judgement:
77 of 1958.
Petition Under article 32 of the Constitution of India for enforcement of Fandamental Rights.
Bhavani Lal and P. C. Agarwala, for the petitioners.
C.K. Daphtary, Solicitor General of India, B. Ganapathy Iyer and T. M. Sen, for the respondents.
March 14.
The Judgment of the Court was delivered by S.K. DAS, J.
This is a writ petition under article 32 of the Constitution.
The petitioners, Messrs. Nand Lal Raj Kishan, carry on a business of commission agents at Delhi and are liable to pay sales tax in respect of their business under the provisions of the Bengal Finance (Sales Tax) Act, 1941, as in force in Delhi.
They filed returns for four quarters of 195455 and claimed exemption in respect of sales of certain goods to the registered dealers under the provi sions of section 5(2)(a)(ii) of the said Act.
By his order dated April 11, 1956, the Sales Tax Officer disallowed the exemption claimed by the petitioners mainly on the ground that the alleged sales were made to "those 285 registered dealers whose activities had gone underground." The Sales.
Tax Officer issued a demand notice for a sum of Rs. 1,11,890 11 0 on account of sales tax.
The petitioners then carried an appeal to the Assistant Commissioner of Sales Tax, Delhi.
The Assistant Commissioner set aside the order of the Sales Tax Officer and remanded the case for a fresh decision in the light of certain judgments given by the Chief Commissioner, Delhi, in a number of similar cases.
In the meantime the Bengal Finance (Sales Tax) Act, 1941, was amended by the Bengal Finance (Sales Tax) (Delhi Amendment) Act, 1956, being Act No. 17 of 1956.
This amending Act which came into force on October 27, 1956, inserted a new section, which is section 8A of the Act.
This section reads as follows: "section 8A. Security from certain class of dealers.
The Commissioner, if it appears to him to be necessary so to do for the proper realisation of the tax levied under this Act, may impose for reasons to be recorded in writing as a condition of the issue of a registration certificate to a dealer or of the continuance, in effect, of such a certificate issued to any dealer, a requirement that the dealer shall give security up to ail amount and in the manner approved by the Commissioner for the payment of the tax for which he may be or become liable under this Act.
" On May 17, 1957, the petitioners asked for a fresh registration certificate on the ground that their original certificate had been lost in transit.
They further asked for the addition of some more items of goods in the registration certificate, such as cigarettes, bidis and glass of all kinds.
Thereupon the Sales Tax Officer made certain enquiries and found that the petitioners had been frequently shifting their places of business and the sales alleged to have been made by them to some registered dealers were not genuine, because those persons could not be traced at the addresses given.
On a report being submitted to the Commissioner of Sales Tax, Delhi, the Commissioner asked the Sales Tax Officer to issue a notice to the petitioners.
On 286 July 13,1957, such a notice was issued to the petitioners to show cause why they should not be asked to furnish a security of Rs. 10,000 in accordance with the provisions of section 8A.
The petitioners then appeared before the Sales Tax Officer and made a statement that they were not prepared to deposit any amount as security.
They also filed a written explanation objecting to the demand of security.
The matter was then referred to the Commissioner of Sales Tax who con sidered the explanation of the petitioners and the report of the Sales Tax Officer.
The Commissioner expressed his finding in the following words: "In view of the reputation that the dealer enjoys in the market, namely, that he being a commission agent has been engaged in the business of selling goods to other commission agents, all sales being effected to unscrupulous registered dealers, frequent changes in the name and place of busines s without giving specific details, late submission of information regarding the changes: in the name and place of business, non submission of returns for the year 1956 57 within the prescribed time, it appears neces sary to demand security under section 8A of the Bengal Finance (Sales Tax) Act, 1941 as in force in Delhi.
" Accordingly, on November 27, 1957, he made an order directing the petitioners to furnish security either in cash or by two personal sureties for a Bum of Rs. 5,000 by December 15, 1957.
Against the aforesaid order of the Commissioner the petitioners went in revision to the Chief Commissioner of Delhi.
The Chief Commissioner heard Counsel for the petitioners and by his order dated April 15, 1958, dismissed the application in revision.
The petitioners then filed a writ petition in the Punjab High Court which was summarily dismissed.
On the present writ petition the petitioners have impugned the order of the Commissioner dated November 27, 1957 on the ground that section 8A of the Act under which the order was passed is constitutionally invalid.
They have challenged the validity of section 8A on three grounds: firstly, it is contended that section 8A 287 gives an undefined, unlimited and unrestricted power to the Commissioner of Sales Tax; secondly, it is contended that no limit is fixed with regard to the amount of security which may be demanded under the section; and thirdly, it is contended that the section imposes an unreasonable restriction on the right of the petitioners to carry on their business inasmuch as it does not provide for any enquiry before the demand for security is made, nor does it provide for an opportunity being given to the person against whom the order is proposed to be passed of being heard before such order is passed.
We do not think that these grounds have any substance.
Section 8A does not give unlimited or unrestricted power.
to the Commissioner of Sales Tax.
It states inter alia that the Commissioner may impose for reasons to be recorded in writing as a condition of the issue of registration Certificate to a dealer, or of the continuance of such a certificate, a requirement that the dealer shall give security up to an amount and in the manner approved by the Commissioner for the payment of the tax for which he may be or become liable under the Act: this power of the Commissioner is, however, subject to the condition that it must "appear to him to be necessary so to do for the proper realisation of the tax levied under the Act".
In other words, the Commissioner may exercise his power of demanding security only when he considers it necessary to do so for the proper realisation of the tax levied under the Act.
By no stretch of argument can it be suggested that the power is an unlimited or an unrestricted power.
Learned Counsel for the petitioners has referred us to the decision of this Court in Messrs. Duarka Prasad Laxmi Narain vs The State of Uttar Pradesh (1).
That was a case in which under cl.
4(3) of the Uttar Pradesh Coal Control Order, 1953, the licensing authority was, given absolute power to grant or refuse to grant, renew or refuse to renew suspend, revoke, cancel or modify any licence under the Order.
It was pointed out by this Court that there was nothing to regulate or guide the discretion (1)[1954] S.C.R. 803.
288 of the licensing officer and the provision impugned therein committed to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chose.
That is not the position here.
Section 8A itself gives the necessary guidance when it says that the Commissioner may exercise his power only when it is necessary to do so for the proper realisation of the tax levied under the Act.
In a later decision of this Court in Virendra vs The State of Punjab (1) it was pointed out that in Dwarka Prasad 's case (1) the impugned provision prescribed no principles and gave no guidance in the matter of the exercise of the power, but in a case where the exercise of the power is conditioned by the statute itself, the ratio in Dwarka Prasad case (2) does not apply.
The same view was reiterated in Kishan Chand Arora vs The Commissioner of Police, Calcutta (3).
Section 7(4a)(i) of the Bengal Finance (Sales Tax) Act, 1941, gives the power to the Commissioner to demand reasonable security for the proper payment of tax payable under the Act.
This section came in for consideration of the Calcutta High Court in Durga Prasad Khaitan vs Commercial Tax Officer (4) and it was held that the section did not confer unfettered or arbitrary power to the Commissioner.
We approve of the view expressed therein that the power to levy a tax includes the power to impose reasonable safeguards in collecting it, and demanding security for the proper payment of the tax payable under the Act is neither an arbitrary nor an unreasonable restriction.
As to the contention that there,is no limit to the amount which can be demanded as security, it is only necessary to point out that the amount that can be demanded as security must have relation to the payment of the tax for which the person concerned may be or become liable under the Act.
The amount must depend on the nature of the business, its turnover and the amount of tax payable thereon by the person concerned.
Furthermore, the order of the Commissioner under section 8A is subject to revision by the Chief (1) ; , 321 (3) ; (2)[1954] S.C.R. 803.
(4)[1937] 8 S.T.C. 105.
289 Commissioner and if an arbitrary or unreasonable amount is demanded, the order of the Commissioner will be subject to scrutiny by the Chief Commissioner.
We do not think that even in the matter of the amount of security, the power of the Commissioner is unlimited or unrestricted.
As to the last contention that the section does not provide for any enquiry or any opportunity being given to the person against whom the order is proposed to be passed of being heard, this point was taken before the Chief Commissioner and the Chief Commissioner rightly pointed out that the principles of natural justice would apply and the person to whose prejudice the order is to be made must be given an opportunity to say whatever he has to say in his defence.
In the present case such an opportunity was given to the petitioners.
A notice was issued to the petitioners by the Sales Tax Officer.
The petitioners appeared before the Sales Tax Officer, submitted a written explanation and also made oral submissions.
The Commissioner had before him the report of the Sales Tax Officer, the explanation submitted by the petitioners in reply to the notice issued, and also the statements made by them.
It has been contended on behalf of the petitioners that no oral hearing was given to the petitioners by the Commissioner of Sales Tax and learned Counsel for the petitioners has made a grievance that the order of the Commissioner was passed without hearing the petitioners.
