judgement:
minal Appeal No. 218 of 1966.
Appeal by special leave from the order dated August 5, 1966 of the Patna High Court in Criminal Revision No. 1020 of 966, AND Criminal Appeal No. 238 of 1966.
Appeal by special leave from the judgment and order dated September 13, 1966 of the Patna High Court in Criminal Revi sion No. 40 of 1965.
B. P. Jha and Subhag Mal Jain, for the appellants (in Cr. A. No. 218 of 1966).
Nuruddin Ahmed and R. C. Prasad, for the appellants (in Cr. A. No. 238 of 1966).
U. P. Singh, for the respondents (in both the appeals).
The Judgment of the Court was delivered by Vaidialingam, J.
The common question, that arises for con sideration, in these two criminal appeals, by special leave, is as to whether a Magistrate can direct the police to submit a charge sheet, when the police, after the investigation into a congnizable offence, had submitted a final report, under section 173 of the Code of.
Criminal Procedure (hereinafter called the Code).
There is a conflict of opinion, on this point between the various High Courts in India.
The High Courts of Madras, Calcutta, Madhya Pradesh, Assam and Gujarat have taken the view that the Magistrate has no such power, whereas, the Patna and Bombay High Courts have held a contrary view.
In Criminal Appeal No. 218 of 1966, the respondent, Dinesh Mishra, lodged a first information report, on June 3, 670 1965, at the Rajoun Police Station, that he saw a thatched house, of one Uma Kant Misra, situated on the northern side of his house, burning, and the petitioners herein., running away from the scene,.
The police made an investigation and submitted what is called a 'final report ', under section 173 (1) of the Code, to the effect that the offence complained of, was false.
The Sub Divisional Magistrate received this report on July 13, 1965, but, in the meanwhile, the respondent had filed what is termed 'a protest petition ', challenging the correctness of the report submitted by the police.
The Magistrate appears to have perused the police diary and, after hearing the counsel for the respondent and the public prosecutor, passed an order on October 27, 1965, directing the police to submit a charge sheet, against the petitioners, herein.
The petitioners challenged this order, without success, both before the learned Sessions Judge, Bhagalpur, and the Patna High Court.
It was held by the High Court, following its previous decision, that the Magistrate has jurisdiction to call for a charge sheet, when he disagrees with the report submitted by the police, under section 173(1) of the Code.
The petitioners, in this appeal, challenge these orders.
Similarly, in Criminal Appeal No. 238 of 1966, the second respondent therein, had lodged a written report, on February 24.
1.964, before the police, at Malsalami police station, that his daughter, Hiramani, was missing from February 21, 1964, and that the appellants in that appeal, had kidnapped her.
A case under section 366 I.P.C. was registered against them.
The police, after investigation, submitted a final report to the Magistrate.
to the effect that the girl concerned, had been recovered and that she bad stated that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed.
The second respondent filed a 'protest petition ' in Court, challenging the statements of the police and he also filed a complaint, under section 498 I.P.C.
The Magistrate, after a perusal of the case diary of the police, and hearing the lawyer for the appellants and the second respondent, as also the public prosecutor, passed an order directing the investigating officer to submit a charge sheet, against the accused persons, under section 366 I.P.C This order has been confirmed by the, learned Sessions Judge, as well as the Patna High Court.
Here also, the Patna High Court, in accordance with its previous decision, held that the Magistrate had jurisdiction to pass the order, in question.
All these orders are challenged by the appellants, in this appeal.
On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, learned counsel pointed out that when a final report is submitted by the police, under section 173(1) of the Code,, 6 71 stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge sheet.
It may be open, counsel points out, to the Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second respondent, as a complaint, and take cognizance of the offence and proceed, according to law.
, The scheme of Chapter XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there is a case to place the accused on trial, is that of the investigating officers, and the Magistrate cannot compel the police to form a particular opinion on the 'investigation and to submit a report, according to such opinion.
In this case, there is nothing to show that the protest petition, filed by the second respondent, has befell treated as a complaint, in which case, it may be open to the Magistrate to take cognizance of the offence, but, in the absence of any such procedure being adopted according to counsel, the order of the Magistrate directing a charge sheet to be filed, is illegal and not warranted by the provisions of the Code.
These contentions have been adopted, and reiterated, by Mr. Nuruddin Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966.
Both the learned counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court, in its Full Bench judgment, reported as State of Gujarat vs Shah Lakhamshi(1).
On the, other hand, Mr. U. P. Singh, learned counsel for the respondent, in Criminal Appeal No. 218 of 1966, has pointed out that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police, to direct them to submit a charge sheet.
Otherwise, counsel points out, the position will be that the entire matter is left to the discretion of the police authorities, and the Courts will be powerless, even when 'they feel that the action of the police is not justified.
Quite naturally, counsel prays for acceptance of the views expressed by the dissenting Judges, in A. K. Roy vs State of W. B. (2) and by the Bombay and Patna High Courts, in the decisions reported as State vs Murlidhar Govardhan(3), and Ram Nandan vs State ( 4 ) , respectively.
In order, properly, to appreciate the duties of the police, in the matter of 'investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code.
That chapter deals with 'Information to the Police and their Powers to investigate ', and it contains the group of section beginning from section 154 and ending with section 176.
Section 154 deals with information relating to the commission of a cognizable R. 1966 Guj, 283.
(2) A. 1.
R. B.).
(3) A. 1.
R. (4) A. 1.
R. 1966 Pat.
67 2 offence, and the procedure to be adopted in respect of the same.
Section 155, similarly, deals with information in respect of noncognizable offences.
Sub section
(2), of this section, prohibits a police officer from investigating a non cognizable case, without the order of a Magistrate.
Section 156 authorizes a police officer, in charge of a police station, to investigate any cognizable case, without the order of a Magistrate.
Therefore, it wilt be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence.
Sub section
(3), of section 156, provides for any Magistrate empowered under section 190, to order an investigation.
In cases where a cognizable offence is suspected to have been committed, the officer, in charge of a police station, after sending a report to the Magistrate, is entitled, under section 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender.
Clause (b), of the proviso to section 157(1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation.
Section 158 deals with the procedure to be adopted in the matter of"a report to be sent, under section 157.
Section 159 gives power to a Magistrate, on receiving a report under section 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code.
Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements.
Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during an investigation, in the circumstances, mentioned therein.
Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours.
Section 168 provides for a report being sent to the officer, incharge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV.
Section 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer, in charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the forwarding of the accused to a Magistrate.
Section 170 empowers the officer, incharge of a police station, after investigation under Chapter XIV, and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take securtiy from the accused for his appearance before the Magistrate, in cases where the offence is bailable.
Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the 673 manner indicated in that section.
Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay and also makes it obligatory, on the officer, incharge of the police station, to send a report to the Magistrate concerned, in the manner provided for therein, containing the necessary particulars.
