H. D. DEV ASIA & CO., KERALA

COMMISSIONER OF Jl\:C0,\1E TAX, KERALA

May 4, 1979

12 71

[N. L. UNTWALIA, R. S. PATHAK AND E. S. VENKATARAMIAH, JJ.J

Jncon1e Tax Act, 1961, Sections 73 and 75-Scopc of-Losses in specula- 1ion business-A registrred [inn is not entitled tO ha1e its losses in spec11fatio11 business carried forward for set off agoint future profits in sprcufation business.

Any such loss sludl be apportionrd between the partners of the firn1 and they (the partners) alone shall be entilled to ha\"e thr a111ount of the loss set -0f/ and carried forward for set off under Section 73.

The assessee-appellant is a registered firn1 carrying on business at several places in the State of Kerala. Apart from it'i regular trade in various commodities, the assessee \Vas also carrying on a business in speculation.

In respect of the loss'esduring the Msessment years 1964-65, 1965-66 and the profit during the assessment year 1966-67, the Income Tax Officer apportioned the aforesaid losses and profits amongst the partners and rejected the assessee's contention that the losses in speculation business should be canied forward and set off against the profit in the said business made in the assessment }'ear 1966-67.

But the Appellate Assistant Commissioner, following the decision of th; is Court in C.I.T., Gujarat v. Kantilal Nathuchand Sarni, [1967] 1 SCR. 813 accepted the assessee's stand. The Tribunal on second appeal answered in favour of the Revenue and the High Court also answered the reference against the assessee.

Dismissing the appc&ls by special leave the Court,

HELD : 1. The case of Kantilal Nathu Chand was decided on a true inter-

<111 ) pretatioa of Section 24(1) of the Income Tax Act 1922 and the two provisions

~-., ar>pended thereto.

But the provisions of law contained in Chapter VI of the • \ 1961 Act have made a considerable departure from the corresponding provisions of the 1922 Act.

[1274A, B-D]

It is clear from the provisions of Section 73 of the 1961 Act that the assessee's loss in speculation business cannot be set off except against profits and gains, if any, of another sp'eculation business.

[1275B[

2. For the purpose of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of eight years as provided in Section 73 of the 1961 Act.

[1275C]

:i. The provision contained in Sub-section (2) of Section 73 of the 1961 Act is "subject to the other provisions of this Chapter", which includes section

15. Under section 15 where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the: partners of the finn has got to be made and they alone are entitled to have tfo' amount of the loss set off and carried forward for set off. The m•tter is put beyond any

A pale of dOubt and challenge in sub-section (2) of section 75 when it says. that nothing contained in sub section (2) of section 73 shall entitle any assessee, being a registered firm to have its loss carried forward and set off under the . provisions of Section 73(2).

[1275DE]

C.l.T., Gujarat v. Kamila/ Nat/111 Chand, 63 !TR 318=[1967] 1 SCR 813; distinguished.

C.l.T., Gujarat Ill v. Dhanji Shamji, 97 I.T.R. 173 Chowdary Cotton ' Ginning and Processing Factory v. C./.T., Punjab 109, l.T.R. p. 6; approved.

M. G. De\asia & Co. v. C.l.T., Kera/a, 90, I.T.R. 523; affirmed.

CIVIL APPELLATE JURISDICTION'. Civil Appeals Nos. 2716-2718 ot 1972.

Appeals by Special Leave from the Judgment and Order dated the 14-7-1972 of the Kerala High Court in Income Tax Reference Nos. 100, 101 and 102 of 1970.

WITH

CIVIL APPEAL Nos. 365-367 of 1978.

From the Judgment and Order dated the 24th May, 1977 of the Kerala High Court in I.T.R. Nos. 55, 56 and 57 of 1975 .

.I. L. Nain and Mrs. Saroja Gopalakrishnan for the Appellant in E all the appeals.

P. !. Francis, S. P. Nayar and Miss A. Subhashini for Respondent in all the appeals.

The Judgment of the Court was delivered by

UNTWALIA J.-These six appeals have been heard together as a "4 common question of law in relation to the assessment of the same assessee ari$es 1in them.

Civil Appeals 2716-2718 of 19(2 relate to the assess_ment years 1964-65, 1965-66 and 1966-67. The assessee appellant is a regitered firm carrying on business at several places in the State of Kerala. Apart from its regular trade in various commodities, the assessee was also carrying on a business in speculation.

Apropos the speculation business of the assessee the Income- Tax Officer determined a loss of Rs. 40,510/-; a loss of Rs. 598/- and a profit of Rs. 1,36,264/- for the assessment years 1964-65, 1965-66 and 1966-67 respectively.

H In apportioning the assessee's income amongst its partners under section 67 of the Income Tax Act, 1961, hereinafter referred to as the Act, he also apportioned the losses in speculation business in

• "

w the, two assessment years 1964-65 and 1965-66. The profit in spe- A culalion business as computed for the assessment year 1966-67 was also apportioned by the Income-Tax Officer amongst the partners.

The assessee contended before the Income-Tax Officer that the losses in tbe specularion business could not be apportioned between the partners but should .be carried forward and set off against the profit ' in the said business made in the assessment year 196-6-67.

The Income-Tax Othcer rejected this contention. But the Appellate Assistant ,:tr, Commissioner in appeal following the decision of this Court in Cc>m-

~ -¥/ missioner of Income-Tax, Gujrat v. Kantdal Nat/iuchand SamzC)

\ accepted the asscssee's stand. 1 he dcpartment took the matter m second appeal before the Income Tax Appellate Tribunal. The Tribunal pointed out the distinction between the provisions of section 24 of the Income-Tax Act, 1922 under which the case of Kantila/ Nathuchand (supra) had been decided and those of sections 73 and 75 of

tbe 1961 Act. It, therefore, allowed the department's appeal.

On being asked by the assessee to state a case and make a reference to the High Court, the Tribunal referred the following qrnstion of law for its opinion :-

"Whether, on the facts and in the circwnstanccs of the case, and on a true interpretation of the various provisions of the Income-tax Act, 1961, the Tribunal was correct in holding that a registered firm was not entitled lo have its' losses in speculation business carried forward for s_ct off against future profits in speculation business."

The High Court of Kcrala on a consideration of the relevant pro- visions of the Act contained in Chapter VI has answered. the refer- , cnce in favour of the Revenue and agllinst the assessce.

The decision of the High Court is reported in M. D. Devasia & Co. v. Commissioner of Income-Tax, Kera/a,(') Civil Appeals 2716 to 2718 of 1972 have been filed in this Court by special leave.

Identical questions arose in respect of the assessment years 1967-68, 1968-69 and 1969-70. The High Court answered the references made in respect of those three years also against the assessee by its judgment and order dated the 24th May, 1977. Civ] Appeals 365 to 367 of 1978 have been preferred from the said decision of the High Court.

(!) 63 I. T. R. 318=[1967] 1 S. C. R. 813.

(2) 90 I. T. R. 525.

2S-409SC1/79

In the case of Kantilal Nathuchand (supra) the question for consideration was wnether on a true interpretation of the various provisions ul the Indian Income Tax Act, 1922 speculation losses of the assessce tlrm tor ti1e assessment years 1958-59 and 1959-60 should be set oil against its speculation profit in its assessment fer the assessment yeJ1 1960 61.

The provisions contained in section 24(1) and the twu provisos appended thereto were not very clear and some apparent cunllict arose between the first and the second proviso.

On a consideration of the same . this Court held that speculation losses of a registered firm kept apart under the first proviso to section 24(1) in compu.ing its total rncome [or one year could not be apportioned between the partners, and the registered firm could claim to carry forward sucii losses and have it set off against speculation profits of the firm of a later year in accordance with_section 24(2).

But the provisions of law contained in Chapter VI of the Act have made a con"derable dcparturc irom the correspond:ng provisions of the 1922 Act.

In these cases we are only concerned with the question of set off ol speculation losses again.§_! the profits of a<1y other specnlation business.

