judgement:
l Appeal No. 665(N) of 1972.
Appeal by special leave from the judgment and order dated August 27, 1971 of the High Court of Judicature at Allahabad in Civil Revision No. 680 of 1970.
V. M. Tarkunde and Hardev Singh, for the appellant.
Respondent appeared in person.
The Judgment of the Court was delivered by Mathew, J.
This appeal, by special leave, is from the order of the High Court of Allahabad allowing on application for revision of orders passed by the Civil Judge, Saharanpur, directing discovery of documents by the respondent and dismissing an application by him for permission to sue forma pauperis.
The respondent filed a suit in forma pauperis on April 29, 1962, against the appellant and his wife for recovery of damages to the tune of Rs. 7,48,000/ for malicious prosecution.
Notice of the petition.
to sue in forma pauperis was given to the State Government and the appellant under Order 33, Rule 6 of the Civil Procedure Code.
Both the Government and the appellant filed objections stating that the respondent is not a pauper.
The appellant thereafter filed an application for discovery of documents from the respondent for proving that the respondent is not a. pauper.
The Court passed an order on February 23, 1970, directing the respondent to discover on affidavit the documents relating to the bank accounts of the respondent, namely, pass books cheque books, counterfoils, etc., from March 1, 1963, to the date of filing the affidavit of discovery, as also the documents in respect of the properties held by him and the personal accounts maintained by him.
The respondent was to file the affidavit of 700 discovery on March 8, 1970.
It was specifically stated that no extension of time will be allowed for filing the affidavit and that the discovery should be made within the time.
The respondent did not file the affidavit in pursuance to the order.
On March 31, 1970, he moved an application stating.
that he, wants to file a revision against the order dated February 23, 1970, before the High Court and that two months ' time may be allowed for the purpose.
The Court rejected the application for time on April 4, 1970, on the ground that the application for permission to sue in forma pauperis was pending for the last seven years and that the respondent had ample time for filing the revision if he was diligent in the matter.
The respondent 's counsel then moved another application on the same day stating that the respondent wants to adduce evidence and that since he had not come to Court in the expectation that his earlier application dated March 31, 1970, for adjournment would be allowed, the case may be adjourned.
This application was also rejected by the Court.
And as counsel for the respondent reported no instruction and as there was no evidence to show that the respondent was a pauper, the Court dismissed the application for permission to sue in forma Pauperis and directed the respondent to pay the court fee within 15 days.
The respondent challenged the order directing discovery of documents passed on February 23, 1970, and that dismissing his application for permission to sue in forma pauperis passed on April 4, 1970, in revision before the High Court.
The High Court hold that since the proceedings under rules 6 and 7 of Order 33 are summary in character, the "sophisticated procedure" for discovery should not have been resorted to by the appellant, that the documents of which discovery was sought were not specified in the application of the appellant and, therefore, the application for discovery was bad, that the enquiry under rules 6 and 7 of Order 33 was primarily a matter between respondent and the State Government and that the trial court should not have adopted the procedure for discovery and inspection at the instance of a private party like the appellant.
The Court further held that the trial Court acted with material irre gularity as it did not consider the question of the necessity for discovery of the documents or the relevancy of the documents of which discovery was sought and also for the reason that, in ordering discovery of the documents relating to personal accounts, and pass books, it overlooked the right of the respondent to claim privilege.
And as regards the order passed on April 4, 1970, dismissing the application for permission to sue in forma pauperis after rejecting the application for adjournment, the Court said that the trial Court betrayed an anxiety to get rid of 701 an application to add to the figures of its disposal.
The Court, therefore, set aside the order for discovery as well as the order dismissing the application for permission to sue in forma pauperis.
The respondent submitted that the procedure for discovery of documents is not permissible in proceedings under Order 33 and that it is not salutary to adopt the procedure even if permissible.
In Vijay Pratap Singh vs Dukh Haran Nath Singh and another(1), this Court has held that "the suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 is presented.
" If that be so, the provisions of rule 12 of Order 11 relating to discovery would in terms apply to proceedings under Order 33.
There is also no reason why, if the provisions of Order 1, rule 10 relating to additions of parties, of Order 9 dealing with appearance of parties and consequence of non appearance, and of Order 39 relating to temporary injunctions would apply to proceeding under Order 33, the provisions in Order 11 dealing with dis covery of documents should not apply to, such proceedings.
In England, discovery is ordered in any 'pause ' or 'matter ' in the Supreme Court to which the rules of the Supreme Court apply.
And 'cause ' includes any action, suit or other original proceeding between a plaintiff and defendant.
Generally speaking, discovery is granted there in all proceedings except purely criminal proceedings, and civil proceedings where the action is brought merely to establish a forfeiture or enforce a penalty(1).
There is no reason to hold, if costs could be saved, that it is not salutary to resort to the procedure in proceedings under Order 33.
We think that the High Court was wrong in holding that since the application for discovery did not specify the documents sought to be discovered, the lower Court acted illegally in the exercise of its jurisdiction in ordering discovery.
Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party 's evidence of his case or title.
If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them.
The party wanting inspection must, therefore, call upon the opposite party to produce the document.
And how can a party do this unless he knows what documents are in the possession or power of the opposite party ? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for dis covery of specific documents ? Order 1 1, rule 12 provides : (1) ,675.
(2) Halsbury 's Laws of England, 'Vol.
702 "12.
Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein.
On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs".
When the Court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in rule 21 of Order 1 1.
An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings.
And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have posses sion of them (see form No. 5 in Appendix C of the Civil Pro cedure Code).
After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.
The High Court was equally wrong in thinking lb at in pass ing the order for discovery, the trial Court acted illegally in the exercise of its jurisdiction as it deprived the respondent of his right to claim privilege for non production of his pass book and personal accounts, because the stage for claiming privilege had not yet been reached.
That would be reached only when the affidavit of discovery is made.
Order 11, rule 13 provides that every affidavit of documents should specify which of the documents therein set forth the party objects to produce for inspection of the opposite party together with the grounds of objection.
Nor do we think that the High Court was right in holding that the documents ordered to be discovered were not relevant to the injuiry.
The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings.
It is sufficient it the documents would be relevant for the purpose of throwing light on the matter in controversy.
Every document which will throw any light on the case is a document relating to 703 a matter in dispute in the proceedings, though it might not be admissible in evidence.
In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary 's case or which may lead to a trail of enquiry which m have either of these two consequences.
The word 'document ' may this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted.
We think that the documents of which the discovery was sought, would throw light on the means of the respondent to pay court fee and hence relevant.
We venture to think that the High Court was laboring under a mistake when it said that the enquiry into the question whether the respondent was a pauper was exclusively a matter between him and the State Government and that the appellant was not interested in establishing that the respondent was not a pauper.
Order 33, rule 6 provides that if the Court does not reject the application under rule 5, the Court shall fix a day of which at least 10 days ' notice shall be given to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of pauperism and for hearing any evidence in disproof thereof.
Under Order 33, rule 9, it is open to the Court on the application of the defendant to dispauper the plain .
tiff on the grounds, specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper.
An immunity from a litigation unless.
the requisite court fee is paid by the plaintiff is a valuable right for the defendant.
And does it not follow as a corollary that the proceedings to establish that the applicant plaintiff is a pauper, which win take away that immunity, is a proceeding in which the defendant is vitally interested ? To what purpose does Order 33, Rule 6 confer the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is ' not a pauper unless the opposite party is interested in the question and entitled to avail himself of all the normal procedure to establish it ? We can think of no reason why if the procedure for discovery is applicable to proceeding under Order 33, the appellant should not be entitled to avail himself of it.
