judgement:
riminal Appeal No. 2 of 1962.
Appeal by special leave from the judgment and order dated April 25, 1953 of the Rajasthan High Court Jaipur Bench, Jaipur in Criminal Revision No. 237 of 1956.
section P. Varma, for the appellant.
section K. Kapur and P. D. Menon, for the respondent.
October 22.
The judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is directed against the decision of the High Court of Rajasthan in Criminal Revision No. 237 of 1956 confirming that of the Sessions judge, Alwar, convicting the appellant under section 379 of the Indian Penal Code and sentencing him to a fine of Rs. 200/ .
To appreciate the questions raised in this appeal the following facts, either admitted or found by the High Court, may be stated.
On November 24, 1945, one Ram Kumar Ram obtained permission, exhibit PB, from the Government of tile former Alwar State to supply electricity at Rajgarh, Khertal and Kherli.
Thereafter, he entered into partnership with 4 others with an understanding that the licence would be transferred to a company that would be floated by the said partnership.
After the company was formed, it put in an application to the Government through 691 its managing agents for the issue of a licence in its favour.
exhibit P. W. 15/B is that application.
On the advice given by the Government Advocate, the Government required Ram Kumar Ram to file a declaration attested by a Magistrate with regard to the transfer of his rights and the licence to the company.
On April 8, 1948, Ram Kumar Ram filed a declaration to that effect.
The case of the prosecution is that Ram Kumar Ram was a friend of the appellant.
Pyarelal Bhargava, who was a Superintendent in the Chief Engineer 's Office, Alwar.
At the instance of Ram Kumar Ram, Pyarelal Bhargava got the file exhibit PA/ 1 from the Secretariat through Bishan Swarup, a clerk, before December 16, 1948, took the file to his house sometime between December 15 and 16,1948, made it available to Ram Kumar Ram for 'removing the affidavit filed by him on April 9, 1948, and the application, exhibit P. W. 15/B from the file and substituting in their place another letter exhibit PC and another application exhibit PB.
After replacing the said documents, Ram Kumar Ram made an application to the Chief Engineer on December 24, 1948, that the licence should not be issued in the name of the company.
After the discovery of the tampering of the said documents, Pyarelal and Ram Kumar were prosecuted before the Sub Divisional Magistrate, Alwar the former for an offence under section 379 and section 465, read with section 109, of the.
Indian Penal Code, and the latter for an offence under sections 465 and 379, read with section 109 of the Indian Penal Code.
The Sub Divisional Magistrate convicted both the accused under the said sections and sentenced them on both the counts.
On appeal the Sessions judge set aside the Conviction under section 465, but maintained the conviction and sentence of Pyarelal Bhargava under section 379, and Ram Kumar Ram under section 379, read with section 109, of the Indian Penal Code.
Ram Kumar Ram was sentenced to pay a fine of Rs. 500/ and Pyarelal Bhargava to pay a fine of Rs. 200/ .
Against these convictions both the accused 692 filed revisions to the High Court and the High Court set aside the conviction and sentence of Ram Kumar Ram but confirmed those of Pyarelal Bhargava.
Pyarelal Bhargava has preferred the present appeal.
Learned counsel for the appellant raised before us three points, namely, (1) the High Court has wrongly relied upon the confession made by the accused before Shri P. N. Singhal, Officiating Chief Secretary to the Matsya Government at that time, as that confession was not made voluntarily and, therefore, irrelevant under section 24 of the Evidence Act; (2) the said confession having been retracted by the appellant, the High Court should not have relied upon it as it was not corroborated in material particulars; and (3) on the facts found 'the offence of theft has not been made out within the meaning of section 379 of the Indian Penal Code.
Another argument, namely, that the statement made by Pyarelal Bhargava before the Chief Secretary was not a confession in law, was suggested but not pursued and, therefore, nothing need be said about it.
The first question turns upon the interpretation of the provisions ' of section 24 of the Evidence Act and its application to the facts found in this case.
Section 24 of the Evidence Act lays down that a confession caused by inducement, threat or promise is irrelevant in criminal proceedings under certain circumstances.
Under that section a confession would be irrelevant if the following conditions were satisfied: (1) it should appear to the court to have been caused by any inducement, threat or promise; (2) the said threat, inducement or promise must have reference to the charge against the accused person; (3) it shall proceed from a personal authority; and (4) the court shall be of the opinion that the said inducement, threat or promise is sufficient to give the accused per son grounds which would appear to him reasonable in supposing that he would gain an advantage or avoid any 693 evil of a temporal nature in reference to the proceedings against him.
The crucial word in the first ingredient is the expression " appears".
The appropriate meaning of the word "appears" is "seems".
It imports a lesser degree of probability than proof.
Section 3 of the Evidence Act says: "A fact is said to be 'proved ' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Therefore, the test of proof is that there is such a high degree of probability that a prudent man would act on the assumption that the thing is true.
But under section 24 of the Evidence Act such a stringent rule is waived but a lesser degree of assurance is laid down as the criterion.
The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed.
Even so, the laxity of proof permitted does not warrant a court 's opinion based on pure surmise.
A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down.
To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved.
This deviation from the strict standards ,of proof has been designedly accepted by the Legislature with a. view to exclude forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence.
It is not possible or advisable to lay down an, inflexible standard for guidance of courts, for in the ultimate analysis it is the court which is called upon to exclude a confession by holding in the circumstances of a particular case that the confession was not made voluntarily.
The threat, inducement or promise must proceed from a person in authority and it is a question 694 of fact in each case whether the person concerned is a man of authority or not.
What is more important is that the mere existence of the threat, inducement or promise is not enough, but in the opinion of the court the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him: while the opinion is that of the court, the criterion is the reasonable belief of the accused.
The section, therefore, makes it clear that it is the duty of the court to place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case.
In the present case it was found that certain documents in the Chief Enginecr 's Office were tampered with and certain papers were substituted.
The appellant was the Superintendent in the Chief Engineer 's Office.
On April 11, 1949, Shri P. N. Singhal, Officiating Chief Secretary to the Matsya Government, was making a departmental inquiry in respect of the missing documents.
The appellant, among others, was questioned about the said documents.
The appellant first made a statement, exhibit PL, in which he stated that he neither asked Bishan Swarup to bring file No. 127, nor did he recollect any cause for calling for that file on or about that date.
As Shri Singhal was not able to find out the culprit, he expresser his opinion that if the whole truth did not come out, he would hand over the inquiry to the police.
Thereafter, the appellant made a statement, exhibit P.L. 1, wherein, in clear terms, he admitted that about the middle of December 1948 Ram Kumar Ram took file No. regarding issue of licence to the Bharat Electrical and Industrial Corporation Ltd., Alwar, from his residence to show it to his lawyers, and that he took the file more than once for that purpose.
He also added that this was 695 a voluntary statement.
Learned counsel for the appellant argued that the Chief Secretary gave the threat that, if the appellant did not disclose the truth he would place the matter in the hands of the police and that the threat induced the appellant to make the disclosure in the hope that he would be excused by the authority concerned.
There is no doubt that the Chief Secretary is an authority within the meaning of section 24 of the Evidence Act, but the simple question is whether the alleged statement by the said authority reappears" to the court to be a threat with reference to the charge against the accused.
As we have said, under particular circumstances whether a statement appears to the court to be a threat or not is a question of fact.