In this connectiop it would suffice to ead only the relevam provisions of sections 73 al!fl 75 as they stood at the rcle-

'l'ant tiine.

They are as follows :-

"73. Losses in speculat:on business-(1) Any loss, computed in respect of a speculation business carried on by the assessee, shall not be set of! except against profits and gains, if any, of another speculation business.

(2) Where for any assessment year any loss computed in respect of a speculation business has not been wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no income from any other speculation business, shall, svbject to the other pru\'isions of this Chapter, be carried forwarcj to the following assessment year, a_!1d-

(i) it shall be set off against the pro.fits and gains, if any, of any speculation business carried on by him assessable for that assessment year; and

(ii) if the loss cannot be wholly so set off, the amount of

loss not so set off shall be carried forward to the following assessment year and so on."

"75. Losses of registered firms-(!) Where the assessee is a rej; istered firm, any loss which canuot be set off against

any ether income of tb, e firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73 and 74.

(2) Nothing contained in sub-section (1) of section 72, sub-section (2) of section 73 or sub-section (1 )' of section 74 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid sections.''

On reading the above provisions of section 73 it is manifest that the assessee's loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. For the purpose of set off it is permissible to carry forward the losses to the following assessment year or years subject to , the limit of 8 years as provided in sub-section ( 4) of §ection 73.

But it is to be noticed that the provisiop, contained in sub-section (2) is "subject to the other provisions of this Chapter", which includes section 75_.

In the latter section it is clearly provided that where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of. the Joss set off and carrieo forward for set off under section 73.

The matter is put beyond any pale of doubt and challenge in sub-section (2) of section 75 when it says that nothing contained in sub-section (2) of section 73 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of section 73(2). The Tribunal and the High Court, therefore, were right in holding that t!Ic ratio of the decision of this Court in Kantilal Nathuchand's case

(supra) cannot be applied in respect of the assessment made under the Act.

Identical views have been expressed by the High Conrt of Gujarat in Commissioner of Income-Tax, Gujarat ITT v. Dhanji Slwmji(') and the .High Court of Punjab and Haryana in Choudhary Cotton Ginning and Pressing Factory v. Commissioner of Income-Tax, Punjab. (2)

For the reasons stated above, we dismiss all the appeals with costs.

Hearing fee one set only.

V.D.K.

(!) 97 I. T. R. 173

(2) 109 I. T. R 6

26-409SCI/79

Appeals dismissed.

H. D. DEV ASIA & CO., KERALA

May 4, 1979

N. L. UNTWALIA

R. S. PATHAK

E. S. VENKATARAMIAH, JJ

Tax Act, 1961

Sections 73 and 75

Section 73

Kerala

[1967] 1 SCR. 813

Kantilal Nathu Chand

Section 24(1)

Income Tax Act 1922

Section 73

Section 73

Section 73

section

15

section 15

section 75

section 73

Section 73(2)

[1967] 1 SCR 813

.I. L. Nain

Saroja Gopalakrishnan

P. !. Francis

S. P. Nayar

A. Subhashini

UNTWALIA

section 67

Income Tax Act, 1961

Income Tax Appellate Tribunal

section 24

Income-Tax Act, 1922

sections 73 and 75

Income-tax Act, 1961

High Court of Kcrala

[1967] 1 S. C. R. 813

Kantilal Nathuchand

Indian Income Tax Act, 1922

section 24(1)

section 24(1)

section 24(2)

sections 73

sections 70, 71, 72, 73 and 74

section 72

section 73

section 74

section 73

section 75

section 73

section 75

section 73

section 73(2)

High Conrt of Gujarat

.High Court of Punjab and Haryana


HUSSAIN ARA KHA TOON & ORS.

HOME SECRETARY, STATE OF BIHAR,

GOVT. OF BIHAR, PATNA

May 4, 1979

[P. N. BHAGWATI AND 0. CHINNAPPA REDDY, JJ.]

Constitution of India, 1950-Art. 21- Jllecessity of Speedy trial of undertrial prisoners.

Ordinarily when a person is accused of more than one ojfence, the sen~ tences of imprisonment imposed are directed to run concurrently but assuming C the sentences of imprisonment be coru; ccutive, the undertrial prisoners here have suffered incarceration for the 01aximum period for which they could be sent to jail on conviction for multiple offences.

There is absolutely no reason why the under trials be allowed to continue in jail for a moment longer since such continuance of detention would be violative not only of human dignity but also of their fundamental right und'er Art. 21 of the Constitution. [1277A-C]'

[The Court directed the High Court to subn1it information regarding the location of Courts, the number of cases pending in eachj of them and the reasons for the delay in disposal of cases to enable it to give necessary direction for setting up more Courts, appointing additional Judges and providing more facilities by way of staff and equipment so as to ensure fulfilment of the fundamental right of the accused to speedy trial under Art. 21 of the Constilution.]

ORIGINAL JURISDICTION : Writ Petition No. 57 of 1978.

Mrs. K. Hingorani for the Petitioners.

U. P. Singh for the Respondent.

The Order of the Court was delivered by

BllAGWATI, J.-This Writ Petition has come up for further directions.

Mr. U. P. Singh, on behalf of the State of Bihar, has pointed out that the Order made by us on 19th April, 1979 directing release of Sukhan Sah and Ganga Prasad, being under-trial prisoners detained in Bhagalpur Central Jail and mentioned in the list furnished by Mrs.

Hingorani on 16th April, 1979, is not correct, since on further scrutiny it is found that they do not fall within the category of under-trial prisoners who have boen in jail for a period longer than the maximum term for which they could have been sentenced, if convicted.

We. therefore recall our Order directing release of Sukhan Sah and Ganga Prasad. 'Their cases will be condered by us again when the Writ Petition is taken up for final hearing on the reopening of the Court after the summer vacation.

• \

H. KHATOON v. HOME SECRETARY (Bhagwati, !.) 1277

Mrs. Hingorani has handed over to us a list of under-trial prisoner< who are accused of multiple offences and who have already been in jail for the maximum term for which they could be sentenced on conviction, even if the sentences awarded to them were consecutive and not concurrent.

Now ordinarily when a person is accused of more offences than one, the sentences of imprisonment imposed on him arc directed to run concurrently, but even on the assmnption that the sentences of imprisonment may be consecutive, these undertrial prisoners, mentioned in the list of Mrs. Hingorani, have already suffered incarceration for the maximum period for which they could 'have been sent to jail on conviction.

There is absolutely no reason why they should be allowed to continue to remain in jail for a moment longer, since such continuance of detention would be clearly violative not only of human dignity but also of their fundamental right under Article 21 of the Constitution.

We, therefore, direct that these under-trial prisoners he released forthwith.

We have also before us a list of under-trial prisoners furnished by Mrs. Hingorani, which gives the names and particulars of those undertrial prisoners who are accused of multiple offences and who have been in jail for a period longer than the maximum for which they could be sentenced on conviction on the basis of the sentences being concurrent, though, if the sentences of imprisonment impose<l on them on conviction \Vere directed to run consecutively, their detention as under-trial prisoners could not be said to have exceeded the max:nrnm

term.

W c do not for the time being, direct them to be ccleased unconditionally but when they are produced before the Magistrates or the Court> of Session, they may be released on bail on executing a personal bond of Rs. 50/- only, without any surety and without any verification of financial solvency.

W c direct that a copy of this Order, may be sent through the High Court of Patna to the Magisifates and Courts of Session before whom the cases of these undertrial prisoners are pending, so that the necessary orders granting bail may be passed by them in favour of these under-trial prisoners at the

carkst. The High Court may obtain a compliance report from the Magistrates and Courts of Session and submit the same to us by the middle of June, 1979.

We pointed out in our earlier Judgment dated 9th March, 1979

that speedy trial is a part of the fundamental right guaranteed under H Article 21 and in order to enforce this fundamental right. il was necessary to have particulars as to the location of the CO'"; ts of Magistrates

E •

SUPREME COURT REPORTS

[1979] 3 S.C.R.

and Courts of Session in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving yearwise break-up of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more then six months.