We also do not think that there is any point in the criticism of the High Court that the order for discovery was vague.
The first item in the order was in respect of the documents relating to the bank accounts of the respondent from March 1, 1963, to the date of the affidavit.
The second item related to documents in respect of the immovable properties held by him during the same 704 period and the third item was in respect of documents relating to the personal accounts maintained by him for the same period.
The order was as specific as it could be.
Counsel for the appellant contended that even if the order for discovery of documents was bad in law, the High Court was not justified in interfering with it.
And as regards the order dated April 4, 1970, dismissing the application for permission to sue in forma pauperis after rejecting the application for time, be said, the High Court was really interfering with the discretion of the trial Court in the matter of adjournment, The jurisdiction of the High Court under section 115 of the C.P.C. is a limited one.
As long ago as 1884, in Rajah Amir Hassan Khan vs Sheo Baksh Singh(1), the Privy Council made the following observation on section 622 of the former Code of Civil Procedure, which was replaced by section 115 of the Code of 1908 "The question then is, did the judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity.
It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it.
Whether they decided rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.
" In Balakrishna Udayar vs Vasudeva Aiyar(2), the Board observed : "It will be observed that the section applies to jurisdiction alone, the irregular exercise or non exercise of it, or the illegal assumption of it.
The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.
" In N. section Venkatagiri Ayyangar vs Hindu Religious Endowments Board, Madras(1), the Judicial Committee said that section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected he ultimate decision.
And if the High Court is satisfied on those three matters, it.
has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law.
(1)[1884] L. R. 11 1.
A. 237.
(2) [1917] L. R. 44 1.
A. 261, 267.
(3) [1948 49] L. R. 76, 1.
A. 67. 705 This Court in Manindra Land and Building Corporation Ltd. vs Bhutnath Banerjee and others(1) and Vora Abbashhai Ali (2 mahomed vs Haji Gulamnabi Haji Safibhai ) has held that a distinction must be drawn between the errors committed by sub ordinate courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the said Court, and errors of law which have no such relation or connection.
In Pandurang Dhoni Chougute vs Maruti Hari Jadhav(3), this Court said : "The provisions of section 115 of the 'Code have been examined by judicial decisions on several occasions.
While ex ercising its jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.
As clauses (a), (b) and (c) of section 15 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed, to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.
It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction.
It is well settled that a plea of limitation or a plea of rasjudica is a plea of law which concerns the jurisdiction of the Court which tries the proceedings.
A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of section 115 of the Code.
But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court under section 115.
" The "jurisdiction" is a verbal coat of many colours Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. vs Foreign Compensation Commission (4 ) , namely, the entitlement "to enter upon the enquiry in question".
If there was an entitlement to enter upon an enquiry into the question, ben any subsequent error could only be regarded as an error within the jurisdiction.
The best known formulation of this theory is that made by Lord Denean in R. vs (1) ; (2) ; (3) (4) ; 706 Bolton(1).
He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry.
In Anisminic Ltd. (2) , Lord Reid said: "But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity.
It may have given its decision in bad faith.
It may have made a decision which it had no power to make.
It may have failed in the course of the enquiry to comply with the requirements of natural justice.
It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it.
It may have refused to take into account something which it was required to take into account.
Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account.
I do not intend this list to be exhaustive.
" In the same case, Lord Pearce said "Lack of jurisdiction may arise in various ways.
There may be an absence of those formalities or.
things which are conditions precedent to the tribunal having any jurisdiction to embark on an,enquiry.
Or the tribunal may at the end make an order that it has no jurisdiction to make.
Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account.
Thereby it would step outside its jurisdiction.
It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct.
Any of these things would cause its purported decision to be a nullity.
" The dicta of the majority of the House of Lords in the above case would show the extent to which `lack ' and 'excess ' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of "jurisdiction".
The effect of the dicta in that case is to reduce the difference 'between jurisdictional error and error of law within jurisdiction almost to vanishing point.
The practical effect of the decision is that any error of law can be reckoned as jurisdictional.
This (1) ; (2) [1969] 2A. C. 147.
707 comes perilously close to saying that there is jurisdiction it the decision is right in law but none if it is wrong.
Almost any misconstruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or "addressing themselves to a wrong question".
The majority opinion in the, case leaves a Court or Tribunal with virtually no margin of legal error.
Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will, give little guidance.
It is really a question of how much latitude the Court is prepared to allow.
in the end it can only be a value judgment (see H.W.R. Wade, "Constitutional and Administrative Aspects of the Anismanic case", Law Quarterly Review, Vol. 85, 1969, p. 198).
Why is it that a wrong decision on a question of limitation or res judicata 'was treated as a jurisdictional error and liable to be interfered with in revision ? It is a it difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack.
The reason can only be that the error of law was considered as vital by the Court.
And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.
The trial Court had jurisdiction to pass the order for discovery.
Even if lack of jurisdiction is ' assumed to result from every material error of law even an error of law within the jurisdiction in the primitive sense of the term we do not think the order was vitiated by any error of law.
The rejection of the application for time and the consequent dismissal of the petition for permission to sue in forma pauperis can hardly be said to sound in jurisdic tional error even in its extended sense, as already explained.
We are also not satisfied that the refusal to adjourn occasioned any failure of natural justice so as to render the order a nullity.
Nor is there anything to show that in rejecting the application for time the Court acted illegally or with material irregularity in the exercise of its jurisdiction.
We would, therefore, set aside the order of the High Court and allow the appeal but in the circumstances make no order as to costs.
This order will not in any way affect the validity of the order passed by the High Court on August 26, 1971, directing the respondent to delete the name of the wife of the appellant from the array of parties.
V.P.S. Appeal allowed.

summary:
The respondent filed an application for permission to sue in forma pauperis against the appellant, and notice of the petition was given to the state Government and the appellant under O.33, r. 6, CPC.
The Government and the appellant filed objections, that the respondent was not a pauper.
The appellant also filed an application for discovery of docu ments from the respondent for proving that the respondent was not a pauper.
The Court passed an order directing the respondent to discover on affidavit the documents relating to bank accounts of the respondent for a specified period.
The respondent did not file the affidavit on the prescribed date but filed applications for time which were dismissed by the Court and the Court thereafter dismissed the application for permission to sue in form pauper is as there was no evidence to show that the respondent was a pauper and directed the respondent to pay the court fees.
The respondent challenged the orders directing discovery of documents and dismissing the application for permission to sue in forma pauperis in revision before the High Court., The High Court set aside the two orders holding that; (1) Since the proceedings under O.33, rr. 6 and 7 are summary, discovery should not have been ordered : (2) the documents of which discovery was sought were not specified in the application of the appellant, (3) the inquiry under O.33, rr. 6 and 7 was a matter between the respondent and the State Government and discovery and inspection at the instance of a private party like the appellant should not have been ordered;(4) the trial court acted with material irregularity as it did not consider the question of the necessity for discovery of the documents or the relevance of the documents of which discovery was sought; (5) the trial court overlooked the right of the respondents to claim pri vilege; and (6) the trial court, rejected the application to sue in forma pauperis for statistical purposes.
Allowing the appeal to this Court, HELD : (1) The suit commences from the moment an application for permission to sue in forma paupers as required by O. 33 C.P.C. is presented and the provisions of Order 1, r. 10, of O.9 and O.39 would apply to it.