It may be pointed out here that when the petitioners were heard by the Chief Commissioner in support of their application in revision, they made no grievance on the score that the Commissioner of Sales Tax had not given them a second opportunity of a fresh oral hearing.
We do not think that a second opportunity like the one suggested on behalf of the petitioners was either necessary or obligatory.
The petitioners had an opportunity of saying what they had to say against the demand of security.
They raised their objections which were considered by the Commissioner who, in spite of those objections, came to the conclusion that it was necessary to ask the petitioners 37 290 to furnish security for the proper realisation of the tax levied or leviable under the Act.
We agree with the Chief Commissioner that there was no violation of the principles of natural justice in the present case.
For the reasons given above we hold that there is no merit in the petition which is accordingly dismissed with costs.
Petition dismissed.

summary:
The validity of section 8A of the Bengal Finance (Sales Tax (Delhi Amendment) Act, 956, enabling the Commissioner of Sales Tax to demand security from dealers for payment of tax was challenged by the petitioners on the grounds that (i) the section gave undefined, unlimited and unrestricted power to the commissioner, (ii) no limit was fixed for the amount of security, and (iii) the section did not provide for any enquiry before the demand of security, nor did it provide for an opportunity of being heard being given to the person against whom the order was proposed to be passed.
Held, that section 8A did not give any unlimited or unrestricted power to the Commissioner of Sales Tax.
The power of the Commissioner of Sales Tax was subject to the condition that it (1)[1958] 9 S.T.C. 194.
284 must appear lo him to be necessary to demand security for the proper realisation of the tax.
The power to levy a tax includes the power to impose reasonable safeguards for collecting it and demanding security for the proper payment of tax is neither in arbitrary nor an unreasonable restriction.
Durga prasad Khaita vs Commercial Tax Officer, [1957] 8 S.T.C. 105, approved.
Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , distinguished.
Virendra vs The State of Punjab, ; and Kishan Chand Arora vs The Commissioner of police, Calcutta; , , referred to.
The power of the Commissioner as regards the amount of security was not unlimited because the order of the Commis sioner was subject to revision and scrutiny by the Chief Commissioner.
In the instant case an opportunity having been give to the petitioners for submitting their defence and an explanation having been actually submitted by the petitioners there was no violation of the principles of natural justice.
A second opportunity for oral hearing was not obligatory.


judgement:
iminal Appeals Nos.
57 and 58 of 1960.
Appeals by special leave from the judgment and order dated November 5/6, 1958, of the Bombay High Court at Nagpur in Criminal Appeal No. 94 of 1958.
Jai Gopal Sethi and G. C. Mathur, for the appellant (in Cr. A. No. 57 of 1960).
G. C. Mathur, for the appellant (in Cr. A. No. 58 of 1960).
Gopal Singh and D. Gupta, for the respondent.
December 5.
The Judgment of the Court was delivered by SUBBA RAO, J.
These two appeals raise rather an important question on the interpretation of the provisions of section 207A of the Criminal Procedure Code (hereinafter referred to as the Code). ' The facts that have given rise to these appeals may be briefly stated.
The appeals arise out of an incident that took place on November 29, 1957, when one Sadashiv was murdered in the courtyard of his house in village Nimgaon.
The case of the prosecution was that the four appellants, armed with sticks, went to the house of the deceased, dragged him 'out of the house and beat him with sticks in the courtyard; and that as a result of the beating he died on the next day at about 5 p.m. at Bhandara Hospital.
After investigation, the police submitted their report to the Magistrate under 'section 173 of the Code along with the relevant documents.
After forwarding the report, the officer in charge of the; police station furnished 892 the appellants with a copy of the report forwarded under sub section
(1) of section 173, the First Information Report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposed to rely, including the statements recorded under sub section (3) of section 161 and also intimated them of the persons the: prosecution proposed to.
examine as its witnesses.
The Magistrate posted the case for inquiry on February 10, 1958 and on that date the prosecution intimated that it did not intend to examine any witnesses in the Magistrate 's Court., , On behalf of the appellants no objection was raised, to,that course.
But the Magistrate adjourned the inquiry to February 12, 1958, as he wanted to consider whether any evidence was necessary to be recorded before commitment.
On February 12, 1958, reexpressed his opinion that no witness need.
be examined at that stage; thereafter, he framed charges against accused appellants under section 302, read with section 34, of the Indian Penal Code, and also under section 448 thereof and committed the appellants to the Sessions Court.
Before the learned Sessions Judge the prosecution led four types of evidence, i.e. (1) eye witnesses, namely, P.Ws. 6, 11, 20 and 25; (2) dying declaration, exhibit P 15, supported by P. Ws. 18,22 and 19; (3) the identification of the appellants in jail by P.Ws. 20 and 25; and (4) recovery of various articles at, the instance of the accused appellants.
The defence examined four witnesses.
On a consideration of the entire evidence, the learned Sessions Judge held that,the prosecution, case had been amply borne out and that the four appellants entered into the house of the deceased and beat him in the manner described by the prosecution wit nesses.
no less than 12 confused wounds were inflicted on the deceased, which resulted in the fracture of his ribs and injury to the lung,.
and as the, doctor opined that the death was due to shock and haemorrhage resulting from said fracture, the learned Sessions Judge hold that the accused appellants were guilty of murder and convicted them under s.302, read with a. 34, Indian Penal Code,and he further convicted them, under section 448 of the Indian 893 Penal Code for trespassing into the house of the deceased.
On these findings the learned Sessions Judge sentenced the appellants to undergo imprisonment for life on the first count and for 3 months rigorous imprisonment on the second count.
The appellants preferred an appeal against their convictions and sentences to the High Court of Bombay at Nagpur.
The learned Judges of the High Court, on a resurvey of the entire evidence, agreeing with the learned Sessions Judge, accepted the prosecution case, but they held that the appellants were guilty only under section 304, Part 1, read with section 34, Indian Penal Code, and in the result they reduced the sentence from life imprisonment to 10 years ' rigorous imprisonment in regard to appellant 1 and to 7 years ' rigorous imprisonment in regard to appellants 2 to 4.
Against the said convictions and sentences, the appellants have preferred, by special leave, appeals to this Court.
Criminal Appeal No. 57 of 1960 has been preferred by the first appellant and Criminal Appeal No. 58 of 1960 by appel lants 2 to 4.
Learned counsel for the appellants raised before us the following two points: (1) The Sessions Court and, on appeal, the High Court have not properly appreciated the evidence and the circumstances of the case in holding that the appellants had committed the offences.
(2) The trial and conviction of the appellants by the Sessions Court were null and void, as the Magistrate had no jurisdiction to commit the appellants to Sessions without examining witnesses under sub section
(4) of section 207A of the Code and that, as the order of 'committal was without jurisdiction, the defect was not cured either under section 532 or section 537 of the Code.
The first question does not merit any consideration.
Both the courts below have, carefully considered the evidence adduced by the prosecution as well as the accused appellants and have accepted the prosecution case.
It is a well established practice of this Court not to interfere on questions of fact, particularly when they are concurrent findings, except under exceptional circumstances.
We find, no such exceptional 894 circumstances in this case.
We, therefore, reject the first contention.
The second contention turns upon the interpretation of the relevant provisions of section 207A of the Code.
Before attempting to construe the relevant provisions of the section it would be helpful to notice briefly the history of the said section.
Under the Criminal Procedure Code, as it originally stood, in the matter of committal proceedings there was no distinction between the proceeding instituated on a police report and that instituted otherwise than on police report.
The main object of the committal proceedings was to hold an inquiry to ascertain and record the case which was to be tried before the Court of Sessions.
It was primarily to give an opportunity to an accused to know in advance the particulars of evidence that would be adduced against him in the Court of Sessions so that he could be in a position to prepare his defence.
Another object, which was no less important, was to enable the Magistrate to discharge an accused if there was no prima facie case against him.
This procedure prevented unnecessary harassment to such accused and at the same time saved the valuable time of the Sessions Court.
In practice the committal proceeding, whether intended by the Legislature or not, served another purpose, namely, it gave an opportunity to the accused to test the credibility of witnesses by bringing out the discrepancies between their evidence in the committing court, the statements made by them to the police under section 161 of the Code and the evidence given by them in the Court of Sessions.
Though very often accused persons took full advantage of this additional opportunity to test the veracity of the witnesses, as often as not, it had turned out to be duplication of trials with the resultants long delays in the disposal of criminal cases.
The advantage of committal proceeding.
was not solely for the accused, for the.
prosecution by examining the witnesses before the committing Magistrate secured their testimony in the sense that though it was tampered subsequenty it is unfortunately a frequent phenomenon in criminal, cases it could use the said evidence as substantive 895 one under section 288 of the Code.
