judgement:
Appeal No, 695 of 1968.
Appeal from the judgment and order dated October 13, 1966 of the Andhra Pradesh High Court in Case Referred No. 74 of 1963.
N. A. Palkhivala and T. A. Ramachandran, for the appellant.
B. Sen, G. C. Sharma, R. N. Sachthey and B, D. Sharma, for the respondent.
M. C. Chagla, M. Shankar and K. Jayaram, for interveners Nos. 1 and 2. 5 2 4 N. D. Karkhanis and T. A. Ramachandran, 'for intervener No. 3.
The Judgment of the Court was delivered by Hegde, J.
This appeal by certificate arises from the judgment of the Andhra Pradesh High Court rendered in its advisory jurisdiction on a case stated by the Income tax Appellate Tribunal, Hyderabad Bench under section 26(1) of the (to be hereinafter referred to as the 'Act ').
The question referred for the opinion of the High Court was : "Whether the declaration by which the assessee has impressed the character of joint Hindu family property on the self acquired properties owned by him amounts to a transfer so as to attract the provisions of the Gift tax Act.
" The High Court following its earlier decision in Commissioner ,of Income tax, Hyderabad vs C. Satyanarayanamurthy(1); ,answered that question in the affirmative.
The material facts as could be gathered from the statement of the case submitted to the High Court are as follows : The assessee is the karta of his joint family.
The assessment year with which we are concerned in this case is 1959 60, for which the "previous year" is the year commencing on 23 10 1957 and ,ending on 10 11 1958.
The assessee owned movable and immovable properties which were his self acquisitions.
By a deed dated December 9, 1957, he threw into the common stock his houses bearing Nos.
6658 5 9 and 2731 situate at Imamba vidi, Secunderabad and a cash deposit of Rs. 1,50,000 in the firm of M/s. Goli Eswariah, Paper Merchants, Secunderabad.
In the books of account of the firm, necessary entries were made transferring the amount to the account a the family.
The Gift tax Officer treated that portion of the value of the properties so blended in which the assessee ceased to have a right on partition of the family as having been gifted by him to the family.
He rejected the contention of the assessee that his act of throwing his self acquired properties into the common stock did not amount to a gift under the Act.
In appeal, the Appellate Assistant Commissioner took the view that since the deed in question was not registered, there was no transfer of the immovable properties to the family and as such there was no gift of the two houses mentioned earlier but with regard to the sum of Rs. 1,50,000, he considered it as a gift and accordingly held that 3/4th of it was liable to be taxed under (1) 525 the provisions of the Act.
Thereafter the matter was taken up in appeal to the tribunal.
The tribunal by its order dated November 17, 1961 held that the act by which the assessee threw his self acquired properties to the family hotchpot did not amount to a transfer and hence it need not have been effected by a registered document.
It further held that where the copartner threw himself acquired properties into the hotchpot of the joint family, there was no element of transfer within the meaning of section 2, cl.
(xxiv) sub cl.
(d) of the Act.
At the instance of the Commissioner,Gift tax, Andhra Pradesh, the tribunal stated a case for the opinion.
of the High Court and submitted the aforementioned question for its opinion.
The High Court did not examine the question of law arising for decision afresh as it was bound by the earlier decision of that High Court in Commissioner of Income tax, Hyderabadv.
C. Satyanarayanamurthy(1) wherein that court had held that where a Hindu by a declaration has impressed on his self acquired property the character of joint family property, the same would .
amount to a transfer of property within the terms of section 2 (xxiv) (d) and as such is a gift as envisaged in section 2(xii) and section 4(a) of the.
The view taken in that case was that an act similar to the one we are called upon to consider in this case would amount to, a " 'transaction ' entered into by any person with intent thereby to diminish directly or indirectly the value 'of his own property and to increase the value of the property of any other person.
" On the question of law that we are required to, decide in this case, there is a sharp cleavage of judicial opinion.
The Andhra, Pradesh High Court in the case referred to earlier as well as in G. V. Krishna Rao and Ors.
vs First Additional Gift tax officer, Guntur(1) and the Allahabad High Court in Commissioner of Gift tax vs Jagdish Saran ( 3 ) have taken the view that when a coparcener in a Hindu Undivided Family governed by Mitakshara School throws his self acquired properties into common stock.
same amounts to a 'gift ' under the Act.
On the other hands a full bench of the Madras High Court in Commissioner of Gift tax, Madras vs P. Rangasami Naidu(4) and VR.
section RM.
Ramaswami Chettiar vs The Commissioner of Gift tax, Madras(,), a full bench of the Gujarat High Court in Dr. A. R. Shukla vs Comnzissioner of Gift tax, Gujarat("); a division bench of the Kerala High Court in P. K. Subramania lyer vs Commissioner of Gift tax, Kerala(1) and a division bench of the Mysore High Court in Smt.
Laxmibai Narayana Rao Nerlekar vs Commissioner of Gift tax(8) havetaken a contrary view.
(1) (2) 70 I.T.R. 812.
(3) Case 272 of 1964 '. (5) Tax Case No. 10 of 1966.(6)74 I.T.R. 167.
(7) I.T.R. 19.
526 To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the 'common stock ' or 'common hotchpot.
It must be remembered that a Hindu family is not a creature of a contract.
As observed by this Court in Mallesappa Bandeppa Desai and Ors.
vs Desai Mallappa and Ors.(1) that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener, who has an interest in the coparcenary property and desires to blend hi , separate property with the coparcenary property.
The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock 'his self acquired properties The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention ' of abandoning his separate claim therein.
The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or 'his ancestral property but by his, own volition and intention by his waiving and surrendering his separate rights in it as separate property.
The act by which the coparcener throws his separate property to the common stock 'is a unilateral act.
There is no question of either the family rejecting or accepting it.
By his individual volition he renounces his individual right in that property and treats it as a property of the family.
As soon as he declares 'his intention to treat his self acquired property as that of the joint family, the property assumes the character of joint family property.
The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu law.
When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act.
In such a case there is no donor or donee.
Further no question of acceptance of the property thrown into the common stock arises.
Bearing in mind the true nature of the doctrine of throwing into the common hotchpot, we shall now proceed to examine the relevant provisions of the, Act to ascertain whether the act of the assessee can be considered as a gift under the Act.
Section 3 is the charging section.
It provides that subject to the other provisions contained in the Act, there shall be charged for every assessment year commencing on and from the 1 St day of April, 1958, a tax known as gift tax in respect of the gifts, if any, made by a person during the previous year (other than gifts made (1) [1961] 3 S.C.R.770.
5 2 7 before the 1st day of April 1957) at the rate or rates specified in the Schedule.
Gift is defined in section 2(xii) as follows : " "gift" means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money 's worth, and includes the transfer of any property deemed to 'be a gift under section 4".
In this case we are not dealing with a deemed gift.
Therefore we need not consider the scope of section 4.
Before an act can be considered as a gift as defined, there must be a transfer of property by one person to another. 'Person ' is defined as including a Hindu Undivided Family in section 2(xviii).
Section 2(xxiii) says that 'property ' includes any interest in property, movable and immovable.
Section 22(xxiv) defines "transfer of property" thus : "Transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the.
generality of the foregoing includes. (a) the creation of a trust in property; (b) the grant or creation of Any lease, mortgage, charge, easement, licence, power, partners hip or interest in property; (c) the exercise of a power of appointment of property. vested in any person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power , and (d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person.
" The High Court relied on section 2 (xxiv) (d) in answering the question referred to it in favour of the Revenue.
It came to the conclusion that the act of the, assessee in throwing his self acquired properties into the common stock amounted to "a transaction entered into by him with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person".
It is true that the assessee 'by throwing his self acquired property into the common stock gave up his exclusive right in that property and in its place he was content to own that property jointly with the other members of his family.
We do not think that it is necessary in this case to consider whether the act of the assessee can be said to have "diminished 5 28 directly or indirectly the value of his own property and increased the value of the property" of his joint family because in our opinion that act cannot be considered as a "transaction entered into".
Clause (d) of section 2(xxiv) contemplates a "transaction entered into" by one person with another.
It cannot apply to a unilateral act.
It must be an act to which two or more persons are parties.
It is true that for the purpose of the Act, a Hindu Undivided Family can be considered as a "person".
But the assessee did not enter into any transaction with his family.
Therefore we are unable to agree with the High Court that the act of the assessee fell within the scope of section 2 (xxiv) (d) of the Act.
Section 2(xxiv(d) is similar to Paragraph (f) of section 4 of the Australian Gift Duty Assessment Act, 1941 42.
Interpreting that section in Grimwade and Ors.
vs Federal Commissioner of Taxation(1), the High Court of Australia observed that the transaction by a person referred to therein must be a transaction with some other person and that it cannot be a unilateral act.
Mr. B. Son, learned Counsel for the department contended that the said act should be considered as a 'disposition ' under the main part of section 2 (xxiv).