We, therefore, by our order dated 9th March, 1979 called for these particulars from the High Court of Patna and pursuant to our directions, the High Court has sent these particulars in a detailed chart and also intimated to us what are the norms of disposals fixed by the High Court for each Court of Magistrate and Sessions Judge.

But this information given to us by the High Court is not enough. We should also like to know from the High Court how many more Courts and Judges are necessary and at which places, for ensuring the fundamental right of speedy trial to the accused in the State, having regard to the pending file and the average inflow of cases and the norm of disposals fixed for each Court of Magistrate and Sessions Judge by the High Court.

The High Court should also inform us what further facilities by way of staff and equipment are necessary in the Courts of Magistrates and Courts of Session, the lack of which is responsible for delays in disposal of criminal cases and is hampering the realisation of the fundamental right of speedy trial.

This additional information, which of course would have to be worked out on the basis of a proper and careful analysis and appraisal of the existing and anticipated filing of cases, should be forwarded to this Court by the High Court by 30th June, 1979 in five sets and out of these five sets, one should be handed over to Mrs. Hingorani and the other to Mr. U. P. Singh, on behalf of the State of Bihar. If the State of Bihar wishes to contest the correctness of the information supplied by the High Court or the validity of the proposal made by the High Court, the State of Bihar may file an affidavit in reply on or before 20th July, 1979.

This Court will'"""" then decide, on the basis of the material placed before it, as to what directions <1_re necessary to be given for setting up more courts, appointing additional judges and providing 1nore facilities by way of staff and equipment, so as to ensure fulfilment of the fundamental right of the accused to speedy trial under Article 21 of the Constitution.

The Writ Petition will now come up for final hearing on 24th July, 1979.

J\l.K.A.

HUSSAIN ARA KHA TOON & ORS

May 4, 1979

P. N. BHAGWATI

0. CHINNAPPA REDDY, JJ.

Constitution of India

Art. 21

Art. 21

Art. 21

K. Hingorani

U. P. Singh

U. P. Singh

19th April, 1979

Sukhan Sah

Ganga Prasad

Hingorani

16th April, 1979

Article 21

High Court of Patna

9th March, 1979

Article 21

30th June, 1979

State of Bihar

20th July, 1979

Article 21

24th July, 1979


l B

S. MOHAN LAL v.

R. KONDIAH

February 5, 1979

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

Andhra Pradesh Building (Lea.e, Rent and Eviction) Control Act, 1960,

6. 10(3) (a) (iii), "business," interpretation, whether includes practice of legal profession-Construction of expressions, principles.

' •

• The respondent, an advocate, sought to evict his tenant, the appellant, under s. 10(3)(a)(iii) of the Andhra Pradesh Building (Lease, Rent and Eviction) ., j-.-..

Control Act, 1960, on the ground that he required the disputed premises for "--- carrying on his profession. The court of small causes, Hyderabad, finding ,.__ that the requirement was bon.a fide, passed an eviction order against the appellant. In revision, the High Court negatived the contention that the expression "business" used in s. 10(3) (a) (iii), - did not include the 'profession' of an advocate.

Dismissing the appeal, the Court,

HELD : 1. "Business" is a word of large and wide import, capable of a variety of meanings. In a broad sense it is taken to mean 'everything that occupies the time, attention and labour of men, for the purpose of livlihood . or profit'. The practice of law is 'business' within the meaning of that expression in s.10(3)(a)(iii). The Act is of general application, and its protection is not confined to any classes of tenants, nor is the right to evict under the Act, limited to any class of landlords. There is no reuon why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession, ihould be wholly debarred from obtaining possession of the premises. It 1NOuld be anamolous to bold that all the provisions of the Act apply to non-midential buildings owned by an Advocate, excepting s. 10(3)(a)(iii).

[14D, E, l6A-B, C.D]

Williams' Will Trusts, Chartered Bank of India, Australia and China arul A11r. v. Williams and Ors., [1953] 1 All. ELR 536; Taramal v. Laxman Sewak Surcy & Ors. 1971 MPU 888, approved.

M. P. Sethurama Menon v. Thaiparambath Kunhukutty A.mma's daught•r, .

Meenakshi Amma &: Ors., AIR 1967 Kerala 88; Bangalore Water~Supply S.werage Board, etc. v. R. Rajappa & Ors .• [1978] 3 SCR 207; Stuchbery & Ors. v. General Accident Fire and Life Assurance Carp. Ltd., (194'] 2 KBD 256; distinguished.

2. It is a sound principle of construction that, meaning of words and expressions used in an Act, muat take their colour from tho context in whieb. they appear. Neither the meaning, nor tho definition of a term in one statute, affords a guide to tho construction of tho same term in another statute, more so, if the two Acts in Which the same word is used, a.re not cognate Acta

and the sense in which a term has been understood in ieveral statute&:, deos not necessarily throw any light on the manner in which it •hould be understood aenerally. [14GH &: 15AJ . /

MOHAN LAL v. R KONDIA!l: (Chinnappa Reddy, J.) 13

C!vn. APPELLATE JURISDICTION : Civil Appeal No. 2047 of 1969.

A Appeal by Special Leave from the Judgment and Order dated 25-6-1969 of the Andhra Pradesh High Court in Civil Revision Petition No. 346/67.

Y. S. Chitaley; S. K. 'Mehta, P. N. Puri and E. M. Sarul Anam for the Appellant.

A. T. M. Sampath and P. N. Ramalingam for the Respondent. • . The Judgment of the Court was delivered by '+"-- CHINNAPPA REDDY, J.-The short question for consideration in this <' appeal is whether the practice of the legal profession is 'business' within the meaning of Section 10(3) (a) (jii) of the Andhra Pradesh Buildings (Lease,, Rent and Eviction) Control Act, 1960.

The question arises this way.

The respondent, an Advocate filed an application before the Rent Controller seeking eviction of the appellant, his tenant, from the premises in question on the ground that he required the premises for the purpose of carrying on his profession as an Advocate.

The appli cation was contested by the appellant who was carrying on the business of manufacturing art jewellery in the premises.

We are not coucemed in this appea!l with the several defences which were raised by th~ appellant. Nor are we concerned with the vicissitudes which the case underwent.

For the purposes of this appeal it is sufficient to say that the final Court of fact, namely the Chief Judge of the Court of Small causes, Hyderabad, found that the respondent bona fide required the premises for the purpose of carrying on his profession as an Advocate and that the tenancy was not such as could be split up.

The Appellate authorities passed an order of eviction against the appellant. _Before the High Court, in revision, it was contended by the appellant that the practice of the profession of an Advocate was not business within the meaning of Section 10(3) (a) (iii) and, therefore, the respondent could not seek the eviction of the

' l

appellant on the ground that he required the premises for the purpose of carrying on his profession as an Advocate. it was contended that Section 10(3) (a) (iii) used the expression 'business' only and not the expression 'profession.' The contention was negatived by a Division Bench of the High Court of Andhra Pradesh consisting of Gopalrao Ekbote and Ramachandra Rao, JJ.

The tenant has appealed by spe dal leave to this Court.

_, Dr. Chitaley learned counsel for the appellant argued that there was H a clear distinction between 'business' and 'profession' and that the practice of a liberal profession like that of an Advocate or a Doctor which

had nothing commercial abont it was not business within the meaning of Section 10(3) (a) (iii) of the Andhra Pradesh :Buildings (Lease, Rent and Eviction) Control Act 1960. He argued that though the Andhra Pradesh Act broadly classified buildings into residential and nonresidential buildings, the landlord of a non.residential building could not seek to evict hii tenant on the ground of his requirement unless it wa& for the purpose of carrying on a business. According to the learned Counsel this indicated that the expression business was to be given a narrow meaning and was to be confined to activities of a commercial nature.

The learned Counsel also urged that the Court should favour a constrution which would be beneficient to the tenant.

Dr. Chitaley relied on M. P. Sethut/Jma Menbh v.