The Legislature, in its wisdom, presumably thought that undue delay in the disposal of sessions cases was due to the elaborate and ' prolonged committal proceedings and stepped in to amend the Code in that respect.
The whole of section 207A has been inserted by Act XXVI of 1955.
While the section simplified the procedure in regard to commitment proceedings instituted on a police report, it confined the existing procedure to proceedings initiated otherwise than on a police report.
This distinc tion between the two classes of cases had a reasonable factual basis.
In the case of a police report, a thorough inquiry would have been made and the investigating officer would have sent a report to the Magistrate under section 173 of the Code.
The amended section 173 of the Code also enjoins on the officer in charge of the police station a duty to furnish before trial, free of cost, to the accused copies of the report forwarded under that section to the Magistrate, the First Information Report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements, if any, recorded under section 164 of the Code and those recorded under sub section
(3) of section 161 and a list of witnesses whom the prosecution proposes to examine as its witnesses.
The Magistrate in a proceeding instituted on police report would ordinarily be in a position, on the said material to understand the case of the prosecution and know the nature of the evidence that would be adduced on the basis of which the accused is sought to be proceeded against.
The accused also would have an opportunity to know beforehand the case he would have to meet and the evidence that would be adduced against him.
But in a proceeding instituted otherwise than on a police report, no such maternal would be available and therefore the old procedure continued to apply to such a case.
With this background let us look at the provisions of section 207A of the Code.
The relevant provisions of section 207A of the Code may now be read: Section 207A: (1) When, in any proceeding instituted on a police report, the Magistrate receives the 896 report forwarded under section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date.
If, at any time before such date, the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.
At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.
The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the Magistrate is.
of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
The accused shall be at liberty to cross examine the witnesses examined under sub section (4), and in such case, the prosecutor may re examine them.
(6) When the evidence referred to in sub section (4) has been taken and the Magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons ,and discharge him, unless it appears to the Magistrate 897 that such person should be tried before himself or some other Magistrate, in which case he shall proceed, accordingly.
When, 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 is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
On the interpretation, of sub section
(4), which is the main sub section under scrutiny in the present case, the High Courts in India have expressed conflicting views.
It would not be necessary to consider the said decisions in detail, but it would be enough if we state the conflicting views, which areas follow: (1) Under sub section
(4) the prosecution is bound to examine all the eye witnesses indicated in the police report, and the discretion of the Magistrate to examine witnesses under the second part of the said sub section is only in respect of witnesses other than the eye wit nesses: vide M. Pavalappa vs State of Mysore (1), State vs Andi Betankar (2), Ghisa vs State (3 ) and Chandu Satyanarayana vs The State (4).
(2) The Magistrate 's power to examine eye witnesses under the first part of sub section
(4) is confined only to such witnesses as are produced in court by the officer conducting the prosecution and if he has not produced any such witnesses, the Magistrate cannot examine any eye witnesses under the second part of the said sub section, for, according to this view, the second part deals with only witnesses other than eye ,witnesses.
(3) If the prosecution has not produced any eye witnesses the court may not in its discretion examine any witness under the second part, but can, if satisfied, discharge or commit the accused to sessions on the basis of the documents referred to in section 178 of the Code: vide State vs Lakshmi Narain (5), State, of U. P. vs Satyavir (6).
(4) The first part confers a power on a Magistrate only to examine the eyewitnesses produced, but (1) A.I.R. (3) A.I.R. 1919 Raj.
(5) A.I.R. 1960 All. 237.
(2) A.I.R. 1958 Orissa 241.
(4) A.I.R. 1959 A.P.651.
(6) A.I.R. 1959 All.
898 the second part empowers him to examine any witness other than those produced, whether eyewitnesses or not, and in a case where the prosecution failed to discharge its duty to produce any witnesses or any important eye witnesses, the court would not be exercising its judicial discretion if it commits the accused to sessions on the basis of documents referred to under section 173 of the Code without examining at least the important witnesses: vide State vs Yasin (1), In re Pedda Amma Muttigadu (2), A. Ishaque vs The State (3) and Manik Chand vs The State (4).
We have gone through the judgments of the High Courts cited at the Bar and derived considerable assistance from them for deciding the question raised.
But as the question is to be primarily decided on the interpretation of the relevant provisions, we think, without any disrespect to the learned Judges, that it is not necessary to consider the said decisions in detail.
Now let us look at the relevant provisions of section 207A of the Code to ascertain its intendment.
Sub section
(4) is the most important section vis a vis the taking of evidence.
It is in two parts, the first part provides for the examination of witnesses produced by the prosecution and the second part for the examination of other witnesses.
One of the fundamental rules of interpretation is that if the words of a statute are in themselves precise and unambiguous "no more is necessary than, to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature".
The first part of the sub section reads: "The.
Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged.
" The word "shall" imposes a peremptory duty on the Magistrate to take the evidence; but the nature of the said evidence is clearly defined thereafter.
The clause "as may be produced by the prosecution as witnesses to the actual commission of the offence alleged" governs the words "such persons"; (1) A.I.R. 1958 All.
(3) A.I.R. 1958 Cal.
(2) A.I.R. 1959 A.P. 469.
(4) A.I.R. 1958 Cal.
324. 899 with the result that the duty of the Magistrate to take evidence is only confined to the witnesses produced by the prosecution.
Learned counsel for the appellants contends that it could not have been the intention of the Legislature to permit the prosecution to keep back the eye witnesses in the committal court and therefore the word "produced" should be read as "cited".
To accept this interpretation is to substitute the word "cited" in place of the word "produced": such a construction is not permissible, especially, when the plain meaning of the word used by the Legislature is clear and unambiguous, and the acceptance of that meaning does not make the section otiose.
The phrase "if any" between the words "such persons" and the aforesaid clause emphasizes that the prosecution may not produce any such persons, in which case the obligation to examine such witnesses cannot arise.
The wording of the second part of the sub section is also without any ambiguity and it reads: "and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
" No doubt the word "may" in the clause "he may take evidence" imposes duty upon the Magistrate to take other evidence; but that duty can arise only if he is of opinion that it is necessary in the interests of justice to take the evidence.
The fulfilment of the condition that gives rise to the duty is left to the discretion of the Magistrate.
The duty to take evidence arises only if he is of the requisite opinion.
Doubtless the discretion being a judicial one, it should be exercised reasonably by the Magistrate.
If he exercises it perversely, it may be liable to be set aside by a superior court.
If so, what do the words "other.
witnesses" mean? Do they mean witnesses other than eyewitnesses or witnesses, eye witnesses or not, other than those produced before the Magistrate, by the prosecution? The witnesses who will depose to the prosecution case may be of different categories, namely, (i) witnesses who are eye witnesses to the actual commission of the offence alleged; (ii) witnesses who speak to the facts 900 which afford a motive for the commission of the offence; (iii) witnesses who speak to the investigation and to the facts unfurled by the investigation; and (iv) witnesses who speak to the circumstances and facts probablizing the commission of the offence, which is technically described as substantive evidence.
Sub section (4) enjoins on the Magistrate a duty to examine the first category of witnesses produced by the prosecution.
The word "actual" qualifying the word "commission" emphasises the fact that the said witnesses should be those who have seen the commission of the offence.
We have held in interpreting the first part that the Magistrate should examine only such witnesses who are produced before him by the prosecution; but there may not be eyewitnesses in a case, or, if there are, the prosecution may not have produced all of them before the Magistrate.
The second part of the sub section therefore confers a discretionary power on the Magistrate to examine any one or more of witnesses of all categories, including the eye witnesses who have not been produced by the prosecution within the meaning of the first part of the said sub section.
But it is said that sub sections
(6) and (7) indicate that taking of evidence by the Magistrate is a condition precedent for making an order of discharge or of committal and, therefore, the provisions of Sub section
(4) must be so construed as to impose a duty on the Magistrate to examine some witnesses.
Firstly, we cannot hold that the sub sections impose any such condition.
The argument is that the clause in subs.
(6), namely, "When the evidence referred to in subsection (4) has been taken" is a condition precedent for making an order of discharge.
The adverb "when" in the clause in the context denotes a point of time and not a condition precedent.
The clause means nothing more than that an order of discharge can be made under sub section (6) after the events mentioned therein have taken place.
Secondly, the two clauses necessarily refer to the corresponding or appropriate situations under the earlier sub sections.
The first clause will not come into play if the Magistrate has not taken any evidence.
So too, in sub section (7) also the 901 adverb "when" denotes the time when the Magistrate can make the order of committal.
If evidence has, not been taken, that sub section is not applicable a the Magistrate proceeds to make an order of committal on other material referred to in the sub section.
On the other hand ', if the said two sub sections are construed as imposing a condition precedent for making an order of discharge or commitment, as the case may be, the said two sub sections will directly, come into conflict with the provisions of sub section
When one.
sub section clearly confers a discretion on the Magistrate to take or not to take evidence, the other subsections take it away.