The word 'disposition ' is not a term of law.
Further it has no precise meaning.
Its meaning has to be gathered from the context in which it is used.
In the context in which that term is used in section 2(xxiv), it cannot mean to 'dispose of '.
Otherwise even if a man abandons or destroys his property, it would become a 'gift ' under the Act.
That could not have been the intention of the legislature.
In section 2(xxiv), the word 'disposition ' is used along with words "conveyance, assignment, settlement, delivery, payment or other alienation of property.
" Hence it is clear from the context that the word 'disposition ' therein refers to a bilateral or a multi lateral act.
It does not refer to a unilateral act.
In this connection reference may be usefully made to the decision of this Court in Commissioner of Income tax, Madras vs M. K. Stremann(2).
Therein the assessee first threw his private properties into the common stock and afterwards there was a partition amongst the members of the family which included his two minor sons and a minor daughter, represented by their mother.
The question arose whether the partition in question amounted to a transfer of assets by the assessee to the three minor children so as ' to attract the provisions of section 16(3) (a) (iv) of the Indian Income tax Act, 1922.
In that case, the Revenue did not contend in this Court that the act of the assessee throwing into common stock his self acquired properties amounted to transfer of assets by the assessee to his three minor children.
On the other hand, ,it contended that the partition that took place subsequently amounted to a transfer of assets of the assessee to his minor child (1) ; (2) 5 2 9 ren.
This Court overruled that contention.
Therein the contention of the Revenue appeared to have proceeded on the basis that the antecedent act of the assessee viz. throwing his self acquired properties to the common stock may not amount to a transfer of his assets to his minor children but the partition that followed amounted to such a transfer.
In that very case the Revenue appears to have contended before the High Court that the act of the assessee in throwing his self acquired properties into common stock amounted to a transfer of his assets to his minor children.
The High Court observed that when the separate property of a copar cener ceases to be his separate and becomes impressed with the character of coparcenary property, there is no transfer of that property from the coparcener to the coparcenary; it becomes joint family property because the coparcener who owned it until then as his separate property, has by the exercise of his volition, impressed it with the character of joint family or coparcenary property, to be held by him thereafter alongwith other members of the joint family; it is by his unilateral action that the property became joint family property; the transaction by which a property ceased to be the property of a coparcener and became impressed with the character of copes property, does not itself amount to a transfer; no transfer need precede the change and no transfer ensues either see M. K. Stremann vs Commissioner of Income tax, Madras(1).
We are in agreement with those findings.
For the reasons mentioned above, we allow this appeal, set aside the judgment of the High Court and answer the question referred to the High Court thus : The declaration by which the assessee has impressed the cha racter of joint Hindu family property on the self acquired properties owned by him did not amount to a transfer so as to attract the provisions of the Act.
The Revenue shall pay the costs of the appellant in this appeal.
G.C. Appeal allowed.

summary:
The appellant owned certain self acquired properties which by a deed dated December 9, 1957 he threw into the common stock of his Hindu Joint Family.
The Gift Tax Officer held that he had thereby made it gift taxable under the Gift Tax Act, 1958.
After proceedings before the authorities under the Act the question whether the appellant had made 'transfer ' of the property so as to attract the provisions of the Act was referred to the High Court of Andhra Pradesh.
Following its earlier decision in Satyanarayanamurthy 's case the High Court held that the act of ' the appellant amounted to a 'transfer ' within the terms of section 2(xxiv)(d) of the Act and therefore was a gift such as envisaged in section 2(xii) and section 4(a) of the Act.
In Satyanarayanamurthy 's case aforesaid, it had been held that an act similar to that of the appellant would amount to "a 'transaction ' entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person".
With certificate appeal against the judgment of the High Court was filed in this Court.
HELD:The appeal must be allowed since the declaration by which the assessee had impressed the character of joint Hindu family property on the self acquired properties owned by him did not amount to a transfer ' so as to attract provisions of the Act, [529 F] A Hindu Joint Family is not a creature of contract.
The doctrine of throwing into common stock inevitably postulates that the owner of the separate property is a copartner who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property.
The separate property of a member of a joint Hindu Family may be impressed with the character of Joint Family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein.
The act by which the coparcener throws his separate property to the common stock is a unilateral act.
By his individual volition he renounces his individual right in that property and treats it as a property of the family.
As soon as he declares his intention to treat his self acquired property as that of the Joint Family, the property assumes the character of Joint Family Property.
The doctrine of throwing into common stock is a doctrine peculiar to the Mitakshara School of Hindu Law.
When a coparcener throws his separate property into common stock he makes no gift under Ch.
VII of the Transfer of Property Act.
In such a case there is no donor or done.
Further no question of acceptance of the property thrown into the common stock arises.
[526 A F] 523 It was not necessary in the present case to consider whether the act of the assessee could be said to have "diminished directly or indirectly the ' value of his own property and increased the value of the property" of his joint family, because his act could not he considered as a "transaction entered into".
Clause (d) of section 2(xxiv) contemplates a "transaction entered into" by one person with another.
It cannot apply to a unilateral act.
it must be an act to which two or more persons are parties.
Even though under the Act the undivided 'family is a 'person ' the assessee did not enter into any transaction with his family.
Therefore, it was not possible to agree with the High Court that the act of the assessee fell within the scope of section 2(xxiv) (d) of the Act.
[528 A B] The assessee 's act could also not be considered as a 'disposition ' under the main part of section 2(xxiv).
The word 'disposition ' is not a term of law.
Further it has no precise meaning.
Its meaning has to be gathered from the context in which it is used.
In the context in which the term is used in section 2(xxiv), it cannot mean to "dispose of.
Otherwise, even if a man abandons or destroys his property it would become a "gift" under the Act.
That could not have been the intention of the Legislature.
In section 2(xxiv) the word 'disposition ' is used along with words "conveyance, assignment, settlement, delivery, payment or other alienation of property".
It is clear ' from the context that the word 'disposition ' therein refers to a bilateral or multilateral act.
It does not refer to a unilateral act.
[528 D F] Mallesappa Bandeppa Desai & Ors.
v, Desai Mallappa & Ors.
; , Grimwade & Ors.
vs Federal Commissioner of Taxation, ; , Commissioner of Income tax, Madras vs M. K. Stremann, and M. K. Stremann vs Commissioner of Income tax, , applied.
Commissioner of Gift Tax, Madras vs P. Rangaswami Naidu T.C. 272 of 1964 : R. section R. M. Ramaswami Chettiar vs The Commissioner of Gift Tax, Madras.
Tax Case No.10 of 1966, Dr. A. R. Shukla vs Commissioner of Gift Tax, Gujarati, and Smt.
Laxmibai Narayana Rao Nerlekar vs Commissioner of Gift tax, , approved.
Commissioner of income tax, Hyderabad vs C. Satyanarayanamurthy, , G. V. Krishna Rao, & Ors.
vs First Addl.
Gift Tax Officer, Guntur, and Commissioner of Gift Tax vs Jagdish Saran, 75 I.T.R. 529, disapproved.


judgement:
No. 300 of 1969.
M. C. Chagla, N. A. Palkhivala, B. Datta, J. B. Dadachanji 0.
C. Mathur and Ravinder Narain, for the applicants.
H. R. Gokhale and section B. Wad, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This petition is an off shoot of the decision of this Court on the constitutional validity of the Banking Companies (Acquisition of Transfer of Undertakings) Act, being Act 22 of 1969.
By a majority of ten Judges against one, 'this 513 Court declared the Act to be unconstitutional.
The decision of the Court was given on February 10, 1970.
On February 13, 1970 a meeting was organised by the Blitz National Forum at Vithalbhai Patel House at Delhi.
it was presided over by Mr. Mohan Kumarmanglam, an advocate of this Court.
According to the news items published the next day in the Hindustan Times, the Times of India and the Patriot, a number of persons spoke about the Act and the decision of this Court upon it.
Among the speakers were Mr. R. K. Khadilkar, Minister in the Ministry of Finance, Mr. A. section R. Shari, Mr. Kumarman glam, Mr. Prabhatkar, Mr. section M. Joshi, M.P., Mr. Bhupesh Gupta M.P. and Mr. V. K. Krishna Menon M.P.
These speakers criticised the decision. 'Mr. R. K. Khadilkar, the Hindustan Times, reported, said that such decisions 'do not enhance the prestige of the Judiciary ', that such acts on the part of the highest Court 'will only encourage Naxalites who have rejected constitutional means to bring about socialism ' and that the judgment would be treated with 'more and more contempt by ordinary people '.
He observed that the situation would be rectified by Parliament because ten Judges 'sitting in an ivory tower ' could not sit over the verdict of Parliament which represented the people.
