judgement:
minal Appeal No. 111 of 1961.
Appeal from the judgment and order dated March 2, 1961 of the Calcutta High Court in Criminal Appeal No. 269 of 1961.
D. N. Mukherjee, for the appellants.
P. K. Chakravarthy for P. K. Bose, for the respondent.
March 3, 1964.
The Judgment of the Court was delivered by DAS GUPTA J.
The appellants were tried by the Additional Sessions Judge, Birbhum, on charges under section 449 and section 307/34 of the Indian Penal Code.
The prosecution case was that on the night of the 14th November, 1950 when Haji Ebrar Ali was sleeping on the Verandah of his hut, these appellants came there and while one of them Abdul Odud pressed his knees and Ekram and Habibullah pressed his chest and hands, Matiullah inflicted an injury on his neck with a dagger.
Ebrar Ali woke up and raised a shout at the same time catching hold of Odud.
The other three assailants made good their escape.
Information about the occurrence was lodged at the Thana by Ebrar Ali who was then sent to Rampurhat hospital for treatment.
It is alleged by the prosecution that these four appellants entered Ebrar Ali 's house with the common intention of killing him, and that in furtherance of that 980 common intention, Matiullah injured him with a dagger while the other three held him down.
Fortunately, the injury inflicted on Ebrar Ali did not prove fatal.
The jury returned an unanimous verdict of guilt against all the appellants on both charges.
The learned Sessions Judge, accepted that verdict, and convicted them all under sections 449 and 307 read with section 34 of the Indian Penal Code.
He sentenced the appellant Matiullah to rigorous imprisonment, for four years under section 307/34 and to rigorous imprisonment for two years under section 449 of the Indian Penal Code.
He sentenced the other three appellants to rigorous imprisonment for three years under section 307/34 of the Indian Penal Code and for two years under section 449 of the Indian Penal Code.
All the four appealed to the High Court of Calcutta.
But, the appeal was summarily dismissed.
A Bench of the High Court however gave the appellants a certificate that this was a fit case for appeal to this Court, under article 134 (1) (c) of the Constitution.
On the basis of that certificate this appeal has been preferred.
Two points are urged before us on behalf of the appellants.
The first is that there can be no conviction under section 449 of the Indian Penal Code unless murder has actually been committed.
The second is that a charge under section 307 read with section 34 of the Indian Penal Code is not sustainable in law.
In our opinion, there is no substance in either of these contentions.
Section 449 of the Indian Penal Code provides that whoever commits house trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.
Mr. Mukherjee, who appeared before us on behalf of the appellants, argued that unless murder has been committed it is not possible to say that any house trespass was committed "in order to the committing" of an offence punishable with death.
According to the learned Counsel, from the fact that the purpose of the house trespass was to commit the murder it is not right to predicate that the house trespass was committed "in order to the committing of 981 murder".
We are unable to agree.
In our opinion, an act can be said to be committed "in order to the committing of an offence" even though the offence may not be completed.
Thus, if a person commits a house trespass with the purpose of the committing of theft but has failed to accomplish the purpose, it will be proper to say that he has committed the house trespass in order to the committing of theft.
It has to be noticed that the words "in order to" have been used by the legislature not only in section 449 of the Indian Penal Code but in the two succeeding sections 450, 451 and again in section 454 and section 457 of the Indian Penal Code.
Section 450 prescribes the punishment for house trespass if it is done "in order to" the committing of any offence punishable with imprisonment for life.
Section 451 makes punishable the commission of an offence of house trespass if it is committed "in order to" the committing of any offence punishable with imprisonment.
Section 454 makes punishable, lurking house trespass or house breaking, if committed "in order to" the committing of any offence punishable with imprisonment.
Section 457 prescribes the punishment for lurking house trespass by night or house breaking by night, if committed, "in or to the committing of any offence punishable with imprisonment.
It is worth noticing also that house trespass, apart from anything else is made punishable under section 448 of the Indian Penal Code, the punishment prescribed being imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or both.
Higher punishment is prescribed where house trespass is committed "in order to" the commission of other offences.
An examination of sections 449, 450, 451, 454 and 457 show that the penalty prescribed has been graded according to the nature of the offence "in order to" the commission of which house trespass is committed.
It is quite clear that these punishments for house trespass are prescribed quite inde pendent of the question whether the offence "in order to" the commission of which the house trespass was committed has been actually committed or not.
In our opinion, there can be no doubt that the words "in order to" have been used 882 to mean "with the purpose of".
If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under section 449 of the Indian Penal Code.
If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under section 450 of the Indian Penal Code.
Similarly, sections 451, 454 and 457 will apply it the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections.
Whether or not the purpose was actually accomplished is quite irrelevant in these cases.
Our conclusion therefore is that the fact that the murder was not actually committed will not affect the applicability of section 449 of the Indian Penal Code.
The second contention that no charge under section 307 read with section 34 of the Indian Penal Code is sustainable in law appears to proceed on a misreading of the effect of the provisions of section 34 of the Indian Penal Code.
Section 307 of the Indian Penal Code runs thus: "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to suc h punishment as is hereinbefore mentioned.
" According to Mr. Mukherjee, what is made punishable by this section is the individual act of a person when that individual has a particular intention or knowledge referred to in the section and so, where the act is done by a number of person,,, jointly it can have no application.
This argu ment ignores the legal position that the act committed by a number of persons shall in the circumstances mentioned in section 34 of the Indian Penal Code be held to be the act of 983 each one individual of those persons.
Section 34 runs thus : "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
" It may, in many cases, be difficult to decide whether the criminal act in question has been done by several persons in furtherance of the common intention of all.
But, once it is decided that the act is so done by a number of persons in furtherance of the common intention of all, the legal position that results is that each person shall be held to have committed the entire criminal act.
Thus, in the present case, when it is found that the four appellants attacked Haji Ebrar Ali in furtherance of the common intention of all of them to kill him and some of them held him down while one used the dagger on him, each of the four is in law considered to have done the entire act of holding Ebrar Ali down and applying the dagger.
If Matiullah by himself had held Ebrar Ali down and struck him with the dagger, with the intention of causing his death and the injury had actually resulted in his death, he would have been guilty of murder, except in some special circumstances as mentioned in section 300 of the Indian Penal Code.
The act did not result in death.
So, he becomes punishable under section 307 of the Indian Penal Code.
The position is in no way different when Matiullah is not acting alone but he and several others are acting jointly in furtherance of the common intention of all of them to kill Ebrar Ali.
Each of the other three who did not use the dagger must in law be considered to have done this act of using the dagger; and so, each of them becomes punishable under section 307 of the Indian Penal Code for injuring Ebrar Ali with the dagger on the neck as if the act had been done by himself alone.
The contention that a charge under section 307 read with section 34 of the Indian Penal Code is not sustainable in law, must therefore be rejected.