Thaiparambath kunhukutty Amma'.1" daughter, Meenakshi Amma and Ors.(') Btmgalore Woter- Supply & Sewerage Board, etc. v.

R. Rajappa & Ors. (2) and Stuchbery & Ors. v. General Accident Fire and Life lllsurance Cotpotation Ltd.(')

The e:tpression business has not been defined in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. It is a

common p:pression which is sometimeii used by itself and sometimes in a collocaflon of words as in "business, trade or profession".

It is a word of large and wide import,, capable of a variety of meanings.

It is needless to refer to the meanings given to that term in the various Dictionaries except to say that everyone of thetn notices a large number of meanings of the Wotd.

In a broad sense it is taken to mean everything that occupies the time, attention and labour of men for the irurpose of livlihood or profit'.

In a narrow sense it is confined to commercial activity.

It is obvious that the meaning of the word must be gleaned from ihe context in which it is used.

Reference to tile provlsians df the Constitution or othet statutes where' the expression is used cannot be of any assistance in determining its meaning in Secti.on 10 ( 3 )(a) (iii) of the Andhra Pradesh• Building '(Lease, Rent and Eviction) Control Act,

1960. ft is not a spund princip!e of construction to interpret exprcssions used in one Act with reference to their Use in another Act; more so, if the two Acts in which the same word is used ate not cognate Acts.

Neither the meaning, rtor the definition of the term in one statute affotds a guide to the construction of the sanie term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the matiher in which the term should be understood generally.

On the other hand it is a

(I) A.I.R. 196'7 i<erala 88.

(2) [1978] 3 S.C.R. 207.

(3) [1949] 2 K. B. l:J. 256.

'"1 '

' /

r •

Mb'!iAN LAL v. R. Kol'1iJrA!l' (Chinnappa F.eiidy, J.) 15

sound; and, irideed, a well known priritip1e bf construction that meaning of words anti expressions used in an Act must take their colour from the context iri which they appeat. Dr. Chitaky very frankly arid

fairly conceded as much .

Now tlie Ai:idhta Pradesh Buildings (Lease, Rent and Eviction) Control Act; 196o, i• aii 'Act to consolidate, and amend the law relating to the reguaiion of leasing of buildings, the control of rent thereof and the prevehticin of unreasonable eviction of tenants therefrom in the Slate of Aridhra Pradesh. it applies to the cities of Hyderabad and Secundefabatl and to all fuunieipalities in the State of Andhra Pradesh. 'flie provisions ol ihe Ad, however, do not apply to buildings owned by the Governriierit and to liuiJdirigs cilrisiiuded Oil or after 26th August,

1957.

Briiiding is broadly defined as meaning any house or hut or a part of a house or hut, let or to be let separately for residential or nonresidential purposes.

Landlord is defined as the owner of a building, including a person who is receiving or is entitled to receive the rent of a building, on his own account or on behalf of another person etc. Tenant _ is defined as a person by whom or on whose account rent is payable for a building.

Section 4 prdvides for the de!erniiii<itioh of a fair rent of a building on the applicaiinn of the tenant or landlord.

Section 10(1) provides that a tenant shall not be evicted whether in execution ot a decree or othef\vise except in accordance with the prvisioris ol Sections 10, 12 and 13.

Section io(i) rileritioris several gtouiids on which a landlord may seek to evict a tenant.

The grounds are default of payment of rent, sub-Jetting of premises, used for a purpose other than that

tor which it was leased, commission at ads of waste, conduct amounting to nuisance to the occupiers cif the other portions in the same building, securing of alternative accommodation by the teriant and denial of the title of the lap.dfoid.

The grounds mentioned in SeCiioil iO(i) iipp1y hnth to tesideritial aiid iion-fesidential buildings. Section 10(3)(a)(i) provides for the evidibri of a ietiant where the landford of a resideiitial building require~ it for his own occupation. Section 10(3)(a)(iii) provid- . CS for the eviction of a teiiiint ffom a hOn'reSidentiaJ building where

"the landlord is not occupying a ri6n-residential building iii a city, fown or vi1fage concerned whicb is his own br to the possesSioiI bf wliieli he is ehtitled whether under the Act or othetwise-( a) for the purpose df a business which he iS carrying on on !he date of the app1icaliori, cir (b) for the purpose bf a business which: in !he opinion of the Con troll et, tlie landlo'rd boria'flde proposes to coinmence".

Section 12 alld 13 cdntaill special provisions relating fo recovery of buildings liy landlord fo'r the

purpose of e:lfectihg repairs, aiteratidns or additions or for reconstiilCtion.

The scbefue at the Act is to prevent unreasonab1e eviction of

tenants b! landlords and to provide for eviction on specified grounds.

The Act is of general application and its protection not confined to any classes of tenants nor is the right to evict under the Act limited to any c'lass of landlords.

There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining _possession of the premises. It is impossible to discover any reason for so making a discrimination against the liberal professions, But, that would be the result if the expression 'business' is given a narrow meaning which the appellant wants us to give to that expression.

It would indeed be anamolous to hold that all the provisions of the Act includinlJ Section 4 which provides for the determination of fair rent and Section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not Section 10(3)

(a) (iii) only, In onr view the expression business occurring iii Section 10(3)(a) (iii) is used in a wide sense so as to include the practice of the profession of an Advocate.

The Kerala IEgh Court in M.P. Sethurama Menon v. Meenakshi Am ma & Ors., (supra) construed the expression 'trade or business' as connoting commercial activity and as not including the practice of the legal profession.

The learned Judges referred to Article 19(1)(g) of the Constitution, Section 49 of the Advocates Act, 1961, the Madras Shops and Establishments Act, 1947 and drew a distinction between the words 'business' and 'profession.' As mentiojled by us earlier, we do not think that it is right to ascribe to the word 'business' occurring in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the.same meaning that the word may have when it occnrs in other statutory provisions. The word must be interpreted in the context of

the, statute in which it occurs and not in the context of other statutes or in a manner alien to the context of the statute concerned.

In Bangalore Water-Supply & Sewerage Bo, qrd etc. v. R. Rajappa & Ors., (supra) Chandrachud, J. (as he then was) observed" ...... I find myself unable to accept the broad formulation that a Solicitor's establishment cannot be an industry. A Solicitor, undoubtedly, does not carry on trade or business when he acts for his client or advises him or pleads for him, if and when pleading is permissible to him.

He pursues a profession which is variously and justifiably described as learned, liberal or noble." The observations of the Learned Judge were made in the context of the question whether a Solicitor's establishment would fall within the definition of 'industry' under the

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MOHAN LAL v. R KONDIAH (Chinnappa Reddy, J.) 17

Indu.strial Disputes Act.

It. would be most unwise to apply this observation to determine whether the practice of the liberal professions is within the meaning of the expression 'business' in Rent Control legislation .

In Stuchbery & Ors. v. General Accident Fire and Life Assurance Corporation Ltd., (supra) it was observed that the carrying on of a Solicitor's business was the carrying on of a profession and was not the carrying on of a trade or business within the meaning of that phrase in the Landlord and Tenant Act, 1927. The observation was made in the context of that Act which made a distinction between 'trade or business' and 'profession'. In fact sub-ection 3(a) of Section 17 of the Act expressly said : "for the purposes of this Section premises shall not be deemed to he premises used for carrying on there at a trade or business by reason of their being used for the purpose of carrying on there at any profession". The question in that case was about the right to compensation for the goodwill attached to the premises where the "business" or "profession" was being carried on. We do not think that the case is of any help to the appellant.

We may refer here to the decision of Danckwerts, J., in Re Williams' Will Trusts, Chartered Bank of India, Australia and China and Another

v. Williams and Others.(') where the question was whether the bequO.t

to a son for the purpose of starting him in 'business.' was affective to start the son in medical practice. The learned Judge held that it did, E observing that the word 'business' was capable of including the practice of a profession and that it plainly included the profession of a Doctor.

We may refer to just one more case i.e. Taramal v. Laxman Sewak Surey & Ors(') where this very question whether the practice of law was a 'business' within the meaning of the Madhya Pradesh Accommodation Control Act came for consideration before A. P. Sen, J.

The learned Judge held that in the context of the Madhya Pradesh Act, the word 'business' hd to be given a wide meaning so as to include any profession.

We, therefore, agree with the High Court that the practice of law is 'business' within the meaning of that expression in Section 10{;3) (a)

(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The appeal is, therefore, dismissed with costs.

M. R.

Appeal dismissed.

(1) [1953] All E.R. 536.

(2) [1971] M.P.L.J. 888.

B

S. MOHAN LAL

R. KONDIAH

February 5, 1979

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Control Act, 1960

s. 10(3)(a)(iii)

Control Act, 1960

s. 10(3)

s. 10(3)(a)(iii)

[1978] 3 SCR 207

Chinnappa Reddy

Y. S. Chitaley

S. K. 'Mehta

P. N. Puri

E. M. Sarul Anam

A. T. M. Sampath

P. N. Ramalingam

CHINNAPPA REDDY

Section 10(3)

Control Act, 1960

Section 10(3)

Section 10(3)

High Court of Andhra Pradesh

Gopalrao Ekbote

Ramachandra Rao

Chitaley

Section 10(3)

Control Act 1960

Control Act, 1960

Control Act

[1978] 3 S.C.R. 207

Chinnappa F.eiidy

Hyderabad

Section 4

Section 10(1)

Sections 10, 12 and 13

Section 10(3)(a)(i)

Section 10(3)(a)(iii)

Section 12

Section 4

Section 10(1)

Section 10(3)

Section 10(3)(a)

Kerala IEgh Court

Article 19(1)(g)

Section 49

Advocates Act, 1961

Control Act, 1960

Chandrachud

Landlord and Tenant Act, 1927

Section 17

Danckwerts

A. P. Sen

Section 10

Control Act, 1960


HUSSAINARA KHATOON & ORS.

HOME SECRETARY, STATE OF BIHAR, GOVT. OF

BIHAR. PATNA

F e.bruary 12, 1979

[P. N. BHAGWATI, R. S. PATHAK AND A. D. KOSHAL, JJ.]

16 9

Administration of Justice-Pre-trial detention-Right of under-trial prisoner to have a speedy trial-Art. 21 of Constitution of India .

~ __ Pre-trial release--C'oncept of-Determinative factor~ in grant of bail and

--~ release of under-trial prisoner on personal bond without monetary obligation

C Y explainld.

In their petition for the issue of a writ of habeas corpus the petitioners stated that a large nun1ber of men and women i•.1cluding childr'en were in jails for years awaiting-trial in courts of law and that the offences, even if proved, would not warrant punishn1ent for more than a few months. Although sufficient opportunity was give.,,_, the State did not appea.r before the Court.

Directing the release of the undertrials on their executing a personal bond.

HELD:

(Per Bhagwati & Koshal, JJ.)

1. A procedure "".hich keeps large number of people behind bars without trial for long, cannot possibly be regarded as "rentsonable, just or fair" so as. to be in E conformity wi1h the requirement of Art. 21. It is necessary, therefore, that the law as enacted by the Legislature and as administered by the courts must radicaliy

chang~ its approach to pre-trial detention and ensure 'reasonable, 1ust an.J. fair' procedure which has a creative connotation after the decision of the Supreme Court in Maneka Gandhi's case. [174 CD]

2. Speedy trial is of the essence of criminal justice and, therefore, d_elay in trial by itself constitutes denial of justice. Though speedy trial is not sptcifically ):enun1erated as a fundamental right, it is implicit in the broad sweep and C(Jntent " of Art. 21.

Speedy trial which means reasonably expeditious trial, is an ititegral

part of the fundamental right to life and liberty 'enshrined il"l Art. 21, [179 H,

180 c, F]

Art. 21 confers a. fundamental right on every person not to be deprived of his tife or liberty except in accordance with the procedure prescribed by law and it is not eough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by Iaw, but that the pro .. cedure should be "reasonable, fair and just".

If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Art. 21 and he would be entitled to enforce such fund.am'ental right and secure his release.

Any procedure pres~ cribed by law for depriving a person of his liberty cannot be "reasonable1 fair or just" unless. that procedure 'ensure.5 a pecdy trial for determination of the guilt of suchperson. [180 D-EJ

12-196SC!/79

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SUPREME COURT REPORTS [1979] 3 s.c.Jt.

Maneka Gandhi v. Union of ln; dia, [1978] 2 SCR 621; referred to.

3. Expeditious trial and freedom from detention are part of human rights an& basic freedoms.

The judicial system which permits incarceration of men an4 women for long peripds of time withcut trial is denying human rights to suck undertrials and withholding basic freedoms from th'em.

Law has become for them an iruttrument of injustice and they are helpless and despairing victims of B the callousness of the legal and judicial system. [173 C-E, F]

4. One reason why our legal and judicial system continually denies justice te the poor -by keeping them for long years in pretrial detention is the highly unsatisfactory bail system, which suffers from a property oriented approach. It proceeds on th'e erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. Even after its re-enactment1 the Code _'!.-....1. • Criminal Procedure cootinues to adopt the same antiquated approach.

Where an accused iao to be released on his personal bond, it insists that the bond ehould , contain a monetary obligation requiring the accused to pay a sum of money in -4 case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again esta.blish th'eir solvency to be able to pay the amount of bail in case the accused fails to app'ear to answer the charge. [17 4 E-G]

This system of bails operates. very harshly agaiinst the poor and it is only the non-poor who are able to take adva.ntage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the Court is so unrealistically cxces- 1ive that in a majority of cases the Poor are unable to satis.fy the police or the Magistrate about their solvency for the amount of tb'e bail. and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find pen-ons sufficiently solvent to stand as sureties. The result is that tither they are fleeced by the police and revenue officials or by touts and profes~ 1ional sureties and sometimes they ha,"e even to incur debts for securing their release or, be.ng unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, ( 1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented irom contributing to the preparation of their defence and (3) they lose their job, if the~ have on'e, and are deprived of an opportunity to work to support themselves .....__.., and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. [174 G-

175 DJ • The bail system, as it op'erates today, is thus ai source of great hardship to G the poor and if the civil effects of poverty are to be eliminated and a fair and just treatment assured to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should lie possible for the poor, as easily as the rich, to obtain pre-tTial release without 4 ' jeopardizing the interest of justice. [177 C-D]

Ri•k of monetary loss is not the only deterrent against fleeing from justice; There ar'e also other factors which act as equal dCterrents against :fleeing. There--

fore. the courts, even under the law as it stands today, must abandon the anti~ quated concept under whicl!. pre-trial release is ordered ortly against .bail with

sureties. If the coun is satisfied, after taking into account, on the basis of

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H. KHATOON V. HOME SECRETARY 1 71

information placed berore it, that the accused has his roots in the community and is act likely to abscond, it can safely release the accused on hil5 personaJ. bond.

[177 E, G, HJ

5. To determine wheth'er the accused baas hisroots in the com1nunity which would deter him from fleeing, the court should take into account the following factors toncerning the accused : ( 1) The length of his residence in th'c community, (2) his employment status, history and his financial condition, (3) his family ties and relationships, ( 4) his reputation, character and monetary conditions, (5) his prior criminal record including any record of prior release on recognizance or on bail, (6) the identity of responsible members of the community who would vouch for his reliability, (7) the nature of the offence charged and the apparent probability of conviction and the likely sente!lce in so far as

.hese factors are relevant to the risk of non appearance, and (8) any other factors indicating the ties of the accused to the oommunity or bearing on the risk of wilful failure to appear. [178 A-El

If the court is satisfied on a consideration of the relevMit factors that the accused has his ties in the community and there is no substantial risk of non- :!tppearance, the accus'ed may, as far as possible, be released on his personal bond.

If facts a.re brought to the notice of the court showing that, havi'O.g regard to the condition and background of the accused, his previous record and the nature and circumstances of the offence, th'ere may be a substantial risk of his nonappeamnce at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious, th'e court ma.y not release the accused on his personal bond and may insist on bail with sureties.

But in the J:J3jority of cases, considerations like family ties and relatil111ship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where th'!! offence is not grave and the accused is poor or belongs to a weaker section of the commooity, release on p'erson21l bond could, as far as possible, be preferred.

But even while releasing the accused on personal bond it is necessary to caution the oourt that the amotmt of the bond which it fixes should not be based mer'cly on lhe nature of the charge. The decision as regards the amount of th~ bond should be an individualised decision depending on the individual :fina.ncial circum

stances of the accused and the probability of his abS'COndiing.

The amount of the bond 5hould be determined having regard to these relevant factors and should not be fix'ed mechanically according to a schedule keyed to the nature of the charge.

Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and 0 ppt'essive if lie is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while &ranting bail-that he is solvent

nough to pay the amount of the bond if be fails to appeM. at the trial and in oonsequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and lfeprivation of liberty and should not, therefore, be ine; isted upon as a condition of acceptance of the personal bond. [178 F-179 DJ

6. Necessary to provide by an amendment of the penal law that if an accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to ponal action. [177 Fl

7. High time that the State Government realised its reopomibility to the people in the matter of administration of justice and set up more courts for the

trial ef <...... [180 HJ

A Pathak J. (con.-urring)

( 1) The primary principle of crimina-1 law ill that imprhonment may follow a judgment of guilt, but should not precede it.

There is also another principle which makes it desirable to ensure that the ac.::used is present to receive bis sentence in the event of being found guilty. [181 E]

(2) It is indisputable that an unnecessarily prolooged det'ention in prison of unUertrials befou; b;; ing brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized ]egflil system must view with distress patently lm1~

periods of imprisonment before persons awaiting trial can receive the attention of the aJministration of justice. [181 D]

(3) The Code of Criminal Proc'edure both the old Code and the new, include provisions for the release of a person on bail or 0\1 the execution of a bond without sureties for his appearance. There is an amplitude of judi-ciad. power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance within the existi\1g provisions of the Code of Criminal Procedure and it is for the Courts to fully acqua.int themselves with the nature and extent of their discr'etion in exercising it. It is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or th'e monetary obligation demanded in a bond is a matter calling for the careful cons-idera.tion of several factors.

The entire object being cnly to ensure that tlie undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the determination of

that question must be t<1ken into account. [181 E, 182 B-C]

( 4) The abus'es attendant ~1 the prevailing system of pretrial release in India could be avoided or, in any event greatly reduced, if considerations like "nature and circumstances of the offence charged, the weight of the vidence against the accused, the accus-ed's family ties, employment, finain..:ial resources, character ao,1d mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at eourt proceedings or of flight to avoid prosecution or failur~ to appear at -court proceedings", are taken into consideration when determining pre-trial r'elease and the amount of security or monetary obligation to be imposed. [182 G, E-F]

United States Bail Reforms Act. 1966: 18 USS 3146 (b}, Moti Ram & Ors. v. State of M.P. [1978] 4 SCC 47; referred to.

(5) Urgent need for a clear and explicit provision in the Code of Criminal G Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obliga-tion. [l 83 B]

ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.

Mrs. K. Hingorani for the Petitioners

S. M. Jha and U. P. Singh for the Respondent.

The Judgment of Bhagwati and Kasha!, JJ. was delivered by Bhagwati, J. Pathak, J. gave a separll.te Opinion.

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H. KHATOON v. HOME SECRETARY (Bhagwmi, J. I I 7 :i

BHAGWA TI, J .-This petition for a writ of habeas corpus discloses a shocking state of affairs in regard to administration of justice in the State of Bihar.

An alarmingly large number of men and women, children including, are behind prison bars for years awaiting trial in courts of law.

The offences with which some of them are charged are trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced.

It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.

We are shouting from house tops about the protection and enforcement of human rights. , We are talking passionately and eloquently about the maintenance an:l preservation of basic freedoms.

But, are we not denying human rights to these nameless persons who .are languishing in jails for years for

offences which perhaps they might ultimately be found not to have committed ? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years on end ? Are expeditious trial and freedom from detention not part of buman rights and basic freedoms ? Many of these unfortunate men and women must not even be remembering when they entered the jail and for what offence. They have over the years ceased to be human beings they are mere ticket-numbers. It is high time that the pnblic conscience is awakened and the Government as well as the judiciary begin to realise that in the dark cells of our prisons there are large nnmbers of men and women who are waiting patiently, impartiently perhaps, but ln vain, for jnstice-a commodity which is tragically beyond their reach and grasp.

Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system.

The time has come when the legal and judicial system has to be revamped and restructured so that such injnstices do not occur and disfigures the fair and otherwise luminous face of our nascent democracy.

Though we issued notice to the State of Bihar two weeks ago, it is nnfortnnate that on the 5th February, 1979 no one has appeared on. behalf of the State and we must, therefore, at this stage proceed on the basis that the allegations contained in the issues of the Indian Express dated 8th and 9th January, 1979 which are incorporated in the writ petition are correct.

The information contained in these newspaper cuttings is most distressing and it is sufficient to stir the conscie11ce and disturb the equanimity of any socially motivated lawyer or judge.

Some of the undertrial prisoners whose names are giveil in the newspaper cuttings have been in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun.

What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, "little Indians, are forced into long cellular servitude for little offences" because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude.

There can be little doubt, after the dynamic interpretation placed by this Court on Art. 21 in Mar.eka Gandhi v. Union of lndia( 1) that a procedure which keeps such large numbers of people behind bars without trial so long cannot possibly be regarded as 'reasonable, just or fair' so as to be in conformity with the requirement of that Article. It is necessary, therefore, that the law as enacted by the Legislature and as administered by the courts must radically change its approach to pretrial detention and ensure 'reasonable, just and fair' procedure which has creative conne>- tation after Maneka Gamlhi's caS!! supra.

Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice.

TlJe Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century .and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial.

Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produc~ sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay np the amonnt of the bail in case the accused fails to appear to answer the charge.

This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail.

The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so

(1) [19781 2 S.C.R. 621.

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H. KHATOON v. HOME SECRETARY (Bhagwali, J.) 175

unrealistically excessive that in a majority of cases the poor are unable to satisf) the police or the Magistrate about their solvency fox

the amount of the bail and where the bail is with sureties, as is usually the ca_se, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties.

The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up !heir cases for trial, Jeaing to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and ( 3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of '11eir detention almost invariably fal!s heavily on the innocent members of the family.

It is her~ that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor.

The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr. Justice Bhagwati, emphasised this , Paring inequality in the following words :

"The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change.

In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of :financial loss is necessary to prevent the accused from fleeing is of doubtful validity.

There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one.

The experience of enlightened Bail Projects in tho United States such as Manhattan Bail Project and D. C.

Bail Project shows that even without monetary bail it has been possible to_ secure the presence of the accused at the trial in quite a large number of cases.

Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty. while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail.

This discrimination arises even if the amount

of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount."

The Gujarat Committee also pointed out how the practice of fixing B the amount of bail with reference to the nature of the charge without taking into account relevant factors, such as the individual financial circumstances of the accused and the probability of his fleeing before

ial, is harsh and oppressive and discriminates against the poor :

i "

"The discriminatory nature of the bail system becomes all the more acute by reason of the mechanical way in which it is custonnari!y operated. It is no doubt true that theoretically the Magistrate has broad discretion in fixing the amount of bail but in practice it seems that the amount of bail depends almost always on the seriousness of the offence.

It is fixed according to a schedule related to the nature of the charge. Little weight is given either to the probability that the accused will attempt to flee before his trial or to his individual financial circumstances, the very factors which seem most

relevant if the purpose of bail is to assure the appearance of the accused at the trial.

The result of ignoring these factors and fixing the amount of bail mechanically having regard only to the seriousness of the offence is to discriminate against the poor who are not in the same position as the rich as regards capacity to furnish bail.

The Courts by ignoring the differential capacity of the rich and the poor to furnish bail and treating them equally produce inequality between the rich and the poor : the rich who is charged with the same offence in the same circumstances is able to secure his release while the poor is unable to do so on account of his poverty.

These are some of the major defects in the bail system as it is operated to-day."

The same anguish was expressed by President Lyndon B. Johnson at the time of signing the Bail Reforms Act, 1966 :

"Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system.

This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

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H. KHATOON v. HOME SECRETARY (Bhagwati, J.)

How is that purpose met under the present system ?

The defendant with means can afford to pay bail.

He can afford to buy his freedom.

But poorer defendant cannot pay the price.

He languishes in jail weeks, months and perhaps even years before trial.

He does 11ot stay in jail because be is guilty. He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any more likely to flee before trial.

He stays in jail for one reason only-because he is

poor. ..... " C

The bail system, as it operates today, is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release with()ut jeopardizing the inteJest of justice.

It is high time that our Parliament realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing.

Ours is a socialist republic with social justice as the signature tune of our constitution and Parliament 'would do well to consider whether it would not be more consonant with the ethos of our constitution that instead of risk of financial loss. other relevant considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the cfeterminativc factors in grant of bail and the accused should be in appropriate cases be released on his persona) bond without monetary obligation.

Of course, it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action.

But even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties.

That concept is outdated nd ex perience has shown that it has done more harm than good.

The new insight into the subject of pretrial release wh'ch has been developed in socially advanced countries and particularly the United States should

ROW inform the decisions of our Courts in regard to pretrial release.

If the Court is satisfied, alter taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accnsed

on his personal bond. To determine whether the accused has his rooti; in the community which would deter him from fleeing, the Coort should take into account the following factors concerning the accused :

1. The length of his residence in the community.

2. his employment status, history and his financial condition,

3. his family ties and relationships,

4. his reputation, character and monetary condition,

5. his prior criminal record including any record or prior release on recognizance or on bail,

6. the identity of responsible members of the community who would vouch for his reliability.

7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear. • II the court is satisfied ou a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of nonappearance, the accused may, as far as possible, be raleased on his personal bond.

Of course, if facts are brought to tlte F notice of the court which go to show that having regard to the copdition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the G court may not release the accused on his personal bond and may insist on bail with sureties.

But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the com- H munity, release on personal bond could, as far as possible, be vreferred.

But een while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it

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H. KHATOON v. HOME SECRETARY (Bhagwati, J.) 179

fixes should not be based merely on the nature of the charge.

The decision as regards the amount of the bond should be an individualiiied decision depending on the individual financial circumstances of the accused and the probability of his absconding.

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to

~ 1tie nature of the charge.

Otherwise, it would be difficult for the accased to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be J.._very harsh and oppressive if he is required to satisfy the court-and _A Y.>hat we have said here in regard to the court must apply equally in ; relation to the police while granting bail-that he is olvent enough

t~ tiay the amount of the bond if he fails to a, ppear at the trial and in consequence the bond is forfeited.

The inquiry into the solvency of the accused can become a source of gret harassment to him and often re1ult in denial of bail and deprivation of liberty artd should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have in di~ cated in this judgment, it would go a long way towards relieving hardship of the poor and help them to secure pretrial release from incarceration. It is for this reason we hae directed the undertrial prisoners whose names are given in the two issues of the Indian Express ihould be released forthwith on their personal bond. We should have ordinarily said that personal bond to be executed by them should be with monetary obligation, but we directed as an exceptional measure that there need be no monetary obligation in the personal bond becanse we found that all these persons have been in jail without trial . for several years, and in some cases for offences for which the punisl!- o.; r ment would in all probability be less than the period of their detention and moreover, the order we were making was merely an interim order.

The peculiar facts and circumstances of the case dictated such an unusual course . •

There is also one other infirmity of the legal and judicial system G which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in d; sposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years.

Even a delay of one year in the commencement of the trial is bad enough; how much worse could it be when the delay is as long as 3 or 5 or H 7 or even 10 years.

Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial

of justice.

It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights.

The Sixth Amendment to the Constitution provides that

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." So also Article 3 of the European Convention on Human Rights provides that :

"every one arrested or detained-shall be entitled to trial within a reasonable time or to release pending trial." •

We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in th~ broad sweep and content of Article 21 as interpreted by this Court in ,- Maneka Gandhi v. Union of India.

We have held in that case that + Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just".

If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and 1ecure his release.

Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the

ilt of such person.

No procedure which does not ensure a reasonable quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21.

There can, therefore, be no doubt that speedy tri>1l and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and~ liberty enshrined in Article 21.

The question which would, however, '• arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right undc Article 21.

Would he be entitled to be released unconditionally freed from the charge levelled against him

on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned

7 <

date.

But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of admini-

H. KHATOON v. HOME SECRETARY (Pathak, J.) lSI

'!ration of justice and set up more courts for the trial of cases.

We may point out that it would not be enough merely to establish more courts but the State Government would also have to man them by competent judges and whatever is necessary for the purpose of recruiting competent judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice tb the large masses of people for whom justice is to-day a meaningless and empty word.

• These are the reasons for which we made our order dated 5th ....-ebruary, 1979.

We shall now proceed to hear the ; nit petition on

1 19th February, 1979.

PATHAK, J.-lt is indisputable that an unnecessarily prolonged detention in prison of undertrials before being brought to trial is an affront to all civilized norms of human liberty.

Any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of im-' D prisonment before persons awaiting trial can receive the attention of the administration of justice.

The primary principle of criminal law is that imprisonment may follow a judgment of guilt.

But should not precede it. But there is another principle which . makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty.

Now, the Code of Criminal Procedure, both the old Code and the new, include provision for the release of a person on bail or on the execution of a bond without sureties for his appearance.

Nonetheless, as appears prima facie from the record before us, a large number of persons whose names, find mention in copies of the Indian Express of January 8 )-- -and 9, 1979, have been in prison for long year without even being

,.~ brought to trial.

Although sufficient opportunity was given to the State of Bihar to meet the allegations made, it is unfortunate that no one has appeared on behalf of the State.

In view of the importance of the questions arising on the habeas corpus petition, we have '

" T

provided further opportunity to the State to appear and accordingly have posted the petition for final hearing on February 19, 1979. But at the same time we see no reason why interim relief should be denied to these undertrials. After carefully considering what has been said in respect of each individual undertrial, we have considered it appropriate, in the interests of justice, to make the order of February 5, 1979 clirect!ng the release of the persons mentioned in that order on their executing a personal bond. '\he order is somewhat unusual in that it directs that the personal bond to be taken in each

- '

A case should not be based on any monetary obligation.

The condition has been included as an exceptional measure, under the persuasive pressure of the particular facts and circumstance of the case.

In regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without B sureties for his appearance, I have to say this briefly.

There is an amplitude of power in thi.s regard within the existing provisions of _,, the Code of Criminal Procedure, and it is for the Courts to fully acquaint themselves with the nature and extent of their discretion in exercising it.

I think it is no longer possible to countenance a mecha- " nical exercise of the power.

What should be the amount~,_ C security required or the monetary obligation demanded in a bond is + a matter calling for the careful consideration of several factors.

The entire object being only to ensure that the undertrial does not flee or hide. himself from trial, all the relevant considerations which enter into the determination of that question must be taken into account. ( ') D • A synoptic impression of what the considerations could be may be drawn from the following provision in the United States Bail Reform Act of 1966:

"In determining which conditions of releases will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. (2) ·- ....

These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system of pretrial release in India could be avoided or, in any event, greatly reduced See Moti Ram and Others v. State of Madhya Pradesh.(8)

I consider it desirable te refrain from making any final comment or observation on the legality and propriety of the continued detentian of the undertrial prisoners whether on the ground of infringement

(1) Sectin 440, Code of Criminal Procedure.

(2) 18 lJ. s. s. 3146 (b)

(3) [197i] 4 s.c.c. 47.

, ..

• .....

1 •

""' '

' •

H. KHATOON v. HOME SECRETARY (Pathak, J.) 183

of Article 21 of the Constitution or on other grounds. That, I think, A. should await the final determination of the habeas corpus petition . •

These are the reasons which have influenced me in making the order dated February 5, 1979.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an undertrial prisoner on his bond without sureties and without any monetary obligation. , There is urgent need for a clear provision. Undeniably, the thousands ~-~ of undertrial prisoners lodged in Indian prisons today include many ,_. who are nnable to secure their release before trial because of their

• . '

inability to produce sufficient financial guarantee for their appearance.

Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination.

The more so under a constitutional system which pronrises social equality and social justice to all of its citizens.

The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives.

There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier

and, it seems to me, our law-makers would take an important step in defence of individual liberty if appropriate provision was made in the statute for non-financial releases.

N.V.K .

HUSSAINARA KHATOON & ORS

P. N. BHAGWATI

R. S. PATHAK

A. D. KOSHAL, JJ.

Art. 21

Constitution of India

Art. 21

Supreme Court

Maneka Gandhi

Art. 21

Art. 21

Art. 21

Art. 21

[1978] 2 SCR 621

A Pathak

Code of Criminal Procedure

India

United States Bail Reforms Act

K. Hingorani

S. M. Jha

U. P. Singh

Kasha

BHAGWA TI

Bihar

State of Bihar

5th February, 1979

8th and 9th January, 1979

Art. 21

Maneka Gamlhi

Code of Criminal Procedure

Government of Gujarat

United States

Manhattan Bail Project

D. C.

Bail Project

Parliament

Article 3

Article 21

Article 21

Article 21

Article 21

Article 21

Article 21

Article 21

5th ....-ebruary, 1979

PATHAK

Code of Criminal Procedure

February 19, 1979

February 5, 1979

Code of Criminal Procedure

Code of Criminal Procedure

s. 3146

Article 21

Code of Criminal Procedure

N.V.K


STATE OF HARYANA

DARSHANA DEVI & ORS.

February 12, 1979

[V. R. KRISHNA IYER AND 0. CHINNAPPA REDDY, JJ.)

Civil Procedure Code, Or. XXXIII, application to accident-claims cases, principles involved.

'fhe respondents, a. widow and her daughter, claimed con1pensation for the •

killing of their sole bread-winner, by a Haryana State Transport bus, but could ,, not afford to pay any court fee on their clai, m.

The High Court held that the ___,,.,{ exemptive provisions of Order XXXIII, crc, will apply to Accident Claims-- ---..,__ Tribunals, which have the trappings of the Civil Court.

Dis-missing the special leave petition the Court,

HELD : The Sta.te should fram'e appropriate rules to exempt from levy of court fee, cases of claims of compensation where automobile accidents are the cause. T\vo principles are involved. Firstly, access to court, is an integral part of social justice, and tfre State bas no rational litigation policy if it forgets this fundamental, and secondly, it is the State's duty under Art. 41 of the Constitution to render assistance, without litigation, in cases of disablement and undeserved want. [185 B-C, D, 186 C]

M. Cappelletti, Rabels Z, (1976) 669 at 672; quoted with approval.

Obiter dictum :

I. It is a public duty of each great branch of Government to obey the rule of law and uphold the trys.t with the Constitution by making rules to effec~µat't legislation meant to help the poor. Now that insurance against third party risk is oompul, sory and motor insurance is nationalised, a'-'ld transport itself i! largely by Sta.le Undertakings, the principle of no-fault liability and on-the-spot e'ettlement of claims should become national policy. [186 B, C, D-E]

II. Courts must give the accident claimS' cases high priority, adopt simplified procedures \Vithout breach of natural jus-tice, try. out pre-trial settlements aind narrow down the controversy and remember, that 'wiping every tear from every eye' has judicial relevance. For, law must keep its promise to justice. [186 G~

CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil) No. 4120 of 1978.

From the Judgment and Order dated 8-3-78 of the Punjab and Haryana High Court in Civil Revision No. 80 I /7 6.

Prem Malhotra and M. N. Shroff for the Petitioner.

The Order of the Court was delivered by

0 KRISHNA IYER, J.-We refuse leave bnt with a message tag.

The poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of

J ,_

HARYANA V- DARSHANA (Krishna Iyer, !.) 185

Order XXXIII, C.P.C So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in Art 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the 'pauper' provisions to auto-accident claims.

The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval.

We affirm the decision.

Even so it is fair for the State to make clear the situation by fram- --ing appropriate rules to exempt from levy of court fee cases of claims -(

c • of compensation where automobile accidents are the cause .

~ . '

Here is a case of a widow and daughter claiming compensation for the killing of the sole bread-winner _by a State Transport bus; and the Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous. litigant even by avoiding adjudication through the device of asking for court-fee D from the pathetic plaintiffs.

Two principles are involved.

Access to court is an aspect of Social Justice and the State has no rational litigation policy if it forgets this fundamental.

Our perspective is best projected by Cappelletti, quoted by the Australian Law Reform Commission :

"The nght of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection.

Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system.

Effective access to justice can thus be se.en as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal right."(')

We should expand the jurisprudence of Access to Justice as an integral part of Social Justice and examine the constitutionalism of courtfee levy as a facet of human rights highlighted in our Nation's Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at i_ts policy is overdue.

The Court must give the benefit of doubt against levy of a price to enter the temple of justice -----

(l) M. Cappelletti, Rabcls Z (1976) 669 at 672.

I -i96SCll79

• D

SUPREME COURT REPORTS

[1979] 3 S.CRuntil one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee, is fully reviewed by this Court.

Before parting with this point we must express our poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignal\t provision of legal aid to the poor in Order XXXIII Rule 9 A, Civil Procedure Code, although several years have passed since the enactment.

Parliment is stultified and the People are frustrated.

Even after a law has been enacted for the benefit of the Poor, the State does not bring into force by wilful default in fulfilling

the conditio sine qua non. It is a public duty of each great branch ' of Gcvernmcnt to obey the rule of law and uphold the tryst with the - ~._

Constitution by making rules to effectuate legislation meant to help the poor.

The second principle the State of Haryana has unhappily failed to remember is its duty under Art. 41 of the Constitution to render public assisttlnce, without litigation, in cases of disablement and undeserved want. It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties.

Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should becume national policy.

The victims, as here, are mostly below the poverty line and litigation is compounded misery.

Hit-and-run cases are common and the time is ripe for the court to examine whether nofault liability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts.

A long ago Report of the Central Law Commission confined to hit-and-run-~ cases of auto-accidents is gathering dust.

The horrendous increase

- "" of highway casualties and the chronic neglect of rules of road-safety constrains us to recommend to the Central Law Commission and to Parliament to senitize this tragic area of tort law and overhaul it humanistic ally.

Another asi;>ect must be noticed before we part with this petition.

In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness.

Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of natural justice, try ont pre-trial settlements and narrow down. the controversy and remember, that 'wiping every tear from every eye' has jndicial relevance.

For, law must keep its promise to Justice.

., .

'-C . '

HARYANA v. DARSHANA (Krishna Iyer, J.) 18 7

While we di•mi•s the petition for leave, we hope the Haryana A State will hasten to frame rules under the Motor Vehicles Act to •enable claimants for compensation to be free from payment of courtfee .

M.R.

Petition dismissed.

~ -

STATE OF HARYANA

DARSHANA DEVI & ORS

February 12, 1979

V. R. KRISHNA IYER

0. CHINNAPPA REDDY, JJ.

Civil Procedure Code

Art. 41

Prem Malhotra

M. N. Shroff

KRISHNA IYER

Krishna Iyer

C.P.C

State of Haryana

Article 14

Art 39A

Haryana Government

Cappelletti

Australian Law Reform Commission

Articles 14 and 39A

Order XXXIII Rule

Civil Procedure Code

Art. 41

Motor Vehicles Act

Parliament

Central Law Commission

Krishna Iyer

Motor Vehicles Act