The Times of India report said that Mr. Khadilkar said that 'Government would soon bring forward an amending measure to offset the dangerous implications for social progress of the community of the Supreme Court judgment in the Bank Nationalization case, that if necessary the issue whether Parliament or the Supreme Court was the final arbiter of the 'people 's will should be referred to the people and a mandate taken from them, and quoted Pandit Nehru that it was never the intention of the Constitution to make the Supreme Court 'the third house of correction '.
The Patriot reported that 'attempts to utilize community savings lying in banks for the welfare of the common man have been blocked by the judiciary ', that 'the Supreme Court could not be accepted as the third chamber of legislature ', that he did not "want to threaten the judiciary ' but Parliament would have 'to take steps to respect the feelings of the people for stabilizing democracy '.
Mr. Khadilkar also wished that the judiciary would take note 'of the changing situation and helped to transform the society for the benefit of the common man. ' The three reports also described what the other speakers had said at the meeting.
On February 26, 1970, two petitioners (Mr. Krishna Rao Kaushik M.P. and Lt. Col. H. R. Pasricha) swore an information based on the newspaper reports (with copies annexed) that a serious contempt of this Court was committed by Mr. R. K. Khadilkar inasmuch as his speech had a clear tendency to affect the dignity and prestige of this Court and there was danger of grave Sup.
Cl/70 4 514 mischief in the administration of justice and the confidence of the whole community in the administration of justice was bound to be undermined.
Two affidavits sworn in support were based on the newspaper, reports.
As some of the alleged observations, particularly those reported in the Hindustan Times, prima facie exceeded the bounds of legitimate criticism, a notice was issued to Mr. Khadilkar to show cause why action should not be taken against him.
In reply Mr. Khadilkar filed an affidavit denying the main allegations.
He stated in his affidavit as follows "I am a firm believer in the independence of judiciary as an integral part of our democratic polity.
I am in entire agreement with the sentiment expressed in para 1 of the petition, viz. that the., dignity of the Hon 'ble Supreme Court must be maintained and the administration of justice should not be allowed to be undermined in this country.
I have a deep faith in the social and economic objectives of our Constitution as enshrined in the Directive Principles of the Constitution and the democratic and constitutional methods of achieving them.
Indeed, by oath of office, I am duty bound to uphold these objectives of our Constitution.
" In reply to the specific charge of making statements tending to vilify the Judges and to bring the ' administration of justice into hatred and contempt, Mr. Khadilkar denied having made the statement attributed to him by the Patriot 'that attempts to utilize community savings in the banks for the welfare of the common man had been blocked by the judiciary ' and the statements attributed to him by the Hindustan Times to the effect that "(a) The majority decision in the Bank case "did not enhance the prestige of the Judiciary".
(b)Supreme Court judgment would be treated with "more and more contempt by ordinary people".
(c)The judiciary had persistently failed to interpret the Constitution and remained static.
(d)Ten Judges sitting in ivory tower could not sit in judgment over verdict of Parliament which represented the people.
" He asserted that he had said ". no aspersions should be cast on the judiciary and event bough the decision had far reaching consequences.
pointed out, that the judgment was cautiously worded and the learned Judges had not challenged 515 the authority of Parliament to bring forward a measure of nationalisation".
He claimed to have added: "No desire to cast aspersions on the judiciary and would very much like to see its prestige remained high and its image untarnished.
We cannot, however, avoid pointing out wherein according to us the decision is erroneous primarily by reason of its consequences for 'attempts at social reform.
" He explained what he had said by recalling his speech.
It is not necessary to quote his version.
He complained that the newspapers had picked out ideas but put them in their own words and that it was not always possible to contradict the newspapers.
He expressed his views on the institution of property as a fundamental right to which it is not necessary to refer here.
He concluded by saying "I may also state that in my comments on the Bank Judgment, no improper motives were attached to the Hon 'ble Judges.
There was no malice either against the Hon 'ble Judges or the institution of Supreme Court, the independence of which I honestly cherish.
" In support of his own affidavit, Mr. Khadilkar exhibited affidavits from Messrs. Mohan Kumarmangalam, A. section R. Chari and section M. Joshi.
In these affidavits (which are insissima verba) support was given to the denials of Mr. Khadilkar.
At an earlier hearing, the petitioners promised to file affidavits of reporters etc.
present at the meeting.
At the resumed hearing no affidavits were filed on the ground that the journalists following their code of conduct did nit wish to file any ' material unasked and request was, therefore, made to summon them in the interest of justice.
We did not think it necessary to prolong the hearing of the case as on the material before us there was nothing to contradict the affidavits which deny the accuracy of the newspaper reports.
We accordingly.
closed the case for orders.
There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism.
This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges.
They do not think themselves in possession of all truth or hold that wherever others differ from then, it is so far error.
No one is more conscious of his limitations and fallibility than a Judge but because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others.
5 1 6 Further the supremacy of a legislature under a written Constitution is only within what is in its power but what is within its power and what is not, when any specific act is challenged, it is for the courts to say.
If that were realised much of the misunderstanding would be avoided and the organs of Government would function truly in their own spheres .
We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may be actionable attributing improper motives, or tending to bring Judges or courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken.
Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant.
Those who err in their criticism by.
indulging in vilification of the institution of Courts, administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril.
We think this will be enough caution to persons embarking on the path of criticism.
With these words we order the papers to be filed.

dataset_name: IN-Abs

summary:
At a public meeting held a few days after the decision of this Court on the constitutional validity of the Banking Companies (Acquisition of Transfer of Undertakings) Act 22 of 1969, K, a Minister in the Central Government, was reported by newspaper$ to have made certain critical remarks which, two petitioners before the Court contended constituted a serious contempt of this Court.
The petitioners swore an affidavit in support of their petition based on the newspapers reports.
As the Court considered that some of the alleged observations, prima facie, exceeded the bounds of legitimate criticism, a notice to show cause was issued to K.
In reply K filed an affidavit denying the main 'allegations and contending that he has been misreported.
In support of his own affidavit, three other affidavits were filed by persons present at the public meeting.
Although an application was made for summoning the reporters present at the public meeting, the Court did not consider it necessary to prolong the hearing of the case as on the material before the Court there was nothing to contradict the affidavits which denied the accuracy of the newspaper reports.
However, while closing the case, the Court observed : While fair and temperate criticism of this Court or any other court even if strong, may not be actionable, attributing improper motives, or tending to bring judges or courts into hatred and contempt or obstructing directly or indirectly the functioning of Courts is serious contempt of which notice must and will be taken.
Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant.
Those who err in their criticism by indulging in vilification of the institution of Courts administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril.
[516 B]


judgement:
Appeal No. 376 of 1967.
Appeal from the judgment and decree dated December 8, 1965 of the Patna High Court in Misc.
Judicial Case No. 38 of 1962.
M. C. Chagla and R. C. Prasad, for the appellant.
Jagadish Swarup, Solicitor General, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Shah, J.
This appeal is filed with certificate granted by the High Court of Patna under section 66A(2) of the Indian Income tax Act, 1922.
The India Machinery Stores (P) Ltd. is a private company incorporated with the object of taking over the business carried on by the India Machinery and Mills Stores hereinafter called 'the vendors '.
By an agreement dated August 2, 1956, the Company agreed to purchase all the assets of the vendors, goodwill and the "book debts and other liabilities and claims against the Company" as on the date of transfer in consideration of allotment of 260 fully paid up shares of the Company of the nominal value of Rs. 2,60,000/ .
It was provided by cl. 4 of the agreement "That all assets of the vendors in respect of all its business shall be taken over at the book value standing in the books of accounts of the vendors as on the 1st August One Thousand Nine Hundred Fifty six.
" 541 In a proceeding for assessment to tax for 1958 59, the Income tax Officer found that in the books of the vendors the "value of stock" as on August 1, 1956 was Rs 1,77,285 while in the books of the Company the opening stock taken over by the Company was valued on the same day at Rs. 2,10,285.
The Income tax Officer held that the valuation by the Company, of the opening stock was in "clear violation of the terms of agreement between the vendors and the Company" and added a sum of Rs. 33,000 representing the difference between the value of the closing stock in the books of account of the vendors and the opening stock in the books of account of the Company.
The order was confirmed in appeal by the Appellate Assistant Commissioner and by the Income tax Appellate Tribunal.
The High Court of Patna recorded their answer in the affirmative on the following question referred by the Tribunal "Whether on the facts and circumstances of the case and upon a construction of the agreement of 2nd August, 1956, the Tribunal was justified in holding that the sum of Rs. 33,000 forms part of the assessable profits of the assessee Company ?" A Division Bench of the High Court certified the case under section 66A(2) of the Act as fit for appeal to this Court, observing "That the case fulfils all the requirements of section 66A(2) of the Indian Income tax Act, 1922, and, is a fit case for appeal to the Supreme Court.
" At the hearing of the appeal on behalf of the Commissioner of Income tax, it is contended that the appeal is incompetent, since the High Court in certifying the case as fit for appeal to this Court did not set out the question of law which this Court has to decide.