In this case the three lower courts concurrently held that in the circumstances of the case the statement did not appear to be a threat within the meaning of section 24 of The Evidence Act., but that was only a general statement which any person who lost his property and was not able to find out the culprit would make.
It may be that such a statement under different circumstances may amount to a threat or it may also be that another court may take a different view even in the present circumstances of the case, but in exercising the powers under article 136 of the Constitution we are not prepared to differ from the concurrent finding given by the three courts that in the circumstances of the present case that the said statement did not appear to them to be a threat.
The second argument also has no merits.
A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made But it has been held that a court shall not base a conviction on such a confession without corroboration.
It is not a rule of law, but is only rule of prudence.
It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be 696 made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars., The High Court having regard to the said principles looked for corroboration and found it in the evidence of Bishan Swaroop, P.W 7, and the entry in the Dak Book, exhibit PA. 4, and accepted the confession in view of the said pieces of corroboration.
The finding is one of fact and there is no permissible ground for disturbing it in this appeal.
The last point is that on the facts found no case of theft has been made out.
The facts found were that the appellant got the file between December 15 and 16, 1948, to his house, made it available to Ram Kumar Ram and on December 16, 1948, returned it to the office.
On these facts it is contended that the prosecution has not made out that the appellant dishonestly took any movable property within the meaning of section 378 of the Indian Penal Code.
The said section reads : "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person 's consent, moves that property in order to such taking, is said to commit theft.
The section may be dissected into its component parts thus : a person will be guilty of the offence of theft, (1) if he. intends to cause a wrongful gain or a wrongful loss by unlawful means of Property to which the person gaming is not legally entitled or to which the person losing is legally entitled, as the case may be: 697 see ss.23 and 24 of the Indian Penal Code; (2) the said intention to act dishonestly is in respect of movable property; (3) the said property shall be taken out of the possession of another person without his consent; and (4) he shall move that property in order to such taking.
In the present case the record was in the possession of the Engineering Department under the control of the Chief Engineer.
The appellant was the Superintendent in that office; he took the file out of the session of the said engineer.
removed the file from office and handed it over to Ram Kumar Ram.
But it is contended that the said facts do not constitute the offence of theft for three reasons, namely, (i) the Superintendent was in possession of the file and therefore he could not have taken the file from himself; (ii) there was no intention to take it dishonestly as he had taken it only for the purpose of showing the documents to Ram Kumar Ram and returned it the next day to the office and therefore he had not taken the said file out of the possession of any person; and (iii) he did not intend to take it dishonestly, as he did not receive any wrongful gain or cause any wrongful loss to any other per son.
We cannot agree that the appellant was in session of the file.
The file was in the Secretariat of the Department concerned, which was in charge of the Chief Engineer.
The appellant was only one of the officers working in that, department and it cannot, therefore, be said that he was in legal posse ssion of the file.
Nor can we accept the argument that on the assumption that the Chief Engineer was in possession of the said file, the accused had not taken it out of his possession.
To commit theft one need not take movable property permanently out of the possession of another with the intention not to return it to him.
It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on.
We cannot also agree with learned counsel that there is no wrongful loss in the present case.
698 Wrongful loss is loss by unlawful means of property to which the person losing it is legally entitled.
It cannot be disputed that the appellant unauthorisedly took the file from the office and handed it over to Ram Kumar Ram.
He had, therefore, unlawfully taken the file from the department, and for a short time he deprived the Engineering Department of the possession of the said file.
The loss need not be caused by a permanent deprivation of property but may be caused even by temporary dispossession, though the per son taking it intended to restore it sooner or later.
A temporary period of deprivation or dispossession of the property of another causes loss to the other.
That a person will act dishonestly if he temporarily dispossesses another of his property is made clear by illustrations (b) and (1) of s.378 of the Indian penal code.
They are: (b) A puts a bait for dogs in his pocket, and thus induces z 's dog to follow it.
Here, if A 's intention be dishonestly to take the dog out of Z 's possession without Z 's consent, A has committed theft as soon as Z 's dog has begun to follow A. (1).
A takes an article belonging to Z out of Z 's possession without Z 's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration.
Here A takes dishonestly; A has therefore committed theft.
It will be seen from the said illustrations that a temporary removal of a dog which might ultimately be returned to the owner or the temporary taking of an article with a view to return it after receiving some reward constitutes theft, indicating thereby that temporary deprivation of another person of his property causes wrongful loss to him.
We, therefore, hold that the facts found in this case clearly bring them within the four comers of section 378 of the Indian 699 Penal Code and, therefore, the courts have rightly held that the appellant had committed the offence of theft.
No other Point was pressed before us.
In the result the appeal fails and is dismissed.
Appeal dismissed.

summary:
The appellant was convicted under section 379 of the Indian Penal Code.
He was a Superintendent in the Chief Engineer 's office and got a file removed from the Secretariat through a clerk, took it home and made it available to his friend, the co accused, who removed certain documents by substituting others.
The appellant returned the file to the office that next day.
He made a confession when the Chief Engineer threatened that if he did not disclose the truth the matter would be placed in the hands of the Police.
That confession was later retracted.
The three courts below were of the opinion that the statement of the Chief Engineer did not amount to a threat in the circumstances of the case.
Held, that section 24 of the evidence Act waives the stringent rule of proof as laid down by section 3 of the Act and requires the court to form a prima facie opinion on the evidence and circumstances of the particular case whether a confession should or should not be excluded as being involuntary.
It is not possible to lay down any inflexible standard and the Supreme Court acting under article 136 of the Constitution would not ordinarily differ from the concurrent findings arrived at by the courts below.
A retracted confession may form the legal basis of a con viction if the court is satisfied that it was true and voluntarily made.
As a general rule of practice, however, it is unsafe to rely upon a confession, much less a retracted confession, unless the court is satisfied that the retracted confession was true, voluntarily made and corroborated in material particulars.
In the present case there could be no doubt that the necessary ingredients constituting the offence of theft were mad 690 To constitute theft the loss caused need not be permanent Even temporary dispossession, though the person taking the property intended to restore it, may constitute theft.
Illustrations (b) and (1) of section 378 of the Indian Penal Code clearly show that a temporary deprivation of another person of his property may cause wrongful loss to him.


judgement:
Appeal No. 327 of 1962.
Appeal from the orders dated.
July 5, 1961, of the Mysore High Court, Bangalore in Writ Petition No. 556 of 1960.
M. C. Setalvad, Attorney General of India and Naunit Lal, for the appellant.
C. K. Daphtary, Solicitor General of India, section T. Desai and I.N. Shroff, for the respondent.
112 1962.
October 23.
The judgment of Das, Kapur and Sarkar, JJ., was delivered by Sarkar, J.
The judgment of Hidyatullah and Dayal, jj., was delivered by Dayal, J. SARKAR, J. This is an appeal against a judgment of the High Court of Mysore which held that the respondent was not liable to pay any octroi duty to the appellant municipality in respect of dutiable goods brought to its factory as on a proper interpretation of the appellant 's by law fixing the octroi limits, the respondent 's factory was outside those limits.
The question that arises in this appeal is one of the interpretation of that by law.
The appellant municipality was constituted under the Bombay District municipal Act, 1901.
Section 4 of the Act gives power to the Government to declare any local area to be a municipal district and to extend, contract or otherwise alter the limits of any municipal district.
Section 9 provides that there shall be a municipality for every municipal district.