In the result, the appeal fails and is dismissed.
Appeal dismissed.

summary:
The appellants, were alleged to have entered the house of one with the common intention of killing him.
One of the appellants injured E with a dagger while the other three held him.
E 's injury did not prove fatal.
The Sessions Judge convicted them under sections 449 and 307 with section 34 of the Indian Penal Code.
which on appeal was upheld by the High Court.
On appeal by certificate, it was contended that there can 979 be no conviction under section 449 of the Indian Penal Code unless murder had actually been committed; and that a charge under section 307 read with section 34 of the Indian Penal Code was not Sustainable in law.
Held: There was no substance in either of these contentions.
An act can be said to be committed "in order to the committing of an offence" even though the offence may not be completed.
The words "in order to" have been used in section 449 I.P.C. to mean "with the purpose of '.
Whether or not the purpose was actually accomplished is quite irrelevant.
Once it is decided that the act is so done by a number of persons in furtherance of the common intention of all, the legal position that results is each person shall be held to have committed the entire criminal act.


judgement:
iminal Appeals Nos. 150 and 185 of 1961.
Appeals by special leave from the judgment and order dated June 19, 1961 of the former Bombay High Court in Criminal Appeals Nos. 218 and 242 of 1961 respectively.
section Mohan Kumarmangalam, R. K. Garg and M. K. Ramamurthi, for the appellant (in Cr. A. No. 150/61).
B. M. Mistry, Ravinder Narain and J. B. Dadachanji, for the appellant (in Cr. A. No. 185 of 1961).
B. K. Khanna, B. R. G. K. Achar and R. H. Dhebar, for the respondent (in both the appeals).
February 26, 1964.
The Judgment of the Court was delivered by RAGHUBAR DAYAL J.
Shiv Prasad Chunilal Jain, appellant in Criminal Appeal No. 150 of 1961 was accused No. 3 and Pyarelal Ishwardas Kapoor, appellant in Criminal Appeal No. 185 of 1961 was accused No. 2, at the Sessions Trial before the Additional Sessions Judge, Greater Bombay.
Along with them was a third accused, Rameshwarnath Brijmohan Shukla who was accused No. 1 at the trial.
As the two appeals arise from a common judgment, we would dispose of them by one judgment.
The appellants would be referred to as accused No. 3 and accused No. 2 respectively.
The facts leading to the conviction of the appellants are that a large quantity of iron angles was consigned early in February 1959 from Gobind Garh to Raypuram under railway receipt No. 597481, They were despatched in an open wagon bearing E.R. No. 69667.
The labels of the wagon were changed at Itarsi railway station and it was diverted to Wadi Bunder under a label showing that the iron angles had been despatched from Baran to Wadi Bunder under railway receipt No. 43352 dated February 6, 1959.
This wagon reached Wadi Bunder on February 16, 1959.
On February 17 it was unloaded by Baburao 923 Gawade, P.W.I and Shridhar, P.W. 14.
On February 18, accused No. 1 obtained the delivery sheet of the bill and signed it in the name of Shri Datta.
He also obtained delivery of the iron angles from the railway and signed the Railway Delivery Book in the name of Shri Datta.
The railway authorities delivered these on the presentation of the forged receipt No. 43352 and on payment of the charges amounting to Rs. 1,500/ .
These iron angles were then transported to the godown of the National Transport Company at Sewri and stored there.
The entries in the book showed their receipt in the account of accused No. 3 and also contained a further entry indicating the goods to be received in the account of accused No. 2.
The latter entry was made on the receipt of a chit, Exhibit Z8, from accused No. 1 saying that the goods be entered in the name of accused No. 2.
On February 24, 1959 the accused No. 2 signed an application, Exhibit K, addressed to the head office of the National Transport Company for delivering the goods.
Accused No. 1 obtained the goods from the godown of that company on February 26 and March 3, 1959.
A complaint by the original consignee about the nonreceipt of the iron angles sent from Gobind Garh led to an enquiry and eventual prosecution of the three accused.
Six charges were framed.
The first charge was against all the accused for an offence punishable under sections 471 and 467 read with section 34 I.P.C. and stated that in furtherance of their common intention to cheat the railway administration, accused No. 1 had fraudulently or 'dishonestly used the forged railway receipt No. 43352.
The second charge was framed in the alternative.
Firstly it charged all the accused for an offence under section 467 read with section 34 I.P.C. on account of accused No. 1 having forged the bill portion.
In the alternative, accused No. 1 was charged with the offence under section 467 I.P.C. and the other accused Nos. 2 and 3 were charged under section 467 read with section 109 I.P.C. for having abetted accused No. 1 in the commission of that offence.
924 Charges Nos. 3 to 6 were similarly framed in the alternative, i.e., in the first instance all the three accused were charged with certain offences read with section 34 I.P.C. while in the alternative accused No. 1 was charged of the specific offence and the other two accused were charged with that offence read with section 109 I.P.C. The accused were tried by the Additional Sessions Judge, Greater Bombay, with the aid of a jury.
The jury returned a unanimous verdict of guilty against all the accused for the various offences read with section 34 I.P.C.
The verdict of the jury was not recorded with respect to the five alternative charges against accused No. 1 regarding substantive offences and against accused Nos. 2 and 3 with respect to the various offences read with section 109 I.P.C. The Sessions Judge accepted the verdict of the jury and convicted them of the various offences read with section 34 I.P.C. Their appeals to the High Court were unsuccessful and therefore accused Nos. 2 and 3 have preferred these appeals after obtaining special leave from this Court.
The main contention for the appellants is that the learned Sessions Judge misdirected the jury with respect to the requirements of section 34 I.P.C.
The contention is that the various offences were actually committed by accused No. 1 on February 18, that neither accused No. 2 nor accused No. 3 was present when he presented the forged railway receipt, did other criminal acts and took delivery of the iron angles and that therefore even if they had agreed with accused No. 1 for the cheating of the railway administration by obtaining the iron angles dishonestly by presenting the forged receipt, they might have abetted the commission of the various offences, but could not be guilty of those offences with the aid of section 34 I.P.C. whose provisions, it is contended, do not apply in the circumstances of the 'Case.
It is contended that for the applicability of section 34 against an accused, it is necessary that that accused had actually participated in the commission of the crime either by doing something which forms part of the criminal act or by at least doing something which would indicate that be was a participant in the commission of that criminal act 'at the time it was committed.
Reliance is placed on the 925 cases reported as Barendra Kumar Ghosh vs The King Emperor(1) and Shreekantiah Ramayya Munipalli vs The State of Bombay(2).
The learned Sessions Judge in the instant case had told the jury : "In case you come to the conclusion that there was a common intention in the minds of all the three accused and accused No. 1 was acting in furtherance of that common intention, all the accused would be answerable for the offences proved against accused No. 1 by virtue of the provisions of section 34 of the Indian Penal Code, and it would be no answer to the charge to say that the acts were done by accused No. 1 alone.