If that be so, there is no reason why the provisions of O.11 r. 12 relating to discovery should not also apply to proceedings under O.33.
[701B C] Vijay Pratap Singh vs Dukh Haran Nath Singh and Anr., , 675. followed.
(2) When the ' Court makes order for discovery the opposite party is bound to make an affidavit of documents and if he fails to do so he will be subject to the penalties specified in O.11, r. 21.
An affidavit of documents shall set forth all the documents which are or have been in his possession or power relating to the matter in question in the proceedings.
As to documents which are not but have been in his possession or power he must state what has become of them in order that the other Party may Ll529upCI/73 698 be able to get their production.
Therefore, unless the party discovery knows what are the documents in the possession of custody of the other party which would throw light.
upon the matter in controversy it is not possible for him to ask for discovery and inspection of specific documents.
, In the circumstances therefore the order was as specific as it could be.
, [702C F] (3) Order 33, r. 6 provides that it the Court does not reject the application under r. 5 notice shall be given to the opposite party and the Government pleader for receiving such evidence as the applicant may, adduce in proof of pauperism and for hearing any evidence in disproof thereof.
Also under O.,33, r. 9 it is open to the Court on the application of the defendant to disappear the plaintiff on the grounds specified therein one of which is, that his means are such that he should not be allowed to continue to sue as a pauper.
Since an immunity from litigation unless the requisite court fee is paid by the plaintiff, is a valuable right for the ' defendant, the inquiry into pauperism is not a matter exclusively between the Government and the plaintiff.
[703C G] (4) The High Court was not right in holding that the documents were not relevant for the inquiry.
The documents sought to be discovered need not be admissible in evidence in the inquiry or proceedings.
It is sufficient if they would be relevant for the purpose of throwing light on the matter in controversy.
A document might.
be inadmissible in evidence and yet may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary 's case or which may lead to a trail of inquiry which may have either of these two consequences.
Since documents of which dis covery was sought would throw light on the means of the respondent to pay the court fee they are relevant.
[702H; 703A C] (5) The High Court was wrong in holding that the plaintiff 's right to claim privilege was affected by the order, because, the stage for claiming privilege had not yet been reached.
, That would be reached only when the affidavit of discovery is made, and the plaintiff objects under O.11, r. 13, to produce for inspection by the Opposite party specific documents.
[702E G] (6) (a) A distinction must be drawn between errors committed by subordinate courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the Court and errors of law which have no such relation or connection, for the purposes of section 115, C.P.C.
If there was an entitlement to enter upon an inquiry into a question then any subsequent error committed by the Court could not be regarded as an error of jurisdiction, because the question of jurisdiction is determinable at the commencement and not at the conclusion of the inquiry.
[705A B, G H; 706A] Manidra Land and Building Corporation Ltd. vs Bhutnath Banerjee & Ors, A.I.R. Vora Abbashhai Alimahommed vs Haji Gulamnabi Haji Safibhai, ; and Pandurangh Dhoni Chougule vs Maruti Hari Jadhav, ; , followed.
Rajah Amir Hassan Khan vs Sheo Baksh Singh, [1884] L.R. II I.A. 237, Balakrishana Udayar vs Vasudeva Aiyar, [1917] L.R.44 I.R. 261, Venkatagiri Ayyangar vs Hindu Religious Endowments Board, Madras, (.194849) L.R.76 I.A. 67, Anisminic Ltd., vs Foriegn Composition, Commission ; and R. vs, Botton, [184,41],, I Q.B. 66 referred to.
699 (b) But the effect of the observations in the Anisminic case is to reduce the difference between a jurisdictional error and an error, of law within jurisdiction, almost to a vanishing point.
The practical effect of the decision is that any error of law can be reckoned as jurisdictional.[706 H] In the present case even if lack of jurisdiction is assumed to result from every material error of law even an error of law within the jurisdiction as generally understood the order of the trial court (was not vitiated by any such error.
of law and the High court was not justified in interfering with it in revision.
The trial court had jurisdiction to pass the order for discovery.
The rejection of the application for time and the consequent dismissal of the petition for permission to sue in forma pauperis cannot be said to sound in jurisdictional error even in its extended sense.
The refusal to adjourn had not occasioned any failure of natural justice, nor is there any thing to show that in rejecting the application for time the trial court acted illegally or with material irregularity in the exercise of its jurisdiction.
[707D G]


judgement:
No. 39 of 1972.
Petition under Article 32 of the Constitution of India for the enforcement of fundamental rights.
section Lakshminarasu, for the petitioner.
G. L. Mukhoty and Sukumar Basu, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
The District Magistrate, Burdwan, passed the order impugned in this petition on July 14, 1971 directing the 715 petitioner 's detention under sub sec.
(1) read with sub sec.
(3) of sec.
3 of the West Bengal (Prevention of Violent Activities) Act, being President 's Act XIX of 1970, on the ground that such detention was necessary "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order".
In pursuance of the order the petitioner was arrested on August 6, 1971 when he was furnished, as required by the Act.
the grounds of detention.
There is no dispute that consequent upon the passing of the said order the Government of West Bengal and the other relevant authorities under the Act duly took all consequential steps, such as the reporting to and obtaining the Government 's order of approval, reporting to the Central Government, disposal of the petitioner 's representation, referring the petitioner 's case to the Advisory Board and obtaining its opinion etc., within the respective times prescribed by the Act.
Two grounds questioning the, validity of the said order and the detention thereunder were, however, urged by Mr. Lakshminarasu, appearing for the petitioner amicus curiae.
The first was that the first ground in the grounds of detention was irrelevant and therefore vitiated the entire order.
The second was that there was undue delay in the confirmation by the State Government of the detention order and the continuance of detention thereunder after the expiry of three months of detention.
The first ground in the grounds of detention runs as follows "That on 7 2 71 at 13 30 hours you and your associates had been to the house of Shri Bibhuti Bhusan Ghosh of Ranchi Dhowrah, Police Station Kulti, and asked him to rub [out] the anti naxalite slogans written on the wall of his house.
Being refused you threatened to kill him.
Your such act terrorised the common public and as such they could not pursue the normal avocations of life.
Moreover, it disturbed public order.
" The question is whether threat to kill the said Bibhuti Bhusan Ghosh amounted to " acting in any manner prejudicial to the maintenance of public order" as, defined in sec.
3 (2) (d) of the Act.
(d), amongst other things provides that committing any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such, offence disturbs or is likely to disturb public order, would fall within tile said definition of the expression "acting in any manner prejudicial to the maintenance of public order".
506 of the Penal Code provides that threat to 716 cause death or grievous hurt or to cause an offence punishable with death or imprisonment for life shall be punishable with imprisonment of either description for a term which may extend to seven years or with fine or both.
That being so, the offence said to have been committed by the petitioner clearly was one of the offences enumerated in cl.
(d) of sec.
3 (2) of the Act.
Ground No. (1) further alleges that the threat to kill the said Ghosh administered to him on account of his refusal to rub out the anti naxalite slogans written on the wall of his house "terror ised the common public and as such they could not pursue the normal avocations of life" and furthermore, disturbed public order.
This assertion, coupled with the satisfaction of the other requirement of cl.
(d) of sec.
3 (2), namely, the committal of the offence of threatening to kill, would bring the act in question within the expression "acting in any manner prejudicial to the maintenance of public order" as defined in sec.
3 (2).
It cannot, therefore, be argued that ground No. (1) was extraneous or irrelevant to the objects set out in sec.
3 of the Act and in respect of which a valid order of detention could be made under the Act.