Section 59 of the Act inter alia provides that a municipality may subject to certain conditions impose "an octroi on animals or goods, or both, brought within the octroi limits for consumption, use or sale therein".
In exercise of its powers under this section, the appellant municipality imposed an octroi, duty on certain goods.
Section 48 of the Act gives a municipality power to frame by laws for various purposes including that of "fixing octroi limits".
The appellant municipality framed a by law under this Nation fixing octroi limits, in these terms : "The Octroi limits of the Municipal District shall be The same as the Municipal District.
" The dispute is as to the meaning of the words "Municipal District ' in this by law.
The respondent is a company owning a factory which prior to September 3, 1959, was outside the 713 municipal district of the appellant municipality as such district was till then constituted.
There is no dispute that the respondent has all along been bringing into its factory goods of the variety specified in the rule imposing the octroi duty for consumption and use therein but no duty was payable so long as the respondent 's factory was outside the municipal district and therefore also admittedly outside the octroi limits as defined by the aforesaid by law.
By a notification issued on August 25, 1959, the Government of Mysore extended the municipal district of the appellant municipality with effect from September 3, 1959, and as a result of this extension the respondent 's factory came to be included within that district.
On such extension the appel lant municipality demanded octroi duty on goods brought into the respondent 's factory contending that the factory had thereupon come within its octroi limits as defined by the by law.
The respondent disputed this contention and moved the High Court of Mysore under article 226 of the Constitution for a writ of mandamus directing the appellant municipality to forbear from collecting the duty.
The High Court did not accept the appellant municipality 's contention and issued the writ.
The question is whether upon the extension of the municipal district the factory came within the octroi limits as defined by the by law.
The appellant municipality says it did and for these reasons: The expression "municipal district" has not been defined in the by laws and therefore the definition of that expression in section 3(5) of the Act would by virtue of section 2O of the Bombay General Clauses Act, 1904, apply in interpreting the by law.
Under sub sec.
(5) of section 3 of the 'Act a municipal district means the municipal district of a municipality for the time being and hence the octroi limits prescribed by the by law would be the municipal district of the appellant municipality as constituted from time to time.
Upon the extension 714 of the appellant municipality 's municipal district, therefore, its octroi limits would stand extended and the factory would admittedly be within the extended limits.
We are unable to accede to this contention.
It is based on section 20 of the General Clauses Act.
Now under that section, expressions used in by laws are to have the same meaning as they have in the Act unless there is anything repugnant in the context.
If there is any such repugnancy.
, the definition in the Act cannot be resorted to for interpreting a by law.
It seems to us that there is such repugnancy in the present case and this we now proceed to show.
As we have earlier said.
, a by law is made under section 48.
That section provides that a by law can be made only with the sanction of the Government.
Sub section (2) of ' that section requires that "Every Municipality shall, before making any by law under this section, publish. . . . for the information of the persons likely to be affected thereby, a draft of the proposed by law".
There are provisions enabling persons to make objections to, or suggestions regarding a proposed by law and for these being considered by the municipality before it makes the by law and thereafter by the Government before it give ' its sanction.
It is therefore, not open to much doubt that a by law made without the previous publication of its draft to the persons mentioned would be an invalid by law.
Now who are these persons ? They must be "persons likely to be affected thereby", that is, by the by law, they must be Persons whom the by law when made is likely to affect by its own terms. ' Since however anyone can send goods to places within the octroi limits, all the world may in a sense be said to be affected by a by law fixing those limits.
If all such persons were contemplated by section 48 (2), then a by law fixing octroi limits to be valid, would have to be published to all the world.
715 This would be an impossibility and was clearly riot intended.
Quite obviously publication to persons residing outside the municipal district as constituted when the by law was made or who were not the rate payers of the municipality was not contemplated.
The present by law must therefore have been made without publication to such persons.
It is not said that the respondent was not one of them.
Now suppose the appellant municipality 's contention was right.
Then the by law would now bring within the octroi limits of the appellant municipality the respondent 's factory and some other premises though the by law had not been published to the respondent or the owners of the premises.
The respondent and all other such persons would then be affected by the by law though the by law bad not been published to them before it was made.
Such a by law would be invalid under the Act.
It would be invalid from the beginning and not only on the extension of the municipal district for it would be a by law not made in compliance with the provisions of section 48 and therefore not a by law validly made.
But then it may be said that when made, the by law did not affect any one to whom it had not been published and therefore it had been validly made.
This argument seems to us to proceed on a misconception.
The by law would still be invalid as contingently affecting persons to whom it had never been published, namely, those who resided outside the municipal district as constituted when the by law was made, the contingency being the extension of the municipal district.
Those persons would be contingently affected by the by ,law itself because the limits mentioned in it were capable of being extended to include them.
They are so affected because the by law itself provided that the limits fixed by it would in a certain contingency stand extended.
716 We, therefore, think that the expression " 'municipal district" in the by law must be understood as referring to the municipal district as existing when the by law was framed.
The context would prevent the definition in the Act being applied to interpret the by law.
The by law cannot, therefore, refer to the municipal district as from time to time existing.
Now it is not in dispute that if the octroi limits fixed by the by law are so understood, then the respondent 's factory has all along been outside those limits and the respondent cannot be made liable to pay octroi duty.
It makes no difference that its factory is now within the municipal district of the appellant municipality for it is still outside its octroi limits.
It was said that if the view that we have taken is right, then no by law can ever affect people to whom it had not been published before it was made, and if this is so, then on the extension of a municipal district, all the existing by laws would have to be re made for the added area for they could not affect the people there as to them, ex hypothesis, the by laws had not been published before they had been made.
It was contended that such a result could not have been intended by the Act and, therefore, the view that we have taken is erroneous.
As regards this argument, we first observe that nothing has been brought to our notice from which it can be gathered that it was not the intention of the legislature that on the extension of the municipal district the by laws have not to be re enacted.
If that was not the intention of the legislature, then of course the entire foundation of the present argument would fail and it would require no further discussion.
Let us however assume that it was intended that the existing by laws would apply to the added areas without fresh re enactment.
If such was the intention, that intention must necessarily be referrable to some provision in the Act.
In such a case it would be 717 because of that provision of the Act that the by laws would be affecting people to whom they had not before their making been published and not by their own terms or force.
From what we have said it does not follow that a by law cannot under some provision in the Act other than section 48 affect people to whom it had not been published before it was made.
All that we have said is that a by law cannot be made under section 48 so as to affect people by its own terms or force unless to them it had been previously published.
We are concerned only with the initial validity of a by law for interpreting the meaning of the words used in it.
The argument for the appellant contemplates a situation where an existing valid by law is by an independent statutory provision made to affect people to whom it had not been published before it was made.
With such a situation we are not conceded.
We are unable to agree that if some provision of the Act exists which makes a valid by law applicable to the newly added areas of a municipality and to the residents there, though to them the bylaw might not have been published before it was made, it would follow that a by law could be validly made under the Act without previous publication to persons likely to be affected thereby.
We repeat that if it cannot be so made, the present by law cannot be read as including within the octroi limits the municipal district as extended from time to time.
To do that would be to give it a meaning against its context and this, the General, Clauses Act does not warrant.
It was contended on behalf of the appellant that since at the time the municipal district was extended an opportunity had been given to the respondent to object , it could not now take any exception to the imposition of the octroi duty on the ground that it had no opportunity to object to the rule levying the duty or the by law fixing the octroi limits 718 when these were made.