It is not permissible to create conflict by construction, when by an alternative construction all the three sub sections can be harmonized and reconciled.
If the construction suggested by learned counsel for the appellants be adopted, it would also lead to an anomaly in that the Magistrate, though the documents referred to in section 173 clearly pronounce the innocence of the accused, has to go through the pretence of examining one or more witnesses to satisfy the provisions of the sub section.
Reliance is placed upon section 251A of the Code relating to warrant cases whereunder the Magistrate is authorized, upon consideration of all the documents referred to in section 173 and upon making such examination of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, to discharge the accused, if he considers the charge against the accused to be groundless; but if he is of opinion that there is ground that the accused has committed an offence alleged against him, he shall frame in writing a charge against the accused.
By contrasting this provision with section 207A, it is contended that if the construction put forward by learned counsel is not accepted, the obvious difference between the two.
procedures indicated by the Legislature would be obliterated.
We cannot agree with this contention.
The difference between the two procedures is that, in a case covered by section 207A, evidence will have to be taken under certain 902 contingencies, whereas under section 251A no evidence need be taken at all.
That distinguishes the different procedures under the two sections and it is not the province of the court to add any further conditions or limitations to those provided by the Legislature.
We are fortified in our view by a decision of this Court in Macherla Hanumantha Rao vs The State of Andhra Pradesh (1).
There the point in controversy was whether sa.
207 and 207A, inserted in the Code by the Amending Act XXVI of 1955, violated the provisions of article 14 of the Constitution.
In support of the contention that they violated article 14 of the Constitution, it was sought to be made out that the provisions of section 207A of the Code, in comparison and contrast with other provisions of Ch.
XVIII of the Code, prescribed a less advantageous position for the accused persons in a proceeding started under a police report than the procedure prescribed in other cases in the succeeding provisions of that chapter.
This Court held that there was a reasonable classification to support the difference in the procedures.
Sinha J., as he then was, who spoke for the Court, in order to meet the argument based on discri mination, considered the scope of the new section.
In doing so, the learned Judge observed thus at p. 403: "The magistrate then has to record the evidence of such witnesses as figure as eye witnesses to the occurrence, and are produced before him.
He has also the power ' in the interest of justice, to record such other evidence of the prosecution as he may think necessary, but he is not obliged to record any evidence.
Without recording any evidence but after considering all the documents referred to in section 1973 and after examining the accused person and after hearing the parties, it is open to the magistrate to discharge the accused person after recording his reasons that no ground for committing the accused 1 for trial has been made out, unless he decides to try the accused himself or to send him for trial by another magistrate.
If, on the other hand, he finds that the accused should be committed for trial, he is required to frame a charge (1) ; 903 disclosing the offence with which the accused is charged.
" Then the learned Judge proceeded to consider the scope of section 208 of the Code.
After having found that there was obvious difference in the procedure, the learned Judge came to the conclusion that "the Legislature has provided for a clear classification between the two kinds of proceedings at the commitment stage based upon a very relevant consideration, namely, whether or not there has been a previous inquiry by a responsible public servant whose duty it is to discover crime and to bring criminals to speedy justice".
It will thus be seen that the observations of the learned Judge at p. 403 cannot be said to be obiter, as learned counsel asks us to hold, for the construction of the provisions of section 207A was necessary to ascertain whether there was reasonable classification or not.
Assuming that the said observations are obiter, even then, they record the considered opinion of five learned Judges of this Court.
The view we have expressed also is consistent with the said observations.
Our view could now be expressed in the following propositions: (1) In a proceeding instituted on a police report, the Magistrate is bound to take evidence of only such eye witnesses as are actually produced by the prosecution in court.
(2) The Magistrate, if he is of opinion that it is in the interest of justice to take evidence, whether of eye witnesses or others, he has a duty to do so.
(3) If the Magistrate is not of that opinion and if the prosecution has not examined any eye witnesses, he has jurisdiction to discharge or commit the accused to sessions on the basis of the documents referred to in s, 173 of the Code.
(4) The discretion of the Magistrate under sub section (4) is a judicial discretion and, therefore, in appropriate cases the order of discharge or committal, as the case may be, is liable to be set aside by a superior court.
Before closing we would like to make some observations.
Rarely we come across cases where the prosecution does not examine important eye witnesses, for such a procedure would entail the danger of the said witnesses being tampered with by the accused, with 904 the result that there will not be any evidence taken by the committing Magistrate which could be used as substantive evidence under section 288 of the Code.
Even if the prosecution takes that risk, the Magistrate shall exercise a sound judicial discretion under the second part of sub section
(4) of section 207A in forming the opinion whether witnesses should be examined or not, and any perverse exercise of that discretion can always be rectified by a superior court.
Rut there may be a case where the Magistrate can make up his mind definitely on the documents referred to in section 173 without the aid of any oral evidence and in that event he would be within his rights to discharge or commit the accused, as the case may be.
In this view, it is not necessary to express our opinion whether even if the Magistrate acted illegally in committing an accused without taking any evidence, the said illegality is cured either by section 537 of the Code or any other section thereof.
In the result, the appeals fail and are dismissed.
Appeals dismissed.

dataset_name: IN-Abs

summary:
On the date fixed for the inquiry the prosecution intimated to the Magistrate that it did not intend to examine any witness in the Magistrate 's Court.
The Magistrate adjourned the inquiry to consider whether it was necessary to record any evidence before commitment.
On the adjourned date he expressed his opinion that no witnesses need be examined, framed charges against the appellants and committed them to the Sessions Court.
The appellants contended that the Magistrate had ' no jurisdiction to commit them to Sessions without examining witnesses under sub section
(4) of section 207 A of the Code of Criminal Procedure.
Held, that the order of commitment was valid and the Magistrate had jurisdiction to make it 'Without recording any evidence.
The position under section 207 A of the Code is that: (i) the Magistrate is bound to take evidence of only such eye witnesses as are actually produced by the prosecution before the Committing Court; 891 (ii) the Magistrate if he is of opinion that it is in the interests of justice to take evidence whether of.
eye witnesses, or of others, he has a duty to do so; (iii). .the
Magistrate, if he is not of that opinion and if the prosecution has not examined any eye witnesses, he has jurisdiction to discharge or commit the accused on the basis of the documents referred to in section 173 of the Code; (iv).the discretion of the Magistrate is a judicial dis cretion which is liable to be corrected by a superior Court, Macherla Hanumantha Rao vs The State of Andhra Pradesh, ; , relied on.


judgement:
iminal Appeal No. 58 of 1959.
Appeal by special leave from the judgment and order dated November 7, 1958, of the orissa High Court in Original Criminal Misc.
Case No. 8 of 1958.
A.V. Viswanatha Sastri, H. B. Khanna and T. M. Sea, for the appellant.
H. N. Sanual, Additional Solicitor General of India, B. M. Patnaik, ;section N. Andley, J. B. Dadachanji and Ramewar Nath, for respondent No. 1. 1961.
March 14.
The Judgment of the Court was delivered by MUDHOLKAR, J.
In this appeal by special leave, the appellant who has been found guilty of contempt of court by the High Court of Orissa is challenging his conviction.
To this appeal, as well as to criminal appeal 2 of 1960 in which another person is challenging his conviction for contempt of court by the same High Court, the Chief Justice and the Judges of the High Court have been made parties.
The learned Additional Solicitor General who has put in an appearance for a limited purpose has raised a point that in such matters it is not at all necessary to make the Chief Justice and the Judges of the High Court parties.
He points out that in England in all contempt matters the usual title of the proceeding is "in re. . . . (so and so)", that is the person who is proceeded against for contempt.
The same practice, according to him, is followed in appeals.
We must, however, point out that in appeals preferred to 321 the Privy Council from convictions for contempt by the High Courts in India as well as in appeals before this Court, the Chief Justice and the Judges of the High Court concerned have been made respondents.
In Ambard vs Attorney General for Trinidad& Tobago (1) we find that the Attorney General was made a party to the appeal.
The question raised by the learned Additional Solicitor General is of some importance and we think it desirable to decide it.
In every suit or appeal persons who claim relief or against whom relief has been given or persons who have or who claim the right to be heard must undoubtedly be made parties.
That is because they have an interest in the decision or the result of that case.
But where Judges of a High Court try a person for contempt and convict him they merely decide a matter and cannot be said to be interested in any way in the ultimate result in the sense in which a litigant is interested.
The decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference.
Since this is the real position we think that there is no warrant for the practice which is in vogue in India today, and which has been in vogue for over a century, of, making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter.
We may point out that it is neither necessary nor appropriate to make the Chief Justice and the Judges of a High Court parties to a legal proceeding unless some relief is claimed against them.
In a contempt matter there is no Question of a relief being claimed against the Chief Justice and the Judges of the High Court.
The present practice should, therefore, be discontinued and instead, as in England, the title of such proceedings should be "in re. . (the alleged contemner)".