The second contention also is not such as ran be sustained.
There is no dispute that the petitioner was arrested on August 6, 1971 and the order of confirmation and the impugned detention thereunder beyond the period of three months was passed by the State Government on October 28, 1971, that is within three months from the date of his arrest.
Counsel, however, argued that though the decision of this Court have laid down that such an order of confirmation has to be passed within three months from the date of arrest, the appropriate Government has to pass such an order as soon as possible and cannot delay in doing so until the expiry of three months.
In Deb Sadhan Roy vs West Bengal(1), a case under the President 's Act XIX of 1970, this Court laid down that it was essential that the appropriate Government should take positive action on the report of the Advisory Board, which action alone would determine whether the detention was to be terminated or continued, that it would, therefore, prima facie, appear that action should be taken immediately after the receipt of the opinion of the Board, or at any rate, within three months from the date a person was detained, and that failure to confirm or extend the period within three months would result in the detention becoming illegal, the moment the three months period elapsed without any such confirmation This decision, thus, makes it clear that the legality of a detention order or the detention thereunder would not be affected it an order of confirmation is passed before the expiry of three (1)[1972] 1 S.C.C. 308. 717 months from the date of detention.
Similarly, in Ujjal Mandal vs West Bengal(1), Mathew, J., speaking for the Court, observed at page 459 of the report as follows: "To put the matter in a nut shell : the State Government has power under the Act to detain a person without trial beyond a period of three months , but limited to a period of on year.
That power the State Government may exercise on receipt of the opinion of the Board that there is sufficient cause for the detention.
When the State Government receives that opinion, it has still the option to exercise the power and to continue the detention beyond the period of three months or not.
Confirmation is the exercise of the power to continue the detention after the expiry of three months.
Unless that power is exercised within the period of three months from the date of detention, the detention after the expiry of that period would be without the authority of the law.
" Therefore, if the order of confirmation has been passed, as it has been done in the present case, within three months ' time from the date of arrest, neither the legality of the detention order nor the continued detention thereunder is affected.
Both the contentions raised by counsel thus having failed, the petition also must fail and is consequently dismissed.
V.P.S. Petition dismissed.
(1) [1972] IS.C.C.456.

dataset_name: IN-Abs

summary:
Section 3(2) (d) of the West Bengal (Prevention of Violent Activities, ' Act, 1970, amongst other things, provides that the committing of any offence punishable with imprisonment for a term extending to 7 years of more, where the commission of such offence disturbs or is likely to disturb public order would be within the definition of the expression "acting in any manner prejudicial to the maintenance of public order".
In pursuance of an order under a. 3(1) and (3) of the Act, the petitioner was arrested on August 6, 1971, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order One of the grounds furnished to him was that he threatened to kill a person on account of his refusal to rub out the anti naxalite slogan, written on the wall of his house, that the threat terrorised the common public and as such they could not pursue their normal avocations, and that he disturbed public order.
The State Government confirmed the order on October 28, 1971, after receipt of the opinion of the Advisory Board (Dismissing the petition under article 32 Challenging the order of detention.
HELD : (1) Under section 506 I.P.C., a threat to commit an offence punish able with death or imprisonment for life shall be punish able with imprisonment of either description for a term which may extend to 7 years.
Hence the ground furnished was not extraneous or irrelevant since the petitioner.
had committed an offence enumerated in section 3(2) (d) and there was disturbance of public order.
[716A C] (2) There was no delay in passing the order of confirmation, since it was passed before the expiry of three months from the date of detention.
[716H] Deb Sadhan Rov vs West Bengal, and Ujjal Manda vs West Bengal, ; followed.


judgement:
minal Appeals Nos.
36 of 1969 and 202 of 1970.
Appeal from the judgment and order dated January 17, 1969 of the Rajasthan High Court in D.B. Criminal Appeal No. 376 of 1965.
A. section R. Chari and Sobhagmal Jain, for the appellant (in, Cr. A. No. 36 of 1969).
K. B. Mehta for the respondent (in Cr. A. No. 36 of 1969) (in Cr. A. No. 202 of 1970).
section C. Gupta, Ramesh Chand, section Bhandare and P. H. Parekh, for the respondent (in Cr. A. No. 202 of 1970).
The Judgment of the Court was delivered by Khanna, J.
This judgment would dispose of criminal appeal No. 36 of 1969 Bhagat Ram vs State of Rajasthan and criminal appeal No. 262 of 1970 State of Rajasthan vs Ram Swaroop.
Both the appeals have been filed on certificate granted by the Rajasthan High Court.
Bhagat Ram during the year 1962 was posted as circle ins pector of police at Ganganagar.
Ancestral village of Bhagat Ram is Mehna in Tehsil Moga, District Ferozepur.
Ram Swaroop also belongs to that village.
Both Bhagat Ram and Ram Swaroop were tried in the court of special judge, Ganga nagar for offenses under section 120B IPC for conspiring to ,extort bribe of Rs. 2,000 from P W I Niranjan Dass of Moga.
Charges were also framed against Bhagat Ram for offenses under sections 161, 218, 347 and 389 Indian Penal Code as also section 5 (1) (a) read with section 5 (2) of Prevention of Corruption Act.
Additional charge under section 165A Indian Penal Code was framed against Ram Swaroop.
Both Bhagat Ram and Ram Swaroop were acquitted by the special judge, Ganganagar in respect of all the charges.
The State of Rajasthan filed an appeal against the acquittal of the two accused.
The appeal was heard by a Division Bench consisting of Tyagi and Lodha, T.T. 305 The Division Bench dismissed the said appeal against the acquittal of Ram SwarooP.
The appeal of the State against Bhagat Ram in so far as it related to his acquittal for offenses under sections 347, 218, 389 and 120B IPC was also dismissed.
There was, however, a difference of opinion between the two learned judges on the point as to whether the acquittal of Bhagat Rain for offenses under section 161 IPC and 5(1) (a) of Prevention of Corruption Act should be maintained.
According to Tyagi, J., the case against Bhagat Ram for the above mentioned two offenses had not been proved and the State appeal in that respect also was liable to be dismissed.
As against that Lodha, J. took the view that Bhagat Ram was guilty of offenses under section 161 Indian Penal Code and section 5 (1) (a) of Prevention of Corruption Act.
He accordingly passed an order for the conviction of Bhagat Ram for the above mentioned two offenses.
In view of the difference between the two judges regarding the acquittal of Bhagat Ram for offenses under section 161 IPC and 5 (1) (a) of Prevention of Corruption Act, the case was placed under section 429 of the Code of Criminal Procedure before Jagat Narayan, J. Jagat Narayan, J. came to the conclusion that the material on record showed that Ram Swaroop and Bhagat Ram had entered into an agreement to extort bribe, from Niranjan Dass and, as such, were guilty of an offence under section 120A punishable under section 120B of Indian Penal Code.
The learned judge, however, felt that in view of the decision of the Division Bench, he could not set aside the acquittal of Ram Swaroop.
As regards Bhagat Ram, the learned judge came to the conclusion that he could set aside the acquittal of Bhagat Ram for offenses under sections 120B, 218 and 347 IPC.
Bhagat Ram was found guilty by Jagat Narayan, J. of the offenses under sections 120B, 161, 218 and 347 IPC.
For the offence under section 161 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5001 or in default to undergo rigorous imprisonment for a further period of three months.
For the offenses under sections 218 and 347 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year on each count.
These sentences were ordered to run concurrently with the sentence imposed under section 161 IPC.
