judgement:
: Criminal.
Appeal No. 150 of 1966.
Appeal from the judgment and order, dated June 21, 1965 of the Gujarat High Court in Criminal Appeal No. 906 of 1963.
H.R. Khanna and R.N. Sachthey, for the appellants.
M Nanavati, B. Datta and O.C. Mathur, for the respondent.
457 The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate against the judgment of the High Court of Gujarat setting aside an order of a Magistrate by which the respondent was convicted of an offence under section 67 read with section 37 of the Bombay Public Trusts Act 1950 (as adapted and applied to the State of Gujarat), hereinafter referred to as the Act, and sentenced to pay a fine of Rs. 300, in default of payment of which he was to suffer rigorous imprisonment for two months.
The respondent is one of the trustees of a trust known as "Shri Swami Narayan Mandir" at Ahmedabad which is registered as a public trust in the office of the Charity Commissioner.
The trust is managed under a scheme prepared by the High Court of Bombay.
It appears that the Charity Commissioner learnt about certain constructions having been made by the respondent trustee without permission from him.
On March 22, 1962 a letter (Ext.
3) was addressed from his office to the respondent the material part of which may be reproduced: "An information is received of the Charity Commissioner that opposite the temple near the New Narnarayan building the blocks are being constructed in which shops are constructed on the ground floor of that building.
For what purpose it is constructed ? 2.
From when its construction work is started ? 3.
What amount is spent till today in construction of the same ? 4.
What amount is to be spent still ? 5.
How much income will accrue from it ? 6.
By which No. and on what date the permission of the Charity Commissioner is taken for constructing the same.
To which contractors are given the contracts for constructing the same ? His name, address, amount of the contract and other details and a copy of the contract.
If the committee has passed a resolution for constructing the same, its true copy.
If a contract is given to any contractor, then whether that contractor is related or acquainted to any member of the committee.
All these necessary information may please be sent before 15th April, 1962.
Queries on similar lines were made regarding the constructions near the respondent 's bungalow in Girdharnagar.
458 As no reply was received from the respondent reminders were sent to him on April 20, 1962 and May 10, 1962 followed by a telegram dispatched on May 23, 1962.
A reply was sent by the respondent giving the particulars of the buildings which had been constructed.
Reference was made to the resolutions of the Committee relating to these constructions together with the ,amount spent on them.
The Inspector appointed under the Act made a report dated May 4, 1963 giving the result of the enquiry made by him relating to the aforesaid constructions.
According to him 8 shops had been constructed adjoining the Narnarayan building opposite the Swammarayan temple, the estimated cost of which was more than Rs. 2 lacs.
On plot No. 98A shops were being built in four blocks.
Construction was also being made on another plot No. 98A 2 opposite the railway crossing.
On May 30, 1962 the Charity Commissioner instituted a complaint in the court of the City Magistrate at Ahmedabad giving most of these facts and stating inter alia that under the provisions of the Act a trustee who desired to invest trust funds in construction of buildings was bound to obtain permission of the Charity Commissioner which had not been done in the present case.
According to him the respondent had deliberately committee a breach of the relevant provisions of the Act and had omitted to comply with the notice dated May 22, 1962.
The gravamen of the charge was contained in paragraph 7 according to which the respondent had, without reasonable cause, failed to comply with the order and the directions issued to him under the provisions of section 37 of the Act.
The respondent filed an application (Ext. 6) before the Magistrate submitting that the investment of the trust funds made in the construction of the building adjacent to the Narnarayan Bhavan was legal and had been done in good faith.
It was for the benefit of the institution.
The scheme committee had given its consent by passing resolutions.
By an order, dated June 10, 1963, the City Magistrate held that the respondent had not shown the purpose of the new constructions nor had he furnished the date of commencement of the work as also the details amount already spent and to be spent on the said constructions.
He was accordingly convicted under section 37 read with section 67 of the Act.
The respondent moved the High Court on the revisional .side.
It was quite clear that the respondent was not being prosecuted for failure to obtain permission from the Charity Commissioner in the matter of investment of funds but the case for the prosecution, as urged by the Assistant Government Pleader before the High Court, was that in the letter dated March 22, 1962, Charity Commissioner had called for a "statement ' or "report" regarding certain construction work which was being carried on 459 by the respondent in his capacity as a trustee and since the same had not been complied with the respondent had been rightly convicted.
The High Court was of the view that the words used in el.
(c) of section 37(1) namely, return, statement, account or report have to be interpreted or construed with reference to the other provisions of the Act and the Rules framed thereunder where those words had been employed or used.
As regards the word "statement" reference was made to Rules 17, 22 and 23.
Similarly the word "report" was mentioned in sections 34, 37 and 38.
It was finally held that the Charity Commissioner had not called for any "statement" or "report" but for particulars and detailed information regarding the various items set out in his letter which he was not empowered to do.
The Act was enacted to regulate and.
to make better provisions for the administration of public, religious and charitable trusts in the State of Bombay.
Section 2(13) define.s.
public trust.
Section 2(18) defines the word "trustee" as a person in whom either alone or in association with other persons, the trust property is vested and includes a manager.
Section 2(20) says that words and expressions used but not defined in the shall have the meanings assigned to them in that Act.
Chapter ii of the Act provides for the appointment of the Charity Commissioner, Joint Deputy and Assistant Charity Commissioners as also the subordinate officers and assessors.
Chapter HI gives charitable purposes and validity of certain trusts.
Chapter IV relates to registration of public trusts.
Under section 17 a duty has been cast on the Deputy or Assistant Charity Commissioner in charge of the public trust registration office to keep and maintain such books, indices and other registers as may be prescribed which have to contain the prescribed particulars.
Under section 22 where any change occurs in any of the entries in the register kept under section 17 the trustee shall, within 90 days from the date of the occurrence of such change, report the same in the prescribed form to the Deputy or Assistant Charity Commissioner in charge of the public trust registration office.
Chapter V deals with accounts and audit.
Section 32 makes it the duty of every trustee to keep regular accounts in the approved form containing the prescribed particulars.
Under section 34 it is the duty of every Auditor to prepare balance sheet and to report irregularities etc.
Section 35 relates to investment of public trust money and provides inter alia that the Charity Commissioner may permit a trustee to invest money in any manner other than that provided in that section.
Section 3 6 prohibits alienation of immovable property of a public trust without the previous sanction of the Charity Commissioner.
Chapter V/which contains sections 37 to 41 is headed "control".
Section 37 gives powers of inspection and supervision to the Charity Commissioner etc.
These officers have been given, under subs.
( 1 ), the power 460 (a) "to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust; (b) to call for or inspect any extract from any proceedings of the trustees of any public trust and any rocks of account or documents in the possession, or under the control, of the trustees or any person on behalf of the trustees.
(c) to call for any return, statement, account or report which he may think fit from the trustees or any person connected with a public trust.
" Sub section (2) says that it shall be the duty of every trustee to afford all reasonable facilities to any officer exercising any of the powers under sub section
(1 ) and to comply with any order or direction made by him.
Sections 38 and 39 provide for calling of an explanation from the trustee or any other person concerned on the report of the Auditor and the making of a report by the Deputy or the Assistant Charity Commissioner to the Charity Commissioner about the gross negligence, breach of trust etc.
, of the trustee.
Under section 40 the Charity Commissioner after considering the report submitted under section 39 and giving an opportunity to the person concerned and holding such enquiry as he thinks fit can determine the various matters set out in that section and under section 41 if he decides that any person is liable to pay to the public trust any amount for the loss caused to the trust he may direct that amount shah be surcharged on that person.
Section 54 provides for what is called Dharmada and an account is to be submitted in the prescribed form.
Section 56(N)(2)(h) includes among the general duties of a Committee in which the management of certain endowments vests under section 56(D) to supply such returns, statistics, accounts and other information with respect to such endowments as the State Government may, from time to time, require.
It is unnecessary to notice the other.r sections with the exception of sections 67 and 69.
Section 67 provides for contravention inter alia of any order or direction made under the Act by the Charity Commissioner.
Section 69 relates to the duties, functions and powers of the Charity Commissioner.
Under cl.
(h) he can enter on and inspect any trust property and call for and inspect any proceedings of a trust.
He can further call for any return, statement, books of account, document or report from trustees or any person connected with a public trust under section 37.
The relevant rules in the Bombay Public Trust (Gujarat Rules 1961) may next be examined.
Rule 17 is to the effect that every trustee shall keep regular accounts of all receipts and of movable and immovable property and of.
all encumbrances created on the trust property and of all payments, alienations etc.
made on behalf 4 61 of the trust.
The accounts have to contain all such particulars as in the opinion of the Charity Commissioner will facilitate preparation of the balance sheet and income and expenditure account in the Form of Schedules VII/and IX and the preparation of a Statement of income chargeable to contributions in the Form of Schedule IXC.
According to the proviso to r. 17 where the trustees of a public trust are entitled to file statements in the Form of Schedules IXA and IXB by virtue of any exemption granted under section 33(4)( 'b) the accounts may contain particulars which shall facilitate the preparation of statements in the aforesaid Form of Schedules IXA and IXB.
Schedule IXC is headed "statement of income liable to contributions" and has reference to sub r. (3) of r. 32 which provides for contributions to the Public Trust Administration Fund by every public trust other than a trust exclusively for the purpose of advancement and propagation of secular education or exclusively for the purpose of medical relief or veterinary treatment of animals; certain deductions specified therein shall be allowed in calculating the gross annual income of a public trust or where the public trust is a Dharmada, its gross annual collection by receipts for the purpose of assessing the contribution.