Therefore, you have first, to consider for yourselves what offences are proved against accused No. 1.
You have next to ask yourselves whether it is proved (and it can also be proved by circumstantial evidence) that there was a common intention in the minds of all the three accused and the acts done by accused No. 1 were done in furtherance of that common intention.
If your answer is 'yes ' all the three accused would be guilty of the charges proved against accused No. 1 by virtue of section 34 of the Indian Penal Code.
" It is contended that in thus putting the case to the jury the learned Sessions Judge was in error as he did not take into consideration the fact that accused Nos. 2 and 3 were not present at all at the time when the various offences were actually committed by accused No. 1.
The two cases relied upon by the appellants support their contention.
In Shreekantiah 's case(2), three persons were convicted on several charges under section 409 read with section 34 I.P.C. for committing criminal breach of trust of certain goods entrusted to them as government servants in charge of the stores depot (1) L.R. 52 I.A. 40.
(2) ; 926 at Dehu Road near Poona.
The stores had illegally passed out of the depot and were handed over to a person who was not authorised to get them from the depot.
It was alleged that those accused had conspired to defraud the Government of those properties and that it was in pursuance of that conspiracy that they had arranged to sell the goods to the other person.
Accused No. 1 in that case was not present when the goods were loaded nor was he present when they were allowed to pass out of the gates, that is to say, he was not present when the offence was committed.
Bose J., delivering the judgment of the Court, said at p. 1189 : "If he was not present, he cannot be convicted with the aid of section 34.
He could have been convicted of the abetment had the jury returned a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law.
But the jury ignored the abetment part of the charge and we have no means of knowing whether they believed this part of the evidence or not.
" In considering the misdirection in the charge to the jury and the requirements of section 34 I.P.C. the learned Judge said at p. 1188 : "The essence of the misdirection consists in his direction to the jury that even though a person 'may not be present when the offence is actually committed ' and even if he remains 'behind the screen ' he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention.
This is wrong, for it is the essence of the section that the person must be physically present at the actual commission of the crime." Shreekantiah 's case(1) is practically similar to the present case.
Both accused No. 2 and accused No.
3 deny their presence at the railway station on February 18 when the various offences were committed.
None deposed that accused No. 3 was then present.
The presence of accused No. 2 was, however, stated by Babu Rao Gawade, P.W. 1.
(1) ; 927 He had not stated so in his statement before the police during investigation and the summing up by the learned Sessions Judge was that, under those circumstances, it was for the jury to consider whether to believe the statement of the s witness in Court or not.
It cannot be said as there was other evidence against accused No. 2 as well about his connection with this criminal transaction whether the jury believed his presence at the railway station on February 18 or not.
In Jaikrishnadas Manohardas Desai vs The State of Bombay(1), Shreekantiah 's case(2) came up for consideration and was distinguished, on facts.
In that case, the two accused, who were directors of a company, were convicted of an offence under section 409 read with section 34 I.P.C. for committing criminal breach of trust with respect to certain cloth supplied to them.
It was alleged that one of the accused was not working at that factory during the period when the goods must have been removed and that therefore he could not be made liable for the misappropriation of the goods by taking recourse to the provisions of section 34 I.P.C. Shah J., delivering the judgment of the Court, said at p. 326: "But the essence of liability under section 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under section 34 is not, on the words of the statute, one of the conditions of its applicability. .
A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of section 34.
But this participation need not in all cases be by physical presence.
In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence ' consists of diverse acts which may be (1) (2) ; 928 done at different times and places.
In Shree Kantiah 's case(1), misappropriation was com mitted by removing the goods from a Government depot and on the occasion of the removal of the goods, the first accused was not present.
It was therefore doubtful whether he had participated in the commission of the offence, and this Court in those circumstances held that participation by the first accused was not established.
The observations in Shree Kantiah 's case(1) in so far as they deal with section 34 of the Indian Penal Code must, in our judgment, be read in the light of the facts established and are not intended to lay down a principle of universal application." Accused No. 1, in the present case, alone did the various acts on February 18, 1959 which constituted the offences of which he was convicted.
Accused Nos. 2 and 3 took no part in the actual commission of those acts.
Whatever they might have done prior to the doing of those acts, did not form an ingredient of the offences committed by accused No. 1.
They cannot be said to have participated in the commission of the criminal act which amounted to those various offences.
They cannot be therefore held liable, by virtue of section 34 I.P.C., for the acts committed by accused No. 1 alone, even if those acts had been committed in furtherance of the common intention of all the three accused.
The result, therefore, is that the conviction of the appellants, viz., accused Nos. 2 and 3, for the various offences read with section 34 I.P.C. is to be set aside.
We did not hear, at first, the learned counsel for the appellants, on the alternative offences of abetment being made out against the appellants and with respect to which the verdict of the jury was not recorded by the Sessions Judge.
We did not consider it necessary to remit the case for further proceedings with respect to those charges and preferred to dispose of the case finally after giving a further hearing to the learned counsel for the appellants.
We accordingly heard them on the charges relating to the appellants abetting accused No. 1 in the commission of the (1) ; 929 various offences, subject matter of charges Nos. 2 to 6 and now deal with that matter.
We need not discuss the evidence on the record and would just note the various facts which are established from the evidence or which are admitted by the accused.
The relevant facts having a bearing on the question of accused No. 2 abetting the commission of the offences com mitted,by accused No. 1 are : 1.
Accused No. 1 is the servant of accused No. 3 at whose shop accused No. 2, who is a broker, sits.
Accused No. 2 deals in non ferrous goods.
Accused No. 2 went with Baburam Gavade, P.W. 1, a clearing agent, on February 17, 1959, to see the goods.
The godown register showed the angle irons to be received in the account of Shiv Prasad Bimal Kumar and Pyare Lal, accused No. 2.
Accused No. 2 wrote the letter Exhibit K to the National Transport Company for issuing, the delivery order with respect to the angle irons in order to enable him to take delivery thereof.
Accused No. 2 was in possession of the note, Exhibit Z 7 which he delivered to the police during the investigation.
The relevant facts having a bearing on the alleged abetment of the offences by accused No. 3 are 1.
Accused No. 1 is an employee of accused No. 3. 2.
The angle irons were stored at the depot of the National Transport Company at the instance of, accused No. 1. 3 The books of the godown noted their receipt in the account of accused No. 3, though the account Showed further that they were received in the, account of accused No. 2.
This further entry was,made on receipt of Exhibit Z 8 from .lm0 134 159 S.C. 59 930 accused No. 1 when the last lot was delivered at the godown on February 18.
The entire writing on Exhibit Z 7 except the signature of an unknown person and the date below it, was written by accused No. 3.
That document reads: "To Piaraya Lal c/o M/s. Sheopershad Bimal Kumar, Bombay.