No sentence was awarded for the offence under section 120B IPC.
Bhagat Ram has filed criminal appeal No. 36 of 1969 against his conviction and sentence, while the State of Rajasthan has filed appeal No. 202 of 1970 against the acquittal of Ram Swaroop.
The prosecution case is that a case under sections 408 and 420 IPC was registered on June 14, 1962 at police station Ganganagar on a report made by the general manager of Ganganagar 306 Sugar Mills against Ramesh, an employee of the sugar mills.
Bhagat.
Ram, who was circle inspector of Ganganagar, took over the investigation of the above case.
Bhagat Ram during investigation came to know that Ramesh had sent the misappropriated amount to his brother Puran Chand at Ludhiana.
Bhagat Ram also came to know that Puran Chand had entered into a transaction for the purchase of a truck from PW Niranjan Dass of Moga for a price of Rs. 22,000.
Niranjan Dass received Rs. 7,000 from Puran Chand in that connection.
As Puran Chand could not pay the balance of the purchase price, the bargain regarding the purchase of the truck was cancelled and the amount received by Niranjan Dass was stated to have been returned to Puran Chand.
It seems that Bhagat Ram took the stand that part of Rs. 7,000 had been kept by Niranjan Dass with himself.
Bhagat Ram, therefore.
summoned Niranjan Dass to police station Ganganagar.
In obedience to the summons, Niranjan Dass went with his brother Manohar Lal PW to Ganganagar police station on July 27, 1962.
Niranjan Dass and Manohar Lal could not meet Bhagat Ram on that day but met him on the following day.
Bhagat Ram then behaved in an unduly rude and harsh manner to Niranjan Dass and kept him at the police station.
Manohar Lal apprehending trouble, returned to Moga and took with him Ram Swaroop accused and some other persons.
Manohar Lal and his companions reached Ganganagar on July 29, 1962.
In the meanwhile, Bhagat Ram had gone to Hindumalkot.
Accompanied by Niranjan Dass, Ram Swaroop and others, Manohar Lal went to Hindumalkot Dak bungalow where Bhagat Ram was staying.
It is stated that Ram Swaroop went inside the room in which Bhagat Ram was present, while others stayed outside.
After ' some time Ram Swaroop came out of the room and told Niranjan Dass and Manohar Lal not to feel worried.
Niranjan Dass was asked to give a statement which was thereafter recorded by Bhagat Ram.
Bhagat Ram then produced three documents relating to the agreement for the sale of truck and the receipt which Niranjan Dass had obtained from Puran Chand.
for the refund of Rs. 7,000.
Bhagat Ram then told Niranian Dass to go back to Moga.
It was also mentioned by Bhagat Ram that if the presence of Niranjan Dass was required for further investigation, he would be summoned again.
About 10 or 15 days after that, it is stated, Bhagat Ram went to Moga in a jeep and stayed at the house of Niranjan Dass and Manohar Lal for the night.
While leaving Moga early next morning, Bhagat Ram told Niranjan Dass and Manohar Lal that they should have a talk with Ram Swaroop and act according to Ram Swaroop 's instructions.
After Bhagat Ram had left Moga, Ram Swaroop met Niranjan Dass and informed him that Bhagat Ram Wanted Rs. 21,000 as bribe for having helped Niranjan Dass 307 to get out of the trouble and that otherwise, Niranjan Dass would be again entangled in the case.
Niranjan Dass then told Ram Swaroop that he would consult a lawyer and give a reply.
Ram Swaroop, according to the prosecution case, came to Niranjan Dass in the first week of October 1962 and showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop from Alwar.
In the course of that letter it was stated Kindly kindness send that thing to Alwar.
This is very important and please do not be careless and slack in the matter.
" Ram Swaroop told Niranjan Dass that the words "that thing" in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it could be passed on to Bhagat Ram.
Niranjan Dass expressed his inability to accede to this demand.
The letter was, however, retained by Niranjan Dass.
A few days thereafter Ram Swaroop again came to Niranjan Dass and showed him telegram P.3A dated October 19, 1962.
The telegram had been addressed by Bhagat Ram to Ram Swaroop and it was stated therein that Ram Swaroop should ask Niranjan Dass to see Bhagat Ram and that otherwise , warrants of arrest would be issued against him.
This telegram too was kept by Niranjan Dass, with himself.
On December 26, 1962, it is stated, Niranjan Dass came tos know that warrants for his arrest had been received by the Moga police in the above mentioned case registered at Ganganagar.
Niranjan Dass then consulted a lawyer and sent complaint dated December 26, 1962 to the Inspector General of Police, Special Police Establishment.
A case was thereafter registered on the basis of the above complaint by DSP Umaid Singh of AntiCorruption Department.
After necessary investigation, Bhagat Ram and Ram Swaroop were sent up for trial.
In his statement under section 342 of the Code of Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram and that he had gone to him on July 29, 1962 with Manohar Lal and Niranjan Dass at Hindumalkot.
Ram Swaroop denied that Bhagat Ram had made any demand through him for illegal gratification.
According to Ram Swaroop, Bhagat Ram had asked him to realise the embezzled amount from Niranjan Dass.
The other allegations made against him were denied by Ram Swaroop.
he, however, admitted having received letter P. 2 and telegram P. 3A from Bhagat Ram and having handed over those documents to Niranjan Dass.
Ram Swaroop added that he had asked Niranjan Dass to pay the embezzled amount which was with him.
Bhagat Ram admitted that he had been entrusted with the investigation of the case against Ramesh and that he had called Niranjan Dass to Ganganagar in that connection.
Bhagat Ram 308 denied having maltreated Niranjan Dass or having kept him under unlawful detention.
Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at Hinau malkot but he denied having made any demand through Ram Swaroop for the payment of Rs. 2,000 as bribe.
It was admitted by Bhagat Ram that he had gone to Moga but the demand for any illegal gratification from Niranjan Dass at Moga was denied by Bhagat Ram.
Bhagat Ram admitted having sent letter P. 2 and telegram P. 3A to Ram Swaroop.
As regards the words "that thing", Bhagat Ram stated that they referred to the embezzled amount which had been retained by Niranjan Dass.
The trial court, as stated earlier, acquitted both the accused, while the High Court maintained the acquittal of Ram Swaroop.
As regards Bhagat Ram, there was a difference between the two judges.
On the matter being referred to the third judge, Bhagat Ram was convicted and sentenced as above.
Arguments have been addressed in the two appeals by Mr. Mehta on behalf of the State of Rajasthan, Mr. Chari on behalf of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop.
After hearing the learned counsel, we are of the opinion that the appeal filed by the State of Rajasthan merits dismissal, while that filed by Bhagat Ram should be allowed.
It would appear from the resume of facts given above that both Bhagat Ram and Ram Swaroop were acquitted by the spe cial judge.
On appeal filed by the State of Rajasthan against the acquittal of the two accused, Tyagi and Lodha, JJ. maintained the order relating to the acquittal of Ram Swaroop.
As regards Bhagat Ram, though there was a difference between the two judges regarding the correctness of his acquittal for offenses under section 5(1) (a) of Prevention of Corruption Act and section 161 of Indian Penal Code., they concurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B. 218, 347 and 389 IPC.
The State appeal against the acquittal of Bhagat Ram was dismissed to that extent.
The order which was made by the learned judges of the Division Bench reads as under : "BY THE COURT The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed.
The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed.
In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian 309 .lm15
Penal Code and section 5 (1) (a) of the Prevention of Corruption Act, the matter may be laid before Hon 'ble the Chief Justice for referring it to the third judge.
