judgement:
Civil Appeals Nos.
11781180/76.
Appeals by Special Leave from the Judgment and Order dated 22 9 1976 of the Madras High Court in Writ Petition Nos.
3059/ 75, W.A. No. 339/76 and W.P. No. 14 respectively.
Y.S. Chiale, V. Subramanyam and Vineet Kumar for the Appellant in C.A. 1178/76.
K.S. Ramamurthi, M.N. Rangachari, A.R. Ramanathan, K. Thimmalai, Jayaraman, M.M.L. Srivastava and A.T.M.S. Sam path for the Appellant in CAs.
1179 1180/76.
V.P. Raman, Addl.
Gen. (In CAs.
1178 to 1180/76, D.N. Misra, J.B. Dadachanji for Respondent No. 2 in CAs.
1178 & 1180 of 1976 and Respondent 2 in C.A. 1179/76.
K. Parasaran, Adv.
Tamil Nadu, ,A.V. Rangam, T. Sathiadev and (Miss) A. Subhashini for Respondents in CAs.
1179 80 except Transport Corporation.
K. Jayaram, V.T. Gopalan and K. Ram Kumar for the Appli cant and Intervener in C.A. 1178/76.
The Judgment of A.N. Ray C.J., and Krishna Iyer, J. was delivered by Krishna Iyer, J.M.H. Beg, J. gave a separate concurring opinion.
KRISHNA lYER, J. A terse presentation of the twin con tentions canvassed before us, in these appeals by special leave, after discomfiture at two tiers below, highlights the importance of the economic role of the State in undertaking, with legal preferences, strategic services vital to the community.
The keynote thought underlying our decision is that the jural postulates of the old competitive order have to yield place to the new values of developmental jurispru dence.
Public law, in India, responding to the public needs and the State 's functional role mandated by the Constitu tion, has evolved new approaches to old problems and given up dogmas which once prevailed during laissez faire days but now have become obsolete because of the 'welfare ' economy which has been nurtured.
This radical change in jural 394 perspectives has its impact on canons of statutory construc tion and on verdicts about the vires of legislation.
All these generalities acquire appropriate application in the present cases which arise under the (Act IV of 1939) (the Act, or short) from challenges before the High Court without avail, by private operators, of the permit granted to the State Transport Undertaking (STU) by the transport tribunals.
The validity of r. 155A of the Motor Vehicles Rules framed under section 68 of the Act is in issue.
The core of counsel 's submissions is two fold: (1) Is rule 155A, assigning five marks for a State undertaking, not family violative of s 47 of the Act? Does the later amendment to the proviso to section 47 giving preference to State transport systems, other things being equal, impliedly repeal, as contrary to its content, rule 155A which gives better advantage to the favoured category, fulfilling the spirit of the statutory amendment more tellingly ? We will proceed further after stating the circumstances leading up to the writ petition before the High Court and the appeal before us.
The appellants, who have come by special leave to this Court, are private stage carriage operators.
We will relate the facts of one case (Civil Appeal No. 1178 of 1976) the decision in which will settle the fate of the rest, the decisive point of law being identical.
The permit of the appellants but on the route Salem to `rode was to have expired on September 13, 1974 and so he applied for renewal under section 58(2) of the Act.
The respondent State Transport Undertaking objected to the renewal of the permit urging preferential grounds in its own favour.
The State undertak ing 's claim was upheld on the score that it secured higher marks computed with the aid of r. 155 A. Baulked in his application for renewal, the appellant challenged the order before the Appellate Tribunal.
Apprehending an adverse decision on the strength of r. 155 A, he filed a writ peti tion before the High Court praying that a direction be issued to the Appellate Tribunal to dispose of his appeal without relying on r. 155 A.
The plea was negatived by the learned Single Judge and a Division Bench dismissed the appeal therefrom.
Aggrieved by the concurrent findings the appellant has assailed before us the vires of r. 155 A as obnoxious to public interest excluding, in some measure, a fair competition and being contrary to the proviso to.
section 47 (1 ) of the Act.
A meaningful discussion of the points debated at the Bar has to begin with a brief outline of the scheme of the in the branch relating to grant of permits for transport vehicles (Chapter IV).
All transport vehicles, before they can be plied in any public place, require per mits under section 42 and even government vehicles, if put to commercial use, have to possess permits.
Applications are made for stage carriage permits under section 57 and the consid erations germane to their grant are set out in section 47 of the Act.
It is common ground, and decisions are legion in support thereof, that the interest of the public generally is the super consideration decisive of the award ' of permits when there is a plurality of applicants.
He who can serve the public best gets the permit to ply the stage carriage from the quasi judicial authority charged with the responsi bility for choice.
We may read the relevant part of section 47(1) here: 395 (Krishna Iyer, J.) "47.
Procedure of Regional Transport Authority in considering application for stage carriage permit, (1) A Regional Transport Authority shall, in considering an application for a stage car riage permit, have regard to the following matters, namely : (a) the interest of the public generally; X X X X Provided that other conditions being equal, an application for a stage carriage permit from any State Transport Undertaking or a Cooperative Society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.
X X X X" The interest of the public generally, is often times too vague and, generally, the exercise of discretion deserves to be canalised to guide the statutory bodies and to facilitate better appreciation by the applicants of the claims that may ordinarily be considered by transport tribunals.
From this angle, the Tamil Nadu State has framed rules.
expressly subordinated to the paramount factor of public interest which shall weigh with tribunals when adjudging among com peting claimants. 'This Court, in Kumaraswamy(1), summed up the purport of the rule thus: "The system of marks, under the Rules framed under the Act by the Tamil Nadu Govern ment, prescribes the various qualifications for applicants for permits for passenger transport under the .
Rule 155 A crystallises these considerations and describes them as guiding principles for the grant of stage carriage permits.
The rule itself emphasizes what is obvious, that the paramount consideration of the interest of the public, as enshrined in Section 47(1), must be given full weight while awarding per mits.
That means to say that the various factors set out in rule 115 ,4 are subject to section 47(1).
This is clarified by sub rule (4) of Rule 155 A, which runs thus: "After marks have been awarded under sub rule (3), the applicants shall be ranked according to the total marks obtained by them and the applications shall be disposed of in accordance with the provisions of sub section (1 ) of section 47.
" There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the travelling public is highlighted while evalu ating the relevant worth of the various claim ants.
" Rule 155A(3)D(1) offends against the prescription in the proviso (1) 396 to section 47(1 ) and is void, according to counsel for the appellants.
Before examining this alleged vice, we may as well read sub rule (3) of Rule 155 A to the extent neces sary: "(3) After eliminating in the manner laid down in subrule (2), the applicants who are unsuitable, marks shall be awarded for assessing the different qualifications of the remaining applicants for the grant of permits as follows : (A) Residence Two marks shall be award ed to the applicant who has his principal place of business or permanent residence at either terminus or on the route.
Explanation.
The term 'principal place of business ' shall mean only the registered headquarters of the company and not the resi dence of the Managing Director or any other Director of the Company.
(B) Technical qualification (for Owner or Managing Director).
Two marks shall be awarded to the applicant if the Owner or the Managing Director of the organisation has technical qualification which may be useful to run the transport service efficiently.
(C) Workshop facilities.
Two marks _shall be awarded to the applicant who is in possession of workshop facilities as given in Explanation under item (2)(iv).
(D) (i) Five marks shall be awarded to the applicant falling within the proviso to clause (c) of section 62 A of the Motor Vehi cles Act, 1939, i.e., State Government, Cen tral Government or any Corporation or Company owned by the Central Government or State Government.
(ii) The applicant who operates not more than nine stage carriages excluding spare buses, shall be awarded marks as follows : (1 ) Applicant operating one to three buses 4 marks.
(2) Applicant operating four to six buses 3 marks.
(3) Applicant operating seven to nine buses 2 marks.
Provided that if a new entrant has made an application for a short route other than town service route, no marks shall be awarded to any applicant under clause (B), (C) and (D) (ii).
" The ground of invalidation urged is that there is no justification for grant of 5 marks to an applicant falling within r. 155A (3)(D)(1) solely for the reason that it is owned by the State Government.
Ownership is irrelevant and the sacrifice of public interest at the altar of government interest is contended to be a flagrant partiality shown by the subordinate legislation in the teeth, and transgressing the limits, of the equal consideration implicit in section 47(1 ).
second argument 397 (Krishna Iyer, J.) is that the proviso to section 47(1), as amended by Act 48 of 1974 (Tamil Nadu Amendment Act) gives preference to a State Transport Undertaking, other things being equal, and im pliedly provides against any larger preference being shown to such an undertaking in the guise of rules.
For this reason, the generosity of the rule being contrary to the narrow preference in the proviso to the section (brought in by later amendment), the former cannot co exist with the latter and must be taken as impliedly repealed.