It is now only necessary to refer to section 190, occurring in Chapter XV, relating to jurisdiction of criminal Courts in inquiries and trials.
That section is to be found under the heading 'Conditions requisite for initiation of proceedings ' and its sub section (1) is as follows : "(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made, by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
" From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay.
But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same.
If, on investigation, it appears to the officer, in charge of a police station, or to the officer making an investigation, that ,,here is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate,, section 169 says that the officer shall release the accused, if in custody, on hi , executing a bond to appear before the Magistrate.
Similarly, if on the other hand, it appears to the officer, in charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under section 170, to forward the accused to a Magistrate or, if the offence is bailable, to take security from him for his appearance before such Magistrate.
But, whether a case comes under section 169, or under section 170, of the Code, on the completion of the investigation, the police officer has to L7SupCI/67 13 674 submit a report to the Magistrate, under section 173, in the manner indicated therein, containing the various details.
The question as to whether the Magistrate has got power to direct the police to file a charge sheet, on receipt of a report under section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.
In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor vs Khwaja Nazir Ahmed(1) and by this Court, in H. N. Rishbud and Inder Singh vs The State of Delhi(2).
In Nazir Ahmed 's Case(1), Lord Porter observes, at 212, as follows "Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is, of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry.
In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court.
The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.
In such a case as the present, however, the court 's functions begin when a charge is preferred before it, and not until then.
" These observations have been quoted, with approval, by this Court, in State of West Bengal vs section N. Basak(3).
This Court in Rishbud and Inder Singh 's Case(1), observes, at p. 1156, as follows : "Investigation usually starts on information relating to the commission of an offence given to an officer incharge of a police station and recorded under sec (1) L. R. 71 1.
A. 203.
(2) (3) A. 1.
R. 675 tion 154 of the Code.
If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.
Thus investigation primarily consists in the ascertainment or the facts and circumstances of the case.
By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer '.
" Again after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157 "Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if ' the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge sheet under section 1 7 3. .
It is also clear that the final step in the investigation viz., the formation of the opinion as to whether or no ' there is a case to place the accused on trial is to be that of the officer in charge of the police station.
" We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer incharge of a police station.
Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case.
The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge sheet, under such circumstances, have Tested their decision on two principles viz., (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of L7SUPCI/67 14 676 Chapter XIV, cannot be inferred vide Venkata Subha v Anjanayulu(1); Abdul Rahim vs Abdul Muktadin(2); Aman Premanand vs State(3); the majority view in A. K. Roy vs State of W. B.(1); and Stale of Gujarat vs Shah Lakhamshi(5).
Or the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) where a report is submitted by the police, after investigation, the Magistrate has to deal with it judicially, which will mean that where the report is not accepted, the Magistrate can give suitable directions to the police , and (b) the Magistrate is given supervision over the conduct of investigation by the police, and there ore, such a power can be recognised in the Magistrate vide State vs Murlidhar Goverdhan(6); and Ram Nandan vs State(7).
Though it may be that a report submitted by the police may have to be dealt with, judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge sheet.
But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him lo take cognizance of an offence and proceed, according to law.
We do not also find any such power, under section 173(3), as is sought to be inferred, in some of the decisions cited above.
As we have indicated broadly the, approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.
It will be seen that the Code, as such, does not use the ex pression 'charge sheet ' or 'final report '.
But it is understood, in the Police Manual containing Rules and Regulations, that a report by the Police, filed under section 170 of the Code, is referred to as a 'charge sheet '.
But in respect of the reports sent under section 169, i.e., when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge ', 'final report ', or 'Summary '.
In these two appeals, which are from the State of Bihar, the reports, under section 169, are referred to as 'final report '.
Now, the question as to what exactly is to be done by a Magistrate, on receiving a report.
under section 173, will have to be considered.
That report may be inrespect of a case, coming under section 170, (1) A.I.R. 1932 Mad. 673.
(2) A.I.R. 1953 Assam 112.
(3) A.I.R. 1960 M P. 12.
(4) A.I.R. 1962 Cal.
(5) A.I.R. 1966 Guj.
(6) A.I.R. 1960 Born.
(7) A.I.R. 1966 Pat.
677 or one coming under section 169.
We have already referred to section 190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings. ' Sub section
(1), of this section, will cover a report sent, under section 173.
The use of the words 'may take cognizance of any offence ', in sub section
(1) of section 190 in our opinion imports the exercise of a 'judicial discretion ', and the Magistrate, who receives the report, under section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence.
From this it follows that it is not as if that the Magistrate is bound to accept ,,the opinion of the police that there is a case for placing the accused, on trial.
It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial.
On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police.
On the other hand, if the Magistrate agrees with the report, which is a charge sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under section 190(1)(b) of the Code.
This will be the position, when the report under section 173, is a charge sheet.
Then the question is, what is the position, when the Magis trate is dealing with a report submitted by the police, under section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report '? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings.
But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under section 1 5 6 ( 3 ), to make a further investigation.
That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under section 156(3).
The police, after such further investigation, may submit a charge sheet, or,, again submit a final report, depending upon the further investigation made by them.
If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under section 190(1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.
678 In this connection, the provisions of section 169 of the Code, are relevant.
They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to take a bond from him to appear, 'If and.
when required, before a Magistrate.
This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.
We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed out above.
We have, already referred to the scheme of Chapter XXIV, as well as the observations of this Court in Rishbud and Inder Singh 's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in charge of the police station.
There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied.
There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police.
Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under section 190(1)(c) of the Code.
That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in voked even where persons individually aggrieved are unwilling or unable to prosecute.
or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.
Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence.
not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed.
It is open to the Magistrate to take cognizance of the offence, under section 190(1) (c), on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed.
Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge sheet from the police, when they have submitted a final report.
The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to, place the accused for trial, is that of the officer in charge of the police station and that opinion determines whether the report is to be under section 170, being a 'charge sheet ', or under section 169, 'a final report '.
It is no (1) [1955]1 S.C.R. 1150.
67 9 doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us.
But he cannot direct the police to submit a charge sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate.
The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion.
Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under section 169, or under section 170, depending upon the nature of the decision.
Such a function has been left to the police, under the Code.
We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge sheet, or a final report is dependent on the nature of the opinion, so formed.
The formation of ,the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.
The question can also be consider from another point of view.
Supposing the police send a report, viz., a charge sheet, under section 170 of the Code.
As we have already pointed out, the Magistrate is not bound to accept that report, when he considers the matter judicially.
But, can he differ from the police.
and call upon them to submit a final report, under s.169 ? In our opinion, the Magistrate has no such power.
If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge sheet when the police have submitted a final report that no case is made out for sending the accused for trial.
The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.
Therefore, to conclude, there is no power, expressly or im pliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending tip an accused for trial.
L7 Sup.