It was urged that the certificate or the order certifying the case must disclose that some substantial question of public or private importance arises in the case, and on that account the case is certified to be fit for appeal.
In our judgment, the contention must be accepted.
Section 66A of the Indian Income tax, Act, 1922, which was added by the Indian Income tax (Amendment) Act 24 of 1926 by sub section
(2) provides "An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on a reference made under section 66 in any case which the High Court certifies to be a fit one for appeal to the Supreme Court.
,, 542 The phraseology of sub section
(2) of section 66A of the Income tax Act is substantially the same as used in section 109 (c) of the Code of Civil Procedure, 1908, article 133 (1) (c) and article 134(1) (c) of the Constitution.
The Judicial Committee in Delhi Cloth and General Mills Company Ltd. vs Income tax Commissioner, Delhi(1), observed ". it will be noticed that the appeal thereby given is by sub section
2 confined to a case which the High Court certifies "to be a fit one for appeal to His Majesty in Council".
These words are textually the same as the concluding words of section 109(c), of the Code of Civil Procedure, and coupled with the carefully limited referential words to the Code of Civil Procedure in sub section 3, suffice, in their Lordships ' judgment, to exclude from any right of appeal cases which fall within the requirements of section 1 1 0 of the Code, and are operative to confine that right to cases which are certified to be otherwise fit for appeal to His Majesty in Council." In Banarsi Parshad vs Kashi Krishna Narain & Ant .
(2) the Judicial Committee explained that the expression "certifies to be a fit one for appeal" in the Code of Civil Procedure is clearly intended to meet special cases such, for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance.
To certify that a case is of that kind, though it is left entirely in the discretion of the Court, is a judicial process which could not be performed without special exercise of that discretion, evinced by a fitting certificate.
In Radha Krishn Das vs Rai Krishn, Chand(3) a Division Bench of the Allahabad High Court had issued a certificate stating that "though the valuation of the case was below Rs. 10,000 yet as regards the value and nature of the case it fulfilled the requirements of section 596 of Act No. XIV of 18 82 (Code of Civil Procedure)".
In that case the value of the subject matter was less than Rs. 10,000 and the Judicial Committee observed that even though section 596 was referred to there was nothing to show that the Judges who had issued the certificate "had exercised their judicial discretion upon the matter in deciding whether, in order to comply with section 595 (c) and section 600 the case was a fit one for appeal to Her Majesty in Council.
" On that ground the appeal was dismissed as incompetent.
(1) L.R. 54 1.
A. 421.
(2) L.R.28 I.A.11.
(3) I. R. 28 1.
A. 1821.
543; In Radhakrishna Ayyar vs Swaminatha Ayyar(1) the High, Court granted 'a certificate in a case in which the claim was, Rs. 4,560 due as rent.
The certificate recited : "It is hereby certified that, as regards the value of the subject matter and the nature of the question involved, the case fulfils the requirements of sections 109 and 1 1 0 of the Code of Civil Procedure, and: that the case is a fit one for appeal to His Majesty in Council." The Judicial Committee observed that where any certificate is ' granted certifying a case, it is of the utmost importance that the certificate should show clearly upon which ground it is granted.
Indealing with the argument that the case was covered by section 109 (c) of the Code of Civil Procedure, 1908, their Lordships observed "There is no indication in the certificate of what the nature of the question is that it is thought was involved in the hearing of this appeal, nor is there anything to show that the discretion conferred by section 109(c) was invoked or was exercised.
Their Lordships think. that these certificates are of great consequences, that they seriously affect the rights of litigant parties, and that they ought to be given in such a form that it is impossible to mistake their meaning upon their face." Again, the Judicial Committee observed in Commissioner of Income tax, Central Provinces & Berar vs Sir section M. Chitnavis(2) that when a certificate is granted under section 66A of the Income tax Act it must be on a question affecting not only a particular assessee ,and depending upon the state of the evidence in a particular case,, but a question of great public importance affecting assessees generally and depending upon general principles.
In granting the certificate the High Court merely observed that it was "a fit case for appeal to the Supreme Court" : they did not indicate the grounds which persuaded them to hold that it was a. fit case for appeal to this Court.
It would be conducive to better administration of justice if in certifying a case under section 66A(2) of the Indian Income tax Act as a fit case; for appeal, the High Court sets out the question of law which they regard as of great public or private importance which falls to be decided by this Court.
Mr. Chagla contended that the rules laid down by the Judicial Committee applicable to a certificate issued under section 109(c) of the Code of Civil Procedure, 1908, and under section 596 of the Code of 1882, in regard to appeals in civil matters have no bearing in determining the meaning of section 66A(2), for the High Court (1) L. R. 48 1.
A. 31.
(2) L. R. 59 I. A. 290.
544 exercises advisory jurisdiction on a reference on questions of law and on that account even if the question of law which in the view of the High Court arises is not stated in the certificate, it may be presumed when the High Court has certified a case to be fit for appeal, that a substantial question of law is involved, and the technical defect in the certificate may be.
ignored.
We are unable to accept that argument.
It is true that under section 66(1) & (2) of the Indian Income tax Act, 1922, only a question of law may be referred to the High Court for opinion, but the right to obtain a certificate under section 66A(2) arises only when in the proposed appeal a question of great public or private importance arises.
It cannot be held that because a question of law alone may be referred ,to the High Court under section 66 of the Indian Income tax Act, in the proposed appeal a question of law of great public or private importance necessarily arises.
Any other view, would make every ,opinion of the High Court in a reference under section 66 appealable to this Court.
In our view, the certificate granted by the High Court was defective.
It was also urged that a practice is fairly common in some of the High Courts to certify a case under section 66A(2) without recording any reasons or the grounds for certifying the case, and we may not penalize the Company when we are enunciating the true rule for the first time.
But the practice, in our judgment, was laid down many years ago by the decisions of the Judicial Committee that a ,certificate under section 66A(2) which does not set out precisely the grounds or raise a question of great public or private importance does not comply with the requirements of the Act.
The jurisdiction of this Court to entertain an appeal from the opinion recorded under the Indian Income tax Act arises only when a certificate is properly issued by the High Court or when this Court grants special leave under article 136 of the Constitution.
In our judgment, there is again no merit in the appeal.
By cl. 4 of the agreement dated August 2, 1956, it was expressly provided "That all assets of the vendors in respect of all its business shall be taken over at the book value standing in the books of accounts of the vendors as on the 1st August One Thousand Nine Hundred Fifty six.
" It is undisputed that the stock in trade was entered in the books of account of the vendors on the date of transfer of the undertaking at Rs. 1,77,285 and the Company valued the stock in trade at Rs. 2,10,285.
It is true that to the deed of transfer is annexed a Schedule of the assets and liabilities taken over by the Company and in the Schedule the value of stocks at Patna, Muzaffarpur and 545 Purnea is shown at Rs. 2,10,285.87.
No attempt was made to explain the discrepancy between the operative part of the agreement and the valuation shown in the Schedule.
The Income tax Officer was of the view that the Company had inflated the opening stock so as to reduce the ultimate profits.
That view was confirmed by the Appellate Assistant Commissioner and by the Tribunal.
No question of law arose out of the order of the Tribunal.
The reference itself was incompetent.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

summary:
The appellant was a private limited company incorporated with the object of taking over the business carried on by another company.
By an agreement dated August 2, 1956, the appellant company agreed to purchase all the assets goodwill etc.
of the vendors.
By cl. 4 of the agreement it was provided that all assets of the vendors in respect of their business "shall be taken over at the book value standing in the books of accounts of the vendors" as on August 1, 1956.
The Income tax Officer in proceedings for the assessment year 1958 59 found that in the books of the vendors the 'value of stock ' as on August 1, 1956 was Rs. 1,77,285 but in the books of the appellant company the opening stock taken one was valued on the same day at Rs. 2,10,225.
The latter valuation also appeared in the Schedule annexed to the deed of transfer.
The Income tax Officer observed that the valuation by the appellant company of the opening stock was in "clear violation of the agreement between the vendors and the Company".
He accordingly added a sum of Rs. 33,000/ representing the difference between the value of the closing stock in the books of account of the vendors and the opening stock in the books of account of the Company.
The order was confirmed in appeal by the Appellate Assistant Commissioner and by the Income tax Appellate Tribunal.
In reference the High Court of Patna upheld the view taken by these authorities.
A Division Bench of the High Court certified the case under section 66A(2) of the Indian Income tax Act, 1922, observing that the case fulfilled all the requirements of the said section and was a fit case for appeal to the Supreme Court.
The Revenue contended in this Court that the certificate was incompetent as the question of law which had to be decided was not set out and no question of public or private importance had been disclosed.
HELD : (i) In granting the certificate the High Court merely observed that is was 'a fit case for appeal to the Supreme Court ' : they did not indicate the grounds which persuaded them to hold that it was a fit case for appeal to this Court.
