judgement:
riminal Appeals Nos. 22 and 23 of 1957.
Appeals by special leave from the judgment and order dated August 7, 1956, of the Punjab High Court at Chandigarh in Criminal Appeals Nos. 253 and 250 of 1956 and Murder Reference No. 38 of 1956 arising out of the judgment and order dated May 21, 1956, of the Court of Additional Sessions Judge at Ludhiana in Trial No. 17 of 1956 and Case No. 9 of 1956.
Gyan Chand Mathur, for the appellant in Criminal Appeal No. 22 of 1957.
R. L. Kohli, for the appellant in Criminal Appeal No. 23 of 1957.
Gopal Singh and T. M. Sen, for the respondent in both the appeals.
April 10.
The Judgment of the Court was delivered by J.
GAJENDRAGADKAR J. Harbans Singh, Gurdial Singh and Sarwan Singh were charged in the court of the learned Additional Sessions Judge at Ludhiana with having committed an offence of murder punishable under section 302 of the Indian Penal Code.
The case against them was that they, along with Banta Singh, the approver, had intentionally caused the death of Gurdev Singh by inflicting injuries on his person with kirpan, toki and dang on November 23, 1955, within the limits of the village Sohian, police station Jagraon.
The learned trial judge held that the charge framed against all the three accused had been proved beyond a reasonable doubt.
That is why he convicted them of the offence charged and sentenced each one of them to death.
On appeal to the High Court of Punjab, the order of conviction and sentence imposed against Harbans Singh and Sarwan Singh was confirmed whereas the order of conviction and sentence against Gurdial Singh was set aside and he was ordered to be acquitted and discharged.
Accused No. 1, Harbans 955 Singh, and accused No. 3, Sarwan Singh, have come to this Court in appeal by special leave.
It would be convenient to state the prosecution case very briefly at the outset.
Gurdev Singh, the victim of the assault, was the brother of accused No. 1.
It appears that the father of the two brothers had left the Ga village some years ago and is apparently no longer alive.
Harbans Singh was a shirker and a waster and that made Gurdev Singh impatient.
When Gurdev Singh tried to improve Harbans Singh, Harbans Singh resented Gurdev Singh 's efforts and his irritation and annoyance had reached such a stage and extent that he began to plan his murder.
According to the story of the prosecution, Harbans Singh got in touch with his friends Sarwan Singh and Gurdial Singh and requested them to assist him in his plan to get rid of his brother.
It appears that Gurdial Singh himself was on inimical terms with Gurdev Singh because he was angry with Gurdev Singh for having cut jokes with his sister.
A few days before the commission of the offence, Harbans Singh and Sarwan Singh were sitting on a canal bank near their village enjoying their drink when Banta Singh joined them.
He was also asked to partake of the liquor and was told about the plan to murder Gurdev Singh.
A few days later there was another meeting between these three men and it was agreed that an attempt should be made to procure arms for the purpose of carrying out the plan Rakha was accordingly approached and as a result of the negotiations he sold a country made pistol and a cart ridge for Rs. 40 to Sarwan Singh.
Rakha was also requested to join the conspiracy.
He was however unwilling to respond and though he did not openly say 'no ' to the proposal, at the material time he refused to join the conspirators.
On the day of the offence itself, Sarwan Singh, Gurdial Singh and Banta Singh went by a bus together and got down near the road which leads to the village Sohian.
Then they proceeded on foot until they met Harbans Singh near the canal minor.
Harbans Singh then advised his co conspirators to hide themselves in the bushes.
He then fetched a bottle of liquor and all the four drank from it, This 956 took them to sunset time, when Harbans Singh left the place and promised his friends that he would send his brother to the place where they would lie concealed.
He also told them that he would give a signal as soon as his brother would approach the place of their concealment by clapping his hands.
In accordance with this plan Harbans Singh persuaded his brother to go ahead.
Sarwan Singh then coughDed and this raised an apprehension in the mind of Gurdev Singh that people for him.
So he some may be lying in wait called out to his brother Harbans Singh and said that he suspected that there were some people there.
Harbans Singh assured him that he would soon join.
Meanwhile, according to plan, the three assailants emerged from their place of concealment and attacked Gurdev Singh.
Harbans Singh also arrived on the scene and joined them in the assault.
The prosecution case is that Harbans Singh was armed with a kirpan, Gurdial Singh with a lathi, the approver Banta Singh with a toki and Sarwan Singh used a kirpan.
The attack was undoubtedly brutal and callous and it resulted in as many as 69 incised wounds and two contused injuries which had been caused with a blunt weapon.
Having assaulted (Gurdev Singh in this brutal manner his assailants ran away.
Harbans Singh returned to his village and raised a hue and cry.
He complained that his brother had been carried away by a number of persons and he pretended that his brother 's assailants were Darshan Singh, Jagat Singh, Gurnam Singh and Banta Singh of the village Pona.
The villagers , however, found that Harbans Singh was not keen on joining them in rendering help to the victim or in pursuing his assailants.
Finally, however, he was persuaded to accompany the villagers and the villagers in the company of Harbans Singh reached the stop where Gurdev Singh 's body was found in a pool of blood.
Thereafter Harbans Singh went to the police station and made a report of the occurrence at about 10 30 p.m.
He alleged in his report that his brother had been murdered by the aforesaid four persons of the village of Pona.
Purporting to act on this report, the police 957 reached the spot in the early hours of the next morning and so the investigation commenced.
It is clear that the police had their own doubts about the truth of the report made by Harbans Singh from the start and they suspected that it was Harbans Singh and his friends who were concerned with the commission of this foul offence.
Sarwan Singh, Gurdial Singh and Banta Singh were arrested on November 25 and Harbans Singh on November 26.
The investigating officer recovered from the person of Sarwan Singh a blood stained shirt and chadar and obtained from Sarwan Singh 's house a pistol and an empty cartridge on information given by him from the person of Gurdial Singh a blood stained turban was recovered and the information given by him led to the discovery of a stick or lathi.
This lathi was blood stained.
From Banta Singh 's person a blood stained chadar was recovered and the information given by him led to the discovery of a kirpan and a toki from a well in which they were thrown after the commission of the offence.
The prosecution also alleges that, on the information given by Harbans Singh, some blood stained clothes were recovered from Gurdev Kaur sister of Gurdial Singh.
It appears that, on November 30, Sarwan Singh offered to make a confessional statement and the confession was in fact recorded on the same day.
On December 2, Banta Singh was given pardon and made an approver.
That in brief is the prosecution case.
All the three accused deny any connection with the commission of the offence.
The learned Sessions Judge held that Banta Singh was a reliable witness.
Since Banta Singh is, however, an approver the learned Judge considered whether his evidence had received the requisite corroboration in material particulars and he held that it did.
The learned Judge also found that the confession made by Sarwan