CI/67 15 680 In these two appeals, one other fact will have to be taken note of.
It is not very clear as to whether the Magistrate, in each of these cases, has chosen to treat the protest petitions, filed by the respective respondents, as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance of an offence, on a complaint made to him.
Therefore, while holding that the orders of the Magistrate, in each of these cases, directing the police to file charge sheets, is Without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaints, and take further proceedings, according to law, and in the light of the views expressed by us, in this judgment.
Mr. Nuruddin Ahmed, learned counsel for the appellants in Criminal Appeal No. 238 of 1966, particularly urged that it is unnecessary to direct further proceedings to be continued, so far as his clients are concerned.
Learned counsel pointed out that the police report before the Magistrate clearly shows that the girl, in question, who is stated to be above 19 years of age, has herself stated that she bad eloped, of her own accord and that if that is so, further proceedings against his clients, are absolutely unnecessary, to be continued.
We are not inclined to accept these contentions of the learned counsel.
As to whether an offence is made out or whether any of the appellants or both of them are guilty of the offences with which they may be charged, are all matters which do not require to be considered, by this Court, at this stage.
In the result, subject to the directions contained above, the orders of the Magistrate, directing the police to file a charge, will be set aside, and the appeals allowed, to that extent.
V.P.S. Appeals allowed.

summary:
On the question whether a magistrate could direct the police to submit a charge sheet, when the police, after investigation into a cognizable offence, had submitted a report of the action taken under section 169, Cr. P.C., that there was no case made out for sending up the accused for trial, HELD : There was no such power conferred on a magistrate either expressly or by implication.
When a cognizable offence is reported to the police they may after investigation take action under section 169 or section 170 Cr.
If the police :think there is not sufficient evidence against the accused, they may, under section 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there is sufficient evidence, they may, under section 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable.
In either case the police should submit a report of the action taken, under section 173, to the competent magistrate who considers it judicially under section 190 and takes the following action : (1) If the report is a charge sheet under section 170 it is open to the magistrate to agree with it and take cognizance of the offence under section 190(1) (b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance.
But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence.
(2) If the report is of the action taken under section 169, then the magistrate may agree with the report and close the proceeding.
If he disagrees with the report he can give directions to the police under section 156(3) to make a further investigation.
If the police, after further investigation submit a charge sheet, the magistrate may follow the procedure where the charge sheet under section 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the magistrate may agree or disagree with it.
Where he agrees, the case against the accused is closed.
Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he .can take cognizance under section 190(1)(c).
The provision in section 169 enabling the Police to take a bond for the appearance of the accused before a magistrate if so required, is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police.
The power under section 190(1)(c) was intended to Secure that 66 9 offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or he police either wantonly or through a bona, fide error do not submit a charge sheet.
But the magistrate cannot direct the Police to submit a charge sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate.
The magistrate, if he disagrees with the report of the police, can.
himself take cognizance of the offence under section 19O(1)(a) or (c), but, be cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion.
[672F H; 673B; 676H; 677B H; 678 A H; 679A C. E H] State of Gujarat vs Shah Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha vs Anjanayulu, A.I.R. 1932 Mad. 673; Abdul Rahim vs Abdul Muktadin, A.I.R. 1953 Assam 112; Amar Premanand vs State, A.I.R. 1960 M.P. 12 and A. K. Roy vs State of West Bengal, A.I.R. 1962 Cal.
135 (F.B.), approved.
State vs Murlidhar Govardhan, A.I.R. 1960 Bom.
240 and Ram Wandan vs State, A.I.R. 1966 Pat.
438, disapproved.


judgement:
Appeal No. 604 of 1966.
Appeal by special leave from the judgment and order dated August 5, 1964 of the Madras High Court in Tax Case No. 131 of 1963 (Revision No. 87).
G. Ramanujam and A. V. Rangam, for the appellant.
K. Srinivasan and R. Gopalakrishnan, for the respondent.
The Judgment of the Court was delivered by Shah, J.
M/s. R. Nand Lal & Company hereinafter called 'the assessee are dealers in wool at Vaniyambadi in North Arcot District in ' the State of Madras.
In proceedings for assessment of sales tax for the year 1959 60 the assessees were assessed to pay tax at the rate, of seven per cent.
on a turnover of Rs. 2,08,343 05 from sales effected by them to certain registered dealers in the State of Punjab.
The assessing authority declined to assess the turnover at one per cent.
as prescribed by section 8(1) of the , because in his view the assessees had submitted declarations in Form 'C ' covering two or more transactions contrary to the first proviso to r. 10(1) of the Central Sales Tax (Madras) Rules, 1957.
The Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal, Madras confirmed the order of the assessing authority.
The High Court of Madras, in exercise of its revisional jurisdiction, set aside the order of the Sales Tax Appellate Tribunal, and declared that the ass s were liable to pay tax on the turnover in dispute at the lower rate.
The State of Madras has appealed to this Court with special leave.
Section 8 of the (as amended by Act '31 of 1958) insofar as it is material provided "(1) Every dealer, who in the course of inter State trade or commerce (a) (b) sells to a registered dealer other than the Government goods of the description referred to in sub section (3); shall be liable to pay tax under this Act, which shall be one per cent.
of his turnover.
(2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods 647 in the course of inter State trade or commerce not falling within sub section (1) (a). . . (b) in the case of goods other than declared goods, shall be calculated at the rate of seven per cent.
or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher; (2A) (3) (4) The povisions of sub section 1) shall not apply to any sale in the course of inter State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner (a) a declaration duly filed and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or (b). . . (5) It is common ground that the turnover was in respect of goods of the class specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or for use by him in the process of manufacture of goods for sale.
A registered dealer selling goods in the course of inter State trade or commerce of the description referred to in sub section
(3) is viable under section 8 ( 1 ) of the , to pay tax only if the rate of one per cent.
on his turnover.
But to qualify himself for that rate of tax he has to furnish to the prescribed authority a declaration duly filled and signed by the registered dealer to whom the goods are sold.
Such a declaration must contain the Prescribed particulars in the prescribed form obtained from the Prescribed authority.
If the selling dealer fails to furnish the declaration in the prescribed form, he is liable to pay tax at the higher rate mentioned in sub section
(2) (b) of section 8.
The respondents did furnish declarations in Form 'C ' pres cribed under the Rules framed ' by the Central Government in exercise of the, powers vested by section 1 3 (1) (d) of the .
But each such declaration covered more transactions of sale than one and the aggregate value of the transactions recorded in each declaration exceeded Rs. 5,0001 The sales tax authorities and the Tribunal were of the view that these declarations contravened the express direction of the rule made by 648 the Madras State in exercise of the powers under section 13 (4) (e) of the .