It would be conducive to better administration of justice if in certifying a case under section 66A(2) of the Indian Income tax Act as a fit case for appeal, the High Court sets out the question of law which they regard as of public or private importance which falls to be decided by this Court.
[543 G] (ii) It is true that under section 66(1) and (2) of the Indian Income tax Act, 1922 only a question of law may be referred to the High Court for opinion, but the right to obtain a certificate under section 66A(2) arises only when in the proposed appeal a question of great public and private importance arises.
It cannot be held that because a question of law alone may be referred to the High Court under section 66 of the Indian Income tax Act.
in the proposed appeal a question of law of great public or private importance necessarily arises.
Any other view, would make every opinion of the High Court in a reference under section 66 appealable to this Court.
[544 B C] 540 The practice followed in some of the High court of issuing certificates under section 66A(2) without recording reasons or grounds for certifying the case would not justify a departure in the present case from the practice laid down, many years ago by decision of the Judicial Committee of the Privy Council according to which a certificate under section 66A(2) which does not set out precisely the grounds or raise a question of great public or private importance does not comply with the requirements of the Act.[544 E] Commissioner of Income tax, Central Provinces of Berar vs Sir section M. Chitnavis, L.R. 59 I.A. 290, followed.
Delhi Cloth and General Mills Company Ltd. vs Income tax Commissioner, Delhi, L.R. 54 I.A. 421, Banarsi Parshad vs Kashi Krishna Narain & Anr., L.R. 28 I.A. II, Radha Krishn Das vs Rai Krishn Chand, L.R. 48 I.A. 31 and Radhakrishna Ayyar vs Swaminatha Ayyar, L.R. 48 I.A. 31, applied.
(iii)The appellant made no attempt to explain the discrepancy in the valuation of the stock transferred.
The Income tax Officer was of the view that the company had inflated the opening stock so as to reduce the ultimate profits.
That view was confirmed by the Appellate Assistant Commissioner and by the Tribunal.
No question of law arose out of the order of the Tribunal.
The reference itself was incompetent.
[545 A B]


judgement:
l Appeal No. 16 of 1970.
Appeal by special leave from the judgment and order dated May 22, 1969 of the Allahabad High Court in Civil Misc.
Writ No. 588 of 1966.
582 Jagadish Swarup, Solicitor General, R. N. Sachthey, and B. D. Sharma, for the appellants.
G. C. Sharma and P. K. Mukherjee, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Jawahar Lal Rastogi hereinafter called 'the assessee is a Hindu Undivided Family which carries on the business of money lending at Lucknow and is also interested as a partner in different firms engaged in the business of manufacturing barbed wire, pharmaceuticals, etc.
On September 14, 1964, the Income tax Officer, Award, called upon the assesee to furnish within 10 days certain information with regard to its income and assets.
On September 17, 1964 the Income tax Officer submitted to the Commissioner of Income tax a report requesting that he be authorised to enter and search the premises of, the assessee.
The Commissioner by his order dated September 19, 1964, authorised entry and search after recording reasons for his belief that it was necessary to carry out the search.
On September 21 and 22, 1964, the premises of the assessee were searched and a large number of documents were seized and were taken away to the Income tax Officer.
The Income tax Officer also prepared inventories of the ornaments and other goods kept in the premises searched.
After the seizure of the books of account and other documents the case was fixed for hearing before the Income tax Officer on several occasions, but no substantial step was taken.
In May 1966 the assessee filed a writ petition in the High Court of Allahabad challenging the validity of the search made by the Department contending that it "was illegal and in excess of the power conferred by section 132 of the Income tax Act, 1961" and prayed that the documents seized may be ordered to be released.
The High Court of Allahabad considered the evidence appearing from the affidavits filed and observed that in the present case the assessee had established the following "points" : (1) The Income tax Officer was apparently interested in investigating transactions prior to 1953.
On September 14, 1964, the assessee was directed to furnish statements relating to four years ending on March 31, 1960, yet the Commissioner of Income tax issued letters of authorisation permitting Income tax Officer to seize documents relevant to nine assessment years; (2)The raid was ordered and organised before the expiry of the period of the notice; (3)More than 300 books and registers were seized during the raid and the Income tax.
Officers carried away thousands of promissory notes.
Some of the documents seized appear to be 583 irrelevant for assessment purposes and some of them were public documents.
(4)There is reason to believe that all or almost all the documents found on the premises were seized and carried away by the Income tax Officers; (5)Marks of identification were.
not placed on the documents inspite of the direction contained in the letters of authorisation; and (6)The documents seized during the raid were detained by the Income tax Officers for 19 months before, the petition was filed.
In the view of the High Court the circumstances of the case indicated that the Commissioner of Income tax and the Income tax Officers acted beyond "the legitimate scope of section 132 of the Act and there was force in the complaint of the assesse that the Allahabad High Court in Seth Brothers ' Case(1) was overtituted abuse of power conferred on Income tax authorities by section 132 of the Act".
In reaching its conclusion, the High .Court relied upon the judgment of the Allahabad High Court in Seth Brothers vs Commissioner of Income tax(1).
In this appeal filed by the Commissioner of Income tax with special leave, the Solicitor General contends that the decision of the Allahabad High Court in Seth Brothers ' Case(1) was overruled by this Court in Income tax Officer, Special Investigation Circle "B", Meerut vs Seth Brothers & Ors.(2) and on , that account the judgment under appeal is liable to be set aside.
In Seth Brothers ' case (2) this Court examined the scheme of section 132 in some detail and observed "The condition for entry into and making search of any building or place is the reason to believe that any books of account or other documents which will be useful for,.
or relevant to, any proceeding under the Act may be found.
If the Officer has reason to believe that any books of account or other documents would be useful for, or relevant to, any proceedings under.
the Act, he is authorised by law to seize those books of account or other documents, and to place marks of identification therein, to make extracts or.
copies, therefrom and also to make a note or an, inventory of any articles or other things found in the course of the search.
Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be (1) 584 exercised strictly in accordance with the law and only for the purposes for which the law authorises it to be exercised. . .
If the conditions for exercise of the power are not satisfied the proceeding liable to be quashed. . .
The Act and the.
Rules do not require that the warrant of authorisation should specify the particulars of documents and books of account : a general authonsation to search for and seize documents and books of account relevant to or useful for any proceeding complies with the requirement of the Act and the Rules.
It is for the officer making the search to exercise his judgment and seize or not to seize any documents or books of account.
The aggrieved party may undoubtedly move a competent court for an order releasing the documents seized.
In such a proceeding the Officer who has made the search will b e called upon to prove how the documents seized are likely to be 'useful for or relevant to a proceeding under the Act.
1 If he is unable to do so, the court may order that those document$ be released.
But the circumstance ;hat a large number of documents seized is not a ground for holding that all documents seized are irrelevant or the action of the officer is mala fide.
" It must, however, be stated that the findings that the action of the Commissioner of Income tax and the Income tax Officer amounted to "indiscriminate search" and was beyond the "legitimate scope of section 132" depends upon the evidence in each case and no general rule can be laid down in that behalf.
In the present case the High Court has noticed two important circumstances: (1) that where as the notice dated September 14, 1964, required the assessee to furnish statements rela ting to the four assessment years ending on March 31, 1960, the Commissioner of Income tax authorised search for a period ,of nine assessment years even before the period fixed by the notice had expired; and (2) that contrary to the plain terms ,of section 132(8) the Income tax Officer retained with him the books of account for a period exceeding 180 days.
Under section 132(2) as in force on the date on which the search and seizure took place stood as follows : "The books of account or other documents seized under sub section (1) shall not be retained by the Inspecting Assistant Commissioner or the Income tax 585 Officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained : Provided. . .
By the Finance Act of 1965, sub section
(2) was re eracted as sub s (8) with the modification that for the words "Inspecting Assistant Commissioner or the Income tax Officer" the words "authorised officer" be substituted.
In the present case the premises of the assessee were searched on September 21 and 22, 1964, and the documents were retained till May 1966, i.e. for a period, of 19 months.
Our attention has not been invited to any order of the authorities recording reasons for retaining the documents seized after the expiry of 180 days, nor is there any approval of the Commissioner for retaining such documents.
The retention of the documents without complying with the requirements of the statute after expiry of the period of 180 days would be plainly contrary to law.
The Solicitor General said that it *as not urged before the High Court that because the authorised officer did not record reasons and the Commissioner did not approve retention of the documents after 180 days, the revenue, authorities were bound to release the documents.
Counsel submitted that failure to produce evidence on a matter not put in issue may not be regarded as a ground in support of an order releasing documents.
But the High Court has found that the documents seized during the raid were detained by the authorised officer for 19 months before the application was filed.
If it was the case of the Department that retention of the documents after the expiry of 180 days was supported by good and adequate reasons recorded by the Income tax Officer and the.
approval of the Commissioner as required by the Act was obtained, such record of reasons and approval would have been tendered in evidence.