Schedules/XA and IXB are headed "statements of income and expenditure" respectively and have as stated before reference to section 33(4)(b) which provides that the Government may, by general or special order, exempt any public trust or class of public trusts from the provisions of sub section
(2) of section 33 according to which the accounts shall be audited annually in such manner as may be prescribed and by a person who is a Chartered ' Accountant or by such persons as may be authorised by the State Government.
Rule 18 which relates to the powers in respect of audit empowers the Deputy or the Assistant Charity Commissioner inter alia to require the production before the auditor of any book, deed, account etc.
by the trustee or to give such information as may be necessary regarding the same.
Rule 22 and 23 provide for inspection and grant of entries in the public trust register and other documents.
Thus inspection and grant of copies can be obtained of any entry or portion thereof in the register of public trust or any statement, notice intimation, account, audit report or any other document filed under the Act.
In other similar legislation on public trusts the expressions.
which have been used may be noticed.
In the (English) Charitable Trusts Act 1853 it was provided by section 10 that the Board (consisting of the Charity Commissioners) may require all trustees or persons acting or having any concern in the management or administration of any charity or the estate, funds or property thereof to render to the said Board accounts and statements in writing in relation to such charity or the funds, estate, property, income or monies thereof or may also require such trustee to return answers in writing to any questions or enquiries sup.
C I/68 15 463 or statement" but in addition answers have to be returned to any questions or enquiries and the refusal to do so is punishable with contempt of court.
In the Act itself the legislature was fully aware of the true import of the word "information" as is clear from section 56(H)(2)(h) and r. 18.
It is difficult, therefore, to equate the word "statement" as used in section 37 (1 ) (c) with the word "information" or answering of enquiries etc.
which would have a much wider sweep than the word "statement" when considered from the point of view of statutory provisions and the rules in which it appears.
In view of the above discussion it is difficult to hold that any of the items mentioned in the letter, dated March 22, 1962 fall within the meaning of the words "report" or 'statement".
The enquiries which have been made can only involve the calling of information on various matters mentioned in the letter which could hardly be said to fall within the aforesaid expressions used in section 37(1)(c).
The view of the High Court, therefore, must be upheld, with the result that the appeal fails and is dismissed.
Y.P. Appeal dismissed.

summary:
Section 67 of the Bombay Public Trusts Act, 1950 provides that the contravention of an order or direction made under the Act by the Charity Commissioner is an offence.
Section 69 relates to the duties, functions and powers of the Charity Commissioner.
Under section 69(H), the Charity Commissioner can, under section 37, call for a "statement" or "report" from a trustee of a public trust.
The respondent was one of the trustees of a public trust.
In respect of certain constructions made with the funds of the public trust, without the Charity Commissioner 's permission, the Charity Commissioner wrote to the respondent asking him to furnish information regarding, g the purpose of the constructions and when they were stated, the amount spent and to be spent, the income expected, and details and particulars regarding the contracts.
For failure to comply with the notice, the respondent was prosecuted.
He was convicted by the Magistrate under sections 37 and 67 of the Act.
In revision.
he was acquitted by the High Court.
In appeal to this Court, HELD: The items mentioned by the Charity Commissioner only involve calling of "information" on various matters and did not fall within the meaning of the words "report" or "statement" used in section 37(1)(c), and the Charity Commissioner is not empowered to call for such "information".
[463 C] From the context in which the word "report" has been used in section 37(1)(c) the word can have reference only to a formal report which a trustee may be required to make under the provisions of the Act or the rules if any framed under section 84(1)(b).
Similarly, the word "Statement" has been employed in rr. 17, 22 and 23 of the rules, and this word, appearing in section 37(1)(c) has to be construed with reference to them.
So construed, it cannot be equated with the word "information" which would have a much wider sweep than the word "statement".
The distinction between the words "statement" and "information" is recognised by the Legislature itself by the use of the words "other information" in section 56(N) (2) (h) of the Act and r. 18 of the Rules made thereunder, which take in the answering of all inquiries and giving all kinds of information.
[462 E G]


judgement:
Appeal No. 1005 of 1965.
Appeal from the judgment and decree dated April 24, 1962, of the Allahabad High Court in First Appeal No. 205 of 1950.
E.C. Agarwala and P.C. Agarwala, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
The only question that arises for decision in this appeal by certificate is whether the High Court is right in holding that the notice issued by the appellant plaintiff under section 80, Civil 451 Procedure Code is defective and therefore the suit is not maintainable.
The plaintiff dispatched on July 29, 1947 certain copper articles from Gujranwala through North Western Railway to a place called Aghawanpur near Moradabad.
That consignment never reached the destination.
Consequently the plaintiff claimed a sum of P.s. 13,880 as damages.
The learned Civil Judge, Moradabad, who tried the suit decreed the plaintiffs claim in a sum of Rs. 10,206/9/ with interest at six per cent from 15th August 1947 till the date of realisation.
As against that decision, the union of India went up in appeal to the High Court of Allahabad.
The decree of the trial court was assailed on several grounds one of them being that the notice issued under section 80, Civil Procedure Code is invalid.
The High Court accepted the contention of the Union of India that the notice in question is invalid but rejected the other pleas advanced on its behalf.
It accordingly allowed the appeal and dismissed the suit on the sole ground that the notice issued did not comply with the requirements of section 80, Civil procedure Code.
It is not disputed that at the relevant time, the plaintiff carried on his business at Gujranwala under the name and style of Raghunath Das Mulkhraj.
He was the sole proprietor of that concern.
He sent several notices to the concerned authorities demanding compensation for his goods lost in transit.
It is not necessary to refer to all the notices issued by the plaintiff.
It is sufficient for our purpose if we consider the legality of the last notice sent by him viz. on June 19, 1948.
If that notice is valid then undoubtedly the suit is maintainable.
The notice in question reads thus: "From: M/s. Raghunath Dass Mulkhraj, C/o.
Dr. Khamani Singh, Katghar Gan Khana, Moradabad.
To: The General Manager, East Indian Railway, Calcutta.
A notice like this has already been given to the Secretary, Central Government of India, New Delhi and now it is being given to you according to Amendment in the procedure code.
We have the honour to serve you with the following notice under section 80, Civil Procedure Code.
The facts leading upto the said notice are as follows: 1.
That we are the refugees of Gujranwala (West Punjab) and now residing in Katghar, Gari Khana, Moradabad.
452 2.
That under R.R. No. 550240, dated 29th July 1947 Ex Gujranwala to.
Agwanpur weighing 52 bundles 73 mds.
29 seers were booked from Gujranwala to Agwanpur.
That the aforesaid consignment has not been delivered to us so far due to the Railway 's negligence, misconduct and gross carelessness.
That the non delivery of the said consignment we have suffered a great loss and damage.
That on 14th October 1947, we preferred a claim against the Railway and claimed the sum of Rs. 12,554/1 for the loss non delivery of the aforesaid goods.
Price of the goods . .
Rs. 10206 9 Our profit 20% thereon . .
Rs. 2041 5 Our damage for the much money locked up @ 1% p.m.
Rs. 306 3 TOTAL: .
Rs. 12554 1 6.
That the Chief Commercial Manager, E. 1.
Railway by his letter No. A 2/5196/47, dated 25th November 1947 acknowledged the receipt of our claim.
That thereafter nothing was heard from him in spite of our several reminders and requests for early payment.
That so far the goods have not been delivered to us nor our claim in respect thereof settled and paid.
Hence this notice is served to you.
That now we claim the sum of Rs. 1331/10 as detailed above inclusive damage @ 1% till 26th June 1948.
That the cause of action for this notice and the suit to be filed here after arose at Moradabad (U.P.) which is the District where the goods ought to have been delivered on or about 13th August 1947 when the same should have been delivered and thereafter on the various dates mentioned in the correspondence and on the expiry of the period of this notice.
That we nope and will request you to please pay to us the amount of the claim at an early date and not to force us to go to the law courts in our present and 453 plight in which case you and the Railway will be responsible and liable for all our costs and damages.
Yours faithfully, For M/s. Raghunath Dass Mulkhraj Sd./: Raghunath Dass Proprietor Dated: Copy to: Chief Commercial Manager, Calcutta." The High Court held that the notice in question does not meet the requirements of the law as the person who issued the notice is not the same person who filed the suit.
In so deciding it heavily relied on the decision of this Court in S.N. Dutt vs Union of India.
( 1 ) Section 80, Civil Procedure Code requires, among other things, that the notice must state the name, description and place of residence of the plaintiff.
It is true that the notice purports to emanate from M/s. Raghunath Dass MuLkhraj.
It is also true that in the body of the notice in several places the expression 'we ' is used.
Further the plaintiff had purported to sign for M/s. Raghunath Dass Mulkhraj.
But at the same time he signed the notice as the proprietor of the concern "Raghunath Dass Mulkhrai".
That is a clear indication of the fact that "Raghunath Dass Mulkhraj" is a proprietary concern and the plaintiff is its proprietor.
Whatever doubts that might have been possibly created in the mind of the recipient of that notice, after going through the body of the notice as to the identity of the would be plaintiff, the same would have been resolved after going through the notice as a whole.
In the plaint, the plaintiff definitely stated that he was carrying on his business under the name and style of "Raghunath Dass Mulkhraj" meaning thereby that the concern known as "Raghunath Das Mulkhraj" is a proprietary concern and the name given to it is only a trade name.
He had also stated in the plaint that he had given a notice under section 80 of the Civil Procedure Code.
In the written statement filed on behalf of the Dominion of India, the validity of the notice issued was not challenged.