All this seems to us to be to no purpose.
The respondent is not basing its objection to pay the octroi duty on this ground.
All that it says is that it is not liable as its factory is not within the octroi limits.
It raises a question of interpretation of the by law.
The fact that the respondent could have objected to the extension of he municipal district is wholly irrelevant in interpreting the by law fixing the octroi limits and the only question in this case is of such interpretation.
We may add that if a by law is invalid because it had not been published to persons likely to be affected by it, it would not become valid when the municipal district of the municipality concerned was extended on notice to everyone entitled to object to the extension.
Then it was said that the by law could not be amended for it could only be put in the same term in which it stands now as it is intended to put the entire municipal district within the octroi limits.
The fallacy in this argument seems to us to be that even if a by law was framed in identical words now, the content of it would be different, the municipal district contemplated by the new by law would be different from that contemplated by the earlier one.
Therefore, in substance, the by law would be a changed one inspite of the identity of its form.
It would be different in effect.
In the view that we have taken we think it unnecessary to pronounce upon the contention of the respondent that the definition in section 3(5) of the Act did not contemplate a municipal district as from time to time constituted.
The appeal fails and is dismissed with costs.
RAGHUBAR.
DAYAL, J. We are of opinion that this appeal should be allowed.
Section 59(1)(b)(iv) of the Bombay District Municipal Act, 1901 (Bom.
Act3 of 1901), hereinafter 719 called the Act, authorises any Municipality to impose an octroi on animals or goods, or both, brought within the octroi limits for consumption, use or sale therein.
The Bagalkot Municipality imposed this tax and provided, under by law No. 3 framed by it in the exercise of powers conferred under section 48(1)(j), that "the octroi limits of the Municipal District shall be the same as the Municipal District".
This by law was framed prior to the extension of the limits of the Bagalkot Municipal District over which the Bagalkot Municipality had jurisdiction.
The necessary declaration extending the aforesaid limits was made by the State Government under section 4 of the Act on August 25, 1959.
After the extension of the limits of the Municipal District, the factory run by the respondent company came within the limits of the Municipal District in which the Bagalkot Municipality exercises control.
The Municipality did not frame any new by law fixing afresh the octroi limits of the Municipal District.
It however demanded octroi duty from the respondent company on the goods which were brought to the factory.
The respondent company objected to the demand on the ground that the factory to which the goods were brought was beyond the octroi limits fixed under the by law framed by the Municipality and that the goods on which octroi was demanded were not brought within the octroi limits.
It contended that, in the absence of the.
framing of any fresh by law fixing such octroi limits as would include the factory within them, the Municipality could not claim octroi duty on the goods entering the factory.
This contention found favour with the High Court which issued a mandamus to the Municipality to forbear from collecting any octroi in respect, of goods delivered by the railway administration ' at the factory premises and also directed the company to pay octroi on the goods carried by road at the point of entry and to get a refund of the octroi at the point 720 Where the goods left the octroi limits.
were also issued to the Municipality for such refund.
The Municipality has appealed against the J. order of the High court.
It is contended on its behalf that the octroi limits fixed under the by law framed by the Municipality extend up to the limits of the Municipal District as extended by the Government declaration of August 25, 1959, and that there was no necessity for framing any fresh by law fixing new, octroi limits.
We have to determine the extent of the octroi limits of the Municipality as fixed under by law No. 3(1) which reads : " The octroi limits of the Municipal District shall be the same as the Municipal District.
" The octroi limits fixed were coterminous with the limits of the Municipal District, whatever they may be from time to time.
If the limits of the Municipal District were extended, the octroi limits ,would be the extended limits of the Municipal:District and, if the limits of the Municipal District were contracted, the octroi limits would be similarly contracted.
Section 3(5) defines 'municipal district ' to mean any local area which is at present a municipal district, and any local area Which may, hereafter , be constituted a municipal district under section 4, if such municipal district has not ceased to exist under the provisions of the said section. ' Section 4 empowers the State Government, subject to the pro visions of sections 6, 7 and 8, to extend,,, contract or other wise alter the limits of any municipal district from time to time.
It is clear therefore and there is nothing in the section to indicate to the contrary that subsequent to the extension, contraction or alteration of the limits there does not come into existence a new municipal district.
The erstwhile muni 721 cipal district continues with this modification that its area is either extended or reduced or its limits are altered.
Sub sections (2) and (3) provide, inter alia, for the setting forth clearly of the local limits included or excluded from existing municipal districts by notification and for erection and maintenance of boundary marks defining the altered limits of the municipal district.
The municipal district, as defined in section 3(5) of the Act, therefore means the local area within its limits as fixed for the time being.
In view of 'section 20 of the Bombay General Clauses Act, the expression 'municipal district ' in the by law will have the same meaning as that expression has in the Act, unless there be anything repugnant in the subject or context.
We do not find any such repugnancy in the context of the by law which would make the definition of the municipal district in the Act not applicable to the expression 'municipal district ' in octroi by law No. 3., The octroi duty is, by nature, a duty which is realised on goods entering certain limits over which the municipality charging the octroi has control.
There is no reason why octroi duty ' which is levied solely for the purpose of raising funds, and not to afford protection to trade in any particular area, be not charged from the. same goods entering a certain part of the municipality, that is to say, there is no good reason why the limits within which goods on entry from beyond should pay octroi duty be different from the limits of the municipal district over which the municipality has control.
The question then arises, why cl.
(iv) of sub section
(1)(b) of section 59 uses the expression 'octroi limits ' instead of "municipal district ', an expression which is used with reference to some other taxes which the municipality can impose.
The answer is found in the provisions of sections 39 and 81 of the Act.
722 Clause (b) of section 39 empowers a municipality to enter into an agreement with another municipality, cantonment authority, local board, panchayat or committee appointed for an area under Chapter XIV regarding levy of octroi duty whereby the octroi duties respectively leviable by the contracting bodies may be levied together, instead of separately, within the limits of the area, subject to the control of the said bodies.
Section 81 authorises any one of the contracting bodies to establish such octroi limits and octroi stations as may be deemed necessary for the entire area in which the octroi is to be collected.
The limits of any such two contracting parties will not be common throughout and will not be identical with the limits of either of the municipal districts and therefore it would be necessary for the municipality, which is to collect octroi duties under the agreement, to fix the octroi limits for the entire area for the purpose of collecting octroi duties.
Sub section (2) of section 77 provides for penalty for the evasion of octroi in cases of goods liable to the payment of octroi and passing into a municipal district without payment of such octroi.
It is noticeable that it does not use the expression 'passing into tile octroi limits of a municipal district ', but uses the expression passing into a municipal district '.
The use of the expression 'octroi limits ' in cl.
(iv) of section 59 (1)(b) therefore need not lead to the conclusion that a municipality can pick and choose between its parts and exempt any part of it from the levy of octroi duty.
It follows therefore that ordinarily octroi duty must be imposed on all good entering the limits of the municipal district controlled by the municipality.
This is what by law No. 3 framed by the appellant Municipality provides for.
It is contended for the respondent that the Municipality cannot make a by law fixing such octroi 723 limits as vary from time to time.
We see no good reason why it cannot do so.
Further, the by law No. 3(1) fixed the limits of the municipal district to be the octroi limits.
These are definite limits and vary only when an alteration is made by the Government in the limits of the municipal district and then too on account of the content of the expression municipal district '.