" In view of the fact that the State appeal against the acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 I P C had been dismissed by the Division Bench, it was, in our opinion, not permissible for the third judge to reopen the matter and convict Bhagat Ram for offenses under sections 347, 389 and 120B IPC.
The matter had been referred under section 429 of the Code of Criminal Procedure to Jagat Narayan, J. because there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the correctness of the acquittal of Bhagat Ram for offenses under section 161 IPC and section 5(1) (a) of Prevention of Corruption Act.
Jagat Narayan, J. could go only into this aspect of the matter and arrive at his conclusion.
The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because of a difference of opinion between the two judges.
Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of the order of acquittal made by the trial judge in respect of Bhagat Ram.
On the contrary, as mentioned earlier, an express order had been made by the Division Bench upholding the 'acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed.
The above decision of the Division Bench was binding upon Jagat Narayan, J. and he was in error in convicting Bhagat Ram for offenses under sections 120B, 218 and 347 IPC despite the order of the Division Bench.
It was, in our opinion, not within the competence of the learned judge to reopen the matter and pass the above order of conviction in the face of the earlier order of the Division Bench whereby the order of acquittal of Bhagat Ram made by the trial judge in respect of the said three charges had been affirmed.
The order of the Division Bench unless set aside in appeal to this Court, was binding and conclusive in all subsequent proceedings between the parties.
The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded.
The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the above wholesome principle.
310 In the case of Sambasivam vs Public Prosecutor, Federal of Malaya(1), Lord MacDermott observed: "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim res judicata pro veritate accipitur ' is no less applicable, to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial." "The above observations were quoted with approval by this Court in the case of Pritam Singh vs State of Punjab(2).
We are, therefore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has convicted Bhagat Ram for offenses under sections 120B, 218 and 347 IPC cannot be sustained.
The matter can also be looked at from another angle. 'The, charge under section 120B IPC related to , conspiracy between Bhagat Ram and Ram Swaroop for extorting Rs. 2,000 as illegal gratification from Niranjan Dass.
When Ram Swaroop was acquitted of the charge under section 120B IPC, the basis of the charge against Bhagat Ram for conspiracy between him and Ram, Swaroop disappeared.
It is not the case of the prosecution that Bhagat Ram bad conspired with another person and even though the identity of the other person has not been established.
Bhagat Ram would still be guilty for the offence under section 120B IPC.
On the contrary, the case of the prosecution was that Bhagat Ram had conspired with Ram Swaroop to extort Rs. 2,000 as illegal gratification from Niranjan Dass.
Once Ram Swaroop was acquitted in respect of the charge relating to conspiracy, the charge against Bhagat Ram for conspiracy must necessarily fall to the ground.
So far as the State appeal against the acquittal of Rain Swaroop is concerned, we find that there are concurrent findings of the trial court and the High Court that the evidence on record had failed to prove that he was guilty of offenses under sections 120B and 165A IPC.
Nothing has, been brought to our notice at the (1) (2) 311 hearing of the appeal as may justify interference with those concurrent findings by a fresh appraisement of that evidence.
We are, therefore, of the view that the State appeal against the acquittal of Ram Swaroop is liable to be dismissed.
As regards the conviction of Bhagat Ram for the offence under section 161 IPC, we find that it is not the prosecution case that Bhagat Ram had made any demand directly to Niranjan Dass for payment of illegal gratification.
On the contrary, the High Court found that Bhagat Ram had not demanded bribe directly from Niranjan Dass.
The case set up by the prosecution is that Bhagat Ram attempted to obtain illegal gratification from Niranjan Dass through the instrumentality of Ram Swaroop.
In view of the acquittal of Ram Swaroop, it is not possible to maintain the conviction of Bhagat Ram.
The acquittal of Ram Swaroop would necessarily lead to the conclusion that the prosecu tion allegation about Ram Swaroop having made a demand of illegal gratification from Niranjan Dass for Bhagat Ram has not been proved.
The case, in the circumstances, against Bhagat Ram for asking for bribe through Ram Swaroop must consequently fail.
It would indeed be incongruous and inconsistent to acquit Ram Swaroop, for offenses under sections 165A and 120B IPC and, at the same time, to convict Bhagat Ram for the offence tinder section 161 IPC for asking for bribe from Niranjan Dass through the instrumentality of Ram Swaroop.
We, therefore, accept the appeal of Bhagat Ram and set aside .his conviction and acquit him.
The appeal of the State of Rajasthan against the acquittal of Ram Swaroop is dismissed.
V.P.S. Appeal allowed.

summary:
An Inspector of Police was charged with offenses under sections 120B, 161, 218, 347 and 389 I.P.C. and also under section 5(1) (a) read with section 5(2) of the Prevention of Corruption Act.
Another accused was charged along with him for offenses under sections 120B and 165A, I.P.C. The trial court acquitted both the accused.
in appeal to the High Court a Bench of two judges confirmed the acquittal of the second accused and the acquittal of the Inspector with respect to offenses under sections 120B, 218, 349 and 389, I.P.C., but with respect to offenses under section 161, I.P.C. and section 5(1) (a) of the Prevention of Corruption Act, the two Judges differed and the matter was referred to a third Judge.
The third Judge held that the Inspector was guilty of the offenses under section 161 and also under sections 120B. 218 and 347 I.P.C.
In appeal to this Court by the Inspector and by the State against the acquittal of the second accused, HELD : (1) As regards the second accused there was nothing to justify an interference with his acquittal.
1310 H] (2) It was not permissible for the third Judge to reopen the matter and.
convict the Inspector for offenses under sections 120B, 347 and 389 I.P.C., because it was not a case where the entire matter had been left open for the opinion of the third Judge.
The difference of opinion between the two Judges was only with respect to the offenses under section 161 I.P.C. and section 5(1)(a) of the Prevention of Corruption Act and the third Judge could only go into that aspect of the matter.
[309 B D] The Division Bench had upheld the acquittal of the Inspector of Police for offenses under sections 120B, 347 and 389 and the State appeal in that respect had been dismissed by the Division Bench.
That order.
unless set aside in appeal to this Court, was binding and conclusive in all subsequent proceedings between the parties.
The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded.
[309 F H] Pritam Singh vs State of Punjab, 1956 S.C. A.I.R. 415, followed.
Further when the second accused was acquitted of the charge under section 120B I.P.C. the basis of the charge against the Inspector for conspiracy 7 LS879 jp.
Cl/72 304 between him and the second accused disappeared.
It was not the case ,of the prosecution that he had conspired with some other person whose identity had not been established.
[310 E F] In view of the acquittal of the second accused it is also not possible to maintain the conviction of the Inspector under section 161 I.P.C. since it was not the prosecution case that he had made any demand directly for payment of illegal gratification.
On the contrary, the prosecution case was that the Inspector had attempted to obtain such gratification through instrumentality of the second accused.
[311 B C]


judgement:
os. 323 332, 1312 & 1174 of 1969.
709 Appeals by certificate from the judgment and a decree dated September 27, 1968 of the Andhra Pradesh High Court of Judicature at Hyderabad in Writ Petitions Nos.
2956, 1798, 1931, 2313, 3372, 3740, 3964, 3956 and 4088 of 1968 and Civil Appeal No. 1518 of 1970.
On appeal by certificate from the judgment and order dated March 31, 1970, of the Andhra Pradesh High Court in Writ Petition No. 3501 of 1968 and Appeal by certificate against the judgment and order dated August 25, 1970 of the Andhra Pradesh High Court of Judicature at Hyderabad in Writ Petition No. 4034 of 1970.