No. 43351, dated 4 2 59 Ashoknagar to Carnac Bridge.
No. 43352, dated 6 2 59 Baran to Wadi Bunder.
I have received the material of the above RR which I have handed over to you for clearance.
Sd./ Yashwant 24 2 1959.
" Besides these circumstances, it is urged for the State that the effect of the diversion of the wagon from its right course at Itarsi railway station indicates that the people responsible for it must have a fairly large and influential organization with funds and that such a diversion could no$ have been merely at the instance of accused No. 1, all employee of accused No. 3, who is a substantial merchant About Rs. 1,5001/ were paid as charges to the railway authorities before the angle irons could be taken delivery of Accused No. 1 could not have been in a position to make that payment.
It is further urged that accused No. 1 would not have stored the goods with the National Transport Company unless the storage was on account of his master, accused No. 3.
Accused No. 2 admits his going to see the goods on February 17, but states that he lost his interest in the good$ as they were iron angles and his line of business was in non ferrous goods.
He explains his singing the letter Exhibit 931 K by saying that he did so at the instance of accused No. 3 who represented to him that accused No. 1 had, by mistake, stored the goods in the name of accused No. 2 and of accused No. 3 showing him the document Exhibit Z 7 which he retained with himself.
Accused No. 3 states that he had nothing to do with this matter and that he wrote Exhibit Z 7 at the instance of accused No. 2 who asked him to do so, he himself being unable to write in English or Hindi.
We now discuss the evidence to determine whether the accused Nos. 2 and 3 abetted the commission of the offences committed by accused No. 1.
Exhibit Z 7, as originally written, does not, appear to have had the first line, viz., the writing of 'To, Piaraya Lal C/o '.
This was written subsequently.
This is clear, as urged for accused No. 2, from the facts that it appears to have been written with a different pen and, possibly, with different ink also, and because the word 'C/o ' has been written at an unusual place.
In ordinary writing, it should have been in line with the latter expression 'M/s. Sheopershad Bimal Kumar '.
It follows therefore that this document was first written by accused No. 3 to show that a third person had entrusted him with the railway receipt No. 43352, dated February 6, 1959, and that that person had received the material to which the railway receipt related.
In this original form, the only conclusion possible from the original contents of the document can be that M/s. Sheopersbad Bimal Kumar, of which accused No. 3 is the proprietor, received this receipt from the third person in order to clear the good.
& from the railways.
This would amply explain accused No. 1 taking delivery of the goods on February 18 and storing them with the National Transport Company in the account of accused No. 3 and the entries in the godown register.
Himmatlal, P.W. 13, is the godown keeper.
He issued the receipt Exhibit PI which records: "We have today received the under mentioned goods for storage with us in our godown No. IPL on behalf of and under lien to Shiv Prasad Bimal Kumar.
" 932 This is a clear indication of the fact that the goods were stored on behalf of Sheopershad Bimal Kumar, i.e., accused No. 3.
The words 'under lien ' are of great significance in this respect and show that the storage was not shown to be on behalf of accused No. 3 merely because the angle irons were sent by accused No. 1 who was an employee of accused No. 3.
The expression 'under lien ' points to there being some specified transaction between accused No. 3 and the National Transport Company for the storing of the articles.
This note further confirms the statement of Himmatlal that he had all first written in the accounts that the goods were received on account of Sheopershad Bimal Kumar and that it was on receipt of Exhibit Z 8 from accused No. 1 that he noted the words 'Account Pyare Lal ' in the entries with respect to those goods.
The circumstance that accused No. 3 was in a better position to finance the transaction than accused No. 1, is also consistent with the aforesaid conclusion from the original contents of Exhibit Z 7.
Apart from the apparent later noting of the first line in this document, Exhibit Z 7, there appears no good reason why the receipt should have been written in this form if it was to be written at the instance of accused No. 2.
There was no reason to give the address of Pyare Lal as c/o M/s. Sheopershad Bimal Kumar.
The later entry in this document must have been therefore for a purpose And that could have only been to show that the railway receipt No. 43352 was dealt with by accused No. 2 and not by accused No. 3.
Mention may be made here of the fact that certain witnesses who had, during their police statements, referred to certain actions of accused No. 3, stated in Court that those acts were committed by accused No. 2.
No reliance can be placed on any of the statements of those witnesses and this fact is just mentioned to show that it fits in with the very first attempt in converting the document originally prepared to show that accused No. 3 had dealt with this forged railway receipt into a document showing that it was 933 not accused No. 3 but accused No. 2 who dealt with that receipt.
Accused No. 2 has been acting as a broker.
He signed Exhibit K.
He must be conversant with the language in which he signed.
It was not necessary that the receipt Exhibit Z 7 should have been written in English or in Hindi even if accused No. 2 did not know any of those languages.
We are therefore not prepared to accept the explanation of accused No. 3 with respect to his recording the document Exhibit Z 7.
We hold, as admitted by him, that he had written this document.
It makes reference to the forged receipt of which advantage was taken in getting delivery of the iron angles.
Accused No. 3, writing such a receipt, clearly points to his being concerned with the taking delivery of the iron angles, by accused No. 1, his employee.
Once the forged receipt is traced to accused No. 3, from his own writing, the natural conclusion is that it was he who passed it on to his employee accused No. 1 for the purpose of getting delivery of those goods from the railway authorities.
He thus aided accused No. 1 in obtaining delivery of those goods, and in his committing the various offences for achieving that object.
The further fact that the receipt was endorsed in the name of Datta and not in the name of accused No. 1, also proves that accused No. 3 must have known that the receipt he was dealing with was not a genuine receipt for the goods which were to be taken delivery of.
If he had believed the receipt to be a genuine one, he would have endorsed it or got it endorsed in the true name of his employee.
His employee too would not have taken delivery under a false name.
We are therefore of opinion that it is established from these various circumstances and facts that accused No. 3 had abetted the commission of the offences, the subject matter of charges Nos. 2 to 6, by accused No. 1.
The points in favour of accused No. 2 are that he does not deal in non ferrous metals and therefore he would not have taken any interest in the transaction after he had found out on February 17 that the goods were ferrous and not non ferrous.
The fact that the goods were not stored in his name in the accounts of the godown of the National Trans 934 port Company, but were stored in the first instance in the name of No. 3, also goes in his favour.
If accused No. 3 had nothing to do with it and accused No. 1 was simply acting for accused No. 2, he would have sent instructions in the very first instance to Himmatlal that goods were to be stored in the account of accused No. 2.
He did not do so.
He sent intimation for storing the goods in the name of Pyarelal with the last lorry transporting the iron angles to the godown.
Pyarelal had no previous dealings with the National Transport Company.
In this connection, the exact direction given by accused No. 1 is of some significance.
The direction given by him in Exhibit Z 8 was 'Please give a receipt in the name of a/c Pyare Lal '.