The High Court held that r. 10(1) of the Central Sales Tax (Madras) Rules, 1957, applied only to a transaction of purchase by a dealer in the State of Madras, and not to the purchasing dealer in the State of Punjab; that the Madras State was incompetent to frame rules governing the conduct of the purchasing dealers in the Punjab that since the corresponding rules framed by the State of Punjab under section 13 (4) (e) of the did not include a provision requiring separate form to be used for each sale transaction, the purchasing dealers were not obliged to comply with r. 10(1) of the Madras Rules, and that since the Madras selling dealers could not compel the purchasing dealers to comply with the rules relating to furnishing of separate declaration forms ordained by the Madras Rules, the declarations were not defective.
In any event, the High Court held, r. 10(1) of the Madras Rules was directory and not mandatory.
The assumption made by the High Court that no rule was framed by the State of Punjab under section 13 (4) (e) of the requiring the purchasing dealers in the State of Punjab to issue a separate declaration form in respect of each individual transaction is erroneous.
It is conceded before us that the Punjab Government had in purported, exercise of the powers under sub sections
(3) & (4) of section 13 of the Central Sales Tax, 1956, made r. 7(2 A) with effect from February 17, 1958 that: "No single declaration in Form 'C ' prescribed under the Central.
Sales Tax (Registration and Turnover) Rules ' 1957, shall cover more than one transaction of sale except when the total amount of sales does not exceed five thousand rupees." But, for reasons which we will presently set out, the judgment of the High Court must still be, affirmed.
Sub section (4) of section 8 of the provides that in order to, qualify himself for the lower rate of tax it, respect of sales in the course of inter State trade or commerce, the dealer selling goods has to furnish to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold.
The expressions "prescribed authority" and "prescribed manner" mean the authority and manner prescribed by rules under the Act.
Section 13(1) of the , authorises the Central Government to make rules, providing, inter alia, the form in which and the particulars to be contained in any declaration of certificate to be given under the Act.
By sub section
(3) of section 13 the State Government is authorised to make rules not inconsistent with the provisions of the Act and the rules made under sub section
(1) to 64 9 carry out the purposes of the Act, and by sub s (4) of section 13 the State Government is, in particular and without prejudice to the powers conferred by sub section
(3), authorised to make rules for all or any of the purposes set out therein including "the authority from whom, the Conditions subject to which and the fees subject to payment of which any form of declaration prescribed under sub section
(4) of section 8 may be obtained, the manner in which the form shall be kept in custody and records relating thereto maintained, the manner in which any such form may be used and any such declaration may be furnished." In exercise of the power conferred by section 131 (d) the Central Government has prescribed the form of declaration to be furnished by the purchasing dealer under section 8 (4).
That is Form 'C '.
The form is in three sections the "counterfoil", the "duplicate" and the "original".
The "original" contains at the foot of the Form the following Note: "(To be furnished to the prescribed authority in accordance with the rules framed under section 13(4) (e) by the appropriate State Government.)" The Madras State Government presuming to act in exercise of authority under section 13(3) and section 13(4)(e) framed the Central Sales Tax (Madras) Rules, 1957, r. 10(1) of which reads as follows ': "A registered dealer, who wishes to purchase goods from another such dealer on payment of tax at the rate applicable under the Act to sales of goods by one registered dealer to another, for the purpose specified in the purchasing dealer 's certificate of registration, shall obtain from the assessing authority in the City of Madras and the registering authority at other places a blank declaration form prescribed under rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 for furnishing it to the selling dealer.
Before furnishing the declaration to the selling dealer, the purchasing dealer,or any responsible person authorized by him in this behalf shall fill in all the required particulars in the form and shall also affix his usual signature in the space provided in the form for this purpose.
Thereafter the counterfoil of the form shall be retained by the purchasing dealer and the other two portions marked "original" and "duplicate" shall be made over by him to the selling dealer Provided that no single declaration shall cover more than one transaction of sales except 650 (a) in cases where the total amount covered by one declaration is equal to or less than Rs. 5,000 or such other amount as the State Government may, by a general order, notify in the Fort.
St. George Gazette, and (b) Ex facie, this rule imposes no obligation upon a dealer in the State of Madras wishing to sell goods : it applies to a dealer wishing to purchase goods from another dealer.
The argument that cl.
(1) of r. 10 is intended to apply to a registered dealer in the State of Punjab is negatived by the scheme of the and the Rules framed thereunder.
By section 7 of the , every dealer liable to pay tax under the Act has to make an application for registration under the Act to such authority in the appropriate State as the Central Government may by general order specify.
The authority to be specified is designated in the Central Sales Tax (Registration and Turn over) Rules, 1957, framed by the Central Government under section 13(1), the "notified authority" : vide r. 2(c).
Rule 3 provides that an application for registration under section 7 shall be made by a dealer to the notified authority in Form 'A '.
In exercise of the powers conferred by sub section
(1) of section 7 of the , the Central Government issued a notification No. S.R.O. 643 dated February 22, 1957, specifying the persons mentioned in Col.
(3) of the Schedule thereto as the authorities to whom the dealers of the description in Col.
(2) shall make the application for registration.
Item 1 of the Schedule requires a dealer having a single place of business in a State to make an application to the authority competent to register him under the general sales tax law of the State if he were liable to, be so registered : and item 2 provides that the dealer having more than one place of business in a State shall make an application to the authority competent to register him in respect of the principal place of business under the general sales tax law of the State if he were liable to be so registered.
A registered dealer contemplated by r. 10 is therefore registered in the State where he has his place of business.
The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules, 1957, as meaning any person authorized by the State Government to make any assessment under the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959).
The dealer has again to obtain the form of declaration from the assessing.authority in the State of Madras.
These are clear indications that the rules framed by the Madras Government were intended to apply to dealers within the State of Madras.
The High Court was, in our judgment, right in holding that under the scheme of the and the Rules framed under that Act by the State of Madras, the injunc 651 tion against the purchasing dealers in r. 10(1) did not apply to, dealers in the State of Punjab.
It is unnecessary on that view to, express any opinion on the question whether the State Government could, in exercise of the powers under section 13 (4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the 'C ' Form declarations.
Since, r. 10 ( 1 ) requiring that a separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State, proviso to r. 10(1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a purchasing dealer outside the State of Madras.
Rule 10(2), provides : "A registered dealer who claims to have made a sale to another registered dealer shall, in respect of such claim attach to his return in Form the portion marked "original" of the declaration received by him from the purchasing dealer.
The assessing authority may, in its discretion, also direct the selling dealer to produce for inspection the portion of the declaration marked "duplicate".
" But this rule does not direct that a declaration covering more than one transaction of sale shall not be given.
The rules framed by the Madras Government do not otherwise impose any binding obligation upon the selling dealer in the State of Madras to obtain a separate declaration form in respect of each sale transaction, nor do the rules visit him with a penalty on failure to comply with the requirement.
We are constrained to observe that the rule making authori ties have failed to appreciate the scheme of section 13 of the .
