B-D, E-F]

(iii) In the facts and circumstances of the case, it is clear

(a) that in assessing the appellants individually, and not collectively to the tax in question, the Municipal Committee did not abuse its powers under the Act, (b) in levyinJl, the profession tax it did not travcI beyond or act contrary to the provisions of section 61(l)(b) of the Act, and (c) that the Committee acted under the Act.

The Civil Courts jurisdiction, therefor, to entertain and decide the suit was barred. [471E-GJ

vf }--

Firnz Seth Radhakishan v. Administrutor, Municipal Comniittee, Ludldaru.t .-

AIR 1973 SC 1547; followed. ' "

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1998 of 1969.

Appeal by Special Leave from the Judgment and Decree dated 3-10-1968 of the Punjab and Haryana High Court in LP.A. No. 348/64.

V. C. Mahajan, Mrs. Urmila Kapoor and Mrs. Shobha Dikshit for the Appellants.

H ardev SLgh for the Respondent. ... ....

" •

111e Judgment of the. Court was cielivered by A

SARKARJA, J .-This appeal by special leave is directed against a judgment, dated October 3, 1968, of the High Comt of Punjab and Har• yana.

The facts leading to this appeal are that the appellants are partners

f a firm, Bharat Industries, Chheharta.

By a Notification, dated May 15, 1946, the Chheharta Municipal Committee levied a profession tax under Section 6l(l)(b) of the Punjab Municipal Act,, 1911.

Initially, the tax was Rs. 15/- per annum and was levied on all the partners of the said firm.

By a Notification, dated July 4, 1958, the annual tax for trade, pro- C fession or calling for the owner of a factory registered under the Indian Factories Act, was raised to Rs. 200/- per annum and each of the six partners of the said firm were assessed to annual tax of Rs. 200/- by the Municipal Committee.

On October 30, 1960, the appellants filed a suit for permanent in- D junction restraining the defendant-Committee from realising the profession tax demanded by it per letters Nos. 15 to 20, dated May 31, 1960, amounting to Rs. 1,200/-.

The appellants challenged the validity of the assessment contending that construed in the light of the definition given in section 2(40) of the Punjab General Clauses Act, the term "person" occurring in E section 6(1) (b) of the Punjab Municipal Act, 1911, includes a 'firm' and since the trade carried on by the 'firm' is one, the tax could be levied only on the firm, and not on the partners individually. On these premises, it was pleaded that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under Section 6l(l)(b) of the Municipal Act.

F The trial court dismissed the suit.

On appeal by the plaintiffs, the Additional District Judge, Amritsar, reversed the judgment of the trial court and decreed the suit.

The Municipal Committee carried a further appeal to the High Court.

The learned Single Judge, who heard the appeal, affirmed the judgment and decree of the first appellate court, on the reasoning which may be summed up as under :

The term "person" iu Section 61 (1 )(b) of the Municipal Act, interpreted in the light of the definition given in Section 2(40) of the Punjab General Clauses Act, includes a 'partnership'. Under clause (b j of Section 61 (1) of the Municipal Act, the basis on which the liability to pay tax arises, is the trade, profession or business; and if the

trade and business is one carried on by several persons collectively in partnership, then the partnership alone, and not the individual partners, are liable to pay the tax; that the liability on the partners will fall twice which is not contemplated by the scheme and language of the Municipal Act, even though all the partners are jointly and severally liable to any tax for the partnership business.

In support of his conclusion that the tax was on trade and not on persons, the learned Judge by way of analogy, referred to clauses (a), (c), (d), (e) and (f) of sub-Section (1).

He also referred to two Madras decisions in The Municipal Commissioners of Nagapatam v.

Sadaya Pillay(1) and Davies v. President of the Madras Municipal Commission(2) : and found himself in entire agreement with the reasoning of the learned Judges in those cases.

Aggrieved, the Municipal Committee preferred a Letters Patent Appeal.

The Appellate Bench of the High Court held that to import the definition of the term "person" occuring in Section 2( 40) of the Punjab General Oauses Act into Section 61 ( l) (b) of the Municipal Act, will be repugnant to the subject.

In the opinion of the Bench, under the scheme of the statute in question, the tax cannot be levied on

a firm or factory as such, but only on the individual owners of the factory or of the firm.

On this reasoning, the Bench reached the conclusion "that under Section 61 (l )(b) of the Act, it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does not suffer from any legal infirmity." The Bench further held that since the Committee in imposing the tax on the appellants herein, has not acted outside the provisions of the statute, "it would, on the basfo of the judgment of the Supreme Court in Firm Seth Radha Kishan (Deceased) represented by Hari Kishan & Ors. v. Administrator Municipal Committee, Ludhiana,(3 ) which also dealt with the provisions of the Municipal Act, follow that the impugned assessment could only be questioned under the provisions of Sections 84 and 86 of the Act, and die jurisdiction of the Civil Court in respect of tax levied or the assessment made is excluded". In the result, the appeal was allowed and the trial court's decision dismissing the suit was restored.

Before us, Mr. V. K. Mahajan, learned counsel for the plaintiffs .. appeJlants, has adopted the reasons given by the learned Single Judge of the High Court.

In support of his contentions, he has relied upon the

(1) !LR 7 Madras 74

(2) !LR 14 Madras 140

(3) AIR 19'3 S.C. 1547

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aforesaid Madras decisions.

His argument is that if the interpretation placed by the Appellate Bench of the High Court is allowed to stand, it will lead to anamolous and unconstitutional results.

Mr. Mahajan concedes that the individual partners are also 'persons' within the meaning of clause (b) of Section 61(1).

He, however, maintains that the firm, also, is a 'person' within the contemplation of this provision and as such, liable to be taxed; that if in respect of the one trade, which is being carried on by the firm, apart from each of the individual partners, the firm, also is separately assessed to Rs. 200(- per annum, not only the incidence of the tax will fall twice, the total liability therefor will far exceed the ceiling of Rs. 250/- per annum fixed by Article 276(2) of the Constitution.

In these premises, it is contended that an interpretation of Sec• tion 61 (1) (b), which may lead to unconstitutional on irrational results should be eschewed.

With regard to the question of jurisdiction it is contended that since the Municipal Committee had in the exercise of its powers clearly acted

beyond its jurisdiction, the suit was maintainable in the Civil Court.

Section 61(1)(b) of the Municipal Act, so far as material for this case, reads as under :

"Subject to any general or special orders which the State Government may make in this behalf, and the rules, any committee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the following !axe's, namely :-

(1) (a) ..................... .

(i) to (iii) ................. .

(b) a tax on persons practising any profession or art or carrying on any trade or calling in the municipality.

Explanation.-A person in the service or person holding an office under the State Government or the Central Government or a local or other public authority shall be deemed to be G practising a profession within the meaning of this sub-section."

From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) Is, in terms, a tax on "persons".

The expression "persons" undoubtedly includes natural persons.

The class of such taxable persons has been indicated by the Legislature with re.; H ference to their occupational activity.

Thus, in order to be authorised, a tax under clause (b) of Section 61 ( 1) must satisfy two conditions :

r A First, it must be a tax on "persons". Second such persons must be practising any profession or art or carrying on any trade or calling in the municipality.

I - G

There can be no dispute that the appellants are "persons" and, as such, satisfy the first condition. Even the learned counsel for the appellants has candidly conceded that the individual partners are also "pt:rsons" within the meaning of the said clause (b).

Controversy thus becomes narrowed down into the issue; Whether persons collectively doing business in partnership, in the municipality, fulfil the second condition ? That is to say, do such persons "carry of any trade or calling in the municipality" within the contemplation of clause (b) ?

In our opinion, for reasons that follow, the answer to this question must be in the affimative.

'Partnership' as defined in Section 4 of the Indian Partnership Act, 1932, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all.

The Section further makes it clear that a firm or partnership is not a legal entity sieparate and distinct from the partners.

Firm is only a compendious description of the individuals who compose the firm.