It cannot be said that the attention of the parties was not directed to the circumstance that the Income tax Officer had failed to comply with the requirements of the Act.
The order recorded by the High Court must be sustained on the ground that the documents taken possession of were re tained without authority of law for a period exceeding 180 days contrary to the terms of section 132(8) as amended by the Income tax (Amendment) Act, 1965.
The appeal therefore fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
On September 14, 1964 the Income tax Officer called upon the assessee to furnish within 10 days statements relating to four assessment years ending on March 31, 1960.
The assessee did not furnish the information by the 19th and on that date on the report of the Income tax Officer, the commissioner authorised the Income tax officer to search the premises of the.
On September 21st and 22nd the premises were searched and a large number of documents were seized and retained till May 1966, that is, for a period of 19 months.
In a writ petition field by the, assessee, the High Court, following its own.decision in Seth Bros. vs C.I.T., held that the search was 'indiscriminate and beyond the scope of section 132 of the Income tax Act.
In appeal to this Court, HELD : (i) The decision relied on by the High Court was overruled by,this Court in I.T.O. vs Seth Bros., 74 I.T.R. 836, but it was held that the power of search must be exercised strictly in accordance with the law and only for the purposes for which the law authorises it to be exer cised.
Whether the action of the Commissioner in a particular case amounted to indiscriminate search and beyond the scope of section 132 would depend on the evidence in the case [583 E; 584 E F] (2)In the present case, there was no order of the authorities recording reasons for retaining the documents seized beyond 180 days, nor was there any approval of the Commissioner for such retention.
Therefore the retention was contrary to the terms of section 132(8) of the Act as amended 'by the Income tax (Amendment) Act, 1965.
[585 C D] (3)Though failure to record reasons by the I.T.O. and want of approval by the Commissioner for retaining the documents beyond 180 days were not urged before the High Court as grounds for release of the documents, when it was found that the documents were retained for 19 months, the department should have tendered evidence of such record of reasons or approval by the Commissioner if it was the case of the department that the retention of the documents could be supported by such reasons or approval.
[585 E C]


judgement:
iminal Appeal No.225 of 1969.
Appeal by special leave from the judgment and order dated December 18, 1962 of the Bombay High Court in Criminal Appeal No. 1426 of 1968 and confirmation Case No. 21 of 1968.
Yogeshwar Prasad, for the appellant.
section B. Wad and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This appeal by special leave is against the judgment dated 18 December, 1968 of the High Court at Bombay dismissing the Appeal and confirming the conviction of Moti alias Narayan Sheshanna Yadav and Sheshanna Bhumanna Yadav accused No. 2 nd 3 respectively except that the conviction of accused No. 2 of the substantive offence of murder under section 302 was altered and accused No. 2 was convicted of an offence under section 302 read with section 120B as well as of offence under section 302 read with section 34 of the Indian Penal Code.
The High Court confirmed the sentence of death passed against accused No. 3 Sheshanna Bhumanna Yadav.
Accused No. 2 son of accused No. 3 was at the time of the judgment of High Court of 17 years of age.
The High Court reduced the punishment of accused No. 2 to rigorous imprisonment for life.
Accused No. 1 Hiralal was the domestic servant of Dr. Nanavati grandfather of the deceased Narendra.
Accused No. 2 is the son of accused No. 3.
Accused No. 1 Hiralal Jamnadas Joshi, accused No. 2 Moti alias Narayan Sheshanna Yadav and accused No. 3 Sheshanna Bhumanna Yadav were charged with having entered into crimi nal conspiracy with approver Dinkar Sakharam between 19 619 December, 1967 and 4 January, 1968 at Deolali Camp for the purpose of committing the murder of Narendrakumar and com mitted house breaking and thefts in the house of his grand father Dr. Nanavati and disposed of the property so 'Obtained and caused the evidence of murder to disappear with the intention of screening the offenders from lawful punishment and that these acts were done in pursuance of the said criminal conspiracy, an offence punishable under section 120B read with sections.
302, 454, 380, 414 and 201 of the Indian Penal Code.
Accused No. 1 to 3 were further charged with having committed the murder of Narendrakumar in complicity with ' approver Dinkar Sakharam and the said murder came to be committed in furtherance of common intention of all the accused an offence punishable under section 302 read with section 34 of the Indian Penal Code.
They were further charged under sections 201, 454,.380 and 411 of the Indian Penal Code.
Dr. Dalichand Nanavati the grand father of deceased Naren drakumar who met unnatural and unfortunate end at the hands of accused No. 2 and one Dinkar Sakharam, subsequently turned approver, resided at Deolali Camp at Dhondi Road in bungalow No. 17 for about 1 1 years.
He was a registered medical practitioner.
At the relevant time he was in pharmaceutical business for the manufacture of medicines.
The head office was at Bombay.
The branch was at Deolali.
The owner of bungalow No. 17 was Narsanna Bhumanna Yadav brother of accused No. 3.
Narsanna was a person of unsound mind and accused No. 3 was the holder of power of attorney.
Accused No. 3 resided at the rear portion of bungalow No. 17.
The, bungalow was agreed to be sold to Dr. Nanavati.
There were civil and criminal proceedings out of that transaction.
Bungalow No. 17 was eventually sold to a third party on 11 May, 1964.
In the sale deed it was said that possession of the portion in the occupation of Dr. Nanavati would be handed over to the vendee when the proceedings pending against Dr. Nanavati concluded.
Dr. Nanavati succeeded in those proceedings.
Therefore, possession could (not be given by the vendor to the vendee.
In the month of November, 1967 Dr. Nanavati 's wife left Deolali for Jodhpur.
Dr. Nanavati also left Deolali and went to his native place leaving his grandson Narendra, who was about 15 years of age in the care ' of his domestic servant accused No. 1.
The prosecution case was as follows.
Accused No. 3 thought that Dr. Nanavati 's departure from Deolali leaving his grandson Narendra at the bungalow in charge of the domestic servant was a good opportunity to commit theft of articles in the house of Dr. Nanavati and to murder his grandson Narendra 620 with a view to frightening Dr. Nanavati to vacate the bungalow Accused No. 3 called Dinkar on 19 December, 1967 and suggested to Dinkar that the latter should commit the murder of Narendra after 21 December, 1967 when Dr. Nanavati would .leave the bungalow and his grandson Narendra would be there with the domestic servant.
Accused No. 3 proposed a reward .to
Dinkar, namely,, a motor cycle and a further sum of Rs. 100 Accused No. 3 told Dinkar that the said accused had committed two murders prior to that date but nothing happened to him.
Dinkar at first expressed his inability to undertake the job.
Accused No. 3 then said that Dinkar should take accused No. 2 who was the son of accused No. 3 for the job.
Accused No. 2 and Dinkar started getting familiar and , 'friendly with Narendra.
They visited his house regularly.
They moved about with Narendra.
On 25 December, 1967 accused No. I the domestic servant of Dr. Nanavati left Deolali 'and went to Bombay.
Accused No. 2 and the approver Dinkar took Narendra out with the intention of murdering him but because of ,certain interruptions they could not muster courage to achieve that object.
On 27 December, 1967 accused No. 3 called Dinkar and told him and accused No. 2 that he was going to Nasik in connection with some court work and they should murder Narendra and that he would look to everything after his return from Nasik.
Nasik is about 5 or 7 miles from Deolali Accused No. 2 and Dinkar took Narendra to a lonely area beyond Barne 's High School on the pretext of collecting clothes from a washerman and went to the house of the latter and collected a couple of garments.
Thereafter they went to a grarden where they drank water and then went to a open field.
There they plucked fresh groundnuts and started eating them.
Accused 'No. 2 and Dinkar took Narendra to a jowar field.
Dinkar gave ,a blow with his hand on the neck of Narendra as a result of which Narendra fell down.
Accused No. 2 and Dinkar held Narendra tightly.
Dinkar set upon his abdomen and started ,choking his throat with both his hands and accused No. 2 gagged his mouth and nose.
Dinkar gave blows on Narendra 's abdomen.
After Narendra was choked for about 10115 minutes, be breathed his last.
Accused No. 2 then asked Dinkar to take out the key of the 'bungalow which he had seen Narendra putting in his pocket and Dinkar removed the key and gave it to accused No. 2.
Accused No. 2 scraped some earth and dug a small pit and placed Narendra in it, face downwards, and covered it with some loose earth.
Accused No. 2 and Dinkar then returned to the house of accused No. 3.
On being told that accused No. 2 and Dinkar had ac 621 complished the murder of Narendra accused No. 3 was happy and gave them Rs. 1 0 to celeberate the occasion by seeing a picture.
Accused No. 3 told accused No. 2 and Dinkar that the following day they must take out all the goods from the house of Dr. Nanavati and hand them over to him.