The definition of 'municipal district ' will be read into the definition of 'octroi limits ' as required by the General Clauses Act and they will vary with that definition.
The municipality does not exceed its jurisdiction to frame the by law fixing the octroi limits to vary from time to time according to the limits of the municipal district.
No question of extending its jurisdiction arises in case the limits of the municipal district are contracted.
No question of exceeding its jurisdiction arises if the limits are extended, as at the time the by law would be applicable to the extended limits, the municipality will have jurisdiction to make a by law applicable for that area.
If it frames a by law in such a way as to be immediately effective in the area newly, added to its limits, it cannot be said to be exceeding its jurisdiction.
just as the Act contemplates the (extension of the limits of the municipal district and the application of its various provisions therein , the by laws made applicable within the area of the municipal district will be applicable to the extended area the moment any fresh area is added to the municipal district.
We do not find anything in the Act or rules which disables the, municipality to fix the octroi limits in this way, or, in other words, which makes it incumbent on the Municipality to fix the octroi limits as frequently as the area of the municipal district is altered by a notification of the Government under section 4.
There is nothing in the Act that the by laws duly framed by a municipality become null and void 724 and ineffective when the limits of the municipal district for which they were framed are extended.
Such is not the contention for the respondent either.
It is not contended that those by laws do not continue to be in force within the old limits of the municipal district.
What is contended by the respondent is that they cannot apply to the new area added to the old municipal district ', until the requisite procedure laid down for the framing of the by laws under sub sections
(2) and (3) of section 48 has been followed; as, other wise, the persons residing in the newly added area would have no occasion to object to the by laws which are sought to be made applicable to them.
The sub sections are "(2) Every Municipality shall, before making any by law under this section, publish in such manner as shall in their opinion be sufficient, for the information of the persons likely to be affected thereby, a draft of the proposed bylaw, together with a notice specifying a date on or after which the draft will be taken into consideration, and shall, before making the bylaw receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified.
(3) When any by law made by a Municipality is submitted to the Central Government, State Government or Commissioner for sanction, a copy of the notice published as aforesaid and of every objection or suggestion so made, shall be submitted for the information of the Central Government, State Government or Commissioner along with the said by law.
" The respondent 's contention is met for the appellant by reference to section 8 of the Act which affords an opportunity to the persons who entertain any objection to the proposal for including the proposed area 725 in the existing municipal district to file objections with reasons therefore within the specified period.
It is urged for the respondent that no objection with respect to any particular by law or rule can be made at the time when the Government notifies objections against the proposal to extend the limits of a municipal district.
There is nothing to bar such an objection.
The objector can say that he would not like that area to be included in the municipality as it would make him and others liable to certain taxes, which, in the circumstances prevailing in that area, would not be right and would be prejudicial to the residents of that area.
This is the view taken by this Court in Rajnarain Singh vs The Chairman Patna Administration Committee, Patna (1).
In that case, a certain local area was included within Patna City by a notification issued by the local Government under section 6 of the Patna Administration Act, 1915 (Bihar & Orissa Act 1 of 1915).
There was no provision in that Act for the local Government notifying any objections from the residents of the area to be included within Patna against tile proposal for such inclusion.
The validity of the notification was not questioned in that case.
Shortly after the inclusion of the area within Patna, the local Government issued a notification under section 3 (1) (f), on April 23, 1951, extending to Patna the provisions of section 104 of the Bihar & Orissa Municipal Act, 1922 with some modifications and thereby made the residents of the newly added area subject 'to certain taxes.
That notification was held to be bad because the local Government had brought about a change of policy by the modification made.
It was said, "In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.
Exactly what constitutes an essential feature cannot be enunciated in general (1) [1955] 1.S.C.R. 290, 301, 303.
726 terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out aboveit cannot include a change of policy.
Now coming back to the notification of 23rd April, 1951.
Its vires was challenged on many Grounds but it is enough for the purposes of this case to hold that the action of the Governor in subjecting the residents of the Patna Village area to municipal taxation without observing the formalities imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922, cuts across one of its essential features touching a matter of policy and so is bad.
" It was further observed, "The notification of 23rd April, 1951, does in our opinion, effect a radical change in the policy of the Act.
Therefore it travels beyond the authority which, in our judgment, section 3 (1)(f) confers and consequently it is ultra vires.
" The change in policy was in the sense that the scheme of the Bihar & Orissa Municipal Act 1922, was that the people would not be made subject to the liability ,, of municipal taxation without being afforded an opportunity to object against such a proposal.
The provisions of the 1922 Act referred to as guaranteeing this right to the people were stated to be sections 4, 5 and 6 of that Act.
Section 4 empowers the State Government to declare its intention to constitute or alter the limits of the municipality.
Section 5 provides for taking into consideration objections submitted within the specified time after the aforesaid declaration and section 6 empowers the State Government by notification to constitute the municipality and to extend to it all or any of the provisions of that Act or to govern any local area in the municipality.
727 It follows that under the present Act persons residing in an area to be included in the municipal district could file objections to the proposed inclusion of the area to the Municipal district on the ground that certain by laws imposing taxes will affect them adversely.
Further, sub s.(2) of s.48 of the Act provides the publication of the by law proposed to be made for the information of the persons likely to be affected thereby.
The persons to be affected by the bylaw fixing octroi limits are not only the inhabitants of the municipality, but include persons who bring goods into the municipality for consumption, use or sale therein.
In fact it is such persons who are the first to be affected by the levy of the octroi duty.
They will have to pay it first.
They may pass it on to the purchasers subsequently.
It is to be presumed that the publication made at the time of the making of the by law fixing the octroi limits must have been such as had given notice to the persons other than the residents within the municipality.
Such persons could file objections against the proposed by laws.
It follows therefore that the residents of the area subsequently added to a municipality, an area which is bound to be adjacent to the original area, cannot effectively contend that they had no opportunity of objecting to the making of the by law.
Further, the provisions of these sub sections can have reference only to the occasion when bylaws are to be framed or amended and can have no effect on the question of the applicability of the bylaws to the newly added area of the municipal district.
In the absence of any express provision in the Act to the effect that no rule or by law shall be applicable to the newly added area till it is freshly enacted after following the regular procedure, we are not prepared to accept this contention, air, its acceptance would mean that the municipality becomes 728 liable for discharging its functions under the Act with respect to matters it has to deal with in that area and would be deprived of the necessary powers which it possesses for enabling it to discharge those functions properly till it has re enacted all the old by laws.
Section 59 of the Act refers to the imposition of taxes, naturally, for the purpose of obtaining funds to meet the municipality 's obligations within the district under its authority.
Residents within an area of the municipal district cannot therefore avoid the liability to pay a tax merely on the ground that when that tax was imposed the area in which they reside was not included within the municipal district.
The legislature could not have intended the exemption of such persons from payment of the tax when it provided for the extension of the limits of a municipal district but did not expressly provide for the applicability of the rules and by laws then in force to the newly added area or for the liability of the residents of the newly added area to the taxes then in force within the municipal district and for the reimposition of such taxes and the remaking of such rules and by laws in accordance with the prescribed procedure.
We are of opinion that the extension of the limits of the municipal district connotes that the area newly added to the municipal district comes not only under the control of the municipality, but also becomes subject to such laws, rules and by laws which be in force within the municipal district.
Lastly, reference may be made to section 191B in Chapter XIV A.