The crucial words in the definition of 'partnership' are tho'se that have be<m underlined.

They hold the key to the question posed above.

Th•oY show that the business Is carried on by all or any of the partners. In the instant case, admittedly, all the plaintiff-appellants are carrying on the business in partnership.

All the 'six partners are sharing the profits and losses.

All the partners are jointly and severally responsil:le for the liabilities incorrect or obligations incurred in the course of the business.

Each partner is considered an agent of the other.

This being the position, it is not possible to hold that each of the six partners is not carrying on a trade or calling within the purview of clause (b) .of

Section 61 ( 1) of the Municipal Act.

At the most, it can be said that each of these six persons is severally as well as collective.ly carrying on a trade in the Municipality.

There is nothing in the language of Section 61 or the scheme of the Municipal Act which warrants the construction that persons who are carrying on a trade in association or partnership with each other cannot be individually taxed under clau:; e

(b) of Section 61 ( 1). On the contrary, definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity. As noticed already, clause

(b) makes it clear i'n no uncertain terms that this is a tax on 'persons.' Its incidence falls on individuals, who belong to a class practising any profession or art; or carrying on a trade or calling in the municipality.

To hold that persons who arc collectively carrying on a trade in the A municipality cannot be taxed individually, would be to read into the statute words which are not there. There are no words in clause (b) or elsewhere in the statute which, expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals. To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying B on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others. Thus, both the conditions necessary for levying a tax under clause (b) of subsection (1) of Section 61 of the Municipal Act existed in this case. The appellants arc "persons" and they are carrying on a trade in Chheharata \ c Municipality.

In the view we take, we do not think it necessary to go further into the question, whether the definition of 'person' given in Sxtion 2(40) of the Pnnjab General Clauses Act, can be imported into the statute under consideration, so as to include a contractual firm, also, within the purview of the expression 'persons' used in clause (b) of Section 61 ( 1).

Indeed, the entire effort to import the definition of 'person' given in the General Clauses Act, into Section 61 (1) (b) of the Municipal Act, is directed to find a foundation for the argument, that the constructiou adopted by the High Court could lead to double taxation and even unconstitutional results.

But in the instant case, nothing of this kind bas happe.ned.

The firm has not been assessed.

No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/- fixed by Article 276(2) of the Constitution, arises on the facts of the present case.

The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, and speculative.

This takes us to the second question, whether the Civil Court had jurisdiction to hear and determine the suit.

Section 84( 1) of the Punjab Municipal Act provides that "an appeal against the assessment or levy of any. . . . tax under tllis Act, shall lie to the Deputy Commissioner or to such other officer as may be empowered by the State Government in this behalf'. Then, there is a proviso to this sub-section which says that when the Deputy Commissioner or such other officw, as aforesaid, is or was, when the tax wa:s imposed, a member of the Committee, the appeal shall lie to the Commissioner of the Division.

Sub-section (12) is important.

It provides :

"84(2). If,, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable dobut, he may, either of his own

motion or on .the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court." Section 86 mandates that "no objection shall be taken to any valua· tion or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act."

From a conjoint reading of sections 84 and 86, it Is plain that tlm Municipal Act, gives a special and particular remedy for the pe; rson aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle olt

assessment.

The Act further provides a particular forum and a 'specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income-tax Act, 1922.

Section 86 forbids in clear terms the person aggrieved by an assessment from seeking hfo remedy in any other forum or in any other manner than that provided in the Municipal Act.

It is well recognised that where a Revenue Statute provides for a per .. son aggrieved by an assessment thereunder, a particular remedy to be

sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seek ing it are excluded.

Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implica·

tion,, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.

In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan v. Admi11istrator, Municipal Committee, Ludhiana, (supra) wherein sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for consideration. Therein, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambhar salt and assessed the appellant, therein, to a sum of Rs. 5,893 /- towards that tax at the rate of Rs. 10/- per maund under item 69 of the Government Notification by which the terminal tax was imposed.

The assessee filed a suit against the Municipal Committee in the Civil Court, con-· tending that Sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed. under item 69 at the higher rate, and claimed refund of the amount i; iaid by him, with interest. The Committee, inter alia, contended that Sambhar salt was not common salt, and the Civil Court had no juriS· diction to entertain the suit.

The trial court held tha, t .Sambhar salt was common salt within the meaning of item 68 of the Schedule, that

the imposition of tax on it under item 69 of the Schedule was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of section 9 of the Code of Civil Procedure.

On appeal, the High Court held that the Civil Court had no jurisdiction, and dismissed the suit.

The assessee came in appeal to this Court by certificate granted by the High Court, and contended that since the impugneJ levy was not made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit.

Delivering the judgment of the Court, Subba Rao, J. (as he then was) repelled this contention, observing that the rate of the tax to be levied depended upon the character of the salt, and it was not possible to say that in •ascertaining this fact the authoritib concerned travelled outside the provisions of tl1e Municipal Act, even if they wrongly applied item 69 of the schedule; that the mistake in applying the wrong item of the Schedule to the tax could be correclcd only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Court's jurisdiction having been excluded by the provisions of Sections 84 and 86 of -Of the Act.

The Court distinguished that class of rnses where the Municipal Committee in levying a tax or committing an Act, clearly acts outside or in abuse of its powers under the Municipal Act, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would not apply.

Can the case before us be said to belong to that chtss of cases where the Municipal Committee in levying a Tax acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative.

By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, indivi\lually, and not collectively, to the tax in question, the Municipal Committee abused its powers under the Act.

We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions -0f Section 61 (I) (b) of the Act.

In short, the present case is one where the Municipal Committee acted "under the Act".

It follows, therefore, that the Civil Court's jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein related to the principle of assessment to be followed.

For the foregoing reasons, the appeal fails and is dismissed with costs.

V.D.K.

Appeal dismissed.

MUNSHI RAM AND ORS

MUNICIPAL COMMITTEE, CHHEHARTA

R. S. SARKARIA

P. S. KAILASAM

0. CHINNAPPA REDDY, JJ

Punjab Municipal Act

Sections 84

Punjab General Clauses Act

Sec. 2(40)

Art. 276(2)

Sections 84

section 61(1)(b)

Punjab Municipal Act, 1911

section 61

section 61

Punjab Municipal Act, 1911

Section 61(1)(b)

Section 4

Indian Partnership Act, 1932

Section 61(1)

Section 61

Chheharata Municipality

sections 84 and 86

Section 66(2)

Indian Income-tax Act, 1922

Section 86

Sections 84 and 86

section 61(l)(b)

AIR 1973 SC 1547

V. C. Mahajan

Urmila Kapoor

Shobha Dikshit

H ardev SLgh

A

SARKARJA

Chheharta Municipal Committee

Section 6

Factories Act

October 30, 1960

May 31, 1960

section 2(40)

General Clauses Act

section 6(1)

Punjab Municipal Act, 1911

Section 6

Additional District Judge, Amritsar

Section 61

Section 2(40)

General Clauses Act

Section 61

Madras

Section 2( 40)

Section 61

Section 61

Supreme Court

Seth Radha Kishan

Sections 84 and 86

V. K. Mahajan

Mahajan

Section 61(1)

Article 276(2)

Section 61(1)(b)

Central Government

Section 61

Section 4

Indian Partnership Act, 1932

Section 61

Section 61

Section 61

Section 61

Chheharata \ c Municipality

General Clauses Act

Section 61

General Clauses Act

Section 61

Article 276(2)

Section 84( 1)

Section 86

sections 84 and 86

Is plain that tlm Municipal Act

Section 66

Indian Income-tax Act, 1922

Section 86

sections 84 and 86

sections 84 and 86

Punjab Municipal Act, 1911

Municipal Committee, Ludhiana

section 9

the Code of Civil Procedure

Subba Rao

Sections 84 and 86

Section 61


SUPERINTENDENT AND LEGAL REMEMBRANCER OF

LEGAL AFFAIRS TO THE GOVT. OF WEST BENGAL

ABANI MAITY

March 6, 1979

(R. S. SARKARIA, P. S. KA!LASAM AND 0. CHINNAPPA REDDY, JJ.J Bengal Excise Act, 1909-Ss. 63 and 64-Seope of.