The request was not that the goods were of Pyare Lal and so be stored on his account.
That should have been the natural direction.
The receipt would have then been issued in the name of Pyare Lal and of nobody else.
The direction given by accused No. 1 therefore indicates that for certain purposes he desired the receipt alone to be in the name of Pyare Lal.
Naturally, Himmatlal had to make some entry in the books of the godown which would be consistent with a receipt issued in the name of Pyare Lal.
Himmatlal therefore noted the words 'account Pyare Lal ' below the original note 'account Sheopershad Bimal Kumar ', but saw no reason to make a statement in the receipt Exhibit P that the goods were stored on behalf of Pyare Lal and noted in it that they were stored on behalf and under lien to Sheopershad Bimal Kumar.
Accused No. 2 signed the letter Exhibit K for the issue of the delivery order.
His explanation is that he did so when accused No. 3 insisted and told him that his employee had by mistake stored the goods in his name.
Ordinarily, this should not have been believed by accused No. 2 as there was no reason why accused No. 1 should store the goods in his name by mistake.
He could have and might have suspected something not straight, but could shake off such suspicion by his being shown the receipt Exhibit Z 7, which showed that the goods had been cleared by A 3 on behalf of certain person who had passed on that receipt.
He was under an obligation to accused No. 3 and it is possible that he could 935 not have strongly resisted the request of accused No. 3 sign the letter Exhibit K.
Accused No. 3 had necessar to obtain a letter signed by Pyare Lal when the goods has not been shown to be stored in his account but were not in the account of Pyare Lal or of both Sheopershad Bin Kumar and Pyare Lal.
It is significant that accused No. 2 himself did not to take delivery of the goods.
It was accused No. 1 was took the delivery in two lots and each time signed the receipt in the name of Pyare Lal.
If accused No. 2 was also a party to the dishonest obtain ing of the goods from the railway, there would not ha been any occasion for such duplication of names on who behalf the goods were stored with the National Transport Company or for such a document as Exhibit Z 7 commitment into existence or for accused No. 2 keeping the document with himself.
He kept it with himself for his protection an produced it for that purpose during investigation.
It may be that when accused No. 3 tried to dispel his doubts wh.
he was requested to sign the letter Exhibit K, accused No. himself suggested the receipt Exhibit Z 7 to be address, 'in his name, as only then that receipt could be of any he to him.
In these circumstances, we are of opinion that the complicity of accused No. 2 in the commission of the varios offences by accused No. 1 is not established beyond reason able doubt.
We therefore allow the appeal of Pyare Lal and acquired him of the offences he was convicted of.
We dismiss tl.
appeal of accused No. 3, Shiv Prasad Chunilal Jain, by alter his conviction for the various offences read with section 3, I.P.C. to those offences read with section 109 I.P.C., and mainta.
the sentences.
Appeal No. 185 allowed at, Appeal No. 150 dismisses Conviction altered and sentence maintained.

dataset_name: IN-Abs

summary:
In a trial by jury the appellants were jointly charged along with accused No. 1 with an offence punishable under sections 471 and 467 read with section 34 of the Indian Penal Code.
The first charge was that in 921 furtherance of their common intention to cheat the railway administration, accused No. 1 had fraudulently or dishonestly used the forged railway receipt.
The second charge was framed in the alternative.
Firstly it charged all the accused under section 467 read with section 34 I.P.C. on account of accused No. 1 having forged the bill portion.
In the alternative, accused No. 1 was charged under section 467 I.P.C. and the appellants were charged under section 467 read with section 109 I.P.C. for having abetted accused No. 1 in the commission of that offence.
Similarly charges Nos.
3 to 6 were framed in the alternative.
The jury returned a unani nious verdict of guilty against all the accused for the various offences read with section 34 I.P.C.
The verdict of the jury was not recorded with respect to the five alternative charges against accused No. 1 regarding substantive offences and against appellants with respect to various offences read with section 109 I.P.C.
The Sessions Judge accepted the verdict of the jury and convicted them of the various offences read with section 34 P.C.
Their appeals to the High Court also failed.
On appeal by Special Leave the appellants mainly contended that the learned Sessions Judge misdirected the jury with respect to the requirements of section 34 I.P.C.
It was urged that the various offences were actually committed by accused No. 1, that the appellants were not present when accused No. 1 presented the forged railway receipts, did other criminal acts and took 'delivery of the goods and that therefore even if they had agreed with accused No. 1 for the cheating of the railway by obtaining the goods dishonestly by presenting the forged receipt.
they might have abetted the commission of the various offences, but could not lye guilty of those offences with the aid of section 34 I.P.C. whose provisions do not apply in the circumstances of the case.
For the applicability of section 34 against an accused, it is necessary that that accused had actually participated in the commission of the crime either by doing something which forms part of the criminal act or by at least doing something which would indicate that he was a participant in the commission of that criminal act at the time, it was committed.
Held: In the present case, accused No. 1 alone did the various acts which constituted the offences of which he was convicted.
The appellants took no part in the actual commission of those acts.
Whatever they might have done prior to the doing of those acts, did not form an ingredient of the offences committed by accused No. 1.
They could not be said to have participated in the commission of the criminal act which amounted to those various offences.
They could not be therefore held liable, by virtue of section 34 I.P.C., for the acts committed by accused No. 1 alone, even if those acts had been committed in furtherance of the common intention of all the three accused.
Therefore, the conviction of the appellants, for the various offences read with section 34 I.P.C. must be set aside.
Barendra Kumar Ghosh vs The King Emperor, (1929) L.R. 52 I.A. 40, Shree Kantiah Ramayya Munipalli vs State of Bombay ; and Jaikrishnadas Manohardas Desai vs State of Bombay , referred to.


judgement:
Appeal No. 598 of 1962.
Appeal from the judgment and order dated March 18, 1961 of the Maharashtra High Court (Nagpur Bench) at Nagpur in Special Civil Application No. 30 of 1960.
WITH Civil Appeals Nos. 695 and 700 of 1962.
Appeals from the judgment and orders dated October 12, 1961 and March 18, 1961 of the Madhya Pradesh High Court in Misc.
Petitions Nos.
122 of 1961 and 319 of 1960 respectively.
949 M. C. Setalvad and section Shaukat Hussain, for the appellant (in C.A. No. 598/62).
W. section Barlingay and A. G. Ratnaparkhi, for respondent No. 1 (in C.A. No. 598 of 1962).
section G. Patwardhan, Udai Pratap Singh and M. section Gupta, for the appellant (in C.A. No. 695/62).
A. N. Goyal, for respondent No. 1 (in C.A. No. 695/ 62).
N. Shroff, for respondent No. 2 (in C.A. No. 695/62).
M.C. Setalvad and M. section Gupta, for the appellant (in C.A. No. 700/62).