Now we address ourselves to the merits of this case.
The appellant was a Sub Divisional Magistrate at Dhenkanal in the year 1957.
In a criminal matter (1)(1936) A.C. 322.
41 322 before him a Magistrate III class, Dhenkanal passed an order under section 522, Criminal Procedure Code putting the complainant, one Golam Mohammed in possession of some property.
The order was actually executed Pion October 14, 1955.
It was also confirmed by the Additional District Magistrate in appeal.
It was, however, set aside by the High Court in revision on August 27, 1957.
The opposite party, one Sarif Beg, thereupon made an application on November 20,1957 before the appellant for redelivery of possession.
This application was opposed by Golam Mohammed.
It was heard by the appellant on November 21, 1957, and order was reserved till November 23, 1957.
Apparently the order was not ready and so the matter was adjourned to November 27, 1957.
That day the application was allowed and compliance was directed by December 2, 1957.
While these proceedings were going on, an application was made by the complainant to the High Court apparently for a review of its previous order.
By order dated November 25, 1957 this application was admitted by P. V. Balakrishna Rao J. He also granted an interim stay of the proceedings in the case before the Sub Divisional Magistrate, Dhenkanal but did not direct that the said order should be communicated to the Sub Divisional Magistrate by telegram.
On November 26, 1957 an application bearing an illegible signature was made to the Magistrate in which, amongst other things, it was stated "that the petition being not maintainable the opposite party has once more moved the Hon 'ble High Court in the matter and it has been ordered that further proceedings should be stayed until the disposal of the opposite party 's revision".
Evidently, by "opposite party" the applicant meant himself and by "revision" he meant the review application made by him.
Along with this application the complainant filed a telegram addressed to Mr. Neelakanth Misra, Pleader, Dhenkanal saying "Golam Mohammad 's case further proceedings stayed, Ram".
It does not appear from the order sheet of the Magistrate that in the proceedings before him Mr. Neelakanth Misra represented the complainant.
However, we will assume that he did so.
Even then, there 323 is nothing to indicate as to who "Ram" is.
There is no suggestion that he was the Advocate who represented the complainant before the High Court in the proceeding before it.
It would appear that on November 7 25, 1957 the Sub Divisional Magistrate was out of,, headquarters and, therefore, the second officer directed that the application be placed before the Sub Divisional Magistrate on his return.
The Sub Divisional Magistrate refused to act on this telegram but made the following endorsement on November 27, 1957 on what is said to be the complainant 's application: "No action can be taken on telegram, File." He then proceeded to deliver his/ order on the opposite party 's application for restitution.
A copy of the order of the High Court was received at Dhenkanal on November 28, 1957.
On that day the Sub Divisional Magistrate was absent and the second officer made the following entry in the order sheet: "Seen.
A.D.M 's D.S. No. 326 dated 28 11 57.
In Cr.
Case No. 90/57 Hon 'ble High Court has stayed further proceedings.
Stay further proceedings.
Put up before S.D.M. Inform parties.
" Consequent oil this endorsement no writ for re delivery of possesion was issued and thus the status quo was maintained.
Upon perusal of the records on August 18, 1957 in connection with the application for review made by the complainant the High Court ordered the issue of a notice to the appellant on August 25, 1958 to show cause why he should not be committed for contempt.
The appellant in a lengthily statement explained all the facts and also stated that he had not the slightest intention to disobey or go beyond the orders and directions of the High Court and that he passed the order dated November 27, 1957 because the complainant 's application for stay was not accompanied by an affidavit; nor was it signed by the complainant or his lawyer.
He further stated that he should not be held liable for contempt because he had "no intention to prejudice or affect the course of justice in the disposal of the matter pending before the High 324 Court" and added that he acted in good faith in discharge of his official duties.
Finally he stated that if after considering his explanation the Court found him guilty of disobeying its order he expressed his regret and tendered his apology for what he had done.
This apology was regarded as merely a conditional apology and was not accepted.
After an elaborate consideration of the case law on the question of disobedience of orders by subordinate courts, the High Court found the Sub bivisional Magistrate guilty of contempt and sentenced him to pay a fine of Rs. 100.
By the same order the High Court dismissed the review application preferred before it by the complainant.
Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional.
There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order.
If what a subordinate court has done is in utter ignorance of an order of a superior court, it would clearly not amount to intentional disobedience of that court 's order and would, therefore, not amount to a contempt of court at all.
There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court.
Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court.
There may possibly be a case where disobedience is accidental.
If that is so, there would be no contempt.
What is, therefore, necessary to establish in a case of this kind is that the subordinate court knew of the order of the High Court and that knowing the order it disobeyed it.
The knowledge must, however, be obtained from a source which is either authorised or otherwise authentic.
In the case before us it is not clear as to who the person who signed the application dated November 27, 1957 was because the signature is illegible.
It was not countersigned by a pleader nor is there anything to show that it was presented 325 in court by a pleader authorised to appear on behalf of the complainant.
Furthermore, it was not accompanied by an affidavit.
Therefore, there could be no guarantee for the truth of the facts stated there The in.
No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainant.
Further it is not possible to say as to the capacity of the sender.
Had the telegram been received from the court or from an advocate appearing on behalf of the complainant before the High Court and addressed either to the court or pleader for the complainant different considerations would have arisen and it may have been possible to take the view that the information contained therein had the stamp of authenticity.
Of course, we do not want to lay it down here as law that every telegram purporting to be signed by an advocate or a pleader is per se guarantee of the truth of the facts stated therein and also of the fact that it was actually sent by the person whose name it bears.
In order to assure the Court about these matters an affidavit from the party would be necessary.
Upon the materials before us we are satisfied that the Sub Divisional Magistrate was entitled to ignore the telegram as well as the application.
We, therefore, hold that his refusal to act on the telegram did not amount to contempt of court.
We may add that the fact that on receiving a copy of the High Court 's order through the Additional District Magistrate not only were further proceedings stayed but a writ to redeliver possession was not permitted to issue.
This would show clearly that there was no intention on the part either of the Sub Divisional Magistrate or the second officer to disobey the order of the High Court.
The conviction as also the fine of the appellant is erroneous and accordingly set aside.
Appeal allowed.

summary:
Under an order passed by the appellant, a Magistrate, one G was put in possession of some property on October 14, 1955.
in revision the order was set aside by the High Court on August 27, 1957, and the opposite party S applied, on November.
20, 1957, to the appellant for redelivery of possession.
G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant.
On November 26, 1957, an application bearing an illegible signature and not Supported by an affidavit was filed before the appellant indicating that the High Court had stayed the proceedings.
A telegram addressed to a pleader, not the Counsel for G, was filed along with the application.
The appellant refused to act on this application and telegram and on November 27, 1957, he passed an order allowing the application of S for restitution.
On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued.
The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings.
The appellant appealed to the Supreme Court and impleaded the Chief justice and judges of the High Court as respondents.
320 Held, that the appellant was not guilty of cortempt of court.
Before a subordinate court can be held to be guilt, of contempt of court it must be stablished that it had knowledge of the order of the High Court and intentionally disobeyed it.
The knowledge must be obtained from a source which was either authorised or otherwise authentic.
In the present case the appellant was entitled to ignore the application as well as the telegram.
In a contempt matter the Chief justice and judges of the High Court should not be made parties and the title of such a proceeding should be "In re. . the alleged contemnor".


judgement:
399 of 1952.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus, Godavari Parutekar, the petitioner, in person.
M. C. Setalvad, Attorney General for India, (G.N. Joshi and P. A. Mehta, with him) for the respondent.
December 5.
The Judgment of the Court was delivered by BosE J.
This is a habeas corpus petition under article 32 of the Constitution.
The petitioner was detained the, 16th of October, 1951, under the of 1950 as amended in 1951.
Her detention was actually longer than this but the earlier detentions were under a different set of orders which are not relevant to the present matter.
The present detention is based an order of the District Magistrate, Thana, and merely says that the petitioner be detained, without specifying any period.
The order of confirmation was passed the 4th of January, 1952, and there again no period was specified.
The petitioner 's case is that as no period was specified in the order her period of detention expired the 31st of March, 1952, because of the amending Act of 1951 ; or at the outside the 30th of September, 1952, because of Act XXXIV of 1952 which effected a further amendment.
The reply behalf of the State of Bombay is that the of 1950 was again amended by Act LXI of 1952 and that the effect of this amendment was to carry the petitioner 's detention to the 31st of March, 1953, because of section 11 A which was added to the original Act of 1950.
The petitioner counters by saying that the new Act does not apply to cases in which the order of detention is not silent about its duration and so section 11 A does not serve to extend the period of her detention.