B. V. Subramanyam and G. Narayana Rao for the appellants (in CA Nos.
323/69 and 1312/69).
G. Narayana Rao, for the appellants (in all the appeals).
P. Basi Reddy and B. Parthasarathy, for the respondents (in C.
As Nos.
323, 332, 1312, 1174/69.) P. Basi Reddy and A. V. V. Nair, for the respondent, (In C.A. No. 1518/70).
P. Basi Reddy and P. Parameshwara Rao, for the respondent (In C.A. Nos. 2117/70).
The Judgment of the Court was delivered Beg, J.
In these appeals by Certificate only one question of law has been argued.
It may be formulated as follows : "Is any part of the provision of Item 6 of Schedule III of the Andhra Pradesh General Sales Tax Act (6 of 1957) (hereinafter referred to as 'the Act ') relating to the 'point of levy ' void for contravening Section 15 (a) of the ?" Each of the appellants before us is a miller and one of a large number of such millers who had applied to the High Court of Andhra Pradesh, under Article 226 of the Constitution, for a Writ of Prohibition against proceedings for assessment of Sales Tax taken on the strength of an allegedly void provision of law.
The validity of item 6 of Schedule III of the Act was challenged on a number of grounds in the High Court which need not be mentioned here as the only ground which has been argued before us is covered by the question formulated above.
It may be mentioned that none of the appellants set out facts showing the nature of the demand in the proceedings under the Act aganist them, or, the extent, if any, to which each petitioner, who is a miller, registered also as a dealer under the Act as well 710 as under the Central Act, sells groundnuts, or, whether groundnuts were purchased specifically only for purposes of crushing them and converting them into oil or into any other product or for the purpose of sale as well.
They have merely questioned the validity of item 6 of Schedule III of the Act by reason of alleged conflict with Section 15 of the Central Act so that all we need do is to set out the two provisions and give our reasons for our conclusions.
We have already dismissed the appeals after hearing them.
We now proceed to record our reasons.
Item 6 of Schedule III reads as follows Description of goods Point of levy Rate of tax Groundnuts 3 naya paise in the rupee When purchased by a miller other than a decorticating miller in the State at the point of purchase by such miller, and, in all other cases at the point of purchase by the last.
dealer who buys in the State".
Groundnuts have been declared as goods of special importance in inter state trade or commerce under Section 14 of the Central Act.
Section 15 of the Central Act lays down: "15.
Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely : (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed three per cent of the sale or purchase Price thereof, and such tax shall not be levied at more than one stage; (b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State".
711 It may be mentioned that, in so far as the rate of tax specified in item 6, Schedule III of the Act is concerned, the Andhra Pradesh High Court had itself given some relief to the appellants, on the ground that the definition of turn over under the Act could include what is more than the sale price as defined by the Central Act, so that the rate may exceed the limit imposed by Section 15(a) of the Central Act.
We are, therefore, no longer concerned with the question of rate but only with that part of item 6, Schedule III, which makes millers other than decorticating millers liable to pay the tax when they purchase groundnuts.
It is contended that the groundnuts purchased by the appel lants would be taxed at the point of purchase by them and also again in the hands of "last dealers" to whom they may sell.
The short answer to this argument could be that the validity of the levy of a tax upon a purchase by a last dealer could be questioned by one of the appellants only if he was being taxed as a last dealer and not as a miller.
It is apparent that they are, being taxed at the point of purchase by them as millers only.
When they purchase groundnuts as millers they do so presumably in order to convert the groundnuts into another product altogether, and, they would, therefore, presumably be last purchasers of ground nuts as "groundnuts".
They may be selling their products in forms other than groundnuts.
The appellants are, however, not questioning the validity of a tax upon any sales of these other products.
They are questioning the validity of the tax on ground nuts purchased by them.
They submit that only one point of taxation can be provided for these sales by a State law.
We will, therefore, consider this ground.
It is clear to us that, in such cases, the liability to pay tax, which is a tax on purchase, falls only at one point.
In fact, the question raised before us seems to us to be covered by a decision of this Court on item 6 of Schedule III in Sri Venkateswara Rice, Ginning & Groundnut Oil Mill Contractors Co. etc.
vs The, State of A. P. & Ors.
(1) where this Court said at page 5 3 : "None of the assessees before us is a decorticating miller.
Hence we have to see whether the purchases of ' groundnut made by, them did not become taxable as soon as they made those purchases.
it is now well settled that even under the Sales Tax laws, the charge in respect of a sale or purchase becomes effective as soon as the sale in the case of purchase tax is made, though the liability of the dealer can be computed only at the end of the year.
The incurring of the charge is one thing and its computation is a totally different (1) A.I.R. 1972 S.C.51.
712 thing.
Hence the turnover relating to the purchases with which we are concerned in these appeals became charged with the liability to pay tax as soon as those purchases were made by the assessee millers.
To restate the position, whenever a miller purchases ground nut, the turnover relating to that purchase becomes exgible to tax subject to such exemptions as may be given under the Act.
This means that as soon as a first miller purchases groundnut, the turnover relating to that purchase, the question of exemption apart, becomes liable to tax.
This is also the view taken by the High Court".
It may be mentioned here that, in the above mentioned case, the assessee had already been taxed and one of the arguments advanced there was that the part of the taxed turnover which was sold by the assessee miller to other millers should be excluded because it was not dealt with by him as a miller but as a dealer who was not the last purchaser.
The Court said "The next argument advanced on behalf of the assessees is that in the case of some of the assessees a part of the groundnut purchased had, been sold to other millers; hence in those cases, the assessees must be taxed only in respect of that part of the turnover which relates to groundnut which they had crushed for extracting oil and in the case of remaining part, it is the last dealer who purchased the same should be taxed.
This contention again is unacceptable.
As mentioned earlier the event which attracted tax is the act of the miller purchasing groundnut and not his act of crushing the groundnut purchased or dealing with that groundnut in any other manner.
We have earlier mentioned that very act of purchase by a miller attracts the liability to pay tax under Section 5 read with Schedule 3 item 6.
His subsequent dealings in those goods become irrelevant.
In none of the cases before us it was shown that any of.
the assessees had pur chased groundnut with a view to sell them.
Hence we need not go into the question as to what would be the position in law where a miller purchases some ground nut for milling and the rest for sale '.
In the cases before us also we need not consider the position of a miller who purchases some groundnuts for milling and the rest for sale.
It is clear that each of the appellants becomes liable to the payment of tax as a purchasing miller just as a last dealer would be liable on the purchases made by him.
713 Hence, the last dealer and the miller, who purchases presumably to convert the groundnuts into other products, are placed on an equal footing.
We were not satisfied that there is a possibility of double taxation or of taxation of the same product at more than one point of purchase.
These appeals were, therefore, dismissed by us on 1 5 1972.
The respondents are entitled to their costs in this Court.
G.C. Appeals dismissed.

summary:
Under section 15 of the Central Sales tax Act the imposition of a tax on the sale or purchase of declared goods is inter alia subject to the restriction that such tax shall not be levied at more than one stage.
Groundnuts are declared good under section 14 of the Act.
Item 6 of schedule 3 to the Andhra Pradesh General Sales tax Act (6 of 1957) levies tax on groundnuts when purchased by a miller other than a decorticating miller in the State at the point of purchase by such miller, And in all other cases at the point of purchase by the last dealer who buys in the State.