Interpretation of Statutres-"Shall be liable to confiscation" and "may ordtr confiscation"-Whether have a con1pulsive force-"Liable"-Meaning of.

Section 63(1) of the Bengal Excise Act, 1909 provides that whenever on offence punishable under the Act had been committed, the intoxicant material and the means Gy which such offence had been committed "shall be //able to coff.

fiscation'.

Section 64( 1) provides that when the Magistrate decides that an.rthing is liable to confiscation under s. 63 he may either order confiscation or give the owner an option to pay in lieu of confiscation such fine as he thinks fit.

The respondent was found carrying contraband ganja in a car of which be was the owner.

The Magistrate passing the order of conviction and sentence against him, did not pass orders for the disposal of the contraband goods a-d confiscation of the car which was seized.

On the question whether the words "liable to" used in the context of "'oonfiscation" in s. 63(1) convey an absolute imperative or merely loove it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence had been committed.

Allowing the appeal,

HELD : 1. It is imperative for the Magistrate to pass, at the conclusion of the trial, in addition to the conviction and sentence, an order of confiscation of the car by means of which the offence was committed. [481 A]

2. The expressions "shall be Iirtble to confiscation" and "1nay" in the sections were intended to have a con1pulsive force.

As soon as the conditions of s. 63, namely, that the conveyance had been used for carrying the contrabi:1nd intoxicant and that the owner of that conveyance was i1nplicated in the commissioa of the offences arc established the word "may" in s. 64(1) acquires. th~

force of "must".

The discretion of the ~Iagistrate is restricted to a choice between the two alternatives mentioned in s. 64(1) namely, confiscation of the conveyance. or imposition of fine in Heu thereof. [478 F; 480 G-H]

3. Ordinarily the word liable" has been held as conveying not an absolute obligation or penalty but as merely importing a possibility of attracting such obligation or penalty even where it is used with the words "shaII be." But a statute is not to be interpreted merely from the lexicographer's angle.

Exposi~ tion ex visceribus actus is a long recognised n1le of construction. Words in a statute often take their meaning from the context of the statute a5 a whole; they are not to be construed in isolation. The purpose of the Excise Act is not merely to raise revenue but also to stop free use of intoxicants and illegal

• J -'y

' . ··\'

trade in them which has a deleterious effect on public health and morals. Thllfl A considered both the expressions are intended to have a compulsive force. [477

B-HJ

lndo-China Steam Navigation Co. Ltd. v. lasiit Singh, Addi. Collector of Customs & Ors., [1964] 6 SCR 594; held in applicable.

CRIMINAL APPELLATE JURISDICTION : Crimind Appeal No, 57 of 1972.

Appeal by Special Leave from the Judgment and Order dated 5-3-1971 of the, Calcutta High Court in Cr!. Revision No. 35/71.

P. K. Chatterjee and G. S. Chatterjee for the Appellant.

D. N. Mukherjee for the Respondent The Judgment of the Court was delivered by

SARKAR!A, J. This appeal by special leave is directed against a judgment, dated March 5, 1971, of the High Court of Calcutta. The facts are as follows : Abani Maity, respondent herein, and three other persons were tried by the Magistmte, First Class, Alipore, District 24-Parganas, in respect of a charge under Section 46(a) of the Bengal Excise Act,

1909 (hereinafter referred to as the Act).

On the night of July 29, 1963, at about 7.30 p.m., the Excise

staff intercepted Motor Car No. WBD 8169 at village Rajpur, Police Station Sonarpur. The car was searched and thereupon 199 kgs. 700 E grams contraband Ganja was recovered from inside the car. The respondent, Abani Maity, who was the registered owner of the car, and held a driving licence was himself on the steering wheel. Abani Maity and the three other occupants of the car were arrested.

After completing the investigation, a charge-sheet was submitted against Abani Maity and his companions in respect of an offence under Sec- F tion 46(a) of the Act.

During the trial, out of the accused, Robin, died Ka!ipada absconded; and the case proceeded only against Abani Maity and his coaccused, Mihir Bose .

The Magistrate, ultimately, by his order dated August 21, 1970, convicted both the accused persons under Section 46(a) of the Act and sentenced each of them to pay a fine of Rs. 800/-, and, in default, to snffer six months' rigorous imprisonment.

The Magistrate, however, failed to pass orders for the disposal of the contraband Ganja, and the confiscation of the seized car.

In the course of the trial, it was established by evidence that the respondent, Abani Maity, was the registered owner of the car and he was driving the vehicle at the time of its interception.

It was further

established that some packets of contraband Ganja were seized from underneath the driver's seat and some from the luggage boot which was opened with a key produced by the respondent. Thus, the evidence on record indubitably established that the cm (Registered No.

WBD 8169) was used for the transport of this contraband Ganja by its owner, Abani Maity, respondent.

After his conviction, on November 16, 1970, Abani Maity made an application to the Magistrate, praying for return of the car and the other articles seized by the Excise Staff.

On the same day, the Magistrate, without issuing any notice to the prosecution, passed an ex-parte order directing return of the seized car and other articles to the accused-respondent.

Against that order, dated November 16, 1970, of the Magistrate, the State preferred a Revision in the High Court, which was finally heard by a Division Bench, who, by an order dated March 5, 1971, affirmed the Magistrate's order relating to the return of the car to the accused-respondent, but directed confiscation of the Ganja.

Mr. Chatterjee, -appearing for the appellant-State, does not now request the Court to pass an order of confiscation of the aforesaid car, obviously because the passing of such an order after a lap!; e of E about 16 years from the date of its seizure, will be an exercise in futility.

The learned counsel, however, submits that this Court should for the guidance of the courts below, clarify the law on the point so that the efficacy of the provisions contained in Sections 63 and 64 of the Act as an instrument for combating and prventing such anti-social crime is not undermined due to misinterpretation or mis- F understanding in regard to their import, nature and application.

It is contended that as soon oas Abani Maity, the owner-driver ot this car was found guilty of using this car for transport of contraband Ganja, the Magistrate was bound in addition to the conviction of Abani Maity for that offence, to pass an order for confisC'ation of G the car, or to give its owner, Abani Maity, an option to pay in lieu of confiscation a fine, as the Magistrate thought fit.

The point sought to be made out is that the words "shall be liable to confiscoation" occurring in Section 63 ( 1) read with sub-section (I) of Section 64, make it obligatory on the Magistrate in the event of the conditions laid down in these provisions being satisfied, to adopt either of the H two alternatives, namely, to confiscate the car, or, in lieu of conpscation, to impose a fine oat the option of its owner.

In support of this contention, reliance has been placed upon certain observations of

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this Court in Inda-China Steam Navigation Co. Ltd. v. Jasjit Singh,

Additional Collector of Customs & Ors(').

As against this, learned counsel for the respondent, submits that the words "liable to" used in the context of "confiscation", in Section 63 ( 1) of this Act or in some other penal statutes, do not convey an absolute imperative; they are merely directory and leave it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence has been committed.

Section 63 of the Act defines the things liable to confiscation, while Section 64 indicates when the order of confiscation is to be passed by the Magistrate or Collector.

Section 63 and 64 read as follows :

"63 (1). Whenever an offence has been committed which is punishable under this Act, the (intoxicant) materials, steel, utensils, implement and apparatus in respect of or by means of which such offenoo has been committed shall

be liable to confiscation.

(2) Any (intoxirnnt) lawfully imported, transported, manufactured; had in possession or sold along with, or in addition to, any (intoxicant) which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any such (intoxicant) as first aforesaid, E or oimy such materials, steel, utensils, implement or apparatus as aforesaid, is found, and the other contents, if any, of such receptacles or packages, and the animals, carts, vessels, rafts or other conveyances used in carrying the same shall likewise be liable to confiscation :

Provided tlrat no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence .

Explanation.-For purpose of this Section "owner" includes, in relation to any animal car, vessel, raft or other conveyance.

(a) which is the subject of a hire purchase agreement, the person in possession thereof under that agreement."

"64(1). When in any case tried by him, the Magistrate decides that anything is liable to confiscation under Section

(!) [1964] 6 SCR 594.

63, he may either order confiscation or give the owner oJ such an option to pay, in lieu of confiscation, such fine as the Magistrate thinks fit :

Provided that the Magistrate shall in cases order confiscation of the intoxicants decided by him to be liable to confiscation under Section 63.

(2) Whenever anything is liable to confiscation under Section 63, and the offender or the person entitled to possession is not known or cannot be found, the case shal\ be inquired into and determined by the Collector, who may order confiscation :

Provided that no such order shall be made until the ex· piration of two months from the date of seizing the thing intended to be confiscated, or, withont giving such person as may, before such expiration, claim any right thereto, an opportunity of being heard and of producing such evidence as he may like to produce in support of his claim :

Provided further that if the thing in question is liable to speedy and natural decay, or if the Collector is of opinion that its sale would be for the benefit of its owner, the Col- E lector may at any time direct it to be sold, and the provisions of this sub-section shall, as early as may be practicable, apply to the net proceeds of the sale."

It will be seen that the liability to confisrntion of a conveyance, such as, a car or cart or vessel under Section 63 is incurred only if two conditions are established, namely:

(a) that the conveyance was used in carrying the contraband intoxicant, (b) the owner of tb '. conveyance is implicated in the commission of the offence.

In the instant case, both these conditions were established.

It has been found by all the courts below that the car in question (WBD 8169) was used in carrying and transporting contraband Ganja and it was being driven by its owner, Abani Maity, who was convicted of the offence of possessing and transporting the contraband Ganja in this car. The liability to confiscation of the car had, therefore, been incurred.

It may be further marked that in sub-section (2) of s. 63 the R Legislature has used the words "shall be" in the context of '1iable to confiscation".

Even, in the proviso to sub-section (2) the expression "shall be liable to confiscation" has been reiterated. Once

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the facts essential for incurring the liability to confiscation are established, the Magistrate has no option but to adopt any of the two alternative courses indicated in sub-section ( 1) of Section 64, that is to say, he may either order confiscation of that conveyance; or give its owner an option to pay in lieu of confiscation, such fine as the Magistrate thinks fit.

The Magistrate cannot just ignore to adopt any of these alternatives.

Since sub-section ( 1) of Section 64 talks of the imposition of fine in lieu of confiscation, it appears that such an order of confiscation or fine in lieu of confiscation, is to be passed at the conclusion of the trial, when after conviction, a sentence for the commission of the offence is awarded.

It is true that ordinarily, the word "liable" denotes : ( 1) "legally subject or amenable to", (2) "Exposed or subject to or likely to -suffer from (something prejudicial)", (3) "Subject to the possibility of (doing or undergoing something undesirable)" (See Shorter Oxford

Dictionary).

According to Webster's New World Dictionary, also, the word "liable" denotes "something external which may befall us".

Accordingly, the word "liable" occurring in many statutes, has been held as not conveying the sense of an absolute obligation or penalty but merely importing a possibility of attracting such obligation, or penalty, even where this word is used along with the words

"shall be".

Thus, where an American Revenue Statute declared that for the commission of a certain act, a vessel "shall be liable to forfeiture", it was held that these words do not effect a present absolute foi:feiture but only give a right to have the vessel forfeited under dne process of law. (See Kate Haran, 14 Fed. Cas. 139, 141 6 Sawy.

106) quoted in Words and Phrases, Vol. 25 p11ge 109.

Perman :nt Edition, West Publishing Co.) Similarly, it has been held that in Section 302, Indian Penal Code, the phrase "shall also be liable to fine" does not convey a mandate but leave it to the discretion of the Court convicting an accused of the offence of murder to impose m not lo impose fine in addition to the sentence of death or transportation for life.

But a statute is not to be interpreted merely from the lexicographer's angle. The court must give effect to the will and inbuilt policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein.

Exposition ex visceribus actus is a long recognised rule of construction.

Words in a statute often take their meaning from the context of the statute as a whole.

They are therefore, not to be construed in isolation.

For instance, the use of the word "may" would normally indicate that the provision was not mandatory.

But in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, "of an' ineffectual angel beating its wi'ngs in a luminons void in vain".

If the choice is betmen two interpretations", said Viscount Simon L.C. in Nokes v. Doncaster Amalgamated Collieries, Ltd.(') "the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility aild should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result".

The provisions of Sections 63 and 64 of the Act are to be interpreted in the light of this principle.

The language and scheme of the Excise Act, taken as a whole, show that the purpose of this legislation is not only to raise revenue but also to control and restrict the import, export, transport, manufacture and sale of intoxirnnts.

Free and unrestricted use of intoxicants and illicit trade in contraband intoxicants not only means a loss of revenue to the public ex:hcqucr but also has a harmful effect on public health and morals. Moreover,

illicit trade and smuggling of intoxicants is often committed in an organised and clandestine manner, and is difficult to detect.

We have, therefore, to adopt that construction of the expressions "shall be liable to confiscation" used in Section 3 (2) and "may" in sub-section ( 1) of Section 64, which will preserve the efficacy of the provisions as an instrument for combating these anti-soda! activities, and reject the other which will render them ineffective.

Thus considered, it seems clear that the expressions ''shall be liable to confiscation" and "may" in the aforesaid provisions were intended to have a compulsive force.

We need not dilate on the topic further.

We will close the discussion by noticing one decision of this Court which has been cited by the counsel for the appellant.

That case is : lndo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs & Ors. (ibid), wherein this Court was considering the interpretation of certain provisions of the Sea Customs Act.

Jn dealing with an offence under Section 167(12A) o[ the Sea Customs Act, 1878, the Customs Officer has also to exercise his jurisdiction under Section 183 of that Act, which expressly requires

(I) [1940! A.C. 1014 at p. 1022.

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the adjudicating Officer to give an option to the owner of the offending vessel to pay fine in lieu of confiscation.

Question arose as to what was the nature of the responsibility prescribed by Section 167 (12A). Gajendragadkar, C.J., spe-aking for the Court elucidated the position, thus :

"We have already seen that Section 167(12A) provides that if a vessel contravenes Section 52A, it shll be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs. 1,000/-. Can it be said that the penalty prescribed by Section 167(12A) may in any given case not be imposed against the ship on the ground that the contravention proved against it is of a very trivial character, or has been the result of an act on the part of a criminal who acted on his own contrary to the instructions of the master of the ship ? The words used in the third column of Cl. ( 12A) are that "such vessel shall be liable to confiscation".

The context seems to require that it is not open to the Customs Authority to refnse to confiscate the vessel on the ground that there are any extenuating circumstances surrounding the contravention of s. 52A in a given case and that it would be unfair to impose the penalty of confiscation.

Two penalities are prescribed, one is the confiscation of the ship, and the other is a fine against the master.

In regard to the later penalty, it is within the discretion of the Customs Authority to decide what amount of penalty should be imposed; just as in the case of the first penalty it is not open to it to say that it would not impose the penalty of confiscation against the offending ship, so in the case of the second penalty it is not open to it to say that it will not levy any penalty against the master. In its discretion, it may impose a very small fine against the master if it is satisfied that the master was innocent and despite his best efforts, he could not prevent the contravention of s. 52A. If the two penalties prescribed by cl. (12A) had been alternative, the position . may have been different, but they are independent penalties, one is against the ship and the other is against the master; and so, there is no scope for contending that the Customs Authority may refuse to impose one penalty and impose the other, or may refuse to impose either of the two penalties. It must be regarded as an elementary requirement of clause l 2A that as soon as the offence referred to in column 1 of the said clause is

11-253SCT /79

proved, some penalty has to be imposed and cl.