G. section Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents Nos. 1 to 4 and 6 to 9 (in C.A. No. 700/62).
N. Shroff, for respondent No. 10 (in C.A. No. 700/62).
March 3, 1964.
The Judgment of the Court was delivered by AYYANGAR, J.
These three appeals which are on certificates of fitness granted by the High Courts the first by the High Court of Bombay at Nagpur and the two others by the High Court of Madhya Pradesh raise a common question as regards the construction of article 277 of the Constitution and the validity of certain terminal taxes imposed by the respective appellant municipal authorities under notifications issued under Ch.
IX of the C.P. & Berar Municipalities Act, 1922, subsequent to the coming into force of the Constitution, and so have been heard together.
Civil Appeal 598 of 1962 is an appeal from the High Court of Bombay at Nagpur and has been filed by the Municipal Committee of Amravati against a decision of the High Court allowing the 1st respondent 's petition under articles 226 and 227 of the Constitution.
The Municipal Committee of Amravati has been established under the 950 C.P. & Berar Municipalities Act, 1922 (C.P. & Berar Act II of 1922) hereinafter referred to as the Act.
Chapter IX of the Act deals with the imposition, assessment and collection of taxes which might be imposed by the Municipal Committee.
Section 66 specifies the taxes which, subject to the provisions of the Chapter, the Committee may from time to time impose.
Its first sub section specifies in its several clauses 15 varieties of taxes and among them is cl.
(o) which reads: "The terminal tax on goods or animals imported into or exported from the limits of the municipality provided that terminal tax under this clause and an octroi under cl.
(e) shall not be in force in any municipality at the same time , ' The other sub clauses which are relevant for the considera tion of the question arising in the appeal are sub cls.
(2),(3) and (4) of section 66 and they read : (2) The State Government may, by rules made under this Act, regulate the imposition of taxes under this section, and impose maximum amounts of rates for any tax.
(3) The first imposition of any tax specified in subsection (1) shall be subject to the previous sanction of the State Government.
(4) Subject to the control of the State Government, a committee may abolish any tax already imposed and specified in sub section (1) clauses (a) to (in) inclusive, or may, within the limits imposed under sub section (2), vary the amount or rate of any such tax : Provided that in the case of any municipality indebted to the Government, the abolition of any tax or a reduction in the amount or rate thereof shall be subject to the previous sanction of the State Government.
" 951 Section 67 lays down the procedure for the imposition of taxes and it provides : "67.
(1) A committee may, at a special meeting, pass a resolution to propose the imposition of any tax under section 66.
(2) When such a resolution has been passed, the committee shall publish, in accordance with rules made under this Act, a notice defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed and the system of assessment to be adopted.
(3) (4) (5) The State Government, on receiving such proposals, may sanction or refuse to sanction the same, or sanction them subject to such modifications as it may think fit, or return them to the committee for further consideration.
(6) No modification affecting the substance shall be made under sub section (5), unless and until the modification has been accepted by the committee at a special meeting.
(7) (8) A notification of the imposition of a tax under this section shall be conclusive evidence that the tax has been imposed in accordance with the provisions of this Act.
" The procedure for the variation of the taxes is to be found in section 68 and it reads "68.
(1) A committee may, at a special meeting, pass a resolution to propose the abolition of any tax already imposed, or a variation in the amount or rate thereof.
(2) 952 (3) If the proposal is to increase the amount or rate of any tax, the committee shall publish, in the manner prescribed by rules made under this Act, a notice showing in detail the effects of the proposal.
(4) Any inhabitant of the municipality objecting to the proposed increase may, within thirty days from the publication of the notice, submit his objection in writing to the committee.
(5) The committee shall take the proposal and all objections received thereto )into consideration at a special meeting, and may modify the proposals as it may think fit, and may pass a final resolution on the proposal.
(6) If the proposal requires the previous sanction of the State Government under the provisions of section 66, sub section (4) or sub section (5), the committee shall forward it to the State Government and it shall be dealt with in the manner provided in section 67, sub sections (4), (5) and (6).
(7). . . . (8). . . . (9) The publication in the manner prescribed of the abolition or variation of any tax under this section shall be conclusive proof that such abolition or variation has been made in accordance with the provisions of this Act." From even before the constitution of the municipality under the Act and at a time when the municipal committee was governed by the Berar Municipal Law of 1886 which was in force prior to the Act and whose taxation provisions were continued by the Act of 1922, a terminal tax on goods imported by road or rail had been imposed by the Munici pality by virtue of a notification dated August 10, 1916 on several specified kinds of goods.
This notification exempted silver, bullion and coin from the operation of this tax.
This was superseded by a notification of June 2, 1921 under which the Schedules were modified and the terminal tax 953 imposed was confined to goods imported into or exported out of the Municipal area by rail.
The notification of June 1921 was amended from time to time by other items being added and the rates being increased but no change was effected in the taxes imposed after 1936.
Under the scheme of the distribution of taxing powers between the provinces and the Central Government under the Government of India Act, 1935 terminal taxes on goods carried by rail were assigned exclusively to the Federal Centre under item 58 of List I to Sch.
VII, but the validity of the levy and collection of the terminal tax in force, before the 1st April, 1937 was continued by section 143 of the Government of India Act, 1935 and it was by virtue of this continuance that these taxes were continued to be levied after April 1, 1937 Their continuance after January 26, 1950 when after the repeal of the Government of India Act, 1935, the Consti tution came into force with the same scheme of distribution of taxing power on the relevant item identical with that under the Government of India Act, was by reason of article 277 which was practically in the same terms as section 143 of the Government of India Act, 1935.
The taxes imposed by the pre Constitution notification could, therefore, be legally levied and collected even after the Constitution came into force.
Subsequent to January 26, 1950 there was a notification on December 1, 1959, under which to the list of goods liable to terminal tax imported into or exported out of the Municipal area, not merely by rail, but also by road were added three new items silver and silver jewellery, gold and gold jewellery, and precious stones, and these three specified items were subjected to the tax at the same rates as had been imposed on other articles by the notifications which were in force from before the Constitution.
Before the notification was issued the procedure indicated by section 67 was gone through and the Government accorded their sanction to the rules made by the Municipal Committee for the imposition of the tax on the newly added articles.
The validity of the tax imposed by this notification was challenged by the 1st respondent who was carrying on business within Amravati municipality in gold, silver and precious stones, 954 on the ground of legislative incompetency which had not been saved by Article 277 of the Constitution, in a petition under Article 226.
The learned Judges of the High Court by a majority accepted the contention raised by the respondent and allowed the petition but granted a certificate of fitness and hence this appeal.
The facts of the other two appeals are nearly similar but we shall refer to them after dealing with the, common question which arises in these appeals.