She relies the following portion of section II A (2) ". every detention order which has been confirmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act 1952, shall, unless a shorter priod is specified in the order, continue to remain in force until the Ist day of April, 1953. " The petitioner concedes that no shorter period is specified in her order of detention but contends that as her detention would have expired either the 31st of March, 1952, or the 30th of September, 1952, one of those two dates must now be read into the order and when that is done we have an order which specifies as shorter period, therefore section 11 A (2) does not serve to extend her detention.
We are unable to accept this contention.
The section is clear and unless a shorter period is specified in the order, section I 1 A(2) applies.
We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the section.
We hold therefore that section 11 A(2) validly extended the period of detention till the Ist of April, 1953.
1 The petitioner 's next point is based articles 14 and 22(i)(b) of the Constitution. ' It arises in this way.
Section 3 (1) (a) of the of 1950 classifies grounds of permissible detention into three categories.
Article 22 (7) (b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained.
The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only article 22 (7) (b) but also article 14 as interpreted by the decisions of this Court, She next argues that section 11 A, now introduced by the second amending Act of 1952 (Act LXI of 1952), does just that and so is ultra vires.
Her point is put as follows.
Sub section (1) of section 11 A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 1 1 shall be twelve months from the date of detention.
But sub section (2) qualifies this by dividing detentions into two classes; 213 (a) those in which the detention order was confirmed before 30th of September, 1952, and (b) those in which the confirmation was after that date, and it provides that.
in the former case, unless a shorter period is specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later.
This, she says, introduces a fresh classification which divides detentions into those before the Act and those after.
That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under section 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub division, made by the second amending Act of 1952.
As regards the first point, the ratio decidendi in Shamrao V. Parulekar vs The District Magistrate, Thana, and Others(1) applies here.
In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not.
This was upheld.
The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time.
The life of the Act of 1950, which was the principal Act, was extended till the 1st of October, 1952, by section 2 of the amending Act (Act XXXIV of 1952), and the effect of section 3 was to prolong the ' life of all detentions in force on 14th of March 1952, (provided they had been confirmed before that date) for so long as the principal Act was in force.
At that date this meant till the 1st of October, 1952.
But the second amending Act of 1952 extended the life of the principal Act till the 31st of December,1954.
Therefore, in the absence of section 11 A all those detentions would have been extended till that date.
But section 11 A modified that and put 1st of April,1953, as the latest date for these old detentions, (1) ; at 691 and 693.
214 It therefore conferred a benefit and cannot be deemed unreasonable.
Sub section (3) of 'section 11 A shows that that was the object.
But the petitioner attacked the provisions on the ground of discrimination.
She said that even assuming the new classification of detentions into those before and after the 30th of September, 1952, to be good, section 11 A is nevertheless discriminatory because it discriminates amongst those in her class,, namely those whose detentions were made and confirmed before the 30th of September.
She put it in this way.
Taking the case of her own detention, she pointed, out that if section II A is good, it will continue till the 1st of April, 1953, that is to say, her detention will have been for a period of 17 1/2 months from the 16th of October, 1951, till the 1st of April, 1953. 'On the other hand, a person detained after her on, say, the last of September, 1952, would also be due for release on the 1st of April, 1953, and so would have had only six months ' detention.
This, in our opinion, is not discrimination within the meaning of article 14.
A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting an outside limit, land it is inevitable in such a case that the length of detention will vary in each individual case.
Those taken into detention at a later date are bound to be detained for a shorter time.
Government is not bound to detain everybody for the same length of time.
, It has a discretion.
Moreover, the appropriate Government has boon left power to revoke or modify the detention order at any earlier time.
This point was considered in Shamrao V. Parulekar vs The District Magistrate, Thana, & Others (1) and was decided against the detenu.
The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague.
She relies on Shamrao V. Parulekar vs The State, of Bombay (2) where (1) ; at 691 at 693.
(2) Petition No. 86 of 1952.
215 another detenu was released by another Bench of this Court in circumstances which., according to her, are very similar.
We are unable to allow this as her petition has already been rejected on the merits.
She was only allowed to appear on constitutional points.
We understand that in the other petition this fact was not brought to the notice of the Court.
The application is dismissed.
Application dismissed.

summary:
Section 11 A which was inserted in the of 1950 by the Preventive Detention (Second Amendment) Act, 1952, provided that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 11 shall be twelve months from the date of detention.
But subs.
(2) qualified this by dividing do tentions into two classes: (a) those in which the detention order was confirmed before the 30th September, 1952, and (b) those in which the confirmation was after that date, and it provided that in the former case, unless a shorter period was specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later: I Held, (i) that the section did not contravene article 14 or article 22 (7) (b) of the Constitution merely because it introduced a fresh classification which divided detentions into those before the Act and those thereafter, as the classification was a reasonable one.
The section did not involve any discrimination between persons whose detentions were confirmed before the 30th September, 1952, Merely because, as a result o f the section, in the case of some persons the period of detention may be longer and in the case of others it may be shorter; Shamrao Parulekar vs The District Magistrate, Thana and Others ( ; followed.
(ii)that a detention order made the 16th October, 1951, which did not specify any period of detention was not a case where " a shorter period was specified in the order " within the meaning of section 11 A (2) merely because the detention would have expired either ' the 31st March, 1952, or 30th September, 1952, but for the Amendment Act.


judgement:
200 of 1955.
439 Petition under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
section K. Kapoor and Ganpat Rai, for the petitioner.
G. C. Kasliwal and D. Gupta, for the respondents.
St 1961.
March 17.
, J. Section 4 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (which will be hereafter referred to as the Rajasthan Act), enacts: "4.
All lands liable to pay land revenue.
Not withstanding anything contained in any existing jagir law or any other law, all jagir lands shall, as from the commencement of this Act, be liable to payment of land revenue to the Government; and as from such commencement, the liability of (a) all Jagirdars to pay tribute to the Government under any existing Jagir Law shall cease, and The expression 'tribute ', the liability to pay which was thus extinguished from and after the commencement of the Act, was defined in section 2(r) of that Act in the following terms: 'Tribute ' in relation to a jagir, includes rekh, rakam, chatund, chakri or other charge of a similar nature; and" In the absence of the above provision the petitioner would have been under an obligation to pay to the Government 'hukamnama ' under section 190 of the Marwar Land Revenue Act, 1949 (referred to hereafter as the Marwar Act) which codified the earlier law irk that State.
The short question that is raised by this petition under article 32 of the Constitution is whether the liability of the petitioner to pay 'hukamnama, the nature of which we shall explain later, has been extinguished by the provision of the Rajasthan Act above extracted which, as would be seen, turns on whether such a payment could be comprehended within the expression 'tribute '.
Relying on section 4(a) of the Rajasthan Act, the petitioner resists the demand of he same made by the respondent State and impugns the legality of the claim.
440 It is necessary to set out a few facts and certain provisions of the Marwar Act to appreciate the matter in controversy.
Thakur Nathu Singh, the Jagirdar of Ras a "Scheduled Jagir" under the Marwar Act died in July 1946 leaving the petitioner, Thakur Bahadur Singh as his next heir.
"Scheduled Jagirs" are, under the Marwar Act, impartable and their line of devolution was prescribed by section 182 thereof which ran: "Succession shall be governed in the case of Scheduled Jagirs by the rule of primogeniture.
" The succession, " however, was not automatic but had to be recognised by the Government and a renewal granted in favour of the successor before his title to the jagir was perfected.
Sections 183 185 of the Marwar Act which are of relevance in this connection, ran: "section 183.
All grants of Scheduled Jagirs are only for the life time of the holder, and no person is entitled to succeed to such jagir until his succession is recognized and the grant is renewed in his favour by His Highness.
section 184.
Subject always to His Highness pleasure, the grant of a Scheduled Jagir, on the death of the holder, shall be renewed in favour of the person entitled to succeed him in accordance with the provisions of this Act.
section 185(1).
A Scheduled Jagir, on the death of the holder, and until the renewal of the grant in favour of his successor, shall be resumed by the Government and taken under direct management.
Provided that the claimant to succession shall, in the, absence of special orders of His Highness be permitted to retain possession pending orders of His Highness regarding the claim, if he is a direct lineal descendant in the male line of the last holder.
(2). . . . (3). . . . (4). . . .
The title of the petitioner to succeed to the jagir as the next heir of his father was recognised and a renewal granted in his favour by the Government by an 441 order dated March 18, 1952.
Section 190 of the Marwar Act imposes an obligation on a succeeding heir whose title has been recognised and to whom a renewal of the jagir has been granted, to make certain payments.
This section runs: "section 190(1).
When succession to a Scheduled Jagir is recognised by His Highness and renewal of the grant ordered, the person in whose favour the grant is ordered to be renewed shall execute within one month of the communication to him of the orders, a 'Kabuliyat ' for payment of Hukamnama and other fees payable in accordance with sub sections (2) and (3).
(2). . . . . . (3). . . . . .
The amount payable by the petitioner, according to the scale of fees prescribed under the Act, came to Rs. 30,000 and the respondent State demanded this sum.