When Dinkar went to the house of accused No. 3 the following morning, Dinkar heard accused No. 2 and 3 saying that )Dr. Nanavati would not be able to live in that bungalow any ,longer.
Accused No. 2 and Dinkar then went to the bungalow of Dr. Nanavati and opened the lock with the key which had been removed from Narendra 's pocket.
Accused No. 2 and ' Dinkar locked the front door from outside and kept the back door ajar and removed a large number of articles which were in cupboards which they opened with the help of a bunch of keys which they found in the house.
Accused No. 2 and Dinkar again went to the bungalow of Dr. Nanavati on the subsequent day.
They removed two cycles and several other articles and.
handed them over to accused No. 3.
Accused No. 3 gave to the approver Dinkar a cycle and some of the property which had been recovered from the house of Dr. Nanavati.
Dr. Nanavati returned to Deolali along with his wife on 4 January, 1968.
They found the front door of the house locked.
They made enquiries.
Ultimately, they entered the house by breaking open the lock and found that Narendra was not in the house, that the whole house had been ransacked and the back door was ajar.
Dr. Nanavati reported the matter to the police.
Clue was furnished by a piece of cloth which had been stolen from the house of Dr. Nanavati.
That piece of cloth had been given by accused No. 3 to the approver Dinkar who gave it to a tailor named Thakur for stitching a pair of trousers for him.
Dr. Nanavati happened to go to the shop of Thakur and made enquiries about the piece of cloth which was found in the tailor 's shop.
Accused No. 2 and Dinkar took away the cloth from the tailor 's shop when they heard of the enquiries about the piece of cloth.
Dinkar gave some money to the tailor.
Dinkar and accused No. 2 raised some money by pledging a cycle which they had with them.
The police came to the tailor 's shop, made enquiries and ultimately accused No. 2 and Dinkar were arrested on 23 January, 1968.
Dinkar pointed out the place of the occurrence to the police on that day.
On 24 January, 1968 some human bones were found at that place.
On 25 January, 1968 accused No. 3 was arrested.
Dinkar and accused No. 2 made various statements and led the police to various places.
Several articles stolen from the house of Dr. Nanavati were recovered.
On 12 February, 1968 Dinkar made a full fledged detailed confession.
622 In the High Court three questions were canvassed.
First, whether there was corroboration in regard to the crime.
Secondly, whether there was corroboration in regard to accused No. 2 ,and 3 being guilty of the offence.
Thirdly, whether there was corroboration in regard to the approver 's story about the conspiracy and the common intention by way of a pre conceived plan to murder Narendra.
The High Court found that there was corroboration of the evidence which connected accused No. 2 3 not only with the offence of theft but also with murder.
The High Court also came to the conclusion that there was corroboration of the evidence of Dinkar in material particulars in regard to the connection of the accused with the crime and in regard to the conspiracy as well as the common intention.
The law with regard to appreciation of approver 's evidence is based on the effect of sections 133 and 114 illustration (b) .of the Evidence Act, namely, that an accomplice is competent 'to depose but as a rule of caution it will be unsafe to convict upon his testimony alone.
The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice.
The primary meaning of accomplice is any party to the crime charged and some one who aids and abets the commission of crime.
The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required.
Corroboration must connect or tend to connect the accused with the time.
When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated.
That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused.
If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused.
But if the skins were found in the accused 's house, this wouldcorroborate because it would tend to confirm the statement that the accused had some hand in the theft.
This Court stated the law of corroboration ofaccomplice evidence in several decisions.
One of the earlier decision is Sorwan Singh vs State of Punjab( ') and the recentdecision is Lachi Ram vs State of Punjab( ').
In Sarwan Singh 's case( ')this Court laid down that before the court would look into the (1) ; (2) ; 623 corroborative evidence it was necessary to find out whether the approver or accomplice was a reliable witness.
This Court in Lachi Ram 's case( ') said that the first test of reliability of approver and accomplice evidence was for the court to be satisfied that there was nothing inherently impossible in evidence.
After that conclusion is reached as to reliability corroboration is required.
The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material particulars to connect the accused with the crime.
In the present appeal, counsel on behalf of the appellant ;contended that there was no corroboration of the actual participation in the murder and secondly that accused No. 3 could be guilty of theft 'but not of murder.
The washerman said that Dinkar was his classmate and through Dinkar he came to know accused No. 2.
The washerman further said that he used to wash the clothes of accused No. 2 and on 27 December, 1967 Dinkar and accused No. 2 came to the washerman 's house to take out a few clothes which he had washed for them.
The washerman also said that Dinkar and accused No. 2 had with them a boy who was of fair skin and wore khaki shorts and a white shirt, Mohan Lal Boob, an agriculturist gave evidence that on 27 December, 1967 he was watering the crops.
Three persons turned up one of whom was accused No. 2 and the other was known to him by face and the third was a boy of 14 or 15 years of age, wearing khaki shorts and a shirt.
Mohan Lal Boob said that he saw all of them sitting down in the field, drank water and purchase radishes from a woman who was sitting nearby.
It may be difficult to find corroborative evidence of the actual killing.
Dinkar showed the place of occurrence.
Eventually, a few things were discovered there, namely, a shirt, a chain, a skull having the upper jaw with 13 teeth, a bone, bunch of hair.
These things were found on 28 January, 1968.
The shirt and the chain were identified by Dr. Nanavati and his wife to belong to Narendra.
A girl of 14 named Garadin Bride who was a classmate of Narendra said that Narendra wore a chain similar to the one that was shown.
The medical evidence was that the bones were those of a human being probably a male.
Beyond that the medical evidence does not assist the prosecution.
The ' High Court found that the death of Narendr 'a was not disputed because it was put to Dinkar in cross examination that it was Dinkar alone who killed Narendra.
Therefore, the medical evidence as to the skull and the bone is not of importance in view of the death of Narendra.
Dr. Nanavati en (1) ; 624 tered the house by breaking open the lock.
He found the back door left ajar.
The key which was produced by Dr. Nanavati was found to fit the lock though the lock could not be operated with the key in view of the fact that Dr. Nanavati had broken it open for gaining entry into the house.
There, is also evidence of Kisan Prasad that after Christmas day in 1967 he saw a dead body which had on it khaki shorts and white shirt.
If the murder of Narendra and the theft were not parts of the same transaction, Narendra would not have been taken out to the field to be murdered there to eliminate the possibility of detection.
The close proximity between murder and theft points to the inescapable conclusion that they formed part of the same transaction.
Narendra was seen alive by Kewal Ram, owner of the betel shop on 26th December, 1967.
Hira Lal, the domestic servant of Dr. Nanavati left Deolali on 25 December, 1967.
The theft could not have been committed before the murder because in that case there would be complaint by Narendra and the house in that case would also have been broken I open for committing the murder.
All these features prove that the murder and the theft formed the same transaction and were committed by the same persons.
Narendra was seen alive in the company of accused No. 2 and Dinkar.
That was the evidence of the washerman as also of the agriculturist Mohan Lal Boob.
These witnesses further identified the shorts and shirt of Narendra.
Accused No. 2 produced the piece of cloth which was iden tical with the cloth of the matteress cover produced by Dr. Nanavati.
Both the pieces of the cloth were of the identical design.
The pledging of the cycle by accused No. 2 is of significance.
The cycle was identified both by Dr. Nanavati and his wife.
The next piece of evidence is that accused No. 2 sold some utensils to Gadekar.
One of the utensils was found to have a name thereon scraped off.
There was also a piece of hand writing with the signature of accused No. 2 at the foot of it and that was the list of the articles sold to Gadekar.
There were some articles found from the tailor 's shop.
The evidence of the tailor was that that those articles were given by accused No. 2.
The discovery of the chain which Narendra wore was identified by Dr. Nanavati.
Accused No. 2 sold a cycle carrier to Rupvate on 16 January, 1968.
The sale of that article was discovered on 23 January, 1968.
Dr. Nanavati identified the cycle carrier.
That identification was not challenged.
All these pieces of evidence prove the connection of accused No. 2 with the crime.
With regard to accused No. 3 it is found that there were civil and criminal proceedings between him and Dr. Nanavati.
625 Accused No. 3 had the motive not only to make it impossible for Dr. Nanavati to stay in the bungalow but also to commit theft in his house.
Accused No. 3 gave several articles to a, person called Takalkar.
Takalkar bad dealings with accused No. 3 in the past.
Takalkar said that accused No. 3 gave him some pieces from silver idols and other silver articles and wanted money by disposing of the same.
Takalkar purchased the entire silver material from accused No. 3 for Rs. 175.
Takalkar also said that at the request of accused No. 3 he kept that bag of utensils in his godown and gave the key of the godown to accused No. 3 who afterwards returned the key The police cam, , to the shop of Takalkar and he was asked to produce the gunny bag which he did.
The articles in the gunny bag were taken and the articles excepting the lump of silver were identified by Dr. Nanavati and by his wife.