It provides inter alia that when any local area is added to a municipal district, the State Government may, notwithstanding anything contained in the Act or in any other law for the time being in force, by order published in the official gazette, provide for the extension and commencement 729 of all or any taxes, rules by laws ' or forms made, issued, imposed or granted under the Act by any existing municipality and in force within its area immediately before the day from which the local area was included to the municipal district, to and in all or any of the other areas of the successor district municipality, in supersession of corresponding taxes, rules, by laws, it ' any, in force in such other areas immediately before the aforesaid day, until the matters so extended and brought into force are, further superseded or modified under the Act.
No order under this provision seems to have been issued ,by the State Government.
The provision, however, indicates that the compliance of the procedural provisions mentioned in sub section
(2) of s.48, of the Act is not a necessary condition for the existing by laws of a municipality to apply to the areas included in it at a later time.
If such an order is issued by the Government, that clarifies the position.
its, enact ment, however, does not mean that in the absence of such an order, all the matters mentioned in cl.(x) of sub s.(1) of 's.19B will not Ineffective in the area included in a municipal district under a notification under s.4 of the Act.
We bold that the octroi limits fixed under bylaw No. 3 include the area newly added to the municipal district by the notification of August 25, 959, and that, consequently, the respondent company ",as liable to pay octroi duty on the goods entering its premises.
We would 'therefore allow this appeal with costs, set aside the order of the Court below and dismiss the writ petition of the respondent.
By COURT : In accordance with the opinion of the majority, this appeal is dismissed with costs.

dataset_name: IN-Abs

summary:
The appellant municipality imposed octroi duty on certain,goods brought within the octroi limits.
The by laws fixed the octroi limits to be the same as the Municipal District.
Section 4 of the Bombay District Municipal Act 1901, under which the municipality was constituted, empowered the Government to declare any local area to be 1 municipal district.
At the time of the 'imposition of the octroi (duty the respondent 's factory was situated outside the municipal district and was not subject to the octroi duty.
Subsequently, the Government extended the municipal district so that the factory came to be included within that district.
The appellant contended that upon such extension its octroi limits also stood extended to include the factory and the respondent became liable to pay octroi duty in respect of goods brought into, the factory.
711 Held (per Das, Kapur and Sarkar, jj., Hidayatullah and Dayal, jj., dissenting), that octroi duty was not leviable on the respondent.
The expression 'municipal district" in the by.
law referred to the municipal district as existing when the, bylaw was framed.
The context prevented the definition of "municipal district" in the Act, namely, the municipal district as from time to time existing, from being applied under s.20 of the Bombay General Clauses Act, to interpret the by law.
The by law had been made without being published to the respondent, and if it was so read referring to the municipal district from time to time existing it would be invalid for non compliance with the provisions of section 48 of the Act.
Per Hidayatullah and Dayal, JJ.
The octroi limits fixed under the by laws included the area newly added to the municipal district and the respondent was liable to pay octroi duty on the goods entering its premises.
In view of section 20 of the Bombay General Clauses Act, the expression "municipal district" in the by law will have the same mean ing as that expression has in the Act.
There is nothing repugnant in the subject or context which would make this definition inapplicable.
At the time when the municipal district was extended notice was published to the respondent and it could have objected to the inclusion of the area on the ground that the bye law imposing the octroi duty would affect it adversely.
There is no express provision in the Act that no rule or 'by law shall be applicable to the newly added area till it is freshly enacted.
Rajnarain Singh vs The Chairman, Patna Administration Committee, Patna, , referred to.


judgement:
No. 65 of 1962.
Petition under article 32 of the CoNstitution of India for the enforcement of Fundamental Rights.
A. section R. Chari, R. K. Garg avid K. R. Chaudhri, for the petitioners.
N. section Bindra and R. H. Dhebat, for the respondents.
October 11.
The judgment of the Court was delivered by SHAH, J.
Being in possession of evidence that the petitioners and others were concerned in the commission of offences of conspiracy to smuggle gold from foreign countries into thE port of Deogad in the District of Ratnagiri, contrary to the provisions of the Sea Customs Act and the Foreien Exchange Regulation Act, P. N. Kalyankar, Sub Inspector.of Customs and Central Excise, arrested the petitioners and produced them before the judicial Magistrate F Class, 575 Deogad.
On December 29, 1961, the Government of Maharashtra promulgated a notification in exercise of the powers conferred by section 14 of the Code of Criminal Procedure, 1898 (as amended by Bombay Act XXIII of 1951 in its application to the State of Maharashtra) appointing Mr. V. M, Gehani to be a Special judicial Magistrate having jurisdiction over the area comprising Greater Bombay and Ratnagiri District, and conferred upon him all the powers of a Presidency Magistrate in respect of the trial in the case involving the seizure of approximately 49,990 tolas of foreign gold and known as the "Deogad Gold Seizure Case. ' On January 10, 1962, the Government of Maharashtra gave consent in writing as required by section 196 A sub section (2) of the Code of Criminal Procedure to the institution of criminal proceedings against the petitioners and eight others for offences punishable "under section 120B of the Indian Penal Code, 1860 read with section 167(81) of the (as amended) and section 120B of the Indian Penal Code read with section 167(81) of the (as amended) and section 8(1) of the Foreign Exchange Regulation Act.
1947 (as amended) and section 120B of the Indian Penal Code read section 8(1) with and section 23 of the Foreign Exchange Regulation Act, 1947 (as amended)".
Thereafter H. R. Jokhi, Assistant Collector of Customs & Central Excise, Marine & Prevention Division, Collectorate of Central Excise Bombay instituted a complaint in the Court of the Special Magistrate appointed under the Notification dated December 29, 1961, against 16 persons (including the petitioners) alleging that they were parties to a conspiracy at Bombay, janjira, Dabhol and Deogad (the latter three places being in the District of Ratnagiri) and other places to smuggle large quantities of gold into India, with a view to evade or attempt to evade payment of duty thereon and to evade or attempt to evade the prohibition and 576 restrictions in force relating thereto during the period from about October 1959 to the end of April 1961.
or thereabout in breach of the provisions of the and the Foreign Exchange Regulation Act, 1947, and that the said persons had in pursuance of the "conspiracy and with continuing purpose and design" in or about the month of April 1961 acquired or were concerned in importing and acquiring possession, contrary to the and the Foreign Exchange Regulation Act, gold totalling 49,990 tolas valued at over Rs. 70,00,000/ .
The petitioners applied to the Special Magistrate that they be tried at Deogad or at Ratangiri the headquarters of the District, for they were permanent residents of Deogad carrying on their respective occupations at Deogad, that they had already made their individual arrangements for their defence at Deogad and that it would be just and convenient that their trial should take place in the District of Ratnagiri.
The Magistrate rejected their appli cation.
The petitioners then moved the High Court of judicature at Bombay praying for an order that the case against the petitioners be transferred for trial to the court of some judicial Magistrate at Deogad or at Ratnagiri competent to try the case : in the alternative the petitioners prayed that the Special Magistrate Mr. Gehani be directed to try the said case either at Deogad or at Ratnagiri at which place all 'facilities ' were available.
The High Court dismissed their application.
The petitioners then moved this Court under article 32 of the Constitution for a writ of certiorari or other appropriate writ or direction quashing the Notification dated December 29, 1961., issued by the Government of Maharashtra or in the alternative declaring section 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951 ultra vires and void and for an order that the case be heard at Deogad or at Ratnagiri in the State of Maharashtra by any Magistrate competent to enquire into or try the case.