Although this amendment to the Act was later than the promulgation of the rules, the law as it stands today is the basis of our judgment.
Thus the two question formulated right at the beginning of the judgment arise in the setting of facts and law we have broadly described above.
It was urged by Shri Chitale, followed by Shri Rama murthy, in two of the several matters heard together, that Part IVA provided for monopolistic award of permits to the State Transport Undertaking but Part IV put everyone on a competitive basis, regardless of whether one was a State undertaking or not, the most meritorious winning the battle in a free market economy.
If the soul of Part IV were free competition, not 'rigged ' selection, aid in the shape of extra marks given by rules had to be withdrawn and every applicant had to run without anyone being given a handicap in the race.
State undertakings being awarded 5 grace marks for no reason except that they belonged to the State was a gross violation of the spirit and letter of section 4 7 (1 ) which postulated the promotion of public interest as the basic consideration and the selection of the ablest as the criterion for choice.
Both counsel, in their overlapping arguments, stressed that there was a negative mandate in the proviso to section 47(1) not to prefer a State undertaking save where other conditions were equal and if the State undertak ing was unable to attain the condition of equality with another, its claim could not be promoted by the artifice of assignment of marks to a State undertaking qua State under taking.
Public law, in our pie bald economy and pluralist socie ty, responds to societal challenges and constitutional changes.
TO miss the ideological thrust of our Constitution and the economic orientation of our nation while construing legislation relating to public law and scanning them for their validity is to fail in understanding the social phi losophy that puts life and meaning into the provisions of the Act.
The law, being realistic, reckons with the social ist sector covering State and co operative enterprises.
The special status of a government owned transport undertaking in a Welfare State is obvious.
It has large resources to cater to the traffic needs.
It has, within its range of influence and coordination.
many services useful to the travelling public, which may be beyond the reach of private ownership.
Its functional motto is not more profits at any cost but service to citizens first and in a far larger measure than private companies and individuals, although profitability is also a factor even in public utilities.
Its sensitivity to community welfare and en couragement of labour participation, its accountability to the Government, the legislature and the public put it in a category by itself.
It is socially conscious, not profit obsessed.
We are aware of the shortfalls of some public sector undertakings in some respects 398 but it needs little argument to hold that to classify State transport systems on a separate footing is realsic and is ordinarily no sin before the principle of equality before the law.
The legislative body has done, in the given circum stances, what it thought was sound policy and we find no vice in the policy.
To classify what is conceptually and operationally different into a separate category is intelligence, not impertinence.
The judicial art of interpretation and ap praisal is imbued with creativity and realsm, especially where fundamental changes have been wrought by the Constitu tion in our approach to public sector enterprises.
Legal Darwinism, adapting the rule of law to new societal develop ments, so as to survive and serve the social order is neces sary: "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another genera tion badly, and which discards the old rule when it finds that another rule of law repre sents what should be according to the estab lished and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule.
It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life.
It is not and it should not be station ary.
Change of this character should not be left to the legislature.
If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors." (Cardozo: The Nature of the Judicial Proc ess: Yale University Press: pp.
151 152).
This refreshing perspective guides us to look at the submissions advanced.
Both the contentions can be shot down by three considerations.
Firstly, a State enterprise, in a truly Welfare State, is charged with a social consciousness and responsibility for its citizens, an attention to serve them and a willingness to embark on public utility undertak ings better to fulfil people 's demands.
The public sector enterprises are expected to be model employers and model servants, planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative com mittees and the Houses of the legislature.
Profits are their concern but, more importantly, public weal is their commitment.
Such is the philosophy of the State sector in our socialistic pattern of society.
Article 19(6)(ii) and article 38 of the Constitution, section 47 (1 ), especially the proviso, and Charter IVA of the Act (now governed by the impregnable Ninth schedule to the COnstitution) throw light on this policy of the paramount law.
Here, therefore, the rule making authority, having regard to all relevant circum stances, has decided to award to a State Transport Undertak ing 5 marks.
This is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. 399 (Krishna lyer, J.) After all, private enterprise has its primary motivation in profit, although, under State direction, it is becoming socially responsive.
The superiority in many respects (not all respects) of State Transport Undertakings, in the legis lative judgment, has led to r. 155A.
This classification has noetic nexus with and rational relation to the object of augmenting the good of the passenger community.
The theory, rooted in the obsolescent laissez faire economics, that only cold competition among claimants to run businesses brings out the best operator has serious limitations in fields where the focus is on public service, not gains of business.
Public law, adapting itself to this socio economic view, shifts its emphasis.
This is what we have earlier called legal Darwinism.
We, therefore, hold that the assignment of marks under r. 155A is geared to public interest, which is the desideratum of section 47 ( 1 ) of the Act.
We now move on to an examination of the alleged fatal incompatibility between the proviso to section 47(1) and L 155A.
This second submission of counsel is a trifle mystifying.
There cannot be a contradiction without diction.
Unless section 47(1) proviso carries a negative injunction that transport tribunals shall not give any other preferential considera tion than what is stated in it, there cannot be any con flict between it and the impugned rule.
The proviso to the section does nothing of the kind.
It merely takes care of a specific situation.
Where a State Transport Undertaking: and a private operator are equally balanced, the scales may be tilted in favour of the former.
There is no implied inter dict that in other contingencies no preference shah be accorded.
It is not a 'Thus far and no further '.
Indeed, the spirit of this proviso has been carried further by the rule, having regard to the realities of the total transport system plying in the State.
The third consideration which silences the appellant 's charge of violation of section 47 is that the marking formula does not deprive the administrative tribunals of their discretion to choose the best.
The consternation of the private entrepreneurs that by manipulating the marking mechanism the State undertaking, regardless of its demons trable inferiority of public service, will knock off all the permits, paralysing the power of the Tribunal to pick and choose, by the overwhelming and inevitable superiority of marks, is misplaced.
The fear is falsified if we read the rule aright.
It has, written on its face, its own limita tion.
Marks shall guide, not govern the award.
Full discretion, to some extent, canalised by the marking proce dure, still vests in the Transport Authority.
For, the marks, these authorities will remember, sway the exercise of judgment, not supersede it.
It is conceivable that the pecularities of a route, the calamitous performance in an area of a State transport system, the outstanding spe cial facilities of a particular private operator or other like feature may outweigh the mechanics of marks.
After all, many qualifications, advantageous to the travelling public, may be thought of, untouched by the rigid marking moulds.
They are not irrelevant and may still be regarded by the tribunals.
All this leads to the conclusion that marks shape but do not clinch the ultimate selection.
The public is the consumer; its plenary service is the final test.
Therefore, these is 400 nothing in r. 155A deprivatory of the discretion vested by section 47(1).This interpretative footnote must allay the appre hensions voiced by counsel.
Nor are we convinced that there is no possibility of a private operator exceeding the mini mum marks of a State Transport Undertaking.
Moreover, the marking formula lacks flexibility.
Merely because the State Transport Undertaking has no 'residence ' or workshop on the route, although its attention and ability to react are considerable, why should it suffer a marks created handicap ? There is equity in r. 155A, making up, as it does, for the present shortfalls in the marking system visa visa govern ment transport service.
The appeals, for these reasons, must suffer dismissal.
There will be no order as to costs.
BEG, J. I agree with the conclusion reached by my learned brother Krishna Iyer.
As arguments in this batch of cases seem to raise some questions which I, speaking entire ly for myself, consider to be really outside the sphere of the law which we have to interpret and apply, I would like to make some observations on the implications of these questions argued after stating my reasons for agreeing with my learned brother.
Mr. Chitaley 's first argument for some of the appellants raised only what may be described as "normal" legal ques tions of construction or interpretation (there is some difference between these two allied processes as will appear from Crawfords "Statutory Construction", 1940 Edn., Chapter 18, paragraph 157 to 158 pages 240 244), as to whether Rule 155A(3)(D)(i), reproduced in the judgment of my learned brother Krishna Iyer, gives effect to or conflicts with Section 47 of the (hereinaf ter referred to as 'the Act ').
It was urged by the learned Counsel that what can be done only by resorting to Chapter IV A of the Act, by framing a scheme for partial or complete nationalisation of the routes involved, cannot be accom plished by framing a rule only ostensibly purporting to give effect to Section 47(1 ) of the Act or the proviso to it.
In ultimate analysis, the rule of construction relied upon by Mr. Chitaley to make the last mentioned submission is: "Expressio unius est exclusio alterius".
This maxim, which has been described as "a valuable servant but a dan gerous master (per Lopes J., in Court of Appeal in Colgu noun vs Brooks(1) finds expression also in a rule, formu lated in Taylor vs Taylor,(2) applied by the Privy Council in Nazir Ahmad vs King Emperor(3) which, has been repeat edly adopted by this Court.
That rule says that an express ly laid, down mode of doing something necessarily implies a prohibition of doing it in any other way.