It is common ground that the right to levy a terminal tax is now vested in the Union Parliament under Entry 89 of the Union List which reads : "Terminal taxes on goods or passengers carried by railway, sea or air; taxes on railway fares and freights", so that if the levy by the appellant of the terminal tax on the newly added items, and the same principle would apply to an increase in the rate of the duty, had to rest on the independent taxing power of the State, the same would have to be struck down for want of legislative competence.
Besides it is necessary to add that whereas under the notifications in force prior to 1st April 1937 when Part III of the Government of India Act was brought into force, articles imported into or exported out of the municipal area by road were not subject to the tax, and that state of affairs continued till long after the Constitution came into force, a terminal tax was imposed by the impugned notification of December 1959 on goods imported or exported by road a tax which it was not open to the State to impose even with the aid of article 277.
But ignoring this feature of the impugned notification, insofar as it brought in goods carried by road within the scope of the terminal tax, it is admitted that the validity of the imposition cannot be justified if it was a fresh imposition.
What is, however, urged in support of the validity of the imposition is that the same is saved by article 277 which runs: "277.
Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the 955 Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List.
continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.
" If learned Counsel for the appellant is right in his contention 'that the impugned tax which he is now seeking to sustain, 'was the tax which "was being lawfully levied" by the municipality before the commencement of the Constitution he would certainly be well founded in the submission that the fact that the terminal taxes are under the distribution ,of taxing powers under the Constitution assigned to the Union would make no difference for the valid continuance of the levy.
The question, therefore, is whether this was the tax which was being levied by the municipal authority before the Constitution and for whose continuance the Article provides.
The first submission of Mr. Setalvad for the appellants was that this condition would be satisfied whenever a ,terminal tax (without reference either to the article on which it was levied or the rate) was being lawfully levied by the municipality prior to the commencement of the ,Constitution and as in this case admittedly a terminal tax was being levied on certain articles that condition was satisfied.
His argument was that the words 'tax or duty ' in the opening part of article 277 should be read as meaning a tax or duty under a specified legislative Entry, and if such a tax or duty was being levied before the commencement ,of the Constitution other duties of the same type or falling within the same category might be imposed after the Constitution notwithstanding that such duties or taxes were mentioned in the Union List by reason of the words "shall continue to be levied".
Secondly, he said that the word 'levy ' meant not merely the ascertainment, i.e., assessment and collection of the tax but included its imposition, i.e., also the charging and if that expression were understood in that wide sense it would comprehend a case where other 956 items than those originally specified were brought into the fold of the taxing provision.
The learned Attorney General who appeared for the State and supported Mr. Setalvad, however, went a step further and submitted that it was not even necessary that a terminal tax should be actually imposed and was being collected prior to the Constitution, but that it was sufficient if the State enactment had vested in the municipality a power to levy such a tax.
The argu ment of the learned Attorney General has to be rejected as lacking any substance, for on no construction, wide or narrow, of the expression 'levy ' in the phrase 'continue top be levied ' can such a case be comprehended.
From the mere fact that a State enactment has authorised a municipality to levy a tax it cannot be said that a tax which had never been imposed was "being lawfully levied" by the municipality, not to speak of the tax etc.
collected being "applied to the same purposes" before the commencement of the Constitution as contemplated by the concluding portion of the Article.
Coming next to what one might term the narrower submission of Mr. Setalvad we do not find it possible to agree with it either.
His first submission may be expanded thus : The expression "taxes, duties, cesses" with which article 277 opens, has to be read in the context of Part XII in which the Article occurs and so read has to be understood as referring to the class or category of taxes which were levied and collected by the State, municipality etc.
before the commencement of the Constitution.
In other words, the reference here is to the entries in the legislative lists which permit such taxes to be levied, and so read and taken in conjunction with the circumstance that the Article is one designed to prevent the dislocation of the finances of the State or other local authorities, the terms of the Article would be satisfied and the legislative power to continue to levy the tax would be conferred "notwithstanding that the tax, etc.
are mentioned in the Union List".
This argument, in our opinion, proceeds on ignoring the terms of article 277.
If, as is admitted, the sole object sought to be achieved by this provision for "continuance" is to avoid dislocation of the finances of the State and local authorities, 957 by depriving them of the revenues which they were deriving at the commencement of the Constitution, it would mean that the intention was to permit the existing range of taxes to be continued, not that the Article conferred on them authority to expand the range of their taxation by subjecting new items to taxation or by increasing the rates of duty.
This consideration apart, it is not possible to read the words "notwithstanding that the taxes etc.
are mentioned in the Union List" as conferring an unlimited legislative power to impose what in effect the argument involves new taxes, though of the same type or nature as existed before the Constitution.
The question of the proper construction of section 143(2) of the Government of India Act, 1935 which is for all practical purposes identical with article 277 came up for consideration before this Court in Rama Krishna Ramanath vs The janpad Sabha, Gondia(1).
There it was submitted on behalf of the respondent local authority that by virtue of section 143 (2) of the Government of India Act the Provincial Legislature was vested with a plenary power to legislate in respect of every tax which was being lawfully levied by local authorities prior to the commencement of the Government of India Act.
This Court rejected that contention and observed "Section 143 (2) which is a saving clause and obviously designed to prevent a dislocation of the finances of Local Governments and of local authorities by reason of the coming into force of the provisions of the Government of India Act distributing heads of taxation on lines different from those which prevailed before that date, cannot be construed as one conferring a plenary power to legislate on those topics till such time as the Central Legislature intervened.
Such a construction would necessarily involve a power in the Provincial Legislature to enhance the rates of taxation a result we must say from which Mr. Sanyal did not shrink, but having regard to the language of the section (1) [1962] Supp. 3 S.C.R. 70.
958 providing for a mere continuity and its manifest purpose this construction must be rejected.
" No doubt, even the words "continue to be levied and to be applied to the same purposes" might import and imply a limited legislative power in the State.
The scope of this limited power was also examined by this Court in the same case and it was stated : "In the context the relevant words of the sub section could only mean 'may continue to be levied if so desired by the Provincial Legislature ' which is indicated by or is implicit in the use of the expression 'may ' in the clause 'may be continued until provision to the contrary is made by the Federal Legislature. ' This would therefore posit a limited legislative power in the Province to indicate or express a desire to continue or not to continue the levy.
If in the exercise of this limited power the Province desires to discontinue the tax and effects a repeal of the relevant statute the repeal would be effective.
Of course, in the absence of legislation indicating a desire to discontinue the tax, the effect of the provision of the Constitution would be to enable the continu ance of the power to levy the tax but this does not alter the fact that the provision by its implication confers a limited legislative power to desire or not to desire the continuance of the levy subject to the overriding power of the Central Legislature to put an end to its continuance and it is on the basis of the existence of this limited legislative power that the right of the Provincial Legislature to repeal the taxation provision under the Act of 1920 could be rested.