We are of the opinion that it was not within the competence of the State authorities under section 13(3) & (4) of the to provide that a single declaration covering more than one transaction shall not be made.
Authority to prescribe such an injunction cannot have its source in section 13(3) or section 13 (4) (e) : it can only be in the authority conferred by cl.
(d) of section 13(1) by the Central Government.
The Central Government has, in exercise of the power under section 1 3 (1) (d), prescribed the form of declaration and the particulars to be contained in them declaration.
A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under section 13 (1) (d).
The State Government is undoubtedly empowered to make rules under sub sections
(3) and (4) of section 13 but the rules made by them 652 State Government must not be inconsistent with the provisions of ,the Act and the rules made under sub section
(1) of section 13 to carry out the purposes of the Act.
If the authority to make a rule prescribing that the declaration shall not contain more than one transaction can be made only under section 13 (1) (d), the State Government cannot exercise that authority.
The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall ,cover more than one transaction, the Central Government in exercise of the power under section 13 (1) (d) of the Act had made the rules.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The assessee firm was a 'dealer ' in Madras State.
For the year 1959 60 the firm was taxed at 7% on certain sales effected to registered dealers in the Punjab on the ground that the declarations taken from dealers in Punjab in Form 'C ' were not in accordance with r. 10(1) of the Central Sales Tax (Madras) Rules, 1957.
The latter rule required ,that there must be a separate declaration in respect of each transaction whereas the declarations in the present case were in respect of several transactions each.
The appellant firm claimed that on the turnover in question it should have been assessed at one Per cent only, as laid down in section 8(1) of the Central Sales Tax Act, 1056.
The claim was turned down by the Sales tax Authorities and the Tribunal, but the High Court held that r. 10(1) of the Central Sales Tax (Madras) Rules, 1957 applied only to transactions of purchase by a dealer in the State of Madras and not to the purchasing dealer in the State of Punjab, that the Madras State was incompetent to frame rules governing the conduct of the chasing dealers in the Punjab, and that in any event r. 10(1) was tory and not mandatory.
The State appealed.
HELD: (i) Ex facie r. 10(1) imposes no obligation upon a dealer in the State of Madras wishing to sell goods : It applies to a clear wishing to purchase goods from another dealer.
The High Court was further right in holding that under the scheme of the Central Sales Tax Act and the Rules framed under that Act by the State of Madras the injunction against the purchasing dealers in r. 10(1) did not apply to dealers in the State of Punjab.
[650B 651A] Accordingly the proviso to r. 10(1) which,directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a. purchasing dealer outside the State of Madras.
Nor does r. 10(2).
impose any binding obligation upon the selling dealer in Madras to obtain a separate declaration form in respect of each sale transaction.
[651C F] The appellants were therefore to be taxed at the rate of one per cent and not seven per cent on the turnover in question.
(ii) A rule prescribing that a declaration by a purchasing dealer shall not contain more than one transaction can only be made by the Central Government under section 13(1)(d) and the State Governments do not have 646 power under section 13(3) and section 13(4)(e) to make any such rule.
The situation which had arisen in this case could have been avoided if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under section 13(1)(d) of the Act had made the rule.
[651G H; 652A B]


judgement:
Appeal No. 51 of 1964.
Appeal by special leave from the judgment and decree dated January 3, 1962 of the Punjab High Court in Regular Second Appeal No. 1958 of 1959.
Bishan Narain and Sadhu Singh, for the appellant.
J. P. Goyal and Raghunath Singh, for respondents Nos. 1 (a) to 1 (d).
The Judgment of the Court was delivered by Bhargava, J.
This appeal arises out of a suit brought for possession of some land which was admittedly owned at one time by one Labhu.
Labhu died in the year 1917 and, on his death his widow, Smt.
Harnam Kaur, who filed the suit as plaintiff, came into possession of the land.
She continued in possession of the land until the year 1954 when, on an application made by the collaterals of Labhu, the Naib Tehsildar, by his order dated 26th June, 1954, effected mutation in favour of these collaterals.
These collaterals were defendants 1 to 4, Mangal Singh, Amer Singh, Santa Singh and Ishar Singh.
These collaterals, on the basis of the order of the Naib Tehsildar, dispossessed Smt.
Harnam Kaur.
Harnam Kaur 's appeal against the order of the Naib Tehsildar was dismissed by the Collector.
The claim of these collaterals was that Smt.
Harnam Kaur had entered into karewa marriage with one of these collaterals, Ishar Singh.
defendant No. 4 and, consequently, she had lost her right to hold the land of her first husband Labhu.
Harnam Kaur denied that she had entered into any karewa marriage with Ishar Singh and, on the basis of this denial, instituted the suit claiming possession of that land.
She pleaded that the four defendants had no right to this land and had wrongfully dispossessed her, so that they were mere trespassers.
This suit was instituted on 1st March, 1956.
After the institution of the suit, the (No. 30 of 1956) hereinafter referred to as "the Act" came into force on 17th June, 1956.
The suit was, at that time, pending and it continued to remain pending until the year 1958 when Smt.
Harnam Kaur died.
Thereupon, Smt.
Rattno applied to be substituted as plaintiff in place of Smt.
Harnam Kaur as her legal representative.
This application was allowed,, though 456 it was opposed by defendants 1 to 3.
In the trial of the suit defendants 1 to 3 took the plea that Smt.
Harnam Kaur, the original plaintiff, had lost her right to the land because of her karewa marriage with Ishar Singh, defendant No. 4.
Defendant No. 4, however, admitted the claim of Smt.
Hamarn Kaur in his written statement, denied that he had dispossessed her and also denied the allegation of her karewa marriage with him.
In these circumstances, two main questions came up for decision by the trial court.
The first question was whether Smt.
Hamam Kaur had entered into a karewa marriage with Ishar Singh, defendant No. 4, so as to lose her right to the disputed land as widow of the previous mal e owner, Labhu ? The second question that arose was whether Smt.
Rattno, who was substituted as the legal representative of Smt.
Hamam Kaur, was entitled to succeed to the property of Smt.
Hamam Kaur ? This second question depended on whether Smt.
Harnam Kaur had, or had not, become full owner of the land under section 14 of the Act.
The trial court held that Smt.
Hamam Kaur had contracted karewa marriage with Ishar Singh, defendant No. 4, and had lost her rights.
The further finding of the trial court was that Smt.
Hamam Kaur had been dispossessed before the Act came into force and, consequently, section 14 of the Act did not apply, with the result that Smt.
Rattno could not claim succession to Smt.
Hamam Kaur under that provision of law.
On these findings, the trial court dismissed the suit.
On appeal, the Additional District Judge, Patiala, recorded the finding that Smt.
Hamam Kaur had not entered into karewa marriage with Ishar Singh, defendant No. 4, and, further, that section 14 of the Act was applicable to the present case, as the land in suit was possessed by Smt.