(12A) indicates that two penalties have to be imposed and not one, there being discretion in regard to the penalty impos. able against the master as regards the amount of the said penalty.

Therefore, we do not think it would be possible to take the view that if there are extenuating circumstances att'ending the contravention of s. 52A in a given case the CustQllls Authority can refrain from confiscating the vessel.

Confiscation of the vessel is the immediate statutory consequence of the finding that an offence under cl. 12A is established, just as the imposition of some penalty against the master is another statutory consequence of the same contravention." .

The language of Section 167(12A) and 183 of the Sea Customs Act, is not in pari materia with those of Sections 63 and 64 of the Bengal Excise Act. It was on the language of these provisiom;, as they then stood, it was held that the penalties prescribed under Sections. 167(12A) and 183 are independent and not alternative. The observations, extracted above therefore, are not applicable in their entirety. Nevertheless, they are a useful guide inasmuch as the: expression "shall be liable to confiscation" nsed in Section 167(12A) in the context of a vessel found in the Customs waters in cir1:nmstances that amounted to a contravention of Section 52A, was held to cast on the Customs Authority an imperative dnty to confi:; cate such vessel.

For all that has been said above and keeping in view the purpose, the scheme and the language of the provisions in question, we are of opinion that as soon as on proof of the conditions nece:>sary under Section 63, a conveyance incurs the liability to confiscation, the word "may" used in Section 64 (1) acquires the force of "must", G and the Magistrate is bound to abide by either of the two altema1ives viz., confiscation of the conveyance or imposition of the fine in lieu thereof in accordance with that Section. Thus, the discretion of the Magistrate is restricted to choice between these two alterna1tives.

This limited discretion, also, is not to be exercised whimsically. but judicially, in a manner which will not emasculate these provisions or H debilitate their potency as an instrument for suppressing the mischief which the Legislature had in view. In the circumstances of this case therefore, it was imperative for the Magistrate, to pass, at the

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conclusion of the trial, in addition to the conviction of the accused- A respondent, an order of confiscation of the car by means of which the offence was committed.

, With this clarification of the law on the point, the appeal stands disposed of.

P.B.R .

Appeal allowed.

ABANI MAITY

March 6, 1979

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Bengal Excise Act, 1909

Ss. 63 and 64

Section 63(1)

Bengal Excise Act, 1909

Section 64( 1)

s. 63

s. 63(1)

s. 63

s. 64(1)

s. 64(1)

[1964] 6 SCR 594

P. K. Chatterjee

G. S. Chatterjee

D. N. Mukherjee

SARKAR!A

High Court of Calcutta

Abani Maity

Section 46(a)

Bengal Excise Act

July 29, 1963

Rajpur

Abani Maity

Robin

Ka!ipada

Mihir Bose

August 21, 1970

Section 46(a)

November 16, 1970

March 5, 1971

Chatterjee

Sections 63 and 64

Section 63

Section 64

Section 63

Section 63

Section 64

Section 63 and 64

[1964] 6 SCR 594

Section 63

Section 63

Section 63

s. 63

Section 64

Section 64

Kate Haran

Section 302

Indian Penal Code

Viscount Simon L.C.

Parliament

Sections 63 and 64

Section 3

Section 64

Section 167(12A)

Sea Customs Act, 1878

Section 183

Section 167

Gajendragadkar

Section 167(12A)

Section 52A

Section 167(12A)

s. 52A

s. 52A

s. 52A

cl. 12A

Section 167(12A) and 183

Customs Act

Sections 63 and 64

Section 167(12A)

Section 52A

Section 63

Section 64


ARUNACHALAM v.

P. S. R. SADHANANTHAM

March 6, 1979

[S. MURTAZA FAZAL ALI AND Q. CHINNAPPA REDDY, JJ.J

Constitution of India, 1950-Art. 136-Scope of jurisdiction.

Crimfnal appeal not preferred by Government-Prlvate Party if could invok~ jurisdiction under Art. 136.

The prosecution alleged that there was enmity between the deceased and hi• brother, P.W. 2 (Appellant) and P.W. 3 on tho one side and A 1 (respondent), A 2, their father, A 4 and A 5 their nephews on the other on account of disputes arising out of elections to the Gram Pancbayat and Co-- operative Stores of the village. A fe_w days before the occurrence, the first accused demanded that the dance performance being arranged in connection with a religious festival in the village should be held under his PresidentShip, but this was rejected by PW 3. The prosecution further alleged that on the night of the occurrence when the stage was being decorated by PW 3 all tbe accused came in a group, got up on the stage and A 1 questioned PW 3 with regard to the conduct of the dance performance without his presiding over it. Accused 1, 2 and 4 started beating P.W. 3. Frightened by the fracas the men gathered near the stage started running away. In the meantime, the deceased and hia

men intervened, whereupon the first accused took out a knife from his waist and. stabbed the deceased on the left flank, as a result of which he fell down.

The deceased was first taken to the police station where his staternent Ex. Pl w3\'S recorded.

He was then taken to the local hospital but the stab injury being serious he was removed to the headquarters hospital where a Magistrate recorded his dying declaration Ex. P6. The next afternoon tho deceased succumbd to his injuries.

In their defence, the accused claimed that they were falsely implicated on F account of factions and suggested that some of the prosecution witnesses prevailed upon the deceased to name the accused as assailants.

In the course of cross-examination of prosecution witnesses, the defence suggested that a certain R was also injured at thCj sMne time and place.

Accepting the prosecution case the Sessions Judge convicted A-1 under s. 148 and s. 302 and the rest under Sections 147, 323 and 149 read with 323.

On appeal the High Court acquitted the accused primarily on the ground that neither the direc't witnesses nor the dying declarations explained the serious injury caused to Ramalingam who it appeared from the evidence cf the Doctor, PW 4, had received a stab injury 5 ems. x 2 ems. x 2 ems. near the left side of the abdomen on the back. The High Court thought that though Ext. P-1 was purported to have been recorded earlier than Ext. P-6 in point of time, it was in fact recorded later. The High Court . took the view that the first accused must have been implicated by the decea6ed as the assailant in Ext. P-6 at the in$tance of PW3 who met him in the hospital at about 1 a.m. The evidence of the direct witnesses PWs. 1, 2, 3 and 5 was rected

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ARUNACHALAM V. P. S. R. SADHANANTHAM 483

on the ground that they were interested and had not explained how P.amalingam A tiUstained the injury found on him. The conduct of P.\.V. 3 was also severely commented upon.

The State did not prefer any appeal against the acquittal of the accused by the High Court; but the appeal was preferred by the brothor of the deceased.

On the question whether a private party could invoke the jurisdiction of B ibis Court under Art. 136 of the Constitution against an acquittal by the High Court .

HELD : 1. This Cou1i could entertain appeals against judgments of acquittal 'by the High Court at the1 instance of a private party also. The fact that the 'Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a. subordinate court at the instance of a C private party has no relevance to the question of the power of this Court undelr Art. 136 of the Constitution. [488 DJ

2. The appellate power vested in this Court under Art. 136 is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes.

The pow~ under Art. 136 is plenary, 'exercisable outside the purview of the ordinary law' to D meet the pressing demands of justice. Art. 136, neither confers on any one the right to invoke the jurisdiction of this Court nor inhibits any enc from invoking !its juri!diction.

The power is vested in this Court. The exercise of the power is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice this Court caonnot refrain from doing its duty and abstain from interfering with it on the ground that a private party, and not the State, E ha• invoked the court', jurisdiction. [487 H-488 CJ

Mohan Lal v. Ajit Singh, [1978] 3 SCC 279; referred to.

3. There need be no apprehension that if appeals againt judgmen1" of acquittal at the instance of a private party are permitted there may be a! flood of iluch appeals, because appeals under Art. 136, are entertained by special leave granted by this Court. Special leave is not granted as a matter of course, It is granted only for good and sufficient re: .. ons, as well established by the practice of this Court. [488 F]

4. The power under Art. 136 is plenary in the sense that 1here nre no words in Art. 136 itself qualifying that power. The very nature of the power has led the Court to set limits to itself within which to exercise such power.