Regarding the notice in question.
the only averment in the written statement is that found.
in paragraph 8 therein and the same "That the suit is.
barred by section 80, C.P.C. as no notice under that section appears to have been served on this administration.
" From this it follows that the Dominion of India did not challenge the validity of the notice.
It is no more in dispute that the notice (1) ; 454 sent by the plaintiff had been served on the authorities concerned.
The Union of India did not take the plea that the identical person who issued the notice had not instituted the suit.
The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity ' to reconsider the legal position and to make amends or settle the claim, if so advised without litigation.
The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations.
The purpose of law is advancement of justice.
The provisions in section 80, Civil Procedure Code are not intended to.
be used as booby traps against ignorant and illiterate persons.
In this case we are concerned with a narrow question.
Has the person mentioned in the notice as plainsong brought the present suit or is he someone else ? This question has to be decided by reading the notice as a whole in a reasonable manner.
In Dhian Singh Sobha Singh and anr.
vs The Union of India(1) this Court observed that while the terms of section 80 of the Civil Procedure Code must be strictly complied with that does not mean that the terms of the section should be construed in a pedantic manner or in a manner completely divorced from common sense.
The relevant passage from that judgment is set out below: "We are constrained to observe that the approach of the High Court to this question was not well founded.
The Privy Council no doubt laid down in Bhagchand Dagadusa rs.
Secretary of State that the terms of section should be strictly complied with.
That does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common sense.
As was stated by Pollock C.B. in Jones vs Nicholls, "we must import a little common sense into notices of this kind." Beaumont C.J. also observed in Chandu Lal Vadilal vs Government of Bombay "One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed.
" It is proper to expect that the authorities who received the notice would have imported some common sense into it.
At any rate they should have done so and we must assume that they did.
The fact that they did not object to the validity of the notice in (1) ; , 795. 455.
their pleadings shows that they never considered the person who brought the suit as being someone other than who issued the notice.
It is the contention of Mr. Seyid Mohammad, learned Counsel for the Union of India that the present case falls within the rule laid down by this Court in S.N. Dutt vs Union of India(1).
We are not persuaded that it is so.
In S.N. Dutt 's case a notice was.
sent by a lawyer on behalf of the concern known as S.N. Dutt & Co. The notice in question did not indicate either specifically or by necessary implication that the concern in question is a proprietary concern and S.N. Dutt was its sole proprietor.
Referring to that notice, this Court observed "The prima facie impression from reading the notices would be that Messrs. S.N. Dutt & Co. was some kind of partnership firm and notices were being given in the name of that partnership firm.
It cannot therefore be said, on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notice with the person who brought the suit.
" Further in that case the defendant challenged the validity of the notice right from the beginning.
In the present case the Union of India could not have been left with the impression that the notice had been issued on behalf of a partnership firm.
There are clear indications in the notice showing that the plaintiff was the sole proprietor of the concern known as "Raghunath Dass Mulkhraj".
Hence the decision in S.N. Dutt 's case does not govern the case before us.
In the result we allow this appeal, set aside the judgment of the High Court and restore the judgment and decree of the trial court.
The Union of India shall pay the costs of the appellant both in this Court as well as in the High Court.
G.C. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was the sole proprietor of a business carried on by him under the name and style of M/s. Raghunath Dass Mulkhraj.
He sent a notice under section 80 C.P.C. on behalf of 'M/s. Raghunath Dass Mulkhraj to the General Manager East Indian Railway Calcutta in connection with a claim for compensation for lost goods.
The notice was signed by him as proprietor 'for M/s. Raghunath Dass Mulkhraj '.
When he subsequently filed a suit against the Railway its maintainability was challenged on the ground that the notice under section 80 was invalid, as there was no identity between the person who sent the notice and the person who filed the suit.
The suit was decreed by the trial Court but the plea that the notice was invalid was accepted by the High Court.
The appellant with certificate, came to this Court.
HELD: The object of the notice contemplated by section 80 is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation so that public time and money may not be wasted.
The provisions in section 80 Civil Procedure Code are not intended to be used as boobytraps against ignorant and illiterate persons.
[454 B C] In the present case although the notice has been sent under the appellant 's trade name he had clearly indicated that he 'signed it as the proprietor of the business.
The notice had to be read as a whole and in a manner not divorced from common sense.
So read the notice could not have given the Union of India the impression that it was issued on behalf of a partnership concern.
The High Court had wrongly held that the notice was invalid.
[454 H, 455 E] S.N. Dutt vs Union of India, ; , distinguished.
Dhian Singh Sobha Singh and Anr.
vs The Union of India, ; , 795, relied on


judgement:
Appeal No. 705 of 1965.
Appeal from the judgment and decree dated November 28, 1958 of the Madras High Court in Appeal No. 756 of 1964.
M.S.K. Sastri and R. Thiagarajan, for the appellants.
T.R. Srinivasan and R. Kopalakrishnan, for respondent No. 2.
The Judgment of the Court was delivered by Bachawat, J.
Subramanian Chettiar was the owner of 5 original shares subsequently represented by 1250, shares in the Chop Leong Watt Thin Rubber Estate in Malacca.
On December 9, 1912 Subramanian died leaving behind him his widow and his son the plaintiff Shanmugham.
In August 1913 the attorney of Subramanian 's widow took out letters of administration to his estate.
Subramarnian, the defendant and certain others were partners in the P.M.S. Firm at Malacca.
On July 16, 1915 while both Shanmugham and the defendant were at Malacca they entered into a compromise agreement which is evidenced by Exhibits A 177 and A 178.
Under this compromise they agreed that out of the aforesaid original 5 shares in the Shop Leong Watt Hin Rubber Estate 21/2 shares would belong to the P.M.S. Firm then represented by the defendant as the managing partner and the remaining 21/2 shares would belong to Shanmugham.
Under this compromise the defendant agreed and undertook to recover the 5 shares and to account to Shanmugham for the 2 1/2 shares belonging to him and the income and the dividends arising therefrom.
On January 7, 1924 while Shanmugham and the defendant were at Mallacca they entered into an agreement which is recorded in Exhibit B 2.
Under this agreement Shanmugham transferred his remaining 21/2 shares in the Rubber Estate to the defendant on receipt of 18000 dollars as consideration.
On September 14, 1927 Shanmugham instituted a suit against the defendant in the court of the Subordinate Judge, Devakottai, asking for a declaration that he was entitled to the original 5 shares in the Rubber Estate, that Exhibitis A 177, A 178 and B 2 were void, and for accounts and consequential reliefs.
Shanmugham alleged that the transactions of July 16, 1915 and January 7, 1924 were vitiated by fraud, and fraudulent concealment.
During the pendency of the suit Shanmugham was adjudicated an insolvent and thereupon the Official Receiver of Ramanathapuram L12Sup.
C.I/68 14 446 was added as the 2nd plaintiff.
After protracted proceedings which is not necessary to mention now, the Subordinate Judge granted the declarations claimed by Shanmugham and passed a preliminary decree for accounts.
The Subordinate Judge accepted the plaintiff 's contentions and held that both the transactions of July 16, 1915 and January 7, 1924 were vitiated by fraud and were liable to be set aside.
The defendant 'filed an appeal in the High Court of Madras.
During the pendency of the appeal the defendant died and his legal representatives were brought on record.
The High Court held that the arrangement dated July 16, 1915 was valid and was not vitiated by fraud.
With regard to the arrangement dated January 7, 1924 the High Court agreed with the Trial Court and held that the transaction was vitiated by fraud and that the defendant was liable to account for 21/2 shares in the Rubber Estate and dividends amounting to 35535 dollars and 50 cents with interest thereon.
The High Court also held that the suit was not barred by limitation.
The High Court assessed the value of 21/2 shares at 31250 dollars and in modification of the decree passed by the Trial Court passed a final against the defendant for Rs. 2,35,555 and further interest.
The present appeal has been preferred by the defendants after obtaining a certificate from the High Court.
Mr. M.S.K. Sastri attacked the finding that the arrangement dated January 7, 1924 was vitiated by fraud.
He argued that the High Court failed to take into account the exception to sec.
19 of the Indian Contract Act and that assuming that Shanmugham 's consent was procured by fraud, nevertheless the agreement was not voidable as he had the means of discovering the truth with ordinary diligence.
There is no substance in this contention.
The two courts have concurrently found that the agreement was vitiated by fraud.
The defendant concealed from Shanmugham that he had collected 35535 dollars and 50 cents on account of dividend in respect of the shares.
Had Shanmugham known that this huge amount had been realised by way of dividend he would not have parted with the shares with all their accrued benefits for the sum of 18000 dollars.
The defendant was under a fiduciary obligation to Shanmugham to inform him of the true state of affairs.
In the High Court it was not suggested that Shanmugham had the means of discovering the truth with ordinary diligence and it is now too late to raise this contention.
Mr. Sastri next contended that the suit was barred by limitation.
The suit is for obtaining relief on the ground of fraud and is governed by article 95 of the Indian Limitation Act, 1908.
The starting point of limitation is the date when the fraud is known to the party wronged.
The fraud was committed on January 7, 1924.
The Subordinate Judge found that the fraud was discovered on or about April 16, 1924.
We accept this finding.
447 It may be noted that this finding was not challenged in the High Court.
The defendant was outside India for several months in 1924 and 1926.
The suit was instituted on September 14, 1927.
It is common case before us that if the period of the defendant 's absence from India is excluded under sec.
13 of the Indian Limitation Act, 1908, the suit is not barred by limitation.
Section 13 reads : "In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from India and from the territories beyond India under the administration of the Central Government shall be excluded.