Suppose for instance, a Provincial Legislature desires the continuance of the tax but considers the rate too high and wishes it to be reduced and passes an enactment for that purpose, it cannot be that the legislation is incompetent and that the State Government 959 must permit the local authority to levy tax at the same rate as prevailed on April 1, 1937 if the latter desired the continuance of the tax.
If such a legislation were enacted to achieve a reduction of the rate of the duty, its legislative competence must obviously be traceable to the power contained in words 'may continue to be levied ' in section 143 (2) of the Government of India Act.
" Dealing next with the import of the words 'may continue to be levied ' the same was summarised in these terms : (1) The tax must be one which was lawfully levied by a local authority for the purpose of a local area, (2) the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised 'and the purposes for which the utilization is to take place continue to be the same, and (3) the rate of the tax is not enhanced nor its incidence in any manner altered, so that it continues to be the same tax.
It is obvious that if these tests were applied the submission on behalf of the appellant cannot be accepted.
But authority apart, we cannot, even if this decision were put aside, accede to the construction for which Mr. Setalvad contends.
It is not disputed that in ultimate analysis the answer to the question raised should turn on the meaning of the word 'levied ' in the phrase 'continue to be levied ' which is the operative word conferring a power.
Mr. Setalvad submits that 'levied ' is a word of wide and varying import and includes in its denotation not merely the actual collection of the tax, but the imposition in the sense of the creation of the charge by the statute, as well as the ascertainment of the amount due from the tax payer.
Mr. Setalvad is right, for before a tax can be collected from any tax payer, its quantum must be ascertained and assessed, and for this to be lawfully done there must be legislative sanction in other words an imposition of the charge because it is the charge under the Statute that is quantified ' by the authorities acting under the taxing enactment.
The acceptance of this construction however does not lead to the result desired, for what can "continue to be levied" is what "was being lawfully levied" in the same sense of the, 960 word "levied", prior to the Constitution.
Admittedly, there was no imposition of the charge now sought to be recovered prior to the Constitution, i.e., the Act did not impose the charge by section 66 but merely enabled the Municipal Committee by appropriate procedure to impose the tax.
If, of course, this power had been availed of and a charge had been imposed it would be a different matter.
So long as the Municipal Committee did not pass the necessary resolutions and impose the tax there was no charge levied on the commodity, so that it could not be said that the tax "was being lawfully levied" before the commencement of the Constitution.
The words "was being lawfully levied ' obviously mean "was actually levied" and it would not be sufficient to satisfy those words that the Municipal authority could lawfully levy the tax, but had not availed itself of that power.
There is another circumstance to which also reference may be made.
The last portion of article 277 uses the words "continue to be levied" and "to be applied to the same "purposes".
By reason of this collocation between the concept of the levy and of application of the proceeds of the tax , the Constitution makers obviously intended the word 'levy ' to be understood as including the collection of the ,tax, for it is only when a tax is collected that any question of its application to a particular purpose would arise.
It is apparent that if the word "levied" were understood in the sense which Mr. Setalvad contends, there could be no "application" of the proceeds of the tax to the same pur poses as at the commencement of the Constitution.
For ex concessis at that date there were no proceeds to be applied.
In this connection learned Counsel for the respondent referred us to the decision in Chuttilal vs Bagmal and Balwantrai(1) where the relationship between the levy and the application of the tax has been referred to as an aid to the construction of the expression "continue to be levied" in article 277.
We find ourselves in agreement with the views there expressed.
The decision of the High Court is, therefore, correct and "the appeal fails.
(1) I.L.R. [1956] Madhya Bharat 339.
961 CIVIL APPEAL No. 695 OF 1962.
In this appeal a notification was issued under sub sections
(5) and (7) of section 67 of the C.P. & Berar Municipalities Act, 1922, on December 9, 1960 imposing a terminal tax on gun powder imported into or exported out of the municipal area by rail.
It is admitted that previous to the Constitution there was no tax imposed on gun powder.
The position in this case is, therefore, identical with that in Civil Appeal No. 598 of 1962 which we have just disposed of and it follows that this appeal also fails and should be dismissed.
CIVIL APPEAL No. 700 OF 1962.
In Civil Appeal 700 of 1962 the original notification imposing terminal taxes in respect of goods coming into or going out of the municipal area by rail was one dated March 17, 1926 which was operative from April 1, 1926.
This was amended by a notification under section 67 (5) of the C.P. Berar Municipal Act, 1922 dated September 23, 1960 by which new articles were included to the list of items imported into or exported from the municipal area by rail subject to the terminal tax and besides the rate of tax on the previously existing items was also increased.
It was this inclusion of new articles for the levy of terminal tax by the notification of 1960 and the increase in the rate of duty on articles, already subjected to tax, that was impugned in the writ petition filed by the respondent before the High Court.
On our reasoning on the basis of which we have dismissed Civil Appeal 598 of 1962 it would follow that this appeal should also fail.
We can see no difference between the inclusion of new items and the increase in the rate of duty because if there is an increase it would not be a mere continuance of the duty which had been lawfully levied which is the only purpose and function of article 277.
The judgment of the High Court allowing the writ petition of the respondent was therefore correct.
In the result, ;all the three appeals fail and are dismissed with costs of the contesting respondent or respondents.
in each appeal.
Appeals dismissed.

summary:
A terminal tax on goods imported by road or rail was imposed by the Amravati Municipality by virtue of a notification dated August 10, 1916.
This notification exempted silver, bullion and coins from the operation of this tax.
When terminal taxes on goods imported by rail were assigned exclusively to the Federal Centre under the Government of India Act, 1935, the municipality was authorised by section 143 to continue to levy the terminal taxes which were actually levied before the enforcement of the Act.
Likewise, the terminal taxes imposed by the pre Constitution notification were allowed to be levied and collected even after the Constitution came into force by virtue of article 277 of the Constitution.
In 1960, the Municipality levied terminal taxes on three new items, viz., silver and silver jewellery, gold and gold jewellery and precious stones.
In a writ petition filed under article 226 of the Constitution, the validity of the newly imposed terminal tax was challenged by the respondent who was carrying on business, within the limits of the Municipality, in gold, silver and precious stones on the ground of legislative incompetence.
The writ petition was granted by the High Court and the appellant came to this court after obtaining a certificate of fitness from the High Court.
Dismissing the appeal: Held: The newly imposed terminal taxes on silver and silver jewellery, gold and gold jewellery and precious stones had never been imposed by the Municipality and hence it could not be said that those were "being lawfully levied" by the Municipality and "applied to the same purposes" before the commencement of the Constitution as required by article 277 of the Constitution.
article 277 was not intended to confer an unlimited legislative power to impose what in effect were new taxes, though of the same type or nature as existed before the Constitution.
Rama Krishna Ramanath vs The Janpad Sabha, Gondia, [1962] Supp. 3 S.C.R. 70 and Chuttilal vs Bagmal and Balwantrai, I.L.R. [1956] M.B. 339.
referred to.