Within the restrictions imposed by itself, this Court has the undoubted pO\\'et to interfere even with findings of fact, making no distinction between judgments

of acquittal and conviction, if the High Court, in arriving at those findings, has acted 4'perversely or otherwise improperly". [481 C-D]

State of Madras v. Vaidyanatha Iyer, [1958] SCR 580; Himachal Pradesh

Administration v. Om Prakash, [1972] 1 SCC 249, referred to.

5. In dealing with an appeal ag<>inst acquittal, this Court will, naturally, Keep in mind the presumption of innocence in favour of the accused, reinforced, ns may br, by the judgment of acquittal. But, this will not abjure the court

of its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be deflected by red herrina•

drawn across the track, or where the evidence accepted by the trial court is re~ jected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being ignored, or for any such adequate; reason, this Court may feel obliged to step in to secure the interests of justice, to appease the judicial conscience as it were.

[487 E-F]

6. The High Court was wrong and unjustified in rejecting the testimony of the direct witnesses and the dying declarations on the ground that they did not explain the injury found on one of the pclrSons (R) alleged to have been present at the scene of occurrence. There is nothing to suggest that R and the deceased received their injuries in the course of the same transaction.

According to the doctor who examined R, the injured person did not know who bis assailant was.

He was not shown to be connected with either party but was surreptitiously and dexterously introduced into the case by the defence in the course of cross-examin&tion of the prosecution witnesses. A conspectus. of the evidence clearly points to the conclusion that there was nothing to connect the injuries or R with the stabbing of the deceased. [488 G--489 A,

490 D1

7. Both the dying declarations could be safely relied upon without any reservation.

Though the second dying declaration gives fewer details than the first it clearly states that thei deceased and others first went to the 1 police station.

This clearly lends support to the prosecution story that it was there that tho first dying declaration was recorded. There is, therefore, no ground to hold as the High Court did that the second dying declaration was in point of time, recorded earlier than the first.

The difference between the two was tha-t 'vhile the :first was recorded almost immediately after the, incident, the second waa recorded a few hours later by which time the condition of the deceased had deteriorated and he was not in a position to give as many details as beforCI.

There was, therefore, no reason to doubt the genuineness of either of tho two dying declarations. [493 E, 491 F-492 A, 490 Fl

CRIMINAL APPELUTE JURISDICTION : Criminal Appeal No. 170 of 1973.

Appeal by Special Leave from the Judgment and Order dated 17-11-1971 of the Madras High Court in Criminal Appeal No. 217 of 1971.

R. K. Garg, V. !. Francis and D. K. Garg for the Appellant.

K. Jayaram and R. Ramkumar for Respondent No. 1.

A. V. Rangam for Respondent No. 6.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-P. s. R: Sadhanantham and four others H were tried by the learned Sessions Judge, Tirunelveli, on various counts.

Sadhanantham (Al) was convicted under Sections 148 a"nd 302 Indian Penal Code while the four others were convicted under Sections 147,

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323 and 149 read with 323. The first accused was sentenced to imprisonment for life on the charge of murder and to rigorous imprisonment for a period of two years on the charge under Section 148. The others were sentenced td suffer imprisonment for a period of one year on each of the counts on which they were convicted, the sentences to run concurrently. All tl]e five accused preferred an appeal to the High Court of Madras. The High Court allowed the appeal and acquitted all the accused of all the charges. Arunachalam the brother of the deceased has preferred this appeal against the judgment of the Madras High Court after obtaining special leave from this Co'urt on 26-7-1973. The special leave was granted against the first accused Sadhanantham only.

The case of the prosecution, briefly, was that there was enmity between the deceased Soundarapandian and his brother Arunachalam

(P.W. 2) and Natesan (P.W. 3) on one side and Rajapalavesmuthu Nadar, his sons Al and A2 and his nephews A4 and AS on the other.

There were the usual disputes arising out of elections to the Gram Panhayat and to the local cooperative stores. In connection with the village Amman festival, P.W. 3 was arranging to have a dance performance on the night of 20th August, 1970, in the Gandhi Maidan. About a week earlier, Sadhanantham, the first accused demanded that the dance should be performed under his presidentship but P .W.3 did not agree.

On the night of 20th August, 1970, P.W; J alongwith one Gopalakrishnan (P.W. 6) was decorating the stage. Tube lights were burning and several persons had gathered in front of the stage. At about 8.45 p.m. accused 1 to 5 came there and got up on the stage.

Al questioned P.W.3 how he dared to conduct the show without his presiding over it.

P.W.3 replied that the dance performance would be conducted without the presidentship of Al. Al then slapped P.W.3 on the cheek. A2 to A4 also started beating P.W.3 with their hands.

P.W.6 and several others who were there ran away apparently not wanting to get involved in the fracas. P.W.3 jumped down from the stage and attempted to run away when A3 caught him and began to throttle his neck. Al, A2 and A4 joined in beating him with their hands. The deceased P.W. I, P.W. 2 and P.W. 5 came running towards P.W.3. The deceased asked the first accused why they were beating his younger brother. A.3 and A.5 who were holding P.W.3 by the neck Jet him free.

A. I asked the deceased who he was to question him and saying so he took out a knife from his waist and stabbed the deceased on the left flank.

The deceased fell down shouting "stabbed, stabbed". Accused 1 to 5 then ran towards the north.

P.W.3 chased .them over a distance of about one and half furlongs. They ran inside the forest.

P.W.3 stopped chasing them further.

In the meanwhile the injured Soundarapandian was taken by P.Ws. 1, 2 and 5 to the

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Poliee Station and then to the hospital at Kayalpattinam. At the Police Station, the writer P.W.14 recorded a statement Exhibit P-1 from Sonndarapandian at 9.15 p.m. Soundarapandian when asked to sign the statement insisted on signing the statement after dipping the pen in the blood that was coming out of the wound. He was taken to_ the ho'spital in a jeep requisitioned by the police.

P.W.4 the Mediical Officer in charge of the Hospital examined the injured and found that the injury was of a serious nature.

He sent tl!e injured to the Government Headquarters Hospital at Tuticorin for further treatment.

.the District Medical Officer, P.W. 8 examined him and finding his condition very serious, sent a requisition Exhibit P-5 to the Sub Magistrate, Tuticorin to record the dying declaration of Soundarapandian. Exhibit P-6, the dying declaration was recorded by the Magistrate P.W.7 at 1.30 a.m. At 7.45 a.m. next morning, P.W.8 performed an operation but Soundarapandian could not be saved. He died at about 1.30 p.m.

The autopsy was conducted by P.W.9 who, on dissection lound that the diaphragm and the upper lobe of the left lung had been pierced. The police after completing the investigation laid a charge-sheet against Sadhanantham, Nithiyanantham, Thamilan, Kumaresan and Kairthikeyan.

In support of its case, the prosecution examined P. Ws. 1, 2, 3 and 5 as direct witneses to the occurrence and relied upon Exhibits P 1 and P6, the two dying declarations made by Soundarapandian. The prosecution also examined P. W. 6 to speak to the earlier part of the incident.

All the accused denied the offence and stated that they were falsely implicated on account of enmity. In the cross-examination of the witnesses it was suggested that one Ramalingam was also injured at the same time and place. It was suggested that P. Ws. 2 and 3 had prevailed upon the deceased to name A-1 as the person who stabbed him. The learned Sessions Judge accepted the dying declarations as true. He also accepted the evidence of the eye witnesses. He convicted and sentenced the five accused as mentioned earlier. The High Court acquitted the accused primarily on the ground that neither the direct witnesses nor the dying

declarations explained the serious injury caused to Ramalingam, who it appeared from the evidence of the Doctor P.W. 4, had received a stab injury 5 ems x 2 ems near the left side of the abdomen on the back.