The maxim from which the rule in Taylor vs Taylor(supra) is derived and the rule itself were discussed and explained by this Court in the Parbhani Transport Co operative Society Ltd. vs the Regional Transport Authority, Aurangabad & Ors (4) with specific reference to the argument advanced there that, (1) at 65.
(2) at 430.
(3) (1936) L.R. 63 I.A. 372.
(4) ; 401 as Chapter IV A is meant for running its own buses by the State by nationalisation of Motor Vehicle Road Transport Services, it was not open to the State to apply for per mits at all under Chapter IV of the Act which applies to private operators only.
This argument,repelled by this Court there has been put forward before us in a somewhat different and attenuated form by Mr. Chitaley.
Neverthe less, the basic rule of interpretation submitted to us is the same as the one which was relied upon in this Court in the Parbhani Transport Co operative Society 's case (supra) in an attempt to exclude the State Transport Undertaking altogether from entry into what was sought to be made out to be the exclusive preserve of private operators.
Before us, it is contended that exclusion of private operators could only be brought about by resorting to a duly framed scheme, on appropriate grounds given in Section 68C of the Act, but not indirectly by framing the kind of rule which has the effect of excluding private operators from the sphere of open competition which, it is submitted postulates an ini tial equality of positions.
This argument rests, as I will indicate below, on two erroneous assumptions: firstly, that Rule 155A(3)(D)(i) has the effect of excluding private operators; and, secondly, that the proviso to section 47(1) compels the permit issuing authorities to postulate or start by assuming an equality of conditions, as between private operators and a State Transport Undertaking.
Indeed, if they were to start with the assumption of equality they will have to give preference to the State Transport Under taking straightaway because that is what the proviso re quires.
The mainstay of the arguments of learned Counsel for the appellants before us, however, is that Rule 155A(3)(D)(i) really has the effect of excluding the private operators altogether by making it impossible for them to ever obtain preference over the State Transport Undertak ing when it applies for a permit in competition against them.
The reply on behalf of the State is that no exclusion of private operators is either intended or brought about by an application of Rule 155A(3)(D)(i) of the Act.
On the other hand, it is submitted that, as an ordinary operator and a State Transport Undertaking are, in many ways, so unlike each other that, unless five marks were assigned to each application of the State Transport Undertaking, it could not compete at all, on a fair and equal footing, with pri vate operators, who are able to obtain straightaway two marks for residential qualifications, four marks if they are operating not more than three buses, and two marks for workshop facilities.
apparently, the residential qualifica tion has reference to residence within the area in which the motor vehicles are to ply, and marks workshop facilities are granted to operators who are able to show such facili ties on particular routes whereas the State Transport Undertakings, it is pointed out, will neither have a resi dence within such an area nor may be able to show, in a particular case, workshop facilities on particular routes even though they may have better workshop facilities on the whole.
Again, two marks are to be given to private concerns or organisations, plying on particular routes, if their owners or Managing Directors have certain technical qualifications.
It is pointed out that, as State Transport Undertakings do 402 not have individual owners or Managing Directors, for whom these marks could be allotted, even though they may have technically much better qualified personnel to attend to their motor vehicles, the impugned Rule 155A(3)(D)(D could be justified as meant only to place State Transport Under takings on a footing of possible equality with private operators in competing.
for permits to be granted under Section 47(1) read with Section 42(3) of the Act and to do no more.
Furthermore, Rule 155A(3)(D)(i) occurs in a group for marks to be assigned on the basis of the number of vehicles run by the operators.
In any case, it was submit ted that it is a fair provision as a rough guide but is not decisive by any means.
It seems to me that the conten tion advanced on behalf of the State that the impugned part of Rule 155A enables provisions of the proviso to Section 47(1), read with Section 42(3), to be worked a manner in which the statutory provisions were intended to overate and does not really authorise a circumvention or infringement of the provisions of Chapter IV of the Act, is well founded.
The manner in which provisions of Chapter IV of the Act were meant to operate in cases of competition between pri vate operators and State Undertakings was explained in the Parbhani Transport Co operative Society 's case (supra) as follows (at p. 184): "The Government has of course the power to do.
any business it lies and therefore the business Of running stage carriages.
We have earlier drawn attention to the change made in cl.
(a) of section 42(3) by the: amendment of 1956.
Previously, it was not necessary for the Government to obtain permits under section 42(1) for buses that it intended to run as stage carriages.
SinCe the amendment the Government can no longer run transport vehicles for commercial purposes without obtaining permits under section 42(1 ).
Now the plying of buses as, stage carriages is a commercial enterprise and for such buses, therefore, under the sections as they stand, the Government would re quire permits as any one else.
That being so, the sections clearly, contemplate that the Government may apply for and obtain permits for its buses run as stage car riages.
The rule applied in Nazir Ahmad 's case (1936) L.R. 63, I.A. 372, 381) does not permit the ordinary meaning of section 42, sub.
s.(1) and sub.
s.(3), el.
(a) to be cut down because of the provisions of Chapter IVA.
The Act lays down two independent sets of provisions in regard to the.
running of buses by the Government, one under Chapter IV and, the other under Chapter IVA.
Chapter IVA was intended to give the Government, a special advantage.
When the Government chooses to proceed under that chapter, it becomes entitled as a matter of right under section 68F(1 ) to the necessary permits.
Under Chapter IV the Government does not have any such advan tage; it has to compete with other applicants, to secure permits to be able to run its buses.
The powers under the two.
chapters are there fore different.
To such a case the principle of Nazir Ahmad 's case cannot be applied".
403 Both Chapters IV and IVA enable plying of State transport as well as privately owned vehicles on hire on same routes, but the grounds for these combined operations under the two chapters are different.
The governing principle of Section 47(1) is to preserve as free and open a competition as possible in public interest, whereas the reason for allowing private operators upon a nationalised route may be broader one of public policy which may favour a decision against sudden stoppage of privately provided motor trans port, so as to avoid wastage of national wealth, even though it takes the form of investments by individual entrepre neurs, or, its object may even be prevention of undue hard ship to private operators.
Other reasons for permit ting combined services can be.
given.
It is, however, possible only under Chapter IVA to exclude private operators completely.
But, unless any rule relating to provision of motor transport under chapter IV has that effect it cannot be asserted that what can be done only by resorting to Chapter IVA is being attempted under the provisions of Chapter IV.
The rule in Nazir Ahmad 's case (supra) applies only to cases where there is a single specified mode laid down for doing something in exercise of the legal power to do it.
In that event, the specified mode may, negatively, operate as a prohibition against what is not prescribed at all and is outside the statute.
But, it could not apply to a case where two modes of doing the same thing are provided for by a statute itself.
Nor, as I have indicated above, could it be said that what is to be done under Chapter IV and what can be done under a scheme under Chapter IVA are really the same simply because, in a given case, the results of both may appear to be similar or even identical.
Mr. Ramamurthi, appearing on behalf of some of the appellants, embarked on quite an ambitious argument built upon an elaboration of the theme that Chapters IV and IVA belong to two different fields or spheres of action which cannot, so to speak, be allowed to mix, overlap, or collide.
It was contended that the waters of what are, in the eye of law, two different streams of activity. must not be allowed to mingle.
If 1 am not mistaken, even the word "pollute" was used, in the flow of arguments, to describe, possibly in a light vein, the alleged inequity of an invasion by a State Transport Undertaking of the supposedly exclusive preserve of private enterprise.
It was suggested that such a result would involve "pollution" of the domain of open competition, which is forbidden territory for State Under takings introduced as a consequence of another ideology or sphere of action found in Chapter IVA.
It seems to me that to hear such an argument, advanced even in a lighter vein, is really rather surprising in view of the language of the statute and welt known facts to which it is related.
It is quite well known that ours is what is known as a "mixed economy".
The highest norms of our law are embodied in our Constitution.
Article 19(6)(ii) of the Constitution clearly contemplates: "the carrying on by the State, or by a Corporation or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or.
otherwise".
And, in order to fulfil the objectives of the Preamble.
to our Constitution, the Constitu 404 tional mandate, contained in Article 39(c) of the Constitu tion, which the State has to carry out, may make it impera tive upon the State, in appropriate circumstances, either to take over or nationalise motor transport on roads in any region or area completely or to supplement the Transport Services provided by private operators with those provided by the State.
It seems to me that neither Chapter IV nor Chapter IV A can be really put into two separate water tight compartments so as to make it imperative either to exclude State Transport Undertakings from operating under the provi sions of Chapter IV or to exclude private operators when a scheme under Chapter IV A, which may itself provide for only a partial exclusion of such operators, is in force.
In the face of the clear words of proviso to Section 47 (1 ) of the Act, enabling State Transport Undertakings to provide Transport facilities in open competition, and of Section 68(C) in Chapter IV A of the Act, enabling "the exclusion complete or partial" of private operators from particular areas or routes, such an argument cannot be put forward at all before us under some preconceived notions even after these very notions had been rejected by this Court in the Parbhani Transport Co operative Society Ltd 's case (supra).