Harnam Kaur so as to make her full owner of this land under that provision of law.
On these findings, the first appellate Court decreed the suit against defendants 1 to 3 with costs in both courts, after making a comment that Ishar Singh , defendant No. 4, was a profoma defendant.
Defendants 1 to 3, thereupon, came up in second appeal to the High Court of Punjab and impleaded as respondents Smt.
Rattno as well as Ishar Singh.
The High Court dismissed the appeal and, thereupon, defendants 1 to 3 have come up to this Court in appeal under special leave granted to them.
In this appeal also, defendants 1 to 3 impleaded both Smt.
Rattno and Ishar Singh as respondents.
During the pendency of this appeal, one of the defendants appellants died and his legal representatives were brought on the record as appellants.
Rattno also died and her legal representatives were impleaded as respondents.
Further, Ishar Singh,.
defendant No. 4, who was a respondent in this appeal, also died.
The application to bring his legal representatives on record was dismissed by the order of this Court dated 14th September, 1965 457 in Civil Miscellaneous Petition No. 1589 of 1965.
In view of this order, a preliminary objection was raised at the time of hearing of this appeal by learned counsel for the respondents, who had been impleaded as legal representatives of Smt.
Rattno, that the appeal had abated on account of the failure of the appellants to implead the legal representatives of Ishar Singh respondent.
It, however, appears that, on the pleadings of parties and the nature of the dispute that came to be settled by the lower courts, it cannot be held that this appeal must abate as a whole, or must fail because of its abatement against Ishar Singh on his death.
We have already mentioned that, though the plaintiff, Smt.
Harnam Kaur, had come forward with the allegation that she had been dispossessed by all the four defendants 1 to 4, Ishar Singh, defendant No. 4, in his written statement, repudiated this claim.
He put forward the plea that he had not dispossessed the plaintiff and, further, supported the claim of the plaintiff by pleading that there had been no karewa marriage between them. 'The suit was dismissed by the trial court.
It was decreed by the first appellate Court only against defendants 1 to 3, treating Ishar Singh as a profoma defendant.
In these circumstances, it is obvious that, when the case came up before the High Court, the dispute was confined between Smt.
Rattno, legal representative of the original plaintiff on the one side, and defendants 1 to 3 on the other.
Defendants 1 to 3 sought vacation of the decree for possession which had been granted against them in favour of Smt.
Rattno.
lshar Singh, against whom the suit had not been decreed at all, thus became an unnecessary party.
In these circumstances even if Ishar Singh had not been impleaded as respondent in the High Court, the relief claimed by defendants 1 to 3 in that Court against Smt.
Rattno could have been granted, without bringing into effect any contradictory decrees.
In the appeal in this Court also, in these circumstances, Ishar Singh was an unnecessary party and, consequently, the failure to implead his legal representatives as respondents in the appeal after his death does not affect the right of defendants 1 to 3 to claim the relief for which they have come up to this Court in appeal.
The preliminary objection, therefore, fails and is rejected.
On merits, we are of the opinion that the decision given by the High Court against the defendant appellants must be upheld.
The first appellate Court, which was the final Court for deciding question of fact, clearly recorded a finding that the karewa marriage alleged to have been entered into by the plaintiff, Smt.
Harnam Kaur, with Ishar Singh, defendant No. 4, was not proved.
That finding of fact was binding on the High Court and was rightly accepted by it.
It is no longer open to the appellants to challenge that finding of fact in this Court.
On this finding, it has to be held that the rights to the land, to which Smt.
Hamam Kaur had succeeded as widow of Labhu, were not lost by her 458 until her death, and that her dispossession by defendants 1 to 3 in the year 1954 was illegal.
They had no right to this land in ' preference to Smt.
Hamam Kaur.
It was, however, urged on behalf of the appellants that, when Smt.
Hamam Kaur died, she was not in actual possession of this land.
She had been dispossessed in the year 1954 and, at the time of her death in 1958, this suit instituted by her for possession of that land was still pending.
In the suit, her own pleading was there that the land was in actual possession of defendants 1 to 3 as trespassers, and, in such circumstances, it should be held that the land was not possessed by Smt.
Hamam Kaur at any time after the Act came into force, so that section 14 of the Act never became, applicable and she never became full owner of that land.
It may be mentioned that there was no dispute in the High Court, nor was it disputed before us that, if it be held that section 14 of the Act had become applicable and Smt.
Hamam Kaur became full owner of this land, her rights would pass on her death to Smt.
Rattno and, subsequently, on the latter 's death, to the present respondents in this appeal.
The only question for decision in this appeal, therefore, is whether it can be held that this property was possessed by Smt.
Harnam Kaur as envisaged by section 14 of the Act, so that she became full owner of this land.
Section 14(1) of the Act is as follows "14.
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.
In this sub section, "property" includes both movable and immovable; "property, acquired" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
" The dispute in the case has arisen, because this section confers the right of full ownership on a Hindu female only in respect of property possessed by her, whether acquired before or after the commencement of the Act; and, in the present case, admittedly, the plaintiff had been dispossessed in the year 1954 and was not able to recover possession from the defendants apppellants until her death in the year 1958.
It was urged on behalf of the appellants that, in order to attract the provisions of section 14 (1) of the Act, it must be shown that the female Hindu was either in actual 459 physical possession, or constructive possession of the disputed property.
On the other side, it was urged that, even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it.
It appears to us that, on the language used in section 14(1) of the Act, the latter interpretation must be accepted.
It is significant that the Legislature begins section 14(1) with the words "any property possessed by a female Hindu" and not "any property in possession of a female Hindu".
If the expression used had been "in possession of" instead of "possessed by", the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession.
The constructive possession may be through a lessee.
mortgagee, licensee, etc.
The use of the expression "possessed by" instead of the expression "in possession of ', in our opinion, was intended to enlarge the meaning of this expression.
It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession.
The expression "possessed by" is quite frequently used in testamentary documents, where the method of expressing the property, which is to pass to the legate, often adopted is to say that "all property I die possessed of shall pass to. . .
In such documents, wills, etc., where this language is used, it is clear that whatever rights the testator had in the property would pass to the legate, even though, at the time when the will is executed or when the will becomes effective, the testator might not be in actual, physical or constructive possession of it.
The legate will, in such a case, succeed to the right to recover possession of that property in the same manner in which the testator could have done.
Stroud in his Judicial Dictionary of Words and Phrases, Vol. 3, at p. 2238, has brought out this aspect when defining the scope of the words "possess" and "Possessed".
When dealing with the meaning of the word "possession", Stroud defines " possession" as being in two ways, either actual possession or possession in law.
He goes on to say that "actual possession is when a man enters in deed into lands or tenements to him descended, or otherwise.
Possession in law is when lands or tenements are descended to a man, and he has not as yet really, actually, and in deed, entered into them.