By this petition 577 the petitioners submitted that section 14 of the Code of Criminal Procedure as amended by the Bombay Legislature by Act 23 of 1951 and the Notification dated December 29, 1961, issued by the Government of Maharashtra appointing Mr. Gehani as Special judicial Magistrate and investing him with the powers of a Presidency Magistrate, infringed article 14 of the Constitution.
Sub section (1) of section 14 of the Code as amended, in so far as it is material, provides "14.
Special Magistrates.
The State Government may in consultation with the High Court, confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferred or conferrable by or under this Code on a judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area." By section 6 A which was also added by Bombay Act 23 of 1951 in the Code, constitution of different classes of ,Judicial Magistrates was provided, and under that head were included Presidency Magistrates.
The State Government was, under the amended Code, competent to appoint a person with the requisite qualifications a Special Magistrate and to confer upon him the powers conferred or conferrable under the Code on a judicial Magistrate in respect of a particular case or a particular class or classes of cases or in regard to cases generally in any local area.
Section 14 of the Code of Criminal Procedure as originally enacted prohibited the 578 appointment of a Special Magistrate to function in any local area within the Presidency towns, but that limitation upon the power of the State Government has, by the amendment made by Bombay Act 23 of 1951, been removed, and it is now open to the Government of Maharashtra to constitute a Special judicial Magistrate with power to function in any local area including Greater Bombay.
The expression ,local area ' includes any part of a State, and it may cover more than one District.
The Government of Maharashtra therefore could appoint Mr. Gehani a Special, ' judicial Magistrate, having jurisdiction over Greater Bombay and the District of Ratnagiri and could confer upon him the powers of a Presidency Magistrate in respect of the trial of the case known as the Deogad Gold Seizure Case.
In M. K. Gopalan vs The state of Madhya Pradesh the validity of section 14 of the Code of Criminal Procedure 1898 (V of 1898.) was challenged on the plea that it was void because it infringed the fundamental right of equality before the law guaranteed by article 14 of the Constitution.
This Court held that a law vesting discretion in an authority to appoint a Special Magistrate under section 14 of the Code of Criminal Procedure to try cases entirely under the normal Procedure cannot be regarded as discriminatory and is not hit by article 14 of the Constitution.
There is substantially no difference between the powers conferrable by section 14 of the Code as originally enacted and section 14 as amended by Bombay Act 23 of 1951.
Apart from certain procedural matters such as consultation with the High Court before entrustment of the said powers, the only difference made by the Bombay Act is that a Special Magistrate may be appointed even in respect of a Presidency town.
Section 14 contemplates that a Special 'Magistrate may be entrusted with powers which are conferrable by or under the Code on a judicial Magistrate.
A Presidency Magistrate being a Judicial Magistrate under (1) 579 section 6 A as added by the Bombay Legislature, powers conferrable on a Presidency Magistrate may lawfully be conferred upon a Special judicial Magistrate who has been appointed for the Presidency town with or without any additional locality.
Section 20 of the Code of Criminal Procedure provides that every Presidency Magistrate shall exercise jurisdiction in all places within the presidency town for which he is appointed, and within the limits of the port of such town and of any navigable river or channel leading thereto, as such limits are defined under the law for the time being in force for the regulation of ports and port dues.
There is, however, nothing in this section which detracts from the authority which may be exercised by the State Government under section 14 to appoint a Special judicial Magistrate in respect of a Presidency Town nor is there any prohibition against the investiture of powers of a Presidency Magistrate upon such Magistrate in respect of a locality outside the Presidency town so long as he has jurisdiction also over a Presidency Town.
On the principle of M. K. Gopalan 's case (1), section 14 of the Code of Criminal Procedure, as amended, cannot be regarded as infringing article 14 of the Constitution.
Validity of the Notification issued by the Government of Maharashtra directing the trial by Mr. Gehani who had jurisdiction both over the Greater Bombay area and the District of Ratnagiri may now be considered.
Relying upon the judgment of this Court in Bidi Supply Company vs The Union of India (2), it was submitted that the impugned Notification was unauthorised.
That was a case where an assessee who was ordinarily assessed to income tax by Officers within the town of Calcutta was informed by letter dated January 25, 1955, in pursuance of section 5 (7 A) of the Income tax Act, 1922 (Xl of 1922) as amended by Act XL of 1940 the assessment records of the assessee were transferred from the Income tax Officer, Calcutta to the Income (1) (2) ; 580 tax Officer, Special Circle, Ranchi in the State of Bihar and that he do correspond in future regarding the assessment proceedings with that Income tax officer.
The assessee had received no previous notice of the intention of the Income tax authorities to transfer the assessment proceedings from Calcutta to Ranchi, nor had he any opportunity to make any representation against the said decision.
The assessee challenged by a petition to this Court the validity of the order of transfer contending that it violated the equal protection clause of the Constitution.
Section 64 of the Income tax Act provides for the normal place of assessment of assesses.
By subsection (1) it provides that where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income tax Officer of the area in which that place is situate, or, where the business, profession or vocation is carried on in more places than one, by the Income tax Officer of tile area in which the principal place of his business, profession or vocation is situate.
In all other cases, in assessee shall be assessed by the Income tax Officer of the area in which he resides.
By subsection (5) of section 64 it is provided, inter alia, that the provisions of sub section
(1) and (2) shall not apply where by any direction given or any distribution or allocation of work made by the Commissioner of Income tax under sub section
(5) of section 5, or in consequence of any transfer made under sub section
(7A) of section 5, a particular Income tax Officer has been charged with the function of assessing that assessee.
This Court held in the Bidi supply Company 's case (1) that sub section 5 (7A) of section 5 as it stood at the material time contemplated transfer of a pending case for a particular year.
It was observed that "the provision that such a transfer may be made 'at any stage of the proceedings ' obviously postulates proceedings actually pending, and 'stage ' refers to a point in between the commencement and the termination of those proceedings.
Further the provision that such transfer shall not render necessary (1) ; 581 the reissue of notice already issued by the Income tax Officer from whom the case is transferred quite clearly indicates that the transfer contemplated by the sub section is the transfer of a particular case actually pending before an income tax Officer of one place to the Income tax Officer of another place.
" The decision of the Court turned on the meaning of the word 'case ' used in sub section 5(7A) as enacted by the Income tax Act Amendment Act, 1940 and this Court held that the expression 'case ' meant an assessment case of a particular year.
After this decision the Legislature intervened and by the Income tax Amendment Act 26 of 1956 it added an explanation that the word 'case ' in relation to any person whose name is specified in the order of transfer means all proceedings under the Income tax Act in respect of any year which may be pending on the date of the transfer, and includes all proceedings under this Act which may be commenced after the date of the transfer in respect of any year.
The principle of the case in Bidi Supply Company (1) has no relevance in considering the validity of the Notification issued under section 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951.
The assessee in the Bidi Supply Company 's case (1) obtained the benefit of a lacuna in the provisions of the Indian Income tax Act, there being apart from a provision for transfer of a pending case, no general power to transfer future assessment proceedings.
A Notification Under section 14 of the Code of Criminal Procedure is an order constituting a Special Magistrate with jurisdiction over a certain local area and with powers which are normally exercisable by a Judicial Magistrate.