Before, however, the date of the order according recognition and granting renewal in favour of the petitioner, the Rajasthan Act of 1952 had been passed and having received the assent of the President on February 13, 1952, came into force on publication in the Gazette on February 16, 1952, and under section 4 of this Act, whose terms have been set out already, the liability on the part of Jagirdars to pay "all tribute" to Government got extinguished.
The question debated in this petition is whether the liability to pay 'hukamnama ' or other fees under section 190 of the Marwar Act is a 'tribute ' from the payment of which the Jagirdars are thus relieved.
It is common ground, subject to a submission of the learned Advocate General for the respondent State, which we shall refer to a little later, that if the 'hukamnama ' which the petitioner has been required to pay to the Government was a 'tribute ' within section 4 of the Rajasthan Act, it would cease to be exigible and cannot be enforced from and after February 16, 1952, because it is not in dispute that the petitioner is a Jagirdar and 'hukamnama ' regarding which the demand has been made on him "is a demand which 56 442 is due under an existing Jagir law", viz., the Marwar Act.
The precise question which now arises for our decision came up before the High Court of Rajasthan in 1955 on facts exactly parallel with the case before us and a Bench of that Court held in a case reported as Thakur Narpat Singh vs The State of Rajasthan (1) that 'hukamnama ' and the fees payable under section 190 of the Marwar Act were not within,%. 4(a) of the Rajasthan Act.
Consequently, the arguments on either side before us took the form of either supporting the reasoning contained in that judgment or in disputing its correctness.
It therefore becomes necessary for us to examine the reasoning upon which the learned Judges of the Rajasthan High Court reached a conclusion adverse to the contention of the petitioner now before us.
Before doing so, however, it is necessary to advert to a point sought to be raised by the learned Advocate General for Rajasthan for the respondent which would cut across all this debate.
He sought to urge that section 4 of the Rajasthan Act was not retrospective and that as the recognition of the title of the Petitioner and the renewal of the grant of the jagir in his favour related back to July 1946 when the succession opened, the Rajasthan Act could not be invoked to put an end to the obligation which had accrued years before it came into force notwithstanding that the orders of recognition and renewal were passed only in March 1952.
In the circumstances of this case, however, and also regard being had to the point not having been raised in the answer filed by the State to the writ petition, we did not consider it proper to permit the Advocate General to pursue the submission.
We will now proceed to consider the correctness or otherwise of the conclusion reached by the learned Judges of the Rajasthan High Court in the case just now referred to.
Stated briefly, the ratio of their decision was as follows: Under the law governing jagir grants and the tenure on which they are held in Marwar, a 'hukamnama ' is a levy chargeable for recognition of the succession of a person to a Scheduled Jagir (1) I.L.R. 443 of his deceased ancestor.
The specific dues, Rekh and Chakri enumerated in the definition of section 2(r) of the Rajasthan Act are those levied in Marwar, the former being 8 per cent of the gross rental value of an estate and the second the cash equivalent of the obligation to supply horsemen or camelsowars or foot soldier, , by Jagirdars dependent upon the value of the estate.
Similar payments are known as 'Rakam ' in the State of Bikaner and 'Chatund ' in the State of Udaipur, these States being the components of the State of Rajasthan.
All these dues, Rekh, Rakam, Chatund and Chakri were annual and recurring payments made by Jagirdars.
When therefore the definition in section 2(r) concluded with the words other charges of a similar nature ', it must necessarily be held that these general words should be confined to charges which were also recurring.
The 'hukamnama ' and other dues payable under section 190 of the Marwar Act, however, were not recurring payments and were in consideration of the ruler exercising his discretion to recognise a succession and grant renewal of the jagir in favour of the next heir.
In other words, these were payments due to the ruler in recognition of his sovereign right to the ownership of the land which was statutorily embodied in sections 169 170 of the Marwar Act which ran: "section 169.
The ownership of all land vests in His Highness and all jagirs, bhoms, sansans, dolis or similar proprietary interests are held and shall be deemed to be held as grant, from His Highness.
and section 170.
All grants shall be held by the original grantee or his successors during His Highness ' pleasure.
" The payments under section 190 of the Act therefore were not of the same category as the payments enumerated in section 2 (r) of the Rajasthan Act and hence could not be comprehended within the meaning of the expression 'tribute '.
The same matter was also put in a slightly different form by saying that whereas the payments enumerated in the definition of 'tribute ' were those made by Jagirdars as such, i.e., after they got into possession, a 'hukamnama ' was a payment made not by a 144 Jagirdar but by a person who was merely a claimant to a jagir and as a condition of his title to it being recognised.
The correctness of this reasoning was challenged before us by learned Counsel for the petitioner who urged that the learned Judges of the High Court did not accord sufficient consideration to the fact that the definition in section 2(r) was an 'inclusive ' definition and could, therefore, include others not falling within the enumerated types.
In this connection, learned Counsel relied upon the meaning of the word 'tribute ' in Webster 's New International Dictionary and in the Oxford English Dictionary, Volume IT.
In the former, one of the meanings given is: "A tax, impost, duty, rental, or the like, paid by a subject vassal to his sovereign or lord".
and in the latter: "A tax or impost paid by one prince or state to another in acknowledgement of submission or as the price of peace, security and protection".
He therefore urged that the expression 'tribute ' in section 2(r) would include those which fell within the ordinary dictionary meaning of the term , in addition to those specifically enumerated therein.
If the word were understood in its ordinary dictionary meaning without any statutory definition, learned Counsel added, the incidence of recurrence would not be a necessary attribute of the concept of a 'tribute '.
The submission was that the learned Judges of the Rajasthan High court erred in confining the meaning of 'tribute ' to the enumerated payments and "other charges of a similar nature", without taking into account the fact that this was an inclusive and not an exhaustive or even an illustrative definition.
We see force in these submissions and it must also be said that the argument in this form and the construction of section 2(r) from this aspect has not been considered by the learned Judges of the Rajasthan High Court.
We have, therefore, to examine whether the submission can be sustained.
Our task is, to discover whether the expression 'tribute ', as it occurs in the Rajasthan Act, includes payments of the type now in 445 controversy.
Apart from the usual express saving contained in the opening words of section 2 that the definitions set out are to be applied "unless the context otherwise requires", the meaning of the word 'tribute ' has to be ascertained from a consideration of the various provisions of the Act and not merely from section 4(a) of the Act read in the light of the definition.
It would be seen that in ultimate analysis the question of construction posed for our decision may be thus set out: The four specific enumerated dues in the definition in section 2(r) are recurring annual payments. "Other charges of a like nature" which follows this enumeration, would obviously partake of that character and they would also have to be similarly annual.
and recurring.
This was the basis of the decision of the learned Judges of the Rajasthan High Court and the correctness of this view up to this point cannot be and has not, been disputed.
The definition, however, being "inclusive" and not "meaning" these, it is said it must "include" something else.
It must, however, be added that the possibility cannot be ignored that the definition was made inclusive out of caution and with a view not to exclude any payment which jagirdars were making or were under an obligation to make, to Government, seeing that the Act was to apply to an integrated State composed of several States in which there might have been great diversity of nomenclature in designating these payments, and so as not to exclude any payment which would squarely fall within the category regarding which provision was made in the operative portion of the enactment.
Learned Counsel for the petitioner urges that every payment by a Jagirdar to the Government, whatever be the nature of the payment and whatever be the consideration therefore, is included in the expression.
If the expression 'tribute ' occurred only in section 4(a) in the operative provisions of the Act, there might be much to be said for the view presented by learned Counsel for the petitioner and for invoking its dictionary meaning to ascertain the content of that word.
The Act, however, has used the word 'tribute ' in several other sections and in different contexts and we 446 consider that the precise ambit of this expression of rather indefinite import as contemplated or intended by the framers of this Act has necessarily to be gathered from the entirety of the provisions.
The ,word tribute ' was apparently no equivalent in the local languages, so that it was obviously used as a convenient and compendious expression to designate certain imposts which were levied by the rulers of the several States which integrated to form the State of Rajasthan.
Further, this circumstance should obviously induce some caution before the dictionary meaning of the English word tribute ' is treated as expressing the intention of the framers of the Rajasthan Act.
We shall therefore proceed to set out and consider the other provisions of the enactment in which the word is used to discover the intentions of the framers of the Act as to what they meant by it.
Before proceeding further, we should add, that as under section 4(a) of the Rajasthan Act, the payment of Land Revenue computed under it is to be the substitute for the 'tribute ' previously demandable or paid, the manner in which the land revenue under the Act is determined would be relevant as throwing light on for what it is substituted.
We have already set out the terms of section 4 of the Rajasthan Act under which in substitution of the payment of 'tribute ' all lands are made liable to the payment of land revenue.