The High Court thought that though Exhibit P-1 was purported to have been recorded earlier than Exbibit P-6-in point of time, it was in fact recorded later. The High Court took the view that the first accused must have been implicated by the deceased as the assailant in E:thibit P-6 at the instance of P.W.3 who met him in the hospital at about 1 a.m.

The evidence of the direct witnesses P. W.s. 1, 2, 3, and 5 was rejected on the ground that they were interested and had not explained

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how Ramalingam sustained the injury found on him.

The conduct of A P.W. 3 was also severely commented upon. The High Court acquitted all the five accused.

Before proceeding to discuss the evidence and the findings of the High Court we remind <JUrselves of the confines of our jurisdiction to deal with appeals by special leave against judgments of acquittal by the High Court.

Article 136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the Court to set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invocation of the power und~ Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises o'r a decision shocks the conscience of the Court. But, within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the High Court, in arriving at those findings, has acted "perversely or otherwise improperly". (See State of Madras v. Vaidyanath Iyer,(') and Himachal Pradesh Administration v.

Om Prakash. (2) In dealing with an appeal against acquittal, the Court will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced; as may be, by the judgment of acquittal.

But, also, the Court will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative.

Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial court is rejected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being .ignored, or for any such adequate reason, this Court may feel obliged to step in to secure the interests of justice, to appease the judicial conscience, as it were.

A doubt has been raised about the competence of a private pRrty, .as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution against a judgment of acquital by the High Court.

We do not see any substance in the doubt.

Appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with ordin3ry appellate

(!) 11958] S.C.R. 580.

(2) 11972] I S.C.C. 249.

488 SUPREME COURT Rl!PORTS

[1979] 3 S.C.R

power exercised by Appellate Courts and Appellate Tribunals wider specific statutes.

As we said earlier, it is a plenery power, 'exercisable outside the purview of ordinary law' to meet the pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors.(') Article 136 of the Constitution neither confers

on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court's jurisdiction.

The power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one.

The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice the Supreme Court

annot refrain from doing its duty and abstain from inerfering on the grom1d that a private party and not the State has invoked the Court's jurisdiction.

We do not have the slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of.private parties also.

The circumstance that the Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a Subordinate Court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136.

We may mention that recently in Mohan Lal v. Ajit Singh,( 2) this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of such appeals.

We do not share the apprehension.

Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court.

Whether it is lhe State or a private party that invokes the jurisdiction of this Court, special leave is not granted as a matter of course but only for good and sufficient reasons, as well established by the practice of this Court. .

As earlier mentioned, the primary reason given by the High Court for rejecting the testimony of the direct witnesses and the dying dclarations was the supposed failure of the prosecution to explain the serious injury found on the person of one Ramalingam alleged to have been injured at the same time and place as the deceased.

We may at once say thatJ1othing is known about this Rama!ingam.

He is not shown to be connected, even remotely, either with the prosecution party or with the faction of the accused. He was very surreptitiously and dexterously introduced mto the case in the ------

(!) [19551 1 S.C.R. 267.

(2) [1978] 3 S.C.C. 279.

I j

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course of the cross-examination of the prosecution witness and thereafter made to loom large.

He was, as we shall presen.tly point out nothing more than a "red herring" across the track.

We will refer to the whole of the evidence where Ramalingam was made to appear in the case to examine whether the High Court was right in rejecting the entire case of the prosecution on the ground that the injury on Ramalingam was not explained.

P.W. 1 was put but one question whether he was aware that injuries were caused to oue Rama!ingam Nadar at the place of the occurrence on the night of occurrence. He stated that he was not aware of that fact. No further question was put to P. W. 1 pursuing the matter.

Similarly P.W. 2. was also asked in cross-examination whether he was aware of the stabbing of one Ramalingam Nadar at the time of occurrence. He stated that he was not and that was the end of the matter and it was not pursued further.

P. W. 3 was also asked the same question. He too denied knowledge of injuries sustained by Ramalingam Nadar on the night of occurrence.

P.W. 5 was also asked a similar question and he too gave a similar answer.

P.W. 4 the Medical Officer, Kayalpattinam, deposed in his evidence that he examined one Rama1ingam at about 11.30 p.m. on 20th August, 1970. and found an incised wound 5 ems x 2 ems x 2 ems near the left •ide of the abdomen on the back and one •mall irregular edged wound on the inner side of the first injury.

The Doctor also stated that Ramalingam told him that he was assaulted by some unknown person when he was witnessing the dance show.

P.W. 10 who had gone to witness the dance performance but who ran away when trouble r, tarted stated that when he was running away he saw one Ramalingam Nadar running along with him and that the said Ramalingam Nadar was keeping his hand near his waist and that the hand was blood stained. P.W. 15 the Head Constable attached to the Arumuganeri Police Station stated that 4 or 5 days after the occurrence he came w know that a case was reisterd in Arumuganeri Police Station on the strength of a complamt given by one Ramlingam. P.W. 16, the Invesiigating Officer also stated that the First Information Report registered on the strength of Ramalingam's complaint had also been sent to the Magistrate and that a final report had also been sent.

He denied the sugge3tion. made, to him that the First Information Report in respect of Ramalmgam s complaint was suppressed as it was not in favour of the prosecution. These are all the appearances which Ramalingam made, o~ the sta_ge of this case, in the mouth of the witnesses, though Ramahngam did himself not enter upon the 3cene.

None of " H the accused 11_1ade any reference to Ramalingam in his statement. It would be noticed that it was not suggested to any of the pfosccution

witnesses that Ramalingam was connected. with either the prosecution party or the party of the accused. It was not suggested that the injury to Ramalingam was caused by a member of either group. It was not suggested that Ramalingam i)1tervened in the fight and received an m1ury.

In fact there was nothing to suggest that Ramalin, gam and the deceased received their respective injuries in the course of the same transaction.

The only suggestion was that Ramalingam received an injury that night at the place of occurrence. It is in evidence that as soon as trouble started, the people who had gather, ed there started running helter skelter.

While so running Ramalin gam apparently received a stab injury accidentally or deliberately from someone. In fact according to the evidence of the Doctor, Ramalingam told him that he did not know who his assailant was.

There was, therefore, absolutely nothing to connct the stabbing of Ramalingam with the stabbing of the deceased Soandarapandian. The evidence of P.W. 10 also was to the effect that Ramalingam himself was one cf those who ran away from the scene alongwith him and that was before the deceased was stabbed.

There was thus nothing to indicate that the deceased or any of the direct witnesses were aware or could possibly be _aware of the injury caused to Ramalin gam.

In our opinion the High Court was entirely wrong and wholly unjustified hi rejecting the testimony of the direct witnesses and the dying declarations on the irrelevant consideration that they did not explain the injury found on the person of Ramalingam.

In regard to the dying declarations the reason given by the High Court to conclude that Exhibit P. 1 must have been recorded later than Exhibit P-6 was that Exhibit p, 1 contained several statements not to be found in Exhibit P-6.

We are afraid that the High Court was merely indulging in speculation and approaching the question from the wrong end.

Exhibit P-1 which was recorded by P.W. '14 was as follows :

"Arumuganeri is my native place.

I am doing shop business.

Record dance was arranged to take place in Gandhi Maidan at Arumuganeri. I went to see the record dance along with Arunachala Nadar my elder brother, Gunesekaran younger sister's husband, and Somasundaram son of Adinarayana Perumal.

We were talking, standing in front of Ramaswami temple.

Sadanandam, Nithianan, dam, sons of P. S. Raja Nadar, Tamilam alias Subramaniam, Knmarsan son of Thangapla Nadar, Karthikyan son of Raja Pandia Nadar were beating my younger brother Nate, san, on the north of the dancing stage.

Myself, and the

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persons with me ran to that place.

I questioned as to why you beat my younger brother.

Sadanandam son of P. S.

Raja Nadar forcibly stabbed me with the greece knife in the hand, on my left flank, below the rib I cried to the effect

"Ayyoh : stabbed." I covered the stab injury with my hand.