It is clear that the two chapters of the same Act are both intended to subserve "the interest of the public gener ally" in any area in the country, That is the integrating or governing principle evident from the language of the Act itself in both Chapter IV and Chapter lV A of the Act.
An argument advanced on behalf of the appellant seemed to be that Rule 155A(3)(D)(i) results in defeating the mandate of Section 47(1) of the Act, that the Regional Transport Authority must, as explained repeatedly by this Court, keep "the interest of the public generally" in the fore front.
As already indicated by me, this argument really proceeds on the erroneous assumption that the mere fact that the State Transport Vehicles are given five marks would defeat public interest by excluding consideration of all facts except that the State Undertaking has applied for one or more permits on a particular route.
As my learned brother Krishna Iyer has also pointed out, this is an unwarranted assumption.
Rule 155A gives only guidance, but the totality of factors men tioned in Section 47(1) 'really decide.
It was suggested on behalf of the State Transport Under taking that the obvious capacity of a State Undertaking to provide facilities which are beyond the reach of private operators, that its actions are subjected to such constant, vigilant, and rigorous control on behalf of the public, and that it is bound to be so free from any desire to make profit.s, by sacrificing public interests or convenience of passengers that, even if nothing else was considered, these presumed advantages would justify the award of five marks on each application of the State Undertaking for a permit.
If this line of reasoning was completely accepted and car ried to its logical conclusion, the provision/or giving five marks ,to each application of the State Undertaking would become quite otiose or unnecessary because, in that case, the State Undertaking would, by relying merely on a presumed superiority for purposes of Section 47 (1 ), get a prefer ence automatically.
The proviso to Section 47 (1 ) of the Act would then, apart from making it clear that the State Undertaking can also apply for permits, for which 405 purpose Section 42(3) was enough, serve: no useful purpose.
Indeed, if such a view were to be accepted, the first part of the proviso to Section 47 (1 ) would seem to rest on a false premise because there could be no case in which "other conditions" could ever be "equal" as between a State Transport Undertaking and a private operator.
The State Transport Service would, in that case, always get a prefer ence.
For this reason, I do not think that this line of reasoning could be pushed too far.
It has to be assumed, in view of the opening words of the proviso to section 47 (1 ), that there may be cases in which an application of the basic principle, contained in Section 47 (1) of the Act, may tilt the balance either in favour of the State Undertaking or the private operator.
The proviso applies only where the State Undertaking could ' reasonably be deemed to be in a position of equality as regards comparative advantages offered by it.
As there cannot, between such dis similar operating units, be comparability of conditions or advan tages offered unless some rule is flamed and applied which could make comparison reasonably possible, it seems to me that Rule 155A(3) (D)(i) is justifiable on the ground that it makes what is legally contemplated and permissible also practicable.
The proviso.
to Section 47 (1 ) reads as follows: "Provided that other conditions being equal, an application for a stage carriage permit from any State Transport Undertaking or a co operative Society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.
" An examination of this proviso shows that an.
equality of other conditions is contemplated before any question of giving preference, merely on the ground that the applicant is the State Transport Undertaking or a Cooperative Society, can arise.
If other conditions are equal, then, undoubted ly, the choice as between such equals must, if the proviso is to be given effect, be made in favour of the State Trans port Undertaking or a Cooperative Society automatically.
That is how, in such a case, See.
47(1) itself would be deemed to operate.
The validity of the proviso is not challenged.
Even if Article 14 were available for an attack upon it, as it is not during the current emergency, it is clear that the State Transport Undertaking does stand in a separate category.
Therefore, it could be found entitled, for obviously good and intelligible reasons, to preference over private operators "other conditions being equal".
The narrow ques tion before us.
Thus, appears to me to be nothing more than whether the impugned part of Rule 155A sub serves or vio lates the proviso.
The proviso itself is meant to explain what public interest, as visualised by Section 47(1), re quires.
Hence it appears to me that the validity of the impugned part of Rule 155A could be determined on purely legal grounds as a necessary corollary of the proviso to Section 47(1).
The impugned part of the Rule is there to make the proviso workable and not to defeat its provisions.
406 It is, however, becoming increasingly fashionable to start with some` theory of what is basic to a provision or a chapter or in a statute or even to our Constitution in order to interpret and determine the meaning of a particular provision or rule made to sub serve an assumed "basic" requirement.
I think that this novel method of construc tion puts, if I may say so, the cart before the horse.
It is apt to seriously mislead us unless the tendency to use such a mode of construction is checked or corrected by this Court.
What is basic for a section or a chapter in a stat ute is provided: firstly, by the words used in the statute itself; secondly, by the context in which a provision oc curs, or, in other words, by reading the statute as a whole; thirdly, by the preamble which could supply the "key" to the meaning of the statute in cases of uncertainty or doubt; and, fourthly, where some further aid to construction may still be needed to resolve an uncertainty by the legislative history which discloses the wider context or perspective in which a provision was made to meet a particular need or to satisfy a particular purpose.
The last mentioned method consists of an application of the Mischief Rule laid down in Heydon 's case long ago.
If we start from a theory as to.
what the real purpose or need is or could be, the danger is that we may be inject ing a subjective notion or purpose of our own into what is, after all, a legal question of construction or interpreta tion, according to well recognised principles, although it may be necessary, in exceptional eases, to explain or forti fy the interpretation adopted in the light of so well under stood and.
well known a purpose or theory that we could take judicial notice of it and refer to it.
The exposition of the well known purpose or theoretical foundation must, however, generally, flow from and explain an interpretation adopted, on the strength of legally acceptable and accepted canons of construction, if we are to avoid the danger of an a priori determination of the meaning of a provision based on our own pre conceived notions of an ideological structure or scheme into which the provision to be interpreted is somehow fitted.
The path of judicial certainty and predictability has to be paved with well settled principles of construction and interpretation.
We cannot let it develop into a slippery slope be set with hazardous possibilities.
The science of statutory construc tion and interpretation I think can call it that rests on certain systematised principles and rules of common sense, logic, and reason.
It can not be transformed into a happy hunting ground for whatever may captivate the forensic or judicial fancy or become something akin to poetry without even the attractions of euphony.
For the reasons given above, I find that, on an applica tion of the ordinary and well recognised rules of interpre tation, without resorting to any of the novel methods suggested by some of the arguments of learned Counsel for the appellants, the impugned part of Rule 155A(3) (D)(i) is valid.
I, therefore, concur with nay learned brother Krishna Iyer, and hold that the connected appeals and peti tions before us must be dismissed.
M.R. Appeals dis missed.

summary:
The appellants, private stage carriage operators, applied for the renewal of their expiring bus permits.
The re spondent State Transport Undertaking objected, urging preferential grounds in its own favour, claiming to have secured higher marks with the aid of r. 155 A of the Motor Vehicles Rules.
The State Transport Undertakings claim was upheld.
The appellants moved the appellate Tribunal, and also filed a writ petition before the High Court for direc tions to the appellate Tribunal to dispose of his appeal without relying on r. 155 A.
The writ petition was dismissed by a Single Judge, and an appeal before the Division Bench also failed.
In appeal by Special Leave, the appellants assailed the validity of r. 155 A the grounds of its being partial to the Government against public interest and contradicting the proviso to section 47(1) of the .
Dismissing the appeals, the Court, HELD: (Per Krishna Iyer J. for himself and on behalf of A. N. Ray CJ.) 1.
The assignment of marks under r. 155 A is geared to public interest, which h the desideratum of section 47(1) of the Act.
This is not an arbitrary stroke favouritism because there are many promotional factors bearing on the inter est of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not take care of.
There is equity in r. 155 A, making up, as it does, for the present short.falls in the making system vis a vis a government transport service.
[398H. 399B] P. Kumaraswamy vs State Transport ,Appellate Tribunal, Madras & referred to.
The Court observed: Legal Darwinism, adapting the rule of law to new socie tal developments, so as to survive and serve the social order, is necessary.
[398B] Cardozo: The nature of the Judicial Process; Yale Uni versity Press; pp. 151 152, relied upon.
There cannot be any conflict between section 47(1) proviso and the impugned rule.
The proviso does not carry any negative injunction that transport tribunal shall not give any other preferential consideration than what is stated in it.
There is no implied interdict that in other contingen cies no preference shah be accorded.
The proviso merely takes care of a specific situation.
Moreover.
the mark ing formula does not deprive the administrative tribunals their discretion to choose the best [399C E] Per H.M. Beg, 1.
(Concurring) Where there is a single specified mode laid down for doing something exercise of the legal power to do it, the specified mode may, negatively operate.
393 (Krishna Iyer, J.) as a prohibition against what is not prescribed at all and is outside the statute.