" It is to be noticed that the agreement dated January 7, 1924 was entered into between Shanmugham and the defendant at Malacca.
The cause of action for the suit arose at Malacca and at the time of the accrual of the cause of action the defendant was at Malacca.
Mr. Sastri argued that in these circumstances sec. 13 has no application.
We are unable to accept this contention.
On the date of the filing of the suit the defandant was residing at Kothamangalam within the jurisdiction of the court of the Subordinate Judge, Devakottai.
That Court had jurisdiction to entertain and try the suit and the Indian Limitation Act was applicable to the suit though the cause of action may have arisen outside India.
In computing the period of limitation prescribed for the suit.
"the time during which the defendant has been absent from India" has to be excluded under sec. 13.
The words of the section are; clear and full effect must be given to its language.
The section makes no exception for cases in which the cause of action arose in a foreign country or for cases in which the defendant was in a foreign country at the time of the accrual of the cause of action.
In all such cases the time during which the defendant has been absent from India must be excluded in computing the period of limitation.
In Atul Kristo Bose vs Lyon & Co.(1) the defendants were foreigners and they never came to India on or after the date of the accrual of the cause of action.
The Calcutta High Court held that sec.
13 applied and that the suit was not barred by limitation.
The Court was not impressed with the argument that according to this construction a defendant who was in England when a cause of action against him accrued, and has remained there ever since might be liable after an indefinite time to be sued in a Calcutta court.
In Mathukanni vs Andappa(2) the plaintiff and the defendant who were residents of Mannargudi in India had gone to : (1) [1887] I.L.R. XIV Cal.
(2) A.I.R. 1955 Madras 96.
448 Kaula Lampur to earn their livelihood, and while there the defendant executed a promissory note to the plaintiff on November 16, 1921.
In 1925 the plaintiff brought a suit on the promissory note in the District Munsif 's Court of Mannargudi.
The cause of action in the suit arose outside India.
A Full Bench of the Madras High Court held that 'the plaintiff was entitled to the benefit of sec.
13 and in computing the period of limitation he was entitled to exclude like time during which the defendant was absent in Kaula Lainput.
We agree with this decision.
The Full Bench rightly overruled the earlier decisions in Rathinu vs Packiriswami(1) and Subramania Chettiar vs Maruthamuthu(2).
We hold that the suit is not barred by limitation.
Mr. Sastri argued that the .suit is bad for non joinder of the other partners of the P.M.S. Firm.
The point was not taken in the courts below.
It is not open to the appellant to take this point 'at this late stage.
The High Court valued 625 shares representing the original shares in the Rubber Estate at 31250 dollars on 'the footing that the value of each share on January 7, 1924 was 50 dollars.
There is force in Counsel 's criticism that this valuation ,is erroneous.
The Trial Court did not record any finding as to the value.
The High Court said that in 1930 the value of the shares was 31250 dollars, and as there was a boom in the post war period and a slump had set in since 1921, the value on January 7, 1924 would be 31250 dollars.
The parties relied on the 'testimony of Tan Siew Giab.
He proved Exhibit A 74, a list of transfers of shares in the Rubber Estate between June 29, 1920 and September 14, 1931.
From the list it appears that the price per share on June 29, 1920 was between 23 and 20 dollars; on March 29, 1923,20 dollars; on September 5, 1923, 10 dollars; on April 11, 1924, 20 dollars; on August 10, 1925, 10 dollars and on January 22, 1930 and February 28, 1930, 50 dollars.
The price of the shares went up in 1930.
But it is common case that the shares should be ,valued as on January 7, 1924.
On the material on the record we assess the value of a share on that date to be 20 dollars.
The value of 625 shares would therefore be 12500 dollars.
Having regard to this finding the decree passed by the High Court requires modification.
The High Court held that the defendants were liable to pay (1) 35535 dollars and 50 cents on account of dividend, (2) interest thereon at 6% per annum from the date of their receipt till November 28, 1958, (3) 10250 dollars after deducting from the value of the shares amounting to 31250 dollars the sum of 18000 dollars received by the plaintiff on January 7, 1924 and another sum of 3000 dollars given up by the plaintiff.
Having regard to our finding the defendants are liable to be debited under (1) A.I.R. 1928 Mad. 1058.
(2) A.I.R. 1944 Mad.
449 the last head with 12500 dollars and are entitled to be credited with 18000 dollars and 3000 dollars.
Thus under the last head the defandants are entitled to a net credit of 8500 dollars.
The result is that the defendants are liable to pay 35535 dollars 50 cents minus 8500 dollars, that is to say, 27035 dollars 50 cents and interest thereon at 6% per annum.
From the material on the record it is not possible to find out the precise dates of receipt of the dividends.
Counsel on both sides are agreed that we should allow interest on 27035 dollars and 50 cents at 6% per annum from January 7, 1924 upto November 28, 1958 and further interest at 6% per annum from November 28, 1958 until payment.
The agreed rate of exchange is Rs. 156 per 100 dollars.
Counsel on both sides have worked out the figures and on that basis the defendants are liable to pay Rs. 42174 and 60 paises for principal and Rs. 88292 and 49 paises for interest upto November 28, 1958 aggregating to Rs. 130467 and interest on Rs. 42174 and 60 paises at 6% per annum from November 28, 1958 until payment.
The appeal is allowed in part.
The decree passed by the High Court is reduced to Rs. 130467 with interest at 6% per annum on Rs. 42174 and 60 paises from November 28, 1958 until payment.
Directions II, III, IV, V and VI incorporated in the High Court decree are affirmed.
The parties will pay and bear their own costs in this Court.
The second respondent will be at liberty to retain his costs out of the estate of the first respondent in his hand.
R.K.P.S. Appeal allowed in part.

summary:
C was the owner of five original shares in a Rubber Estate in Malacca After his death in December, 1912 his son the first respondent entered into a compromise agreement in July, 1915 with the appellant, who was in partnership with C during his lifetime, whereby it was agreed that out of five sharas, 21/2 would belong to the partnership and the remaining shares to the first respondent, furthermore, the appellant undertook recover the 5 shares and account to the first respondent for 21/2 shares and for the income and dividends arising from them.
In January, 1924, while the appellant and the first respondent were both at Malacca, they entered into another agreement whereby the first respondent transferred his remaining 21/2 shares to the defendant on receipt of 18,000 dollars as consideration.
In September, 1927 the first respondent instituted a suit against the appellant in India for a declaration that he was entitled to all the original five shares and for accounts and consequential relief, as both his agreements with the appellant were vitiated by fraud and fraudulent concealment.
The Trial Court granted the declaration, but the High Court, in appeal held that while the arrangement of July, 1915 was valid, that of January, 1924 was vitiated by fraud and that the appellant was therefore liable to account for 21/2 shares and dividends amounting to 35,535 dollars with interest.
The High Court also rejected a contention raised by the appellant that the period of his absence from the country could not be taken into account for determining the period of limitation and that the suit was therefore barred by limitation.
On appeal to this Court, HELD: (i) The defendant had concealed the fact that he had collected 35,535 dollars 'as dividend on the shares and had the respondent known this, he would not have parted with the shares with all their accrued benefits for 18,000 dollars.
The defendant was under a fiduciary obligation to disclose the true state of affairs.
The two courts had therefore rightly found that the agreement was vitiated by fraud.
[446 F G] (ii) In computing the period of limitation prescribed for the suit, "the time during which the defendant has been absent from India" has to be excluded under sec.
The words of the section are clear and full effect must be given to its language.
The section makes no exception for cases in which the cause of action arose in a foreign country or for cases in which the defendant was in a foreign country at the time of the accrual of the cause of action.
[447 E F] Atul Kristo Bose vs Lyon & Co., (1887) I.L.R. XIV Cal. 457; and Mathukanni vs Andappa, A.I.R. 1955, Mad. 96; referred to and applied.
445 Ruthinu vs Packiriswami, A.I.R. 1928 Mad. 1058; and Subramania Chettiar vs Maruthamuthu, A.I.R. 1944 Mad. 437 disapproved and overruled.
(iii) On the material on record it was necessary to revise the basis of valuation of the shares and to modify the decree passed by the High Court.


judgement:
Appeal No. 2 of 1968.
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated November 30, 1967 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 5 of 1967.
S.V. Gupte, R.K. Vijayavargiya and S.S. Khanduja, for the appellant.
V.K. Sanghi, G.L. Sanghi and/1.
G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment, November 30, 1967, of a learned Single Judge of the High Court of Madhya Pradesh at Indore setting aside the election of the appellant to the Khategaon Legislative Assembly Constituency No. 259.
The facts on which the petition was based and the judgment of the High Court has been rested, may now be stated.
At the last General Election to the Madhya Pradesh Legislative Assembly from the Khategaon Constituency there were five contesting candidates.
They were the appellant and respondents 2 to 5.
The appellant received 9622 votes as against the second respondent who obtained 8030 votes.
The other contesting candidates received fewer votes in comparison.
The present election petition was filed, not by any of the defeated candidates, but by an elector to the Legislative Assembly Constituency.
In the array of the respondents in the High Court one Ram Kishen s/o Lakshmi Narain Deswali was also joined because his nomination paper was rejected by the Returning Officer.
A point was made about this rejection in the High Court and we shall come to it in due course.
The election petition was based on two broad facts.
The first was that the nomination paper of Ram Kishen was wrongly rejected and the other fact comprised allegations of corrupt practices on the part of the returned candidate and his election agent.
These corrupt practices consisted of oral speeches connected with the Manifesto of the Jan Sangh relating to cow slaughter in India.