The appellants were millers other than decorticating millers.
In writ petitions under Article 226 of the Constitution they challenged the levy of tax at the point of purchase by them on the ground that item 6 of schedule III was in conflict with section 15 of the Central Act in as much as tax on groundnut purchased by a non decorticating miller and later sold as such to other dealers would be taxed at two points once in the hands of the said miller, and again, at the point of purchase by the last dealer.
The High Court dismissed the petitions.
By certificate appeals were filed in this Court.
Dismissing the appeals, HELD : The validity of the levy of tax upon a purchase by a last dealer could be questioned by one of the appellants only if he was being taxed as a last dealer and not as a miller.
It was apparent that the appellants were being taxed at the point of purchase by them as millers only.
Each of the appellants became liable to the payment of tax as a purchasing miller just as a last dealer would be liable on the purchases made by him.
Hence the last dealer and the miller who purchases presumably to convert the groundnuts into other products, are placed on an equal 'footing.
It was not shown that there was a possibility of double taxation or of taxation of the same product at more than one point of purchase.
[711 D] Sri Venkataswara Rice, Ginning & Groundnut Oil Mill Contractors Co. etc.
vs The State of A.P. & Ors., A.I.R. , applied to.
[On the facts of the case the Court did not find it necessary to consider the position of a miller who purchases some grounds( for milling and the rest for sale.]


judgement:
No. 85 of 1972.
Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus.
section L. Chhibber, for the peitioner.
G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
An order was made by the District Magistrate Burdwan on February 10, 1971 under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's ,Act No 19 of 1970) for the detention of Abdus Sukkur "with 681 a view to preventing him from acting in any manner prejudicial to the maintenance of public order".
In pursuance of that order, Abdus Sukkur was arrested on September 24, 1971.
Abdus Sukkur thereupon filed the present petition through jail under article 32 of the Constitution to challenge his detention.
Mr. Chibber argued the case amicus curiae on behalf of the petitioner, while the State of West Bengal was represented by Mr. Chatterjee.
After hearing the learned counsel on May 24, 1972 1 ordered that, for reasons to be given later, the petitioner be set at liberty.
I now proceed to set out those reasons.
The order for the detention of the petitioner, as mentioned earlier, was made by the District Magistrate, on February 10, 1971.
The petitioner, it is stated, was found to be absconding after the, making of that order and he was arrested on September 24, 1971.
He was then served with the order of detention along with the ground of detention together with vernacular translation thereof.
In the meanwhile, on February 10, 1971 the District Magistrate sent report to the State Government about the making of the detention order along with necessary particulars.
The State Government approved the detention order on February 18, 1971.
The case of the petitioner was placed on October 23, 1971 by the State Government before the Advisory Board.
On October 28, 1971 the State Government received a representation from the petitioner against his detention.
The said representation was considered by the State Government and was rejected on November, 24, 197 1.
The representation was, thereafter sent to the Advisory Board.
The Advisory Board, after considering the material placed before it and after hearing the petitioner in person, sent its report to the State Government on November 26, 1971.
Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petioner.
The State Government confirmed the order for the detention of the petitioner on December 1, 1971.
It would appear from the above that though the representation made by the petitioner against his detention was received by the ' State Government on October 28, 1971, the said Government considered the representation and rejected it on November 24, 197 1.
There thus elapsed a period of 27 days between the receipt of the representation and its consideration and rejection by the State Government.
As the above delay in considering and rejecting the representation had not been explained in the affidavit which was initially filed in.
opposition to the petition on behalf of the State Government, this Court adjourned the matter on May 5, 1972 to enable the State Government to file an additional affidavit.
When the case was taken up thereafter on May 24, 1972 Mr. Chatterjee.
152SupCI/73 682 learned counsel for the State, stated that no additional affidavit was to be filed on behalf of the State.
It would thus follow that The delay on the part of the State Government in considering the representation of the petitioner has remained unexplained.
This unexplained delay, in my opinion, is sufficient to invalidate the detention of the petitioner.
According to clause (5) of article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
The fact that earliest opportunity has to be afforded to the detents for making a representation against the detention order necessarily implies that, as and when the representation is made, it should be dealt with promptly.
Undue delay on the part of the detaining authority in disposing of the said representation would run counter to the underlying object of clause (5) of article 22.
The requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if tie authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity.
It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order.
In case the authority concerned is guilty of such delay, the detention would be ' liable to be assailed on the ground of infraction of article 22(5) of the Constitution.
This is as it should be, because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law.
The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced.
It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention.
In the case of Javanaravan Sukul vs State of West Bengal(1) the Constitution Bench of this Court.
laid stress on the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible.
It was observed: "It is established beyond any measure of doubt that the appropriate authority is bound to consider the repre (1) ; 683 sensation of the detenu as early as possible.
The appropriate.
Government itself is bound to consider the representation as expeditiously as possible.
, The reason for im mediate consideration of the representation is too obvious to be stressed.
The personal liberty of a person is at stake.
Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.
No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of adetenu to have, his representation considered as expeditiously as possible.
" The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969.
It was held that the Government was guilty of the infraction of the constitutional provision because of inordinate delay in considering the representation.
The petitioner was accordingly set at liberty.
Reliance in the case of Jayanarayan Sukul vs State of West Bengal (supra) was placed upon an earlier decision of this Court in the, case of Khairul Haque vs State of West Bengal, (W. P. No. 246 of 1969 decided on September 10, 1969).
In that case this Court held that article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board.
It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation.
This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In Prof. K. L. Singh vs State of Manipur(1) this Court held that an unexplained delay of 17 days was enough to render the detention illegal.
In Baidya Nath Chunkar vs State of West Bengal (W.P. No. 377 of 1971 decided on March 14, 1972) unexplained delay of 29 days in considering the representation was, held to have vitiated the detention of the (1) ; 684 detenu.
The different cases mentioned above were, referred to by this Court in the case of Kant Lai Bose vs State of West Bengal (W.P. No. 8 of 1972 decided on May 5, 1972) and it was held that unexplained delay of 28 days in considering the detenu 's representation would invalidate his detention.
I therefore, accept the petition and make the rule absolute.
V.P.S. Petition allowed.

summary:
In pursuance of detention order under section 3 of the West Bengal Prevevenion of Violent Activities) Act, 1970, the petitioner was arrested.
The State Government received a representation from the petitioner against his detention, which was rejected by the St ate Government 27 days after the receipt of the representation.
The delay in considering the representation of the petitioner was not explained.
Allowing the petition under article 32, HELD : According to article 22(5) of the Constitution when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earlier opportunity if making a representation against the order.
The fact that the earliest opportunity has to be afforded to the detenu for making a representation necessarily implies that, as and when the representation is made, it should be dealt with promptly.
Otherwise, the requirement would be reduced to a farce and empty formality.
In case the authority concerned is guilty of unexplained delay in dealing with the representation, the detention.
would be liable to be assailed and declared unvalid on the ground of interaction of article 22(5) of the Constitution.
This is as it should be because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law.
[682B F] Jayanarayan Suku vs State of West Bengal, [1970] 3 S.C.R. 225; Xhairul Haque vs State of West Bengal, W.P. No. 246 of 1969 decided on September 10, 1969; Prof. K. L. Singh vs State of Manipur; , ; Baidya Nath Chunkar vs State of West Bengal, W.P. No. 377 of 1971 decided on March 14, 1972; Kanti Lal Bros vs State of West Bengal,.
W.P. No. 8 of 1972 decided on May 5, 1972, followed.