The constitution of a Special Magistrate does not amount either directly or indirectly to a transfer of any 'case ': nor are there any such considerations present in that order as were pointed out by this Court in the Bidi Supply Company 's case (1) relating to the meaning of the word "case ' used in the Income tax Act, as would compel us to (1) ; 582 hold that a "case ' within the meaning of section 14 means a pending case only.
Under section 14 the State Government is competent to appoint a special Judicial Magistrate in respect of 'any particular case or a particular class or classes of cases or in regard to cases generally in any local area '.
The words used in section 14 must mean a case which is either pending or which may be instituted after the date of the constitution of the Special Magistrate.
It was then submitted that the Notification appointing a Special Magistrate, for trial of the intended complaint against the petitioners, having regard to the circumstances of this case, and conferring upon him the powers of a Presidency Magistrate operated discriminatively against the petitioners, for, it was said, other persons similarly situated as the petitioners were ordinarily liable to be tried by the Magistrate within whose jurisdiction the offence was alleged to be committed, and could not be required to go to a distance of more than three hundred miles from their normal place of residence to defend them selves.
It was urged that Mr. Gehani being a Presidency Magistrate for the trial of the case against the petitioners and others he would be sitting in Bombay where he normally functions, and it would result in great inconvenience to the petitioners to be called upon to attend the sittings of the Court in Bombay specially when there are Magistrates availa ble in Deogad who are competent to hear and decide the case against the petitioners.
By the Notification Mr. Gehani has been invested with the powers over Greater Bombay and Ratnagiri District.
His jurisdiction therefore extends over the whole of the Greater Bombay area and the District of Ratnagiri.
There is no provision in the Code of Criminal Procedure which enjoins upon a Magistrate the duty to hold his sitting in any particular place.
Under section 9(2) of the Code of Criminal Procedure the State Government is required to direct at what place or 583 places the Court of Session shall ordinarily hold its sitting, but if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the sessions division, it may with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
There is, however, no similar provision in respect of the sittings to be held by Magistrates.
The Special judicial Magistrate Mr. Gehani having the power therefore to sit at any place within his local area as defined by the terms of his appointment, this Court cannot speculate as to what place Mr. Gehani will function in the exercise of his jurisdiction.
The question is one for his discretion.
It may be remembered that the petitioners had moved the High Court of Bombay asking for the transfer of the case from the Court of Mr. Gehani to any Magistrate functioning in the District of Ratnagiri, because of the alleged ground of inconvenience, and that application was rejected by the High Court.
It cannot be now urge by the petitioners that the trial at Bombay is inconvenient to them and may prejudice a fair trial.
It is true that under the Code of Criminal Procedure "every offence shall ordinarily be enquired into and tried by a Magistrate of the local area in whose jurisdiction it was committed" but the charge in this case against the accused is in respect of a conspiracy at Bombay, Deogad, Dabhol, janjira and other places to commit offences under the and the Foreign Exchange Regulation Act and also of commission in pursuance of the conspiracy of substantive offences under those Acts.
It is the prosecution case that importation of gold contrary to law took place in the area of Deogad port whereas the offenders conspired at different places including Bombay.
By designating a Special Magistrate who would have jurisdiction both over the place where the offenders are alleged to have conspired and the place where offences were 584 actually committed, the State has taken care to see that the trial of the case is held by a Magistrate who has territorial jurisdiction in both areas.
It is not suggested that the Notification was issued for any ulterior purpose.
The State has having regard to the special circumstances constituted a Special Magistrate, as it was entitled to, and the Notification does and even suggest the place where the Magistrate is to hold his sittings.
The ground of inconvenience in support of the plea of discrimination cannot therefore be sustained.
It is urged that against the order of conviction which may be passed by Mr. Gehani whole is invested with the powers of a Presidency Magistrate an appeal would lie only to the High Court whereas if the case were tried before a Magistrate of Ratnagiri District an appeal would lie to the Court of Session and a further revision application to the High Court.
This it was pointed out made a substantial difference of procedure between persons similarly situated.
It is true that if the complaint was filed in the Court of Magistrate having jurisdiction over Deogad alone, as it could lawfully be filed, an appeal would, against an order of conviction, lie to the Court of Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from the order of the Court of Session.
But it is difficult to hold that this amounts to any discrimination.
Apart from the fact that the trial by a special Magistrate and an appeal directly to the High Court against the order of the Magistrate may be regarded normally as more advantageous to the accused persons, the distinction between Courts to which the appeal may lie arises out of the constitution of the Special Magistrate and not any special procedure evolved by the Notification.
On the allegation made in the complaint, the complainant could lawfully institute proceedings in the Court of a Presidency Magistrate at Bombay or of any competent Magistrate in the District of Ratnagiri.
585 Such Magistrates would by virtue of section 182 of the Code of Criminal Procedure entertain the complaint and appeals from orders of conviction recorded by them would lie to the High Court, or the Court of Session, according as the Magistrate, trying the case was a Presidency Magistrate, or a judicial Magistrate of the First Class.
The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case, and not from any unequal dealing by the ' executive constituting the Courts of the Magistrates.
It is because Powers exercisable by a Presidency Magistrate are conferred upon the Special Magistrate, as they may lawfully be conferred, that the incidental right of appeal, which is prescribed, by the statute is exercisable in the High Court and not in the Court of Session.
We do not think that there is any discrimination practised by the Notification constituting a Special Magistrate for the trial of the case against the petitioners and others.
The petition therefore fails and is dismissed.
Petition dismissed.

summary:
Section 14 of the Code of Criminal Procedure, as amended by Bombay Act 23 of 1951, empowered the State Government to appoint a qualified person as a special Magistrate and to confer upon him powers conferrable upon a judicial Magistrate in respect of a particular case or a particular class or classes of cases or in regard to cases generally in any local area.
By a notification dated December 29, 1961, the Government appointed Mr. G to be a Special Judicial Magistrate for the area comprising Greater Bombay and Ratnagiri District and conferred upon him all the powers of a Presidency Magistrate in respect of the trial of the Deogad Gold Seizure case.
The petitioners, who are accused in the case, moved the Supreme Court for a writ of certiorari for quashing the notification on the ground that the notification and the amended s.14 infringed article 14 of ' the Constitution.
Held, that the amended section 14 does not offend article 14 and is valid.
There is substantially no difference between the powers conferrable by the unmended and by the amended section 14.
M. K. Gopalan vs State of Madhya Pradesh, [1955] 1 S.C.R. 168, relied on.
Held, further that the notification constituting a Special Magistrate for the trial of the petitioners was not discriminatory.
Amended section 14 contemplates both a case which is pending and one which may be instituted after the date of the constitution of the Special Magistrate.
The constitution of a Special Magistrate does not amount directly or indirectly to a transfer of any 574 case.
The fact that Mr. G may hold the trial at Bombay and not at Deogad while other similarly situated would be tried at Deogod may result in inconvenience to the petitioners but this could not sustain the plea of discrimination.
The charge against the petitioners is in respect of conspiracy at Bombay, Deogad and other places and the petitioners could have been lawfully tried at Bombay.
The notification constituted a Special Magistrate and conferred jurisdiction on him both over the place where the petitioners are alleged to have conspired and the place where the offences are alleged to have been actually committed.
It did not amount to discrimination that from the judgment of the Special Magistrate an appeal would lie to the High Court while if the petitioners were tried by a Magistrate at Deogad, an appeal would lie to the Sessions judge and then a revision would lie to the High Court.
The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case and not from any unequal dealing by the notification.