During the course of the speeches, it was alleged the returned candidate, who belongs to the Jan Sangh and his election agent Ram Niwas Somani made speeches at 19 villages in which they referred to this election manifesto and claimed that the Congress had not abolished cow slaughter in India and on the other hand was promoting it and that the Jan Sangh would stop cow slaughter.
They added to these statements, which might have been quite innocuous, two other statements, namely, that to vote for the Congress was to commit the sin of gohatya and that the Congress candidate 501 Shrimati Manjulabai herself ate beef.
There were other allegations regarding exhibition of posters which depicted the Congress as a butcher intent upon slaughtering a cow.
This part of the case however, was not accepted in the High Court and we need not say anything about it.
The petition therefore succeeded on the two grounds which we have mentioned, namely, that the nomination paper of Ram Kishen was wrongly rejected and that the corrupt practice attributed to the Jan Sangh candidate and his election agent was established.
In this appeal we are only required to consider these two points and we shall take them in the same order.
In so far as the rejection of the nomination paper is concerned it may be pointed out that Ram Kishen s/o Lakshmi Narain Deswali was registered as a voter, not in the Electoral Roll relating to Khategaon Tehsil but in the Harda Tehsil.
Along with this nomination paper Ram Kishen produced a certificate from the Tehsildar of Harda which reads as follows : "I certify that there is an entry of the name of Ram Kishan son of Laxmichand, village Dholgaon, at Anukaran No. Harda 217, Electoral roll of 1966, part of Anukaran No. 177, District Hoshangabad, Tehsil Harda, under the heading Ra Ni Ma, Serali, Serial No. 196, House No. 91/2, with particulars Ramkishen Laxmi Chand, male, aged 45 years.
16 1 1967 Sd/ 16 1 1967 Tehsildar Harda.
" He did not produce the kind of evidence which section 33(5) of the Representation of the People Act, 1951, requires to be produced when a candidate is registered as a voter in some other constituency.
Section 33(5) of the Representation of the People Act requires that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
The nomination paper of Ram Kishen was filed on February 20, 1967.
The date of scrutiny was 21st of the same month.
Ram Kishen had two alternatives before him.
One was to produce any of the documents mentioned before the returning officer or to have filed it earlier with his nomination paper.
He did neither.
He produced a certificate from an officer who it is not proved to our satisfaction had the authority to issue a certified copy of the electoral roll.
He also added an affidavit on his own part in which the gist of the entry was given.
Indeed the certi 502 ficate of the Tehsildar was based on the affidavit which was annexed to the certificate.
There was no compliance with the provisions of section 33(5) of the Representation of the People Act and there was no power in the court to dispense with this requirement.
It is a well understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all, Other modes of compliance are excluded.
Even the certificate of the Tehsildar was not a certified or a true copy of the entry.
It only gave the gist of the entry taken from the affidavit.
It contains a mistake because the village "Dholgaon" is mentioned without the addition of the word 'Kalan '.
It appears that there are two villages, Dholgaon Kalan and Dholgaon Khurd.
The entry in the electoral roll clearly shows that it is Dhalgaon Kalan.
In other words the certificate was inaccurate.
The affidavit of Ram Kishen was also inaccurate inasmuch as it described the house as No. 91 whereas in Electoral Roll the house is given the. number 91/2.
We, however, do not go by these small inaccuracies because again the law is that which can be made certain is certain, but the fact is clear that the requirements of section 33(5) had to be and were not complied with.
The rejection of the nomination paper of Ram Kishen by the Returning Officer was ' thus justified.
Ram Kishen explained that he was running about trying to get the other evidence and indeed he did arrive at 5 p.m. having earlier sent a telegram that he was coming with the required evidence.
Unfortunately both the telegram and Ram Kishen arrived after the rejection of the nomination paper and therefore the Returning Officer could not recall what he had ordered.
We are satisfied that the learned Single Judge erred in holding that the nomination paper of Ram Kishen was wrongly rejected.
It was rightly rejected.
If the matter had rested there the appellant would have been entitled to succeed, but there remains still the question of corrupt practice.
A great deal of argument was addressed to us on this subject and we were taken through the evidence of all the witnesses who have deposed to the corrupt practice on the part of the returned candidate and his election agent.
We are satisfied that the reading of this evidence by the learned Judge, although some times strained, was clearly right and that the corrupt practice had been brought home to the candidate and his election agent.
Without going too much into the details we shall scan that evidence once again to show that this fact stood duly proved.
Out of the 19 villages at which speeches were made the learned Judge selected two, for basing his conclusion and we shall therefore confine ourselves to evidence relating to those villages.
They are Khategaon and Kannod.
The speeches at Khategaon took place on the 11 th and at Kannod on the 16th February.
It appears that February 11, was a day of many speeches.
Earlier in the day the Congress held its own session to persuade the voters to 503 vote for that party.
The Chief Minister (D. P. Misra) addressed a gathering of about 2000 persons.
The speeches made at that meeting need not be referred to here because they do not bear upon the present matter.
The Jansangh then followed and held its own meeting.
Many spoke at that meeting including the returned candidate, Narbada Prasad who also goes under the name of Kinkarji.
The election petitioner examined in this connection three witnesses and also examined himself.
These witnesses are Bulchand (P.W. 2), Babulal (P.W. 7) & Chandragopal (P.W. 15).
The election petitioner is P.W. 17.
It is argued by the learned counsel for the appellant that the testimony of PWs.
2, 7 and 15 should not have been accepted because there were many discrepancies in the versions of these witnesses as to what was said at the meeting.
There are also some arguments regarding the credibility of each of these witnesses and we shall briefly refer to these two points now.
P.W. 2 Balchand stated that he had not gone specifically to the meeting but that the meeting was thrust upon him.
He had gone on the 11th to the house of an ailing relative and was with him in the evening when the meeting took place.
This meeting was held right opposite the residence of his relative and he was therefore in a position to hear what was said.
He did say that he attended the meeting but he might well have being so close to it although his explanation of how he happened to be there is acceptable.
He stated that Kinkarji was one of the speakers.
Kinkarji complained of the division of Kashmir and also that the Congress 'had increased price level. ' He stated further that to bring Hindu Raj, the voters must not vote for Congress but cast their votes for the Jansangh.
He added: "In the Congress Raj thousands of cows are cut every day.
To vote to Congress is to take on your heads the sin of gohatya.
Manjula Bai the Congress candidate herself eats cow flesh.
You ' should go away from here after swearing to yourselves that you would not vote congress and bring on yourself the sin of gohatya.
" It is convenient to compare what the other two witnesses said in this behalf P.W. 7 's (Babulal) version was that Kinkarji "spoke of Kashmir, Pakistan and said that 'the Congress walas ' did not get sugar or grain for them".
He concluded: "The congress men get thousands of cows killed.
Manjula Bai Wagle who stands on the congress ticket eats cow 's flesh.
It is necessary to bring the Hindu Raj and so give vote to the deepak and make it victorious.
You better swear by the cow that you will not vote congress but vote Jan Sangh.
If you do not vote Jan Sangh you will be getting the sin of cow killing.
" 504 The version of P.W. 15 (Chandergopal) was to this effect.
When he went there Kinkarji was speaking and said: "The congress party is a hatyara party.
It gets thousands of cows and bulls killed.
The candidate who stands against me in this election is Manjula Bai set up by the congress and she eats cow 's flesh.
I have been set up by the Jansangh for bringing the Hindu Rajya.
To bring it please vote on my deepak mark.
" A point is made by the learned counsel for the appellant that since P.W. 15 does not speak of the sin of gohatya, we should discount the evidence of the other two witnesses who have exaggerated the whole story.
He also contends that even if the words were used about the sin of gohatya we should not give too much meaning to the word 'sin ' which bears different shades of meanings and the strongest meaning need not necessarily be chosen.
He also contends that this speech, even if it is accepted from the version of P.W.s 2 and 7 did not amount to the kind of corrupt practice which is made a ground for setting aside elections under section 123(2)(ii).
Whether we should believe the witnesses or not involves how far we should enter into facts.
No doubt, an appeal before this Court under section 116A is an appeal as of right and is open both on facts and law; still the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demeanour and judges of their credibility in the first instance.
In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong.
To establish this he must do something more than merely ask for a re assessment of the evidence.
He must show wherein the assessment has gone wrong.
Where the court of first instance relies upon probabilities alone, the appellate court may be in as good position as the court of trail in judging of the probabilities; but where the court of trial relies upon its own sense of the credibility of a witness the appellate court is certainly at a disadvantage, because it has not before it the witness but the dead record of the deposition as recorded.
If it was a question only of the probabilities of the case, we would have undoubtedly gone into the matter more closely.
The matter has however been put before us strictly on the ground of credibility of the witnesses and it is there we feel that the appellate court is at a disadvantage.
This has been laid down both by this Court and the Privy Council in cases which are quite familiar and need not be quoted.
Applying these tests, we go once again into the submissions of the learned counsel for the appellant to see how far he has been 505 able to prove to our satisfaction that the appraisal of the evidence of these witnesses is such that we must reject the conclusion of ' the learned High Court Judge and substitute for it another conclusion.
It is said about P.W. 2 (Balchand) that he claimed that he was not interested in the Congress but P.W. 11 Parasram stated that Balchand worked for the Congress.
Learned counsel submits that here at the very start we have a lie from the witness and we should not therefore believe him.
He further comments that P.W.2.
(Balchand) did not attend the meeting that he only heard what was being said at the meeting, that he was an unsummoned witness and did not go to Manjula Bai but went to Chaganlal the elector who had no connection with the election and thus has shown considerable interest in the success of the election petition.