The identification was not challenged in cross examination.
It is obvious that silver lump could not be identified.
At this stage it is to be noticed as to whether there is evidence to connect accused No.3 with murder.
The transaction was one composite unit of murdering Narendra and committing theft.
The discovery of articles in the godown of Takalkar was as a result of a statement by accused No. 2.
The name of accused No. 3 was found in the note book of Takalkar.
The relationship of father and son between accused No. 3 and accused No. 2 is not to be lost sight of.
Accused No. 2 and 3 went together for the sale of cycle carrier to Rupvate.
The High Court rightly came to the conclusion that there was sufficient corroboration of the evidence of Dinkar in material particulars and that Dinkar was a reliable witness and it was proved that accused No. 2 and 3 were guilty of the offence, In view of the fact that there was capital sentence of accused No. 3 we went through the evidence to find out as to whether there was any infirmity in evidence.
We have found none.
The appeal therefore fails.
The accused will surrender to his bail.
if any.
V.P.S. Appeal dismissed.

summary:
Two accused father and son were convicted of the offence of murdering a young boy of 15 and the offences of house breaking and theft next day, of articles from the house of the grand father of the deceased in which the deceased was living alone at the time of his murder.
The evidence mainly consisted of that of the approver, The corroboration of the approver 's evidence as against one of the accused (the son) consisted of the following : (i) on the day of the occurrence, two witnesses saw the accused the approver and another (a young boy of 15) wearing khaki shorts and a white shirt; (2) a few days later another witness saw a dead body at the scene of the crime a field, with khaki shorts and a white shirt; (3) the grand father discovered the theft and the disappearance of his grandson when he returned to the house a week after the occurrence; (4) the approver, on the date of his arrest pointed out to the police the scene of the crime where, among other things a shirt, a chain, and some bones were found the shirt and chain were identified to be those of the deceased and according to the medical evidence the bones were those of a human being, possibly male; (5) the accused, after his arrest, produced to the police, a piece of cloth stolen from the house; (6) the evidence of pledge of a cycle and sale of a cycle carrier belonging to the grand father of the deceased; (7) sale of some utensils belonging to the grand father of the deceased, by the accused, after scrapping off the name; and (8) the finding of a cloth belonging to the grandfather of the deceased in a tailor 's shop.
which the accused hastened to take away, when he learnt that the grand father was questioning the tailor about the cloth.
As regards the other accused (the father) the corroborating evidence consisted of the following : (1) there were civil and criminal proceedings between him and the grand father of the deceased over the possession of the house : (2) he gave and sold several, articles and pieces of silver to a witness who was traced by the police as a result of the, statement of the accused (son).
The articles were produced before police.
and all of them except one lump of silver, were identified by ' the grandfather of the deceased as his articles; (3) it was this accused who gave the piece of cloth to the approver who gave it to the, tailor and which was hastily taken away by his son; and (4) he joined his son in the sale of cycle carrier.
On the question whether the corroboration was sufficient in law, HELD : In Sarwan Singh vs State of Punjab, ; and in Lachi Ram vs State of Punjab, ; , it was held that the court should be satisfied : (1) that the approver or accomplice was a reliable witness; (2) there must be reliable corroboration of the approver 's evidence; and (3) there must be sufficient corroborative evidence in material particulars to connect the accused with the crime.
The nature of 618 corroboration is that it is confirmatory evidence and may consist of the evidence of another witness or of circumstances, like conduct of the accused.
When it is said that corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated.
It must confirm that part of the testimony which suggests that the crime was committed by the accused.
[622 E F; 625 A B] In the present case, apart from the relationship between the two accused, there was also close association in the disposal of the articles.
The close proximity of time between the murder and theft points to the inescapable conclusion that they formed part of the same transaction.
Since the transaction was one composite unit of murdering and committing theft, and it was found that the approver was a reliable witness, all the pieces of evidence afforded sufficient corroboration of the approver 's evidence in material particulars and proved that the accused were guilty ' of the offences with which they were charged.
[624 C D; 625 D, E]


judgement:
Appeal No. 36 of 1968.
Appeal by special leave from the judgment and order dated November 19, 1963 of the Bombay High Court in Civil Revision Application No. 167 of 1959.
V. M. Tarkunde, P. C. Bhartari, O. C. Mathur and Ravinder Narain, for the appellant.
A. K. Sen, M. section Gupta and section L. Jain, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This appeal is by special leave from the judgment dated 19 November, 1963 of the High Court of Bombay dismis sing the appellant defendant tenant 's application for revision in a decree for eviction of the defendant.
The appellant was tenant of the respondent.
On 28 April, 1954 the appellant filed an application under section II of the Bombay Rent Act for fixation of standard rent.
During the 627 pendency of the application the respondent landlady served a notice on the appellant in the month of March, 1955 terminating the tenancy on the ground that the appellant had failed to pay rent from I March, 1954.
On 25 April, 1955 a suit was filed for eviction of the appellant.
During the pendency of the suit on 29 June, 1956, the standard rent was fixed at Rs.55/7/ p.m.
The contractual rent was Rs. 85/ p.m.
When the suit came up for hearing on 5 October, 1956, it appeared that the appellant paid all the arrears of rent in accordance with the standard rent but did not pay the Costs of the suit.
The trial court passed an ejectment decree against the appellant.
The appellant preferred an appeal.
The appellate court took the view that the order of the trial court was justified under section 12(3)(b) of the Bombay Rent Act.
Section 12(3)(b) of the Bombay Rent Act provides that no decree in eviction shall be passed, if on the first day of the hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders.
in the court the standard rent and permitted increase in rent due, and thereafter continues to pay or tender in court regularly the said rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court.
The appellant then filed an application for revision in the High Court.
The contention which was advanced in the High Court and repeated here was that the courts were in error in decreeing the suit for non payment of costs because the trial court had not passed any order fixing the amount of costs.
It was said that only when an order determining the amount of costs had been made by the court that the tenant could be said to be within the mischief of the provisions of the statute for non payment of costs so determined by the courts.
The High Court rightly rejected the contention for two reasons.
First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs.
Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as "professional costs" and court costs of the suit.
It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs.
The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute.
The appellant was required to tender not only the arrears of rent but .also the, costs of the suit.
In the trial court the appellant admitted non compliance with the provisions of the statute.
Therefore, the 628 trial court rightly held that the appellant was not entitled to any benefit or protection against eviction.
The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12(3) (a) of the Bombay Rent Act.
The appellate court, however, held that the case fell within the provisions of section 12(3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit.
Counsel for the appellant contended that the costs were deposited on 22 November, 1956 and therefore the High Court should have exercised discretion in favour of the appellant.
The High Court stated that the decree was passed on 5 October, 1956 and the appeal was filed on 18 October, 1956 and the amount of costs was not deposited with the filing of the memorandum of appeal.
The High Court concluded by stating that "the decree of the trial court was made on 5 October, 1956.
We are in the year 1963.
The attitude adopted by the petitioner is not such in which a discretion can be exercised in favour of the petitioner".
The High Court heard the application on 19 November, 1963.
Counsel for the appellant invited our attention to paragraph 13 of the application for review made in the High Court where the appellant alleged that on 7 December, 1956 the costs were paid.
No portion of the judgment of the High Court is open to any criticism for the obvious reason that when the memorandum of appeal was filed in the High Court on 18 October, 1956 the costs were not paid.
The application for review also indicates that when the matter was heard before the High Court it was not brought to the notice of the High Court that the costs were paid on 7 December, 1956 as alleged.
The appeal is from the judgment of the High Court.
It would be improper to interfere with exercise of discretion passed by the High Court when the matter was not brought to the notice of the High Court.
Discretion is exercised by the court in the facts and circumstances of the case.
Any interference with the exercise of discretion in the present case would be substituting the discretion 'of this Court on a set of facts which were never presented to the High Court.
The appellant was not entitled to any relief under the provisions of the Bombay Rent Act.
The High Court rightly rejected the application for revision.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
In a suit for evicition on the ground of non payment of rent a decree was passed directing the tenant to pay the landlady 's costs, as, by that time, the tenant had paid all the arrears of rent as fixed; but the tenant did not pay or tender the costs.
Therefore, the court passed an order of eviction.
His appeal, a revision to the High Court, and a review petition to the High Court were all dismissed.
In appeal to this Court, HELD : (1) The tenant would be entitled to the protection under section 12(3) (b) of the, Bombay Rent Act, only if he complied with its provisions by paying or tendering not only the arrears of rent but also the costs of the suit.
Since the appellant admitted his inability to, comply with the provision, he could not claim protection against eviction.
[627 D, G] (2) Assuming that the costs were paid at a later date as alleged by the appellant, that fact was not brought to the notice of the High Court, and therefore this Court will not interfere with the exercise of discretion by the High Court in the set of facts and circumstances presented to the High Court. [628 F G]