" In Wharton 's Law Lexicon, 14th Edn., at p. 777, the word "possession" is defined as being equivalent to 'the state of owning or having a thing in one 's own hands or power." Thus, three different meanings are given; one is the state of owning, the second is having a thing in one 's own bands, and the third is having a thing in one 's own 460 power.
In case where property is in actual physical possession, obviously it would be in one 's own hands.
If it is in constructive possession, it would be in one 's own power.
Then, there is the third case where there may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression "the state of owning".
In fact, elaborating further the meaning of the word "possession ', Wharton goes on to say that "it is either actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abator, intruder, or disseisor, who died seised; in law, when lands, etc., have descended to a man, and he has not actuary entered into them, or naked, that is, more possession, without colour of right.
" It appears to us that the expression used in section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them.
It would of course, cover the other cases of actual or constructive possession.
On the language of section 14(1), therefore, we hold that this prorovision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.
Section 14(1) came up for interpretation in various cases before a number of High Courts, and was considered by this Court also in several cases.
In none of those cases, however, did the question directly arise as to whether section 14(1) will be applicable, if the female Hindu is out of actual, physical or constructive possession and the property happens to have been wrongfully taken into possession by a trespasser.
Most of those cases were cases where the female Hindu had either alienated her rights by a, deed of transfer or had made a gift, and it was only incidentally; that, in some of those cases, comments were made on the question whether section 14(1) of the Act will be attracted or not in cases the female Hindu bad been dispossessed by a trespasser.
So far as this Court is concerned, the earliest case is that of Gummalpura Taggina Matada Kotturuswami vs Setra Veeravva and others(1).
Dealing with the scope of section 14(1) of the Act in that case, this Court cited from a decision of Viswanatha Sastri, J. in Gaddam Venkavamma vs Gaddam Veerayya (2) , and noticed the fact that in that case it was held that the word "possessed" is used in section 14 in a broad sense and, in the context, possession means the state of owning or having in one 's bands or power.
It was also noticed that the learned Judges of the Andhra Pradesh High Court in that case had expressed the view that even if a trespasser were in possession of the land belonging to a female (1) [1959] Supp. 1 S.C.R. 968.
(2) A. I.R. 461 owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his, title.
Since in that case this Court was not concerned with a situation where a trespasser had actually dispossessed the female owner, the Court went on to hold: "We do not think that it is necessary in the present case to go to the extent to which the learned Judges went.
It is sufficient to say that "possessed" in section 14 is used in a broad sense and, in the context, means the state of owning or having in one 's hand or power.
" Thus, in that case decided by this Court, the broad meaning of the word "possessed ' was accepted as even including cases where the state of owning the property exists.
Learned counsel for the appellants, when bringing to our notice the views expressed by this Court in that case, also drew our attention to another part of the judgment, where this Court remarked: "Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case, the property must be possessed by a, female Hindu at the time the Act came into force in order to make the provisions of the section applicable.
There is no question in the present case that Veerawa acquired the property of her deceased husband before the commencement of the Act.
In order that the provisions of section 14 may apply to the present case, it will have to be further established that the property was possessed by her at the time the Act came into force.
" Learned counsel, from these words, tried to draw an inference that this Court had laid down that section 14(1) will only apply to cases where the property was possessed by the Hindu female at the commencement of the Act.
We do not think that any such interpretation can be placed on the words used by this Court.
Section 14(1) covers any property possessed by a female Hindu, whether acquired before or after the commencement of the Act.
On the face of it, property acquired after the commencement of the Act by a female Hindu could not possibly be possessed by her at the commencement of the Act.
This Court, when it made the comments relied upon by learned counsel, was, in fact, concerned with a case of a female Hindu, who had acquired the right to the property before the commencement of the Act, but was alleged to be no longer possessed of it because of having adopted a son before the commencement of the Act.
It was in these circumstances that the Court in that particular case was concerned with the question whether the female Hindu was possessed of the property in dispute or not at the time the Act came into force.
The Court was not laying down any general principle that section
14(1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act.
In fact, there are no words used in section 14(1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the 462 commencement of the Act.
It appears to us that the relevant date, on which the female Hindu should be possessed of the property in dispute, must be, the date on which the question of applying the provisions of section 14(1) arises.
If, on that date, when the provisions of this section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner.
Such a question may arise in her own life time or may arise subsequently when succession to her property opens on her death.
The case before us falls in the second category, because Smt.
Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt.
Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of the Act.
The next case in which section 14 was considered by this Court was Brahmdeo Singh and Another vs Deomani Missir and Others(1) In that case, the female Hindu, who had succeeded to the property as the widow of her husband, Ramdeo Singh, had transferred the property under two sale deeds.
It was held that the sale deeds were not for legal necessity; and the question arose whether, in those circumstances, when the Act came into force, it could be held that the widow was possessed of that property.
This Court, after citing the judgment in the case of Gummalapura Taggina Matada Kotturuswami(2) held that the conflict of judicial opinion on this question had already been resolved in that earlier case, where the Court had observed : "The provisions in section 14 of the Act were not intended to benefit alienees who, with their eyes open, purchased the property from a limited owner without justifying necessity before the Act came into force and at a time when the vendor had only a limited interest of a Hindu woman.
" The ;Court further dealt with the contention that the possession of the alienees is the possession of the widow herself who is still alive, and held : "We are unable to accept this contention as correct.
It is well settled that an alienation made by a widow or other limited heir of property inherited by her, without legal necessity and without the consent of the next reversioners, though not binding on the reversioners, is, nevertheless, binding on her so as to pass her own interest (i.e. life interest) to the alienee.
" It was, thus, made clear in that case that the property was held not to be possessed by the widow, because, the alienation made by her being binding on her, she had no longer any legal right left in that property even in the sense of being in the state of owning it.
The case, thus, explains why, in cases of alienation or a gift made by a widow, even though that alienation or gift may not be bind (1) Civil Appeal No. 130 of 1960 decided on October 15, 1962.
(2) [1959] Supp. 1 S.C.R. 968.
463 ing on a reversioner, the property will not be held to be possessed by the widow, because the alienation or the gift would be binding on her for her life time and she, at least, would not possess any such rights under which she could obtain actual or constructive possession from her transferee or donee.
Having completely partted with her legal rights in the property, she could not be said to be possessed of that property any longer.
The third case of this Court brought to our notice is that of section section Minna Lal vs section section Rajkumar and Others(1).
In that case, a Digamber Jain of the Porwal sect died in 1934 leaving behind his widow, his son and three grand sons.
His son died in 1939.
In 1952, a son of one of the grandsons filed a suit for partition of the joint family properties, while the widow was still alive.
While the suit was still pending, the widow died.
Amongst other questions arising in the partition suit, one question that arose was whether the 1/4th share of the widow declared in the preliminary decree was possessed by her and whether, on her death, it descended to her grandsons in accordance with the provisions of sections 15 and 16 of the Act.