All these things were before the learned Judge who tried the case.
In spite of them he hag chosen to draw an inference from the testimony of these witnesses taken with the other material on the record.
In this connection it is pertinent to point out that the learned Judge referred to the evidence of Tiwari P.W. 10 and Ramchandra Agrawal P.W. 13 (particularly the former) about whom he said that he was considerably impressed by the way in which he deposed and it appeared to him that that witness was speaking the truth.
Where there is evidence which the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial Judge.
In this case Kunjilal Tiwari P.W. 10 admitted that he was a member of the Jansangh.
He further said that he did not approve of the methods of the Jansangh in making such speeches and had therefore come forward to depose truthfully as to what had happened.
This witness no doubt spoke ' about Kannod but he lent assurance to the statements of P.W.2 (Balchand), P.W. 7 (Babulal) and P.W. 15 (Chandergopal) about Khategaon.
The learned Judge although he examined the two, incidents separately, seemed to have viewed the entire propaganda of Kinkarji as integrated and has drawn the conclusion from both aspects of the case taken together.
Therefore the case comes to this, that the witnesses who spoke about the speech at Khategaon were not unanimous as to the version of the speech, but that in our opinion is not a circumstance of vital importance, because.
speeches were also made at Kannod in which the returned candidate made similar observation about the sin of gohatya.
The witnesses here are P.W. 4.
(Narsingh Dass), P.W. 8 (Mazharul Haq) and P.W. 10 (K. L. Tiwari).
We shall now refer to what they stated.
P.W 4 (Narsingh Das) stated that on February 16, 967 there was a meeting in his village in front of Ramniwas Somani 's house.
This Somani was the election agent of the returned candidate.
At this meeting both Somani and Kinkarji spoke.
When he went there Kinkarji was speaking.
This is the ' version which he gave of the speech.
506 "The congress gets cows killed so you should not vote for congress, but you should put your stamp on the deepak our emblem.
If you still vote for Congress you shall get the sin of killing a cow.
" P.W. 8 (Mazharul Haq) also said that Kinkarji recited some slokas and when he came to the end of the speech he said: "Congress gets cows killed.
The congress candidate Manjula Bai Wagle eats cow 's flesh.
We have to bring Hindu Raj; put the seal on the deepak mark.
" P.W. 10 's (Kunji Lal Tiwari) version was that Kinkarji said that the Congress was getting the cows killed.
Manjula Bai should not be given any votes.
If she was voted for there would be a sin.
He also spoke that the congressmen were doing blackmarketing.
It thus appears that at Kannod also there was a repetition of the same kind of speech which the other witnesses stated had been made at Khategaon.
The question is do we believe these witnesses or not ? In our judgment there is ample evidence in this case that there was a reference to cow slaughter and the campaign of the Jan Sangh that cow slaughter should be abolished in India.
One cannot say that it is wrong to make such a propaganda.
It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter.
That is not the gravamen of the charge.
The gravamen of the charge is that it was added that if the voters voted for the Congress candidate, they would be guilty of the sin of gohatya and here the law of election steps in.
Section 123 provides that it is an election offence of undue influence, that is to say, any 'direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure.
The question is whether in stating that if they voted for the Congress or a Congress candidate, they would be committing the sin of gohatya amounted to an attempt to induce the voters to believe that they would become or would be rendered an object divine displeasure or spiritual censure.
In our opinion a statement of this kind falls within this provision of the section.
It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness.
It is also believed that of the cardinal sins is that of gohatya.
Therefore it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to.
remind them that they would be 507 objects of divine displeasure or spiritual censure, Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the congress or the congress candidate the voters would be objects of divine displeasure or spiritual censure.
In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made.
The case, therefore, falls clearly within section 123 (2)(ii) of the Representation of the People Act, 1951.
It will be encumbering this judgment if we record the incidents which relate to the election agent, except to say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence.
We are accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in holding that the election of the returned candidate should be avoided.
We may point out that ,there was a further statement that the congress candidate Manjula Bai ate beef.
Manjula Bai did not appear in the witness box to deny this.
In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition.
No one on her behalf appeared to deny this fact and therefore we leave the matter there.
We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law.
In the result the appeal must fail.
It will be dismissed with costs.
V.P.E. Appeal dismissed.

summary:
The election of the appellant to the Madhya Pradesh Legislative Assembly from Khategaon constituency was challenged on two grounds: (1) That the nomination paper of one of the contesting candidates was wrongly rejected by the Returning Officer; and (2) that there was a violation of section 123 of the Representation of the People Act, 1951, in that the appellant and his election agent made speeches, wherein they stated, that Congress had not abolished cow slaughter in India and that to vote for the Congress therefore was to commit the sin of gohatya.
The trial Judge of the High Court allowed the petition on both the grounds.
In appeal to this Court under section 116 A the Act, HELD: (1) The candidate whose nomination paper was rejected was not registered as a voter in the Electoral Roll relating to Khategaon constituency but to a different constituency.
Under section 33(5) of the Act, he had to produce before the Returning Officer at the time of scrutiny, a copy of the Electoral Roll of that constituency, or of the relevant part thereof, or a certified copy of the relevant entry in such Roll, or should have filed any of those documents earlier with his nomination paper.
He did not do any of these but instead, filed with his nomination paper a certificate giving only a gist of an entry from the Electoral Roll of the other constituency, and that too from an officer who was not proved to have the authority to issue a certified copy of the Electoral Roll.
The provisions of the section were thus not complied with and the Court had no power to dispense with the requirement.
Therefore, the rejection of the nomination paper of the candidate, by the Returning Officer, was justified and the trial Judge erred in holding that it was wrongly rejected [501 F H; 502 A E] (2) By stating that if the voters voted for congress they would be committing the sin of gohatya, the appellant and his agent attempted to induce the voters to believe that they would become objects of divine displeasure or spiritual censure and thus committed an election offence under section 123 of the Act.
[506 G; 507 B] Since the witnesses who spoke about the speeches were believed by the trial Judge not on the probabilities of the case, but, on his observation of their demeanour this Court would be slow to depart from the trial Judge 's assessment of the evidence.
According to that evidence, the voters were reminded that they would be committing the sin of gohatya.
Since the cow is venerated in this Country and it is also beleved that gohatya is one of the cardinal sins, such a reminder would be equivalent to reminding them that they would be objects of divine displeasure of spiritual censure.
The case therefore fell within section 123(2)(ii) and the 500 trial Judge was right in holding that the election of the returned candidate should be set aside.
[505 D E; 506 H]


judgement:
iminal Appeal No. 48 of 1952.
Appeal under article 134(1) (c) of the Constitution of India from the Judgment and Order dated the 21st March, 1952, of the High Court of Judicature at Calcutta (Das Gupta and Lahiri JJ.) in Criminal Appeal No. 77 of 1950 arising out of the Judgment and Order dated the 29th April, 1950, of the Court of the Additional Sessions Judge, Burdwan in Session Trial No. I of 1950.
N.C. Chakravarti and Sukumar Ghose for the appellant.
B. Sen and I. N. Shroff for the respondent.
G. N. Joshi and P. G. Gokhale for the Intervener (The Union of India).
April 20.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.
This is an appeal under article 134(1) (c) of the Constitution of India from the judgment of the High Court at Calcutta dated the 21 st of March, 1952, whereby the High Court upheld the conviction of the appellant under section 467 of the Indian Penal Code but reduced the sentence passed upon him by the Additional Sessions Judge of Burdwan.
The appeal concerns one of a series of cases known generally as " The Burdwan Test Relief Fraud Cases " which had their origin in the test relief operations held in the District of Burdwan in 1943, during the Bengal famine of that year.
The acute scarcity and the prevailing distress of the famine stricken people in the district called for immediate relief and test relief operations were undertaken by the District Board in pursuance of the advice of the District Magistrate.
The Government of Bengal sanctioned four lakhs of rupees as advance to the District Board for such test relief operations.
The District Board, however, instead of 227 conducting the relief work directly, appointed several agents on commission basis through whom the test relief operations were carried out.
This was in 'Clear violation of the Bengal Famine Code and the Famine Manual, 1941, and as exceedingly large sums were being spent the suspicions of the Government were aroused about the bona fides of the test relief work carried out through their agent&.
This led to an inquiry and as a result of this several cases were started against various persons and the appellant 's case is one of them.
The Government reached the decision that these cases were not fit for trial by jury and accordingly on 24th February, 1947, a notification was issued for trial of these cases by the Court of Sessions with the aid of assessors.
The notification is in these terms: "No. 4591 17th February, 1947.
Whereas by a notification dated the 27th March, 1893, published in the Calcutta Gazette of the same date, it was ordered that on and after the 1st day of April, 1893, the trial of certain offences under the Indian Penal Code before any Court of Session in certain districts including the District of Burdwan shall be by jury; "And whereas by notification No. 3347 1, dated the 22nd September, 1939, published at page 2505 of Part I of the Calcutta Gazette of the 28th September, 1939, it was ordered that on and from the 1st day of January, 1940, the trial of certain other offences under the Indian Penal Code before any Court of Session shall be by jury; "And whereas certain persons 'are alleged to have committed offences under sections 120 B, 420,467, 468, 471 and 477 A of the Indian Penal Code in a set of cases known as the Burdwan Test Relief Fraud Cases ' of whom the accused persons in two cases, namely Emperor vs Dhirendra Nath Chatterjee and Others and (2) Emperor vs Golam Rahman and Others, have been committed to the Court of Session at Burdwan for trial and the accused persons in the remaining cases may hereafter be committed to the said Court for trial; "Now, therefore, the Governor in exercise of the power conferred by subsection (1) of section 269 of the 228 Code of Criminal Procedure, 1898, is pleased to revoke the said notifications in so far as they apply to the trial of the offences with which the accused in the said cases are charged in the Court of Session.