My elder brother and Somasundaram, took me to Police station.

There is prior enmity between myself and P. S.

Raja Vagaria in connection with the elections., I read the statement. It has been recorded as narrated by me.

Sd/- Soundarapandian"

Exhbiit P-6 which was recorded by the Sub Magistrate, was as follows:

"There is one Gandhi Maidan in Arumganeri, Record dance was to be performed there.

I went to see it. The dance was not begun: Myself, Arunachalam, my elder brother, Gunasekaran, my sister's husband were all talking.

There was quarrel at the place of performance of the record D dance.

At that time, the record dance was not begun.

Myself and others ran to the place where the quarrel took place.

A boy called Sadanandem son of P. S. Raja Nadar stabbed me with a knife.

I cried to effect "Ayyoh Stabbed, stabbed?" The police station is very near.

We all went there.

My hand was stained with blood.

There is no E reason for stabbing me.

L.I.T. of Thiru Soundrapandian".

It is true that Exhibit P-1 gives more details than Exhibit P-6. Ex- \, ' hibit P-1 mentions the names of A-2, A-3, A-4 and A-5 also in cn- -< nectim with the beating of P.W. 3. It also mentions that the dcceas-

' ed was stabbed oh the left flank below the rib.

It further mentions

~ the prior enmity between the deceased and P. S. Raja Vageria. On the contrary Exhibit P-6 gives fewer details, and does not mention the names of the participants in the fight which preceded the stabbing of the deceased.

The stabbing of the deceased by A-1 alone is particularly mentioned.

What is important to be noted in Exhibit P-6 is that it refers to the circumstance that the deceased first went to the Polite Station. That statement lends support to the prosecution case that the deceased and others went to the Police Station and a Statement was recorded at the Police Station from the deceased. What is more imrortant is the circumstance that while Exhibit P-1 was recorded within a very short time after the occurrence, Exhibit P-6 was recorded a few hours after the occurence by which time the condition of the

A deceased had apparently deteriorated and he was not in a position to make as detailed a statement as

P-1.

The evidence of the District Medical Officer, P.W. 8, shows that when he saw l\im at 1 a.m. the condition of the deceased was very bad.

P-6 was recorded, it may be noted at 1.25 a.m.

It would also be seen that the condition of Soundarapandian at that time was such that his thumb impression and not his signature rnuld . . . be taken on Ex.P.6.

The reason for Jess particulars in P-6 was quite obvious qut yet the High Court completely missed it because of its wrong approach.

There was no reason whatsoever to doubt the genuineness of Exihibit P-1 or P-6. The High Court thought that P.W.3 might have met the deceased in the Tuticorin hospital at 1 a.m. and induced him to implicate the first accused.

This was nothing but speculation. AB we mentioned the condition of the deceased was very bad at 1 a.m. and it is too much to think that anybody would have been allowed to go near the deceased in the critical condition in which he was in the hospital and to tutor him to implicate someone falsely.

The evidence of three of the eye witnesses namely P.Ws. 1, 2 and 5 was dealt with by the High Court in a most summary and perfunctory way. It was said:

"The name of this witness (P.W.l) was not mentioned by the deceased in Exh.P-6. It has been licited from this witness that there was bitter enmity between him and the family of the accused. This witness was appointed by t!Je deceased as a clerk in Arumuganeri Cooperii.tive Stores and in the Panchayat election, P.W.l proposed the name of the person who stood against the father of Accused 1 and 2. He was a prosecution witness in a criminal case instituted against the father of accused 1 and 2.

This witness is not only interested in the deceased as he was employed under the deceased as a clerk but also inimically disposed towards the family of the accused. It will, therefore, be unsafe to rely upon his evidence.

P.W.2 is the brother of the deceas .. ed and P.W.5 is the brother-in-law of the deceased.

They are very much interested in the deceased and they were also inimically disposed towards the accused.

They are not telling the truth.

They have not explained as to how Ramalingam sustained the injury.

They have fallen in line with the statements made in the dying declaration.

We do not accept their eviderice".

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The reasons given were that the witnesses were interested and that A they had not explained the injury found on the person of Ramalingam.

In the case of P .W.1 it was also stated that his name was not mentioned in Exhibit P-6.

We do not think that the criticism of the High Court bears any scrutiny. We have perused the evidence of P.Ws. 1, 2 and 5 and we are unable to discard their testimony for the sole reason that they are interested witnesses.

With regard to P .W .3 however, there is scope for much criticism having regard to his conduct subsequent to the incident.

According to his evidence after he chased the accused he stopped for about an hour near the forest and returned to tlie village thereafter. While he was on his way back he saw his uncle's jeep on the road and learnt from his uncle that Soundarapandian had been taken to the hospital at Tuticorin. Therefore, he went to Tuticorin and saw his brother in the hospital at about J a.m. Thereafter he went to a hotel where he slept for the night.

Next morning without going to the hospital to find out the condition of his brother he returned to the viJlage nd made himself available to the police for questioning at about 1 p.m. Though there cannot be any doubt that he witnessed the occurrence his subsequent conduct does not inspire such confidence as to place implicit reliance on his evidence.

We, therefore, agree with the High Court th.llt P.W.3 was not a reliable witness.

In our view the two dying declarations Exhibits P-1 and P-6 may be relied upon without any reservation and the evidence of P.Ws. 1, 2 and 5 may also be safely accepted. We have considered the reasons given by the High Court for acquitting the first accused and we find them wholly unsatisfactory'.

In the light of the principled set out by us earlier we think that the interests of justice deinand that we should interfere with the order of acquittal in the present case.

Accordingly, we allow the appeal, set aside the judgment of the High Court and restore the judgment of conviction and sentence passed by the learned Sessions Judge of Tirunelveli against the respondent (first accused) on the charge under Section 302 Indian Penal Code.

N.V.K.

Appeal allowed.

ARUNACHALAM

P. S. R. SADHANANTHAM

March 6, 1979

S. MURTAZA FAZAL ALI

Q. CHINNAPPA REDDY, JJ

Constitution of India

Art. 136

Art. 136

s. 148

s. 302

Sections 147, 323 and 149 read with 323

Ramalingam

P.amalingam

Art. 136

Criminal Procedure Code

Art. 136

Art. 136

Art. 136

Art. 136

Art. 136

Art. 136

Art. 136

R. K. Garg

V. !. Francis

D. K. Garg

K. Jayaram

R. Ramkumar

A. V. Rangam

CHINNAPPA REDDY

Sadhanantham

Sadhanantham

Sections 148

Indian Penal Code

Sections 147

Section 148

High Court of Madras

Arunachalam

Madras High Court

Sadhanantham

Soundarapandian

Arunachalam

Natesan

Rajapalavesmuthu Nadar

Al

Amman

Sadhanantham

20th August, 1970

Gopalakrishnan

Al

Kayalpattinam

1, 2 and 5 to the

fl ;
- c

Poliee Station and then to the hospital at Kayalpattinam.

Sonndarapandian

Sub Magistrate, Tuticorin

Nithiyanantham

Thamilan

Kumaresan

Kairthikeyan

s. 1, 2, 3

Article 136

Constitution of India

Supreme Court

Article 136

Article 136

Article 136

Article 136

Article 136

Article 136

Article 136

Rama!ingam

Ramalingam Nadar

Kayalpattinam

Arumuganeri Police Station

Ramlingam

Ramalmgam

Ramahngam

Ramalin

gam

Soandarapandian

Ramalin gam

Arumuganeri

Arunachala Nadar

Gunesekaran

Somasundaram

Sadanandam

Sadanandam

P. S.

Raja Vagaria

Gandhi Maidan

Arumganeri

Gunasekaran

Sadanandem

P. S. Raja Nadar

P. S. Raja Vageria

Tuticorin hospital

Arumuganeri Cooperii.tive Stores

Tuticorin

Tirunelveli

Section 302

Indian Penal Code

N.V.K.