But expressio unius est exclusio alterius could not apply ot a case where two modes of doing the same thing are provided for by a statute itself.
Here both chapters IV and IV A enable plying of State transport as well as privately owned vehicles on hire on same routes, but the grounds for these combined operations under the two chapters are different.
[403A, C, D] Parbhani Transport Co operative SOciety Ltd., vs The Regional Transport Authority, Aurangabad & Ors.
; , applied.
Nazir Ahmad vs King Emperor (1936) L.R. 63 I.A. 372, distin guished.
Colquhoun vs Brooks at a, 65; Taylor vs Taylor at 430 and Crawfords "Statuto ry Construction" 1940 Edn., Chapter 18, paragraphs 157 to 158, pages 240 244, referred to.


judgement:
Civil Appeal No. 2454 of 1972.
From the Judgment and Order dated the 18th December, 1971 of the Punjab and Haryana High Court at Chandigarh in Civil Writ Petition No. 2604 of 1971.
L. N. Sinha, Solicitor General,Naunit Lal, R. N. Sachthey for the appellant.
Anand Swarup, Harbans Singh Marwah for Respondent No.2.
Ashok Grover; for Respondent No. 1.
RAY, C.J.
This appeal is by certificate from the judgment dated 18 November, 1971 of the Punjab and Haryana High Court.
The respondent joined the Punjab Civil Service, (Executive Branch) in November, 1954.
He was selected for the Judicial Branch of the Punjab Civil Service on or about 1 May,1965.
On 15 November, 1968 he was promoted as officiating Additional District and Sessions Judge.
The respondent was due to attain the age of 55 years on 24 February, 1971.
His case was referred to the High Court for their recommendation whether the respondent should retire at the age of 55 years or he should be retained in service till the age of 58 years which is the prescribed age of superannuation under the Punjab Civil Service Rules.
The High Court was of opinion that the work of the respondent as Additional District and Sessions Judge was not satisfactory.
The High Court was not inclined to recommend the respondent 's continuance in Superior Judicial Service up to the age of 58 years.
The High Court recommended that the respondent should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to continue in service till the age of 58 years.
The State Government agreed with the recommendation for reverting the respondent from the post of Additional District and Sessions Judge to the Senior Subordinate Judge/Chief Judicial Magistrate.
With regard to the retention of the respondent in service up to the age of 58 605 years the State again asked the High Court to consider whether in view of the respondent 's work as Additional District and Sessions Judge, Hissar, having been found to be unsatisfactory, the respondent should be retained at all in service beyond the age of 55 years.
The State Government suggested that it was in public interest to retire the respondent at the age of 55 years.
The High Court did not agree with the suggestion.
By letter dated 16 August, 1971 the High Court reiterated that the respondent might continue in service up to the age of 58 years.
The State Government did not agree with the recommendation of the High Court and decided to retire the respondent under Rule 5.32 (c) of the Punjab Civil Service Rules.
A notice was issued to the respondent on 20 August, 1971 giving him notice of three months on the expiry of which he would retire from service.
The respondent filed a writ petition in the High Court impeaching the notice dated 20 August 1971.
The matter was heard by a Bench of three learned Judges.
The order retiring the respondent from service was quashed by the majority opinion.
The question is whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under rule 5.32 (c) of the Punjab Civil Service Rules against the recommendation of the High Court.
This Court in Shyam Lal vs State of Uttar Pradesh held that compulsory retirement does not involve stigma or any implication of mis behaviour or incapacity.
In Dalip Singh vs State of Punjab this Court held that in order to find out whether an order of compulsory retirement is or is not by way of punishment, is to find out whether a charge of imputation against the officer is made the basis of the exercise of power and second whether the officer is deprived of any benefit already earned.
In the recent decision in Tara Singh vs State of Rajasthan this Court held that compulsory retirement is not a punishment because the officer does not lose the terminal benefits already earned by him.
In B. Venkateswararao Naidu vs Union of India this Court held that compulsory retirement does not involve civil consequences.
It, therefore, follows that compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under the Service Rules.
It is in fact compulsory retirement in accordance with the terms and conditions of service.
The decisions of this Court in State of West Bengal vs Nripendra Nath Bagchi and High Court of Punjab and Haryana etc.
vs State of Haryana (Sub nom Narendra Singh Rao) are that Article 235 vests in the High Court control over District Courts and courts subordinate thereto.
The Governor appoints and dismisses and removes Judicial Officers.
Control which is vested in the High Court is complete control subject only to the power of the Governor in the 606 matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges.
There is nothing in Article 235 to restrict the control of the High Court in respect of Judges other than District Judges in any manner.
Article 311 has taken away the power of dismissal or removal or reduction in rank from the High Court and the Governor has been given that special power referred to in Article 311(3).
This Court in Shamsher Singh & Anr.
vs State of Punjab held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the Judicial Officers is by the High Court and no other authority.
There cannot be dual control.
If State Government is to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court.
Compulsory retirement is neither suspension nor removal nor reduction in rank.
It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act.
The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.
The Punjab Civil Service Rules in Rule 3.26(a) deals with compulsory retirement at the age of 58.
Rule 5.32(c) deals with retirement at the age of 55.
Two relevant rules in the Punjab Civil Service Rules in the present case are these.
Rule 3.26(a) states that the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which he attains the age of 58.
Rule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months ' notice.
This Court in Bagchi 's case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service.
Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service.
The High Court further deals with members of the judicial service in accordance with the rules and conditions of service.
This Court in Bagchi 's case (supra) said that the word "deal" points to disciplinary and not merely administrative jurisdiction.
The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation will be passed by the State Government on the recommendation of the High Court.
This is because the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.
It is true that the fixation of the age of superannuation is the right of the State Government.
The curtailment of that period under rule 607 governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control.
Disciplinary control means not merely jurisdiction to award punishment for misconduct.
It also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation.
Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court.
Premature retirement is made in the exercise of administrative and disciplinary jurisdiction.
It is administrative because it is decided in public interest to retire him pre maturely.
It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superannuation and that it is in the public interest to do so.
This Court held in State of Assam vs Ranga Mahammad and Ors.
that the Governor under Article 233 is concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre.
This Court has held in the Punjab and Haryana case (supra) that the confirmation of District Judges is to be done by the High Court because it falls within the control vested in the High Court.
The High Court is acquainted with the capacity of work of the members of the Service.
In the Punjab & Haryana case (supra) this Court pointed out that if after the appointment of District Judge till he is confirmed the State is allowed to control the District Judge there will be dual control.
This is not the meaning of "control" in our Constitution.
The control vested in the High Court is that if the High Court is of opinion that a particular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment.
In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court.
If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate.
It is in public interest that the State will accept the recommendation of the High Court.
The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court.
That is the broad basis of Article 235".
See Shamsher Singh 's case (supra) at page 841.
In the present case, the order of the State retiring the respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court.
The High Court did not make any recommendation to that effect.
The appeal is, therefore, dismissed with costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent was officiating as Additional District & Sessions Judge.
On a reference to the High Court whether he should be retained in service till the age of 58 or should be retired at the age of 55, the High Court recemmended that he should be reverted to his substantive post of Senior Subordinate Judge but that he should be allowed to continue in that post till the age of 58.
The State Government reverted him but retired him from service at 55 under r. 5.32(c) Punjab Civil Service Rules.
The rule states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 by giving him 3 months notice.
The High Court quashed the order of retirement.
Dismissing the appeal to this Court.
^ HELD: (1) Article 235 vests in the High Court control over district court and courts subordinate thereto.
The control includes both disciplinary and administrative jurisdiction.
Disciplinary control means not merely jurisdiction award punishment for misconduct, but also the power to determine whether the record of member of the service is satisfactory or not so as to entitle him to continue in service for.
the full term till he attains the age of superannuation.
Administrative judicial and disciplinary control over members of the judicial service is vested solely in the High Court.
Premature retirement is made in the exercise of administrative and disciplinary jurisdiction.
It is administrative because it is decided in public interest to retire him prematurely and it is disciplinary, because, the decision is taken in public interest that he does not deserve to continue up to the normal age of superannuation.
The fixation of the age of superannuation is the right of the State Government.
The curtailment of that period under rules governing the conditions service is a matter pertaining to disciplinary control as well as administrative control.
[605G H: 606H 607C] State of West Bengal vs Nripendra Nath Bagchi ; and High Court of Punjab and Haryana etc.
vs State of Haryana (Sub nom Narerdra Singh Rao) ; , followed.
(2) The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to District Judges.
The vesting of complete control over the subordinate judiciary in the High Court, leads to this that if the High Court is of opinion that a particular officer is not fit to be retained in service, the High Court will communicate that opinion to the Governor, because, the Governor is the authority to dismiss, remove or reduce in rank or terminate the appointment.
In such cases, the Governor, as the head of the State, will act in harmony with the recommendation of the High Court as otherwise the consequence will be unfortunate.