" In pursuance of this notification the appellant along with six others was sent up for trial before the Additional Sessions Judge of Burdwan.
The charge against him was under section 420 read with section 120 B, Indian Penal Code, for conspiracy to cheat the District Board of Burdwan and some of its officers in charge of the test relief operations between the 21st May, and the 21st July, 1943.
The appellant was also charged on 24 counts of forgery under section 467, Indian Penal Code and the case for the prosecution against the appellant on these counts was that he committed forgery by putting his own thumb impressions on pay sheets on which the thumb impressions of persons who received payment for work done on a road which was constructed as part of a scheme for the relief of the people in Burdwan ought to have been taken.
He was one 'of the persons appointed by Jnanendra Nath Choudhuri, an agent, and it was his duty to disburse the money to the mates in charge of the gangs and to take thumb impressions on pay sheets in token of receipt of payment.
It was alleged that the appellant put his own thumb impressions in several cases mentioned in the charges with full knowledge that no payment had been made and put names of imaginary persons against the thumb impressions to make it appear that payments had been made to real persons and by this process had obtained wrongful gain for himself and for his employers.
The appellant 's plea in defence was that the thumb impressions were not his and alternatively if the thumb impressions were his, he put them on the authority of persons.
whose names were shown against the thumb impressions and that in putting these thumb impressions he did not act dishonestly or fraudulently.
The learned Additional Sessions Judge acquitted the appellant and all other accused persons on the charge of conspiracy to cheat under section 420 read with 229 section 120 B, Indian Penal Code.
He, however, convicted the appellant under eleven specific charges of forgery, under section 467, Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of one year.
On appeal the conviction of the appellant was affirmed in regard to nine counts only and 'the sentence was reduced.
The main point urged by the appellant in the High Court was that the trial was vitiated inasmuch as he was denied the equal protection of laws under article 14 of the Constitution.
The High Court rejected this contention and held that the appellant 's trial before the Additional Sessions Judge with the aid of assessors was a valid trial in accordance with law.
Das Gupta J. who delivered the judgment of the Court observed as follows : "By this notification, the Government acting in .the exercise of powers under section 269 of the Code of Criminal Procedure formed one class of all the cases known as the Burdwan Test Relief Cases, in which some persons had prior to the date of the notification alleged to have committed some specified offences and withdrew from these trial by jury so that these became triable by the aid of assessors.
The question is whether this classification satisfied the test that has been laid down, mentioned above.
In my judgment, these cases, which are put in one class, have the common feature that a mass of evidence regarding the genuineness of thumb impressions and regarding the existence or otherwise of persons required consideration.
This was bound to take such a long time that it would be very difficult, if not impossible, for a juror to keep proper measure of the evidence.
This common feature distinguished this class from other cases involving offences under the same sections of the Indian Penal Code.
The classification is in my judgment reasonable with respect to the difference made, viz., the withdrawal of jury trial and is not arbitrary or evasive.
" The appellant made an application to the High Court for leave to appeal to this Court and the leave was allowed.
It was contended at the time of the leave 230 that by a notice of revocation the State Government could not deprive particular persons of the right of trial 'by jury leaving other persons charged of the same class or classes of offences with a right to be tried by a jury.
The Bench thought that this was a point of considerable difficulty and was a fit one to be decided by this Court.
The learned counsel for the appellant urged two points :before us.
In the first instance, he contended that the notification was in excess of the powers conferred on the State Government under section 269(1) of the Code of Criminal Procedure and that it travelled beyond that section.
Secondly it was urged that the notification denied the appellant equal protection of the laws and was thus an abridgement of his fundamental right under article 14 of the Constitution and the view of the High Court that the classification was not arbitrary or evasive was incorrect.
At this stage it may be mentioned that the Union Government, at its request, was allowed to intervene in this appeal, in view of the contention raised by the appellant that section 269(1) of the Code of Criminal Procedure was void by reason of its being inconsistent with the provisions of Part III of the Constitution.
The intervention, however, became unnecessary because the learned counsel for the appellant abandoned this point at the hearing and did not argue it before us.
As regards the two points urged by the learned counsel, it seems to us that both the contentions raised are well founded.
The notification, in our opinion, travels beyond the ambit of section 269(1) of the Code of Criminal Procedure.
This section is in these terms : "The State Government may by order in the Official Gazette, direct that the trial of all offences, or of any particular class of offences, before any Court of Session, shall be by jury in any district, and may revoke or alter such order." Though the trial by jury is undoubtedly one of the most valuable rights which the accused can have, it has not been guaranteed by the Constitution.
Section 269(1) of the Code of Criminal Procedure is an enabling 231 section and empowers the State Government to direct that the trial of all offences or of any particular class of offences before any Court of Session shall be by jury.
It has the further power to revoke or alter such an order.
There is nothing wrong if the State discontinues trial by jury in any district with regard to all or any particular class of offences, but the question is whether it can direct that the trial of a particular case or of a ' particular accused shall be in the Court of Session by jury while in respect of other cases involving the same offence the trial shall be by means of assessors.
It appears to us that the section does not empower the State Government to direct that the trial of a particular case or of a particular accused person shall be by jury while the trial of other persons accused of the same offence shall not be by jury.
On a plain construction of the language employed in the section it is clear that the State Government has been empowered to direct that the trial of all offences or of any Particular class of offences before any Court of Session shall be by jury in any district.
The section does not take notice of individual accused or of individual cases.
It only speaks of offences or of a particular class of offences, and does not direct its attention to particular cases on classes of cases and it does not envisage that persons accused of the same offence but involved in different cases can be tried by the Court of Session by a different procedure, namely, some of them by jury and some of them with the help of assessors.
The ambit of the power of revocation or alteration is co extensive with the power conferred by the opening words of the section and cannot go beyond those words.
In exercise of the power of revocation also the State Government cannot pick out a particular case or set of cases and revoke the notification qua these cases only and leave cases of other persons charged with the same offence triable by the Court of Session by jury.
This was the construction plated on the section by Mr. Justice Chakravarti and was endorsed by some of us in this Court in The State of West Bengal vs Anwar Ali Sarkar(1).
it was there pointed out that a jury trial could (1) , 326, 232 not be revoked in respect of a particular case or a particular accused while in respect of other cases involving the same offences that order still remained in force.
The notification in this case clearly refers to accused persons involved in the " Burdwan Test Relief Fraud cases and does not remove from the category of offences made triable by jury offences under sections 120 B, 467,468,477 etc.
, no matter by whom committed or even committed within a particular area.
The cases of persons other than the accused and involved in offences under sections 120 B, 420, 467, 468, 477 are still triable by a Court of Session by jury.
The language of the earlier notification of 1893, and of the second notification of 1939, by which it was directed that the trial in Court of Session of certain offences in certain districts shall be by jury is significant and is in sharp contrast to the language used in the operative portion of the impugned notification.
By the notification of the 27th March, 1893, it was ordered that on or after the last day of April, 1893, the trial of certain offences under the Indian Penal Code before any Court of Session in certain districts including the District of Burdwan shall be by jury.
It will be noticed that this notification has no reference to cases of any individuals or particular accused persons; it is general in its terms.
By the notification dated the 22nd September, 1939, it was ordered that on and from the 1st day of January, 1940, the trial of certain other offences under the Indian Penal Code before any Court of Session shall be by jury.
This notification is also in general terms.
In other words, the first notification made out a schedule of offences and directed that those offences, irrespective of the fact by whom they were committed, be tried by a Court of Session by jury.
The second notification added a number of other offences to that list.
The revocation order does not subtract any offences from the list; it leaves them intact.
What it does is that it denies to certain individuals the right to be tried by jury while retaining that right in the case of other individuals who have committed the same or similar offences and in this respect it travels beyond 233 the power conferred on the State Government by section 269(1) of the Code of Criminal Procedure, and is thus void and inoperative.
We are further of the opinion that the notification is also bad as it contravenes the provisions of article 14 of the Constitution.
The High Court negatived this contention on the ground that the classification made for withdrawal of jury trial in these cases was reasonable and was neither arbitrary nor evasive.
It was said that these cases formed one class of cases and that they had the common feature that a mass 'of evidence regarding the genuineness of thumb impressions and regarding the existence or otherwise of persons required consideration and that this was bound to take such a long time that it would be very difficult, if not impossible, for a juror to keep proper measure of the evidence, and that these common features distinguished this class of cases from other cases involving offences under the same sections of the Indian Penal Code.
Now it is well settled that though article 14 is designed to prevent any person or class of persons from being singled out as a special subject for discriminatory legislation, it is not implied that every law must have universal application to all persons who are not by nature, attainment or circumstance, in the same position, and that by process of classification the State has power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject; but the classification, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.
The notification, in express terms, has not indicated the grounds on which this set of cases has been segregated from other set of cases falling under the same sections of the Indian Penal Code.
The learned Judges of the High Court however thought that this set of cases was put into one class because of their having the "common features that a mask; of evidence regarding the genuineness 234 of thumb impressions and regarding the existence or otherwise of persons required consideration and this was bound to take such a long time that it would be very difficult, if not impossible, for a juror to keep proper measure of the evidence.
" In our opinion this classification has no relation to the object in view, that is, the withdrawal of jury trial in these cases.