The amount of land revenue payable by a Jagirdar is fixed by section 8 and this is based in part on the annual rental income which could be derived from the jagir computed in the manner set out in sections 6 and 7.
For our present purpose section 8 is of importance, because the amount of 'tribute ' payable forms one of the factors for determining the amount of 'land revenue payable '.
Section 8 enacts: "section 8.
Amount of land revenue payable.
The land revenue payable by a Jagirdar in respect of his jagir lands shall be (a) for the agricultural year 1951 52, an amount equal to the amount of tribute payable by him to the Government for that year; (b) for the agricultural year 1952 53 and each of the six succeeding agricultural years 447 (i) in the case of jagir lands the annual rental income of which as determined under section 6 or section 7, exceeds five hundred rupees but does not exceed five thousand rupees, one sixteenth of such rental income or the amount of the tribute which was payable by the Jagirdar for the agricultural year 195051, whichever is greater; (ii) in the case of jagir lands the rental income of which as determined under section 6 or section 7 exceeds five thousand rupees, one eighth of such annual rental income or the amount of the tribute which was payable by the Jagirdar for the agricultural year 1950 51, whichever is greater.
Explanation.
For the purpose of this clause the amount of tribute payable by a Jagirdar to the Government for the agricultural year 1950 51 shall be deemed to be the amount of such tribute less the amount of any tribute payable to such jagirdar by any person to whom the Jagirdar may have granted any of his jagir lands; (c) for the agricultural year 1959 60 and subsequent years, one fourth of the rental income from the jagir lands as determined under sections 6 and 7; Provided that (i) where no tribute was payable by the Jagirdar before the commencement of the Act or where the whole of the tribute has been paid before such commencement, the jagir lands shall be deemed to be exempt from the payment of land revenue for the agricultural year 1951 52; (ii) where the jagirdar has paid a part of the tribute before the commencement of this Acts, the land revenue payable by him for the agricultural year 1951 52 shall be an amount equal 'to the balance of the tribute which would have been payable by him for that year if this Act had not been passed; and (iii) the Government may direct that for the purposes of clauses (b) and (e) of this section, the rental income of any jagir land for all or any of the agricultural year mentioned in those clauses shall be 448 determined or redetermined on the basis of the rental income which actually accrued to the jagirdar from the jagir in such year or years, as the case may be." It will be seen that this section speaks of tribute payable for the, year specified 1951 52 or 1950 51and it is obvious that the tribute here referred to could only be the recurring payments like those enumerated in the definition in section 2(r) to which could be attributed the character of being a payment for a specific year.
Besides, it will be, seen that under section 8(b) the land revenue payable for the seven agricultural years 1952 53 to 1959 60 is to be either a fraction of the annual rental income or "the amount of the tribute which would be payable by the Jagirdar for the year 1950 51 whichever is greater".
Surely it would be most unreasonable to hold that if during the year 1950 51 a Jagirdar made a payment of 'hukamnama ' this ad hoe payment should be treated as part of the tribute for that year and the Jagirdar made liable to pay sums including 'hukamnama ' for the seven years 1952 53 to 1959 60.
The main object of the Rajasthan Act was to effect resumption of jagir lands by eliminating intermediaries and the 'tribute ' payable by the erstwhile Jagirdars enters into the calculation for computing the compensation payable to them on such resumption.
The second schedule to the Act sets out the principles governing the compensation payable to Jagirdars.
It may broadly be stated that the compensation payable, to Jagirdars is determined on the basis of a multiple of the net income of the basic year as determined under r. 1 of the second schedule.
The net income is computed by first determining the gross income of the Jagirdars under various heads including the rental income and deducting therefrom certain outgoing which included the "tribute ' Rule 4 of schedule 2 provides: "4.
Net income.
The net income of a Jagirdar for the basic year shall be calculated by deducting from his gross income therefore, (i) the amount that the Jagirdar would have 449 been liable to pay to the Government as tribute, and, in the case of grantee from a Jagirdar, to the Jagirdar in respect of such grant, for the basic year if this Act had not been passed; (ii) any sums of recurring nature due to the Government from the Jagirdar, or in the case of grantee from the Jagirdar to the Jagirdar, for the basic year on any account other than land revenue,; and . . . . . .
It is impossible to conceive that the framers of the Act would have intended that the payment of a 'hukamnama ' in the basic year should have a permanent effect on the quantum of compensation payable to a Jagirdar under the provisions above extracted.
In addition to the compensation for the presumption of the jagir under the provisions of the Rajasthan Act, the Jagirdars are entitled to be paid a rehabilitation grant under Chapter VIII A of the Act.
The method of calculation of this amount is set out in Schedule III of the Act and for this purpose Jagirdars are classified on a graduated scale into various categories depending on the gross income from the estate.
This is followed by a proviso in these terms: "Provided that for the purpose of calculating the rehabilitation grant payable to a Jagirdar falling in this category such marginal adjustments shall be made as will ensure that a Jagirdar having a higher net income does not get an amount by way of rehabilitation grant which is less than that payable to a Jagirdar having a lower net income.
Provided further that, in comparing Jagirdars with different amounts of income for the purpose of the first proviso to this sub clause, (i) Jagirdars who were riot paying tribute shall be compared only with Jagirdars who were not paying tribute, (ii) Jagirdars who were paying tribute shall be compared only with Jagirdars who were paying ' tribute, (iii) Jagirdars who were paying any sums of 57 450 recurring nature referred to in sub clause (ii) of clause 4 of the Second Schedule shall be compared only with Jagirdars Who were paying such sums, and (iv) in respect of Jagirdars who were paying tribute or any sums of recurring nature referred to in sub.
clause (ii) of clause 4 of the Second Schedule at different scales, the Government shall prescribe a percentage of the gross income at which the amount of tribute or such sums in respect of each Jagirdar shall be calculated irrespective of whether the amount of tribute or such sums of recurring nature that were being actually paid by him.
" What we have said earlier about the construction of the word 'tribute ' in r. 4 of Schedule II would equally apply to the construction of that expression as it occurs in the provision extracted from Schedule III.
Notwithstanding therefore that the definition in section 2(r) of the Rajasthan Act is 'inclusive ' it appears to us from an examination of the meaning of the word as used in the operative provisions of the Act, that it could refer only to recurring payments which could be said to be attributable to particular years and not to the type of ad hoc payments of which hukamnamas and patta fees are examples.
It might very well be that the words at the end of section 2(r) "other charges of a similar nature" might not exhaust all the payments which a 'tribute ' connotes but still if the rest of the Act indicates unmistakably the intention, that the word 'tribute ' has been used in a special sense taking into account the law and usage obtaining in the locality, these cannot be disregarded in favour of a wider construction based merely upon the dictionary meaning of the expression.
We need hardly add that the provision to which we have adverted should suffice to show that the construction put forward by learned Counsel for the petitioner would work to the grave disadvantage of the Jagirdars and would cause them deprivation which could never have been intended.
We have thus reached the same conclusion as the learned Judges of the Rajasthan High Court, though on a different line of reasoning.
451 On the construction which we have adopted of the expression 'tribute ' in section 4 of the Rajasthan Act the petitioner can have no legal or legitimate grievance against the enforcement of the payment made against him.
The petition fails and is dismissed.
There will st, be no order as to costs.
Petition dismissed.

summary:
The title of the petitioner to succeed to the jagir as the next heir of his father who died in July 1946 was recognised and a renewal granted in his favour by the Government by an order dated March 8, 1952.
Section 190 of the Marwar Land Revenue Act, imposed an obligation on the succeeding heir to 1949, execute within one month of the communication to him of the order a kabuliyat for payment of hukammama and other fees according to the scale of fees prescribed under the Act, and the amount payable by the petitioner thereby which came to Rs. 30,000 was demanded by the respondent State.
In the meantime, the Rajasthan Land Reforms and Resumption of jagirs Act, 1952, had been passed and came into force on February 16, 1952, and section 4(a) of this Act enacted that "the liability of all jagirdars to pay tribute to the Government under any existing jagir Law shall cease", while "tribute" was defined by section 2(r) in the following terms .
"Tribute ' in relation to a jagir, includes rekh, rakam, chatund, chakri or other charge of a similar nature".
The petitioner challenged the legality of the demand on the ground that the liability to pay hukamnama was a tribute within the meaning of that word in section 4(a).
Held, that notwithstanding that the definition of the ex pression "tribute" in section 2(r) of the Rajasthan Land Reforms and Resumption of jagirs Act, 1952, is inclusive, on an examination of the meaning of the word as used in the operative provisions of the Act, it could refer only to recurring payments which could be said to be attributable to particular years and not to the type of ad hoc payments of which hukamnama was an example.
Accordingly, the liability to pay hukamnama is not compre hended within the expression "tribute" under section 4(a), and, consequently, was not extinguished by the provisions of the Rajasthan Act of 1952.
Thakur Narpat Sinah vs The State of Rajasthan, I.L.R. , referred to.