Dealing with this question, this Court explained the scope of section 14(1) by stating that, by section 14(1), the Legislature sought to convert the interest of a Hindu female which, under the Sastric Hindu law, would have been regarded as a limited interest into an absolute interest.
It was held that, by section 14(1), manifestly, it was intended to convert the interest, which a Hindu female has in property, however restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate.
It was also noticed that "under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance, and she was not entitled to claim partition.
But the Legislature, by enacting the Hindu Women 's Right to Property Act, 1937, made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned, she became owner in severalty of her share, subject, of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil.
" Applying these principles to the facts of that case, it was remarked : "In the light of the scheme of the Act and its avowed purpose, it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property.
If, under a preliminary decree, the right in favour of a Hindu male be regarded as property, the right declared in favour of a Hindu female must also be regarded as property.
The High Court was, therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai (1) [1962] Supp.
3 S.C.R. 418.
464 was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of section 14 of the Act.
" In that case, it will be noticed that the widow died, while the suit for partition was still pending, and she was not in actual, physical or constructive possession of the property which was held to be possessed by her at the time of her death.
Only a preliminary decree declaring her right to the share had been passed.
That decree was passed before the Act came into force and the widow died after the Act came into force.
On these facts, the Court came to the finding that the disputed property was possessed by the widow; and this finding was given despite the circumstance that she was not in actual possession or constructive possession of the property, but had merely obtained the right to the property under the preliminary decree.
The principle laid down in that case, thus, supports the broader meaning given to the expression "possessed by" indicated by us earlier.
The last case of this Court brought to our notice is Eramma vs Veerupana and Others(1).
That was a converse case in which the female Hindu, in fact, did not possess any legal right or title to the property, though she was actually in physical possession of it.
It was held: "The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title, whether before or after the commencement of the Act.
It may be noticed that the Explanation to section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicated that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be.
The words "as full owner thereof and not as a limited owner" as given in the last portion of sub section (1) of section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership.
In other words, section 14 (1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section.
The object of the section is to extinguish the estate called "limited estate" or "widow 's estate" in Hindu Law and to make a Hindu woman, who, under the old law, would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.
" In the concluding part, it was held : "It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser.
In other words, the provisions of section 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property (1) A.I.R. 1966 S.C. 1879.
465 of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property.
" This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question.
Even mere physical possession of the property without the right of ownership will not attract the provisions of this section.
This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled.
The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer.
In this view that we have taken, it does not appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned counsel for the appellants.
The cases mentioned were : Sansir Patelin and Another vs Satyabatt Naikani and Another(1); Ganesh Mahanta and Others vs Sukria Bewa and Others(2); Harak Singh vs Kailash Singh and Another(3); Ram Gulam Singh and others vs Palakdhari Singh and others(4) ; Nathuni Prasad Singh and Another vs Mst.
Kachnar Kuer & Others(5); and Mst.
Mukhtiar Kaur vs Mst.
Kartar Kaur and Others(4).
All these were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser.
The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of section 14(1) of the Act to a case of the nature before us.
On the interpretation of section 14(1) of the Act that we have accepted above, it must be held that the property involved in the present suit was possessed by Smt.
Harnam Kaur when she died in the year 1958 and, consequently, Smt.
Rattno and, after her, the present respondents must be deemed to have succeeded to those rights.
We have already mentioned above that it was not disputed that, if it is held that Smt.
Hamam Kaur had become full owner of this property, it would pass on her death to Smt.
Rattno.
As a result, the decision given by the High Court must be upheld.
The appeal is dismissed with costs.
G. C. (1) A.I.R. 1958 Orissa 75.
(3) A.I.R. 1958 Patna 581.
(5) A.I.R. 1965 Patna 160.
Appeal dismissed.
(2) A.I.R. 1963 Orissa 167.
(4) A.T.R. 1961 Patna 60.
(6) A.I.R. 1966 Pun.

summary:
A Hindu widow in the Punjab came into possession of her husband 's land on his death in 1917.
She continued in possession till 1954 when on an application made by certain collaterals of her late husband the Naib Tehsildar effected a mutation in favour of the collaterals.
On the basis of the Naib Tehsildar 's order the collaterals dispossessed the widow.
She filed a suit for recovery of possession of the land.
After the institution of the suit the , came into force.
During the pendency of the suit, in 1958, the widow died and her daughter was substituted as legal representative.
The defendants pleaded that the widow had lost her right to the land because of her karewa marriage with one of the collateral&,, and that the daughter could not succeed to the land as she was not in possession of the land on the coming into force of the so as to become full owner of the land under section 14 thereof.
The trial court dismissed the suit but the first appellate court decreed it, holding that there was no karewa marriage as alleged by the defendants, and that section 14 was applicable to the case.
The High Court dismissed the appeal filed by the defendants who came to this court by special leave.
HELD : (i) The finding of fact by the first appellate court that there was no karewa marriage was binding on the defendants, and the High Court rightly accepted it.
It was not open to the defendants to challenge the finding in this Court.
[457H] (ii) The use of the expression "possessed by" instead of the expression "in possession of" in section 14(1) was intended to enlarge the meaning of this expression to cover cases of ion in law.
On the language of section 14(1) the provision will become applicable to any property which is owned by a female Hindu even though she is not in actual physical or constructive possession of the property.
[459C D; 460D] The section however will not apply to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could in no manner exercise her rights in that property any longer.
[465C] On the facts of the case the plaintiff widow had acquired full rights of ownership of the land under s 14 of the .
On her death in 1958 the property passed to her daughter.
The High.
Court, rightly dismissed the defendants, appeal.
[465G] Gimmalapura Taggina Matada Kotturuswami vs Setra Veerayya & Ors, [1959] Supp. 1 S.C.R. 968 and Brahmdeo Singh vs Deomani Missir C.A. No. 130/1960 dated 15 10 1962, distinguished.
455 section section Munna Lal vs section section Rajkumar, [1962] Supp. 3 S.C.R. 418 and Eramma vs Veerupana, A.I.R. 1965 S.C. 1879, applied.
Gaddam Venkayamma vs Gaddanz Veerayya, A.I.R. 1957 A.P. 280, Sansir Patelin & Anr.
vs Satyabati Naikani & Anr.
A.I.R. 1958 Orissa 75, Gajesh Mahanta vs Sukria Bewa, A.I.R. 1963 Orissa 167, Hapak Singh vs Kailash Singh & Anr.
A.I.R. 1958 Patna 581, Ram Gulam Singh vs Palakdhari Singh, A.I.R. 1961 Patna 60. ' Nathuni Prasad Singh vs Mst.
Kachnar Kuer, A.I.R. 1965 Patna 160 and Mst.
Mukhtiar Kaur vs Mst.
Kartar Kaur & Ors., A.I.R. 1966 Pun. 31, referred to.