There can be mass of evidence in the case of persons accused of the same offence in other cases or sets of cases.
The mere circumstance of a mass of evidence, and the suggestion that owing to the length of time the jurors might forget what evidence was led before them furnishes no reasonable basis for denying these persons the right of trial by jury.
It is difficult to see how assessors can be expected to have better memory than jurors in regard to cases in which a mass of evidence has to be recorded and which may take a long time.
It is a matter of daily experience that jury trials take place in a number of cases of dacoity, conspiracy,, murder etc.
where the trial goes on for months and months and there is a mass of evidence.
On that ground alone a jury trial is not denied, as that is not a reasonable basis for denying it.
The memory of jurors, assessors, judges and of other persons who have to form their judgment on the facts of any case, can afford no reasonable basis for a. classification and for denial of equal protection of the laws.
Similarly, the quantum of evidence in a particular case can form no reasonable basis for classification and thus can have no just relation to the object in view.
The features mentioned by the High Court can be common to all cases of forgery, conspiracy, dacoity, etc.
Mr. Sen for the respondent State contended in the first instance, that the defect in the trial, if any, was cured by the provisions of section 536 of the Code of Criminal Procedure as this objection was not taken in the trial Court.
In our opinion, this contention is without force.
Section 536 postulates irregularities at the trial after the commencement of the proceedings but it does not concern itself with a notification made under section 269 (1) which travels beyond the limits of that 235 section or which contravenes article 14 of the Constitution.
The chapter of the Code of Criminal Procedure in which this section is included deals with mere procedural irregularities in the procedure committed by a Court and envisages that when an objection is taken, the Court is then enabled to cure the irregularity.
This argument cannot apply to a case like the present.
The Court had no power to direct a trial by jury when the Government had revoked its notification with reference to these cases.
Moreover the nature of the objection is such that it goes to the very root of the jurisdiction of the Court, and such an objection can be taken notice of at any, stage.
Mr. Sen placed reliance on a Bench decision of the Madras High Court in Queen Empress vs Ganapathi Vannianar and Others(1).
The matter there was not considered from the point of view mentioned above and we do not think that that case was correctly decided.
Mr. Sen further argued that in any case the notification in this case was issued in February, 1947, three years before the Constitution came into force, and that though the trial had not concluded before the coming into force of the Constitution, the trial that had started by the Court of Session with the help of assessors was a good trial and it cannot be said that it was vitiated in any manner.
Now it is obvious that if the assessors here were in the status of jurors and gave the verdict of "not guilty" as they did in this case, the accused would have been acquitted unless there were reasons for the Sessions Judge to make a reference to the High Court to quash the trial.
Clearly therefore the accused was prejudiced by a trial that continued after the inauguration of the Constitution and under a procedure which was inconsistent with the provisions of article 14 of the Constitution.
It was also vitiated because the notification which authorised it also travelled beyond the powers conferred on the State Government by section 269 (1) of the Code of Criminal Procedure.
Mr. Sen, for the contention that the continuation of the trial after the inauguration of the Constitution (1) I.L.R. 236 under the notification of 1947, even if that notification was discriminatory in character, was not invalid, placed reliance on two decisions of this Court (1) Syed Kasim Razvi vs The State of Hyderabad(1) and (2) Habeeb Mahomed vs The State of Hyderabad(2).
In our opinion, these decisions, instead of helping his contention, completely negative it so far as the facts of this case are concerned.
In both these decisions, it was pointed out that for the purpose of determining whether the accused was deprived of the protection under article 14, the Court has to see first of all, whether after eliminating the discriminatory provisions it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and, if so, whether that was actually done in the particular case.
Now it is obvious that it is impossible to convert a trial held by means of assessors into a trial by jury and a trial by jury could not be introduced at the stage when the procedure prescribed by the notification became discriminatory in character, It is not a case where the discriminatory provision of the law can be separated from the rest.
Again, a fair measure of equality in the matter of procedure cannot be secured to the accused in this kind of cases.
As pointed, out in Syed Kasim Razvi 's case(1) if the normal procedure is trial by jury or with the aid of assessors, and as a matter of fact there was no jury or assessor trial at the beginning, it would not be possible to introduce it at any ' subsequent stage ' and that having once adopted the summary procedure it is not possible to pass on to a different procedure at a later date.
In such cases the whole trial would have to be condemned as bad.
The same was the view taken by this Court in Lachmandas Kewalram Ahuja vs The State of Bombay (1).
That case proceeded on the assumption that it was not possible for the Special Court to avoid the discriminatory procedure after the 26th January, 1950.
Therefore the trial was bad.
In view of these observations, it is not possible to accept this part of Mr. Sen 's contention.
(1) [I953] S.C.R. 589.
(3) [1952]S.C.R. 710.
(2) ; 237 Mr. Sen, in his quiet manner, faintly suggested that in view of the decisions of this Court in Kathi Ranig Rawat vs The State of Saurashtra(1) and Kedar Nath Bajoria vs The State of West Benga(2)the decision of this Court in Anwar Ali Sarkar 's case (3), in which it was pointed out that the State Government could not pick out a particular case and send it to Special Court for trial, had lost much of its force.
It seems to us that this suggestion is based on a wrong assumption that there is any real conflict between the decision in Anwar Ali Sarkar 's case(3) and the decision in the Saurashtra case(1) or in the case of Kedar Nath Bajoria(2).
It has been clearly pointed out by this Court in Kedar Nath Bajoria 's case that whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violates article 14 of the Constitution must be determined in each case as it arises, and no general rule applicable to all cases can be laid down.
Different views have been expressed on the question of application of article 14 to the facts and circumstances of each case but there is no difference on any principle as to the construction or scope of article 14 of the Constitution.
The majority judgment in Kedar Nath Bajoria vs The State of West Bengal(2) distinguished Anwar Ali Sarkar 's Case(3) on the ground that the law in Bajoria 's case(2) was based on a classification which, in the context of the abnormal post war economic and social conditions, was readily intelligible and obviously calculated to subserve the legislative purpose, but did not throw any doubt whatsoever on the correctness of that decision.
The present notification is more on the lines of the Ordinance that was in question in Anwar Ali Sarkar 's case(3) and has no affinity to the Ordinance and the attending circumstances that were considered in the Saurashtra case(1) or in the case of Kedar Nath Bajoria(2) and in the light of that deci sion it must be held that the notification issued in 1947 became discriminatory in character on coming into force of the Constitution and was hit by article 14 of the Constitution.
(1) ; (2) ; (3) [1952) S.C.R. 284. 238 The result therefore is that the trial of the appellant after the 26th January, 1950, by the Sessions Judge with the aid of assessors was bad and must therefore be quashed and the conviction set aside.
In our opinion, it would not advance the ends of justice if at this stage a fresh trial by jury is ordered in this case.
We therefore allow the appeal, set aside the conviction of the appellant and direct that he be set free.
Appeal allowed.

summary:
Trial by jury is undoubtedly one of the most valuable rights which an accused can have but it has not been guaranteed by the Constitution.
Section 269(1) of the Code of Criminal Procedure is an enabling section and empowers the State Government to direct (1) 75 I.A. 41 (2) 76 1,A. 10 225 that the trial of all offences or of any particular class of offences before any Court of Session shall be by jury.
It has the further power to revoke or alter such an order.
There is nothing wrong if the State discontinues trial by jury in any district with regard to all or any particular class of offences.
The section does not empower the State Government to direct that the trial of a particular case or of a particular accused person shall be by jury while the trial of other persons accused of the same offence shall not be by jury.
The section does not envisage that persons accused of the, same offence but involved in different cases can be tried by the Court of Session by a different procedure namely some of them by jury and some of them with the help of assessors.
The ambit of the power of revocation or alteration is co extensive with the power conferred by the opening words of the section and cannot go beyond those words.
The impugned notification of the year 1947 revoking the pre vious two notifications had denied to certain individuals the right to be tried by jury while retaining that right in the case of other individuals who had committed the same or similar offences and thus it had travelled beyond the powers conferred on the State Government by section 269(1) of the Code of Criminal Procedure and was thus void and inoperative.
The impugned notification also contravened the provisions of article 14 of the Constitution inasmuch as the classification was not based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained but was made arbitrary and without any substantial basis.
The impugned notification did not in express terms indicate the grounds on which this set of cases had been segregated from other sets of cases falling under the same sections of the Indian Penal Code.
The classification as formulated by the High Court had no relation to the object in view, that is, the withdrawal of jury trial in these cases.
The contention that the defect in the trial, if any, was cured by section 536 of the Code of Criminal Procedure as this objection was not taken in the trial Court, was without force as section 536 postulates irregularities at the trial after the commencement of the proceedings but it does not concern itself with a notification made under section 269(1) which travels beyond the limits of that section or which contravenes article 14 of the Constitution.
This objection which goes to the very root of the jurisdiction of the Court can be taken notice of at any stage.
The impugned notification issued in 1947 was on the lines of the Ordinance that was in question in Anwar Ali Sarkar 's case ; The State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284), Queen Empress vs Ganapathi Vannianar and Others (I.L.R. , Syed Kasim Razvi vs The State, of Hyderabad ([1953] 29 226 S.C.R. 589), Habeeb Mahomed vs The State of Hyderabad ( ; , Lachmandas Kewalram Ahuja vs The State of Bombay ([1952] S.C.R. 710), Kathi Raning Rawat vs The State of Saurashtra ([19521 S.C.R. 435), Kedar Nath Bajoria vs The State of West Bengal ( (1954] S.C.R. 30) referred to.