[605H 606A G. H: 607E F] (3) But, compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under service rules.
When a case is not of removal or dismissal or reduction in rank, any order in respect of exercise of control over the judicial officers is by the High Court and by no other authority; otherwise, it will affect the independence of the judiciary.
[605F G;] 604 Shyam Lal vs State of Uttar Pradesh ; ; Dalip Singh vs
State of Punjab ; Tara Singh vs State of Rajasthan [1975] 4 S.C.C.86; B. Venkateswararao Naidu vs Union of India ; and Shamsher Singh & Anr.
vs State of Punjab ; , followed: (4) It is not correct to contend that the Governor and not the High Court has the power to retire a judicial officer compulsorily under section 14 Punjab General Clauses Act.
The suggestion that the High Court recommends and the State Government implements the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.
It is only the order terminating the appointment of a member of the service otherwise than upon his reaching the age of superannuation that will be passed by the State Government on the recommendation of the High Court.[606C D, G H]


judgement:
Appeal No. 156 of 1971.
From the Judgment and Order dated 19 10 1970 of the Gujarat High Court in Special Civil Appln.
No. 1177/70.
B.R.L. Iyengar, S.K. Dholakia and R.C. Bhatia, for the appellant.
B.B.Ahuja, for respondent No. 1.
The Judgment of the Court was delivered by UNTWALIA, J.
The appellant 's writ petition filed in the High Court of Gujarat was dismissed in limine by a Bench of the High Court on October 19, 1970.
The Commissioner of Income tax, Gujarat II, respondent No. 1 was the authority against whom several reliefs had been claimed in the writ petition.
Subsequently were added the other members of the family of the appellant as respondents to the writ petition.
The appellant obtained a certified from the High Court for appeal to this Court under sub clause (b) of clause (1) of Article 133 of the Constitution of India as it stood before the 30th Constitution Amendment Act.
Hence tills appeal to this Court.
Having heard Mr. B.R.L. Iyengar, Senior Advocate for the appellant at some length we found that the appellant was ill advised to file the writ petition and to.
pursue the matter upto this Court.
The appeal being devoid of any substance must fail.
We proceed to state the facts and discuss the points urged before us very briefly.
One BapalaI Purshottamdas Modi was the head of a Hindu Undivided family.
The joint family possessed many immovable properties and carried on business of various types such as money lending etc.
Bapalal had five sons namely Vadilal, Ramanlal, Jayantilal, Gulabchand and Kantilal.
Ramanlal died long ago in or about the year 1933.
Jayantilal died in 1956.
The appellant is one of the sons of Jayantilal.
The appellant 's case in the writ petition was that Bapalal was the karta of the Hindu Undivided family.
He executed a general power of attorney on October 5, 1948 in favour of his third son Gulabchand to manage his (Bapalal 's) separate property.
On October 22, 1954 Bapalal relinquished his right, title and interest in the joint family properties on taking a sum of Rs. 75,000/ leaving the corpus and management of the joint family properties to his four sur viving sons and Rajnikant, son of late Ramanlal.
These five members also executed a memo of partition on October 24, 1954 disrupting the erstwhile Hindu Undivided family and partitioning the properties.
In course of the proceedings for assessment of the income tax for the assessment year 1955 56 against the Hindu Undi vided family of Bapalal Purshottamlal Modi, an application under Section 25A of the Income tax Act, 1922 was made claiming partition w.e.f. October 24, 1954.
Notices of the enquiry under section 25A were served on all the members of the family.
At the enquiry the statements of various persons including the appellant were recorded by the Income tax Officer.
He, by his order, dated January 28, 1960 disallowed the 114 claim under section 25A of the Income tax Act, 1922.
It is asserted that in the year 1961 a suit for partition had also been filed and the City Civil Court Ahmedabad passed a decree for partition on June 30, 1965.
In an appeal filed before the Appellate Assistant Commissioner from the order of the Income tax Officer dated January 28, 1960 reliance was placed on the Civil Court partition decree also.
The Appellate Assistant Commissioner, however, dismissed the appeal by his order dated September 30, 1965.
A second appeal to the Income tax Appellate Tribunal was dismissed on March 28, 1969.
InCometax assessment was made against the Hindu Undivided family for the year 1955 56.
Assessments were also made against the Hindu Undivided family, sometimes treating it as Association of Persons or Unregistered Part nership Firm as per returns filed from time to time, for the subsequent years upto the assessment year 1965 66.
Copies of all the assessment orders were enclosed with the writ petition aS Annexure 'I ' collectively.
Appeals taken to the Tribunal from some of the assessment orders were also dismissed.
Notices were being issued and served under sections 22 and 23 of the Income tax Act, 1922 for the assessment years which were governed by the said Act.
In respect of the assessment years 196.2 63 onwards notices were.
issued and served under sections 142 and 143 of the Income tax Act, 1961.
A large sum of tax and penalty became due as the demands from time to time were partly paid.
The Income tax authorities took steps for realization of the income tax dues against the appellant 's family and got attached various properties.
In Civil Suit No. 806 of 1961 in which the preliminary partition decree was passed on June 30, 1965, respondent Kantilal had been appointed as a re ceiver Later on one Mr. Bhatt was appointed Receiver.
A Savings Bank Account No. 412002 was being operated by the Receiver.
The Income tax Officer attached the entire amount of Rs. 56,294.43 in the said account by his orders dated May 12, 1970.
Thereupon, the appellant filed the writ petition challenging the various orders passed in the pro ceeding under section 25A of the Income tax Act, 1922; the assessments made for the years 1955 56 to 1965 66 and the attachment orders on various grounds.
In a single writ petition rambling allegations were made challenging the multifarious proceedings and the orders on various ground 's and the following prayers were made: "(a) declaring void and illegal and quashing the proceedings of the income tax authorities making assessments on Hindu Undivided Family, Association of persons and unregistered partnership firm afore said for the years beginning from the assessment year 1955 56 and also the proceedings for the recovery of the taxes so assessed, and (b) quashing the orders of the income tax Au thorities refusing to record partition and direct ing the Respondent and his Subordinates to record under Section 25A of the Act that the erstwhile joint family property has been divided or parti tioned in definite portions, each member getting an equal share, on October, 1954; 115 (c) directing the respondent and his subordi nates to cancel o.r withdraw the impugned orders and all steps taken for the recovery of the amounts so.
assessed; (d) directing the respondent and hi.s subordi nates not to take any further steps for the recov ery of the tax so assessed; (e) quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid; (f) quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955 56 onwards, and (g) to pass such other and further orders as your Lordships deem just and expedient in the circurm stances of the case.
" It seems to us that the High Court rightly dismissed the appellant 's petition in limine.
Since the valuation under Article 133(1)(b) was beyond Rs. 20,000/ , the appellant was granted a certificate as a matter of course.
It was pointed out to.
the appellant 's counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only.
Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account.
While doing so, he traversed the entire allegations in the petition by adopting an ingenious method.
Counsel submitted that the attachment had been made for realization of the income tax dues based upon various orders which were void and ultra vires.
All those orders could be attacked collaterally while attacking the attachment order.
Mr. Iyengar urged the following points in,support of the appeal.
(1 ) That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act, 1922 were without jurisdiction and on their face suffered from many infirmities of law.
(2) That after Bapalal relinquished his inter est in the joint family properties and ceased to be the karta, there was no karta of the family.
Gulabchand a junior member of the family could not act as a karta.
Other members of the family did not accept him to be the karta.
(3) That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi a dead person and hence the entire proceedings and assessment orders were nullities.
116 (4) That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings.
None of the points urged on behalf of the appellant merits any detailed discussion.
We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relin quishment executed by him on October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act, 1922.
In our opinion.
the orders do not suffer from any infirmity of law or any such defect which will make them void.
Notice of the enquiry had been given to all the members as admitted by the appellant himself.
He had been examined in the proceedings.
Sub section (3) of Section 25A pro vides.
that where an order accepting partition had not been passed in respect of a Hindu family as sessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family.
A partition preliminary decree came much later.
The income tax authorities had their own view to take.
They were not bound by the decree.
No reference was taken under the income tax Act challenging the order of the Tribunal dismiss ing the appeal.
It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban.
At the relevant time no body disput ed his authority to act as karta.
His eldest brother Vadilal was an old man of about 70 years of age.
His eider brother Jayantilal father of the appellant died in the year 1956.
In these circum stances he appears to have acted as the karta with consent of all the other members.
A junior member of the family could do so.
See Mulla 's Hindu Law 296, fourteenth edn.
Where occurs the following passage: "So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties," includ ing even charitable properties (q); and is presumed to be the manager until the contrary is shown(r).
But the senior member may give up his right of management, and a junior member may be appointed manager(s) .
" Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi.
They were neither issued to nor served on Bapajal the dead person.
In response to the notices returns were being filed by the managing member of the family.
At no stage before the income tax authorities a contention was raised that the notice was served on a dead person.
There is no substance in the third point.
Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assess ment made in respect of the income of his family which continued in the eye of law to be joint.
The share 117 of the appellant 's properties received by him from the joint family or the income thereof is liable for the income tax dues in question.
The appellant, as we have said above, was ill advised to file a misconceived petition on wholly un tenable grounds.
In the result the appeal fails and is dismissed with costs to respondent No. 1.
S.R. Appeal dismissed.

summary:
Bapalal Purshottamdas Modi was the karta and head of a Hindu Undivided Family possessing many immovable properties and carrying on business of various types including money lending.
Bapalal had five.
sons, viz. Vadilal Ramanlal, Jayantilal, Gulabehand and Kantilal; out of whom Ramanlal and Jayantilal predeceased him in 1933 and 1956 respectively and the appellant was one of the sons of Jayantilal.
As per the general power of attorney dated 5 10 1948, executed by Bapalal in his favour, Gulabchand, the third son was acting as a karta and was filing the various tax returns without any objection.
whatsoever by the other members of the Hindu Undivided Family.
Bapalal relinquished all his rights in the joint family property on 22 10.54 leaving the corpus of the joint family properties to his four surviving sons and Rajnikant, son of Ramanlal.
All of them executed on 24 10 54, a memo of partition disrupting the Hindu Undivided Family and partitioning the properties the course of the proceedings of the income tax assessment for the assessment year 1955 56 against the H.U.F. of Bapalal Purshottamlal Modi, an application under section 25A of the Income Tax.
Act, 1922 claiming partition was made.
The claim was disallowed by ' the I.T.O. by his order dated 28 1 1960.
During the pendency of the appeal, a suit for partition was filed in 1961 and a decree for partition was obtained on June 30, 1965.
The. appeal to the Appellate Assistant Commissioner was dismissed on September 30, 1965 and the second appeal 10 the Income Tax Appellate Tribunal was also dismissed on March 28. 1969.
The appellants did not ask for a reference to the High Court, as provided under the Act, but went on filing the returns in respect of the subsequent assessment years.
When the Income Tax Officer got attached the entire amount in the, Savings Bank A/c towards the tax liability by an order dated May 12.
1970, the appellant filed a writ petition challenging the various orders passed in the pro ceedings under section 25A for the assessment years 1955.66 to 1965 66 and the several attachment orders.
The High Court dismissed the writ in limine, but granted a certificate under article 133(1)(b) of the Constitution.
Dismissing the appeal, the Court, HELD: (1) Sub section (3) of section 25A provides that where an order accept ing partition had not been passed in respect of a Hindu Undivided Family assessed as undivided, such family shall be deemed for the purposes of the Act to con tinue to be Hindu Undivided Family.
The Income Tax Officers who had their own view to take, were not bound by the de cree, since in the instant case the partition preliminary decree came much later and there was no reference under the Income Tax Act challenging the order of the Tribunal.
[116 C D] (2) A junior member of the family can, with the consent of all the other members.
act as a karta, if the senior member gives up his right.
[116 E] 113


judgement:
riminal Appeal No. 361 1975.
(Appeal by Special Leave from the Judgment and Order dated the 19th Sept., 1975 of the Karnataka High Court in Criminal Petition No. 52 of 1975.) D. Mookerjee and B.R.G.K. Achar, for the appellant.
H.B. Datar and R.B. Datar, for respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
, This appeal by special leave raises a short but interesting question of law relating to the interpretation of certain provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Old Code").
The facts giving rise to the appeal are few and may be briefly stated as follows.
One Bodegowda was murdered and in regard to this inci dent a case was registered at the Police Station on 13th October, 1973 as Crime No. 62 of 1973.
The police inves tigated the case and after the investigation was complete, a charge sheet was filed against the respondents in the Court of Judicial Magistrate, 1st Class Chickmagalur and the case was registered as C.C. No. 2319 of 1973.
The learned Magistrate held an inquiry in accordance with the provisions of Chapter XVIII of the old Code and being of the opinion that the respondents should be committed for trial, the learned Magistrate framed a charge against the respondents for having committed an offence under section 302 read with section34 of the Indian Penal Code.
The learned Magis trate then read and explained the charge to the respondents and after giving an opportunity to the respondents to.
give in a list the names of witnesses whom they wished to be summoned to give evidence, the learned Magistrate made an order committing the respondents for trial by the Court of Sessions, Chickmagalur.
This order of committal was made on 15th March 1974 and in pursuance of it, the records of the case were forwarded to the Court of Sessions, Chickmaga lur where they reached on 23rd March, 1974 and the case was registered as S.C. No. 5 of 1974.
The Sessions Judge fixed the trial of the case on 15th July, 1974 but before that date, the Public Prosecutor filed an 352 application on 29th June, 1974 praying for permission to withdraw from the prosecution under section 494 of the old Code.
The learned Sessions Judge by an order passed on the same day accorded permission to the Public Prosecutor to withdraw from the prosecution and 'discharged ' the respond ents in respect of the offence charged against them.
The State thereafter ordered fresh investigation into the of fence and ha consequence of such investigation, a new charge sheet was filed against the respondents and three other accused in the Court of Judicial Magisrate, 1st Class, Chickmagalur.
Since this chargesheet was filed after 1st April, 1974 when the Code of Criminal Procedure, 1973 (hereinafter referred to as "New Code") had come into force, the learned Magistrate, following the provisions of the New Code, committed the respondents and the other three accused to stand their trial before the Court of the Ses sions Judge, Chickmagalur for the same offence.
When the case came up for hearing before the Sessions Judge, the respondents made an application contending that by virtue of the order dated 29th June, 1974 made by the Sessions Judge under section 494 of the Old Code, the respondents had been acquitted and they were, therefore, not liable to be prose cuted again for the same offence in view of section 300 of the New Code.
The Sessions Judge rejected the applica tion, taking the view that the respondents were discharged and not acquitted under the Order dated 29th June, 1974 and, therefore, section 300 of the New Code was not applicable and there was no bar against their fresh prosecution for the same offence.
The respondents challenged this Order by preferring a revision application to the High Court.
This revision application was allowed and the High Court held that though the Order passed by the Sessions Judge directed that the respondents be 'discharged ', the legal effect of this order was to bring about the acquittal of the respond ents since the withdrawal from the prosecution was made after the charge had been framed and the respondents having been acquitted under that Order, the bar of section 300 of the New Code was attracted and the respondents were not liable to be prosecuted again for the same offence.
This order made by the High Court is challenged in the present appeal preferred by the State with special leave obtained from this Court.
It may be pointed out that before the High Court it was contended on behalf of the State that the earlier case before the Sessions Judge, viz., Sessions Case No. 5 of 1974, was governed by the provisions of the new Code and, therefore.
in view of section 228 of the new Code, t was the obligation of the Sessions Judge to frame a charge before proceeding with the trial and since the withdrawal from the prosecution was effected before the framing of such charge by the Sessions Judge, the order passed by the Sessions Judge amounted to an order of discharge and not of acquit tal.
This contention was, however, not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the earlier case before the Ses sions Judge was governed by the provisions of the old Code and the new Code had no application to it.
Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force.
Here in the present case the Judicial Magistrate had already made an order of.
353 committal on 15th March, 1974 and pursuant to that order, the records of the case had reached the Court of the Ses sions Judge on 23rd March, 1974.
The case was, therefore, already before the Court of Sessions prior to 1st April, 1974 and it was pending before that court for trial on 1st April, 1974 when the new Code came into force.
It is immaterial as to when the case was actually registered and a number given to it.
Since the case was pending for trial before the Sessions Court on 1st April, 1974, it was liable to be tried in accordance with.
the provisions of the old Code and it was for this reason that the application for withdrawal from the prosecution was also made by the Public Prosecutor under section 494 of the old Code and not under the corresponding provision of the new Code.
Sec tion 494 of the old Code provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return Of the verdict and in other cases, before the judgment is pronounced, withdraw from.
the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and the section then goes on to add that: "upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged (in respect of such offence or offences); (b) if it is made after a charge has been framed or when under this Code no charge is required he shall be acquitted in respect of such offence or offences) .
" The withdrawal from the prosecution in the present case having been made under this section, it is clear that if it was made before a charge was framed, the respondents would be discharged but if it was made a charge had been framed, the consequence would be that the respondents would be acquitted.
It, therefore, becomes material to inquire whether at the date when the withdrawal from the prosecution was made, a charge had been framed against the respondents or not.
Whether the order of the Sessions Judge granting consent to the withdrawal from the prosecution amounted to an order of discharge or acquittal would depend upon the answer to this question.
It may be pointed out that it is of no consequence that the Sessions Judge directed the respondents to be 'discharged ' because if the legal effect of the order was to acquit the respondents, then the incor rect use of the expression 'discharged ' by the Sessions Judge would not alter the legal position and convert the order of acquittal into one of discharge.
Now, in order to determine whether the withdrawal from the prosecution was made before the framing of the charge or after, it is necessary to notice the scheme of the relevant provisions of the old Code.
Sessions Case No. 5 of 1974 in which the withdrawal was made was committed to the Sessions Court by the Judicial Magistrate under the provisions of Chapter XVIII of the old Code.
The proceeding before the Judicial Magistrate was instituted on a police report and the learned Magistrate, therefore, followed the procedure specified in section 207A.
This section lays down a special procedure to be adopted in proceedings instituted on police report with a view to expeditious disposal of criminal cases.
Sub section (1) provides that the Magistrate, on 354 receipt of the report forwarded under section 173, shall fix a date for the purpose of holding an enquiry and sub section (2) empowers the Magistrate to issue process for compelling the attendance or any witness or the production of any document.
The Magistrate is required by sub section (3) to satisfy himself at the commencement of the enquiry that the documents referred in section 173 have been furnished to the accused.
Sub section (4) then requires the Magistrate to proceed to.
take the evidence of such persons as may be produced by the prosecution as witnesses to the actual commission of the offence and also empowers the Magistrate to take the evidence of any other witness for the prosecu tion if he thinks it necessary to do so in the interest of justice.
The accused is given liberty under sub section (5) to cross examine the witnesses examined under sub sec tion (4) and subsection (6) provides that the Magistrate shall, if necessary, examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him and thereafter give to the prosecution and the accused an opportunity of being heard.
If the Magis trate, at the end of this procedure, feels that there is no ground for committing the accused for trial, he is bound to discharge the accused under subsection (6).
But where "upon such evidence being taken.
, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard," the Magistrate forms an opinion that the accused should be committed for trial, sub section (7) provides that the Magistrate shall frame a charge under his hand declaring with what offence the accused is charged.
Sub section (8) then requires the Magistrate to real and explain the charge to the accused and to give a copy thereof to him free of cost.
Sub section (9) provides that the accused shall then be required to give in at once, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence at the trial and when the accused on being required to.
give the list under sub section (9) declines to do so., or gives such list, the Magistrate is empowered under sub section (10) to make an order committing the accused for trial by the Court of Session.
It will thus be seen that, according to this procedure, the Magistrate is required to frame a charge and to read and explain it to the accused before making an order of committal and the accused is in fact committed to stand his trial before the Court of Session on the charge so framed.
This was the procedure followed by the Judicial Magistrate in the present case and in accordance with it, the Judicial Magistrate framed a charge against the respond ents and committed them for trial to.
the Court of Session on this charge.
The procedure to be followed by the Sessions Court when an accused is committed to it for trial is laid down in Chapter XXII of the old Code.
Section 271 provides that when the court is ready to commence trial, the accused shall appear or be brought before it and the charge shall be read out and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried.
That is the first step to be taken by the Sessions Court in relation to the case committed to it for trial.
Nov, obvi ously, the charge that is required to be read out and ex plained to the accused is the charge that has been framed by the Committing Magistrate under sub section (7) 355 of section 207A.
There is no provision in Chapter XXIII which requires the Sessions Court to frame a charge before proceeding with the trial of the accused.
That is plainly unnecessary because a charge is already framed by the Magis trate when he commits the accused for trial to the Sessions Court and that is the charge on which the Sessions Court is to try the accused.
Of course, the Sessions Court is given an overriding power under section 226 that when it finds that an accused is committed for trial without a charge or the charge is imperfect or erroneous, it may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in the old Code as to the framing of charges.
But this is only an enabling power to frame a charge where, for some reason or the other, no charge has been framed by the committing Magistrate or to correct a charge where the charge is imperfect or erroneous.
It does not say that in every case the Court of Session shall frame a new charge before proceeding with the trial.
On the contrary, it clearly postulates that ordinarily there would be a charge framed by the committing Magistrate and it is on that charge that the accused would be tried, unless the Court of Session finds it necessary to alter or amend the charge.
It is interesting to compare the procedure under the new Code where there is no provision for framing a charge by the committing magistrate and it is only when the Court of Session to which the case is committed finds, after considering the record of the case and the documents submit ted therewith and after hearing the submissions of the accused and the prosecution, that there is ground for presuming that, the accused has committed an offence which is exclusively triable by the Court of Session, that it is required by section 220 of the new Code to frame a charge against the accused.
The charge against the accused under the procedure prescribed in the new Code is to be framed for the first time by the Court of Session while according to the procedure prescribed under the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the power to alter or amend the charge, if it thinks necessary to do so.
It is, therefore, clear that when the Court of Session commences the trial of an accused, there is already before it a charge framed by the committing Magistrate and it is that charge, unless altered or amended under section 226, that is required to be read out and explained to the accused and on which the plea of the ac cused is required to be taken.
It must follow inevitably as a necessary corollary from this proposition that when the prosecution against an accused who has been committed for trial is allowed to be withdrawn by the Court of Session under section 494, the withdrawal of the prosecution would be after the framing of the charge against the accused and it must result in the acquittal of the accused under clause (b) of that section.
We find that this view which we are taking has prevailed with the Madras High Court since the last about eight or nine decades.
The Madras High Court held as far back as 1888 in Queen Empress vs Sivarama(1) that where an accused is committed to stand his trial before a court of session on a Charge and the prosecution is withdrawn by (1) 356 the public prosecutor with the consent of the court of session under section 494, the accused is entitled to be acquitted and not merely discharged.
The same view was reiterated by the Madras High Court in In re Velayudha Mudali(1).
We are in agreement with the view taken in these two decisions of the Madras High Court.
We accordingly affirm the decision of the High Court holding that by reason of the Order dated 29th June, 1974 passed by the Sessions Judge granting consent to the with drawal from the prosecution in the earlier case, the re spondents were acquitted and in view of section, 300 of the new Code, they were not liable to be tried again for the same offence and dismiss the appeal.
P.B.R. Appeal dismissed.
(1) A.I.R 1949 Mad.

summary:
Section 494 of the Code of Criminal Procedure 1893 provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict and in other cases before the judgment is pro nounced.
withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal (a) if it is made before a charge has been framed the accused shall be discharged; and (b) if it is made after the charge has been framed or when under the Code no charge is required, he shall be acquitted.
In the instant case, the committing Magistrate framed a charge against the respondents for having committed an offence under section 302 read with section 34 I.P.C. and committed them for trial by a Sessions Court.
The Sessions Judge granted permission sought by the Public Prosecutor to with draw from the prosecution under section 494 of the Code and "discharged" the respondents.
After fresh investigation a new charge sheet was filed.
By then the Code of Criminal Procedure 1973 had come into force.
Following the provisions of the new Code, the commit ting Magistrate committed the respondents to stand trial before the Sessions Court for the same offence.
When the case came up for trial, the respondents contended that by virtue of the earlier orders of the Sessions Court, they had been acquitted and that they were not liable to be prosecut ed again for the offence in view of section 300 of the new Code.
This was rejected on the ground that they had earlier been "discharged" and not acquitted and that section 300 had no appli cation to their case.
The High Court allowed their revision application holding that since the withdrawal from the prosecution in the earlier case was made after the charge had been flamed, the respondents had been acquitted and the bar of section 300 was attracted.
Dismissing the appeal, HELD: The High Court was right in holding that by reason of the order of the Sessions judge granting consent to the withdrawal from the prosecution in the earlier case, the respondents were acquitted and in view of section 300 they were not liable to be tried again for the same offence.
[356B] (1) Section 484 of the new Code provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force.
[352H] In the instant case, when the new Code came into force the case was pending before the Court of Session for trial and so was liable to be tried according to the old Code.
It was for this reason that the withdrawal application was made under section 494 of the old Code.
[353A B] (2) (a) When the prosecution against an accused commit ted for trial is allowed to be withdrawn by the Court of Session under section 494 of the old Code, 351 the withdrawal of the prosecution would be after the framing of the charge against the accused and it must result in the acquittal of the accused under el.
(b) of that section.
[355G] (b) The charge against an, accused under the procedure prescribed in the new Code is to be framed for the first time by the Court of Session while according to the proce dure prescribed under the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the vower to alter or amend the charge, if it thinks necessary to do so.
Therefore, when under the old Code, the Court of Session commences the trial of an accused, there is already before it a charge framed by the committing Magis trate and it is that charge that is required to be read out and explained to the accused.
and on which the plea of the accused is required to be taken.
[355D F] (c) In the instant case, the Judicial Magistrate fol lowed this procedure and after framing the charge committed the respondents for trial.
[354G] Queen Empress vs Sivarama, and In re.
Ve layudha Mudali, A.I.R. 1949 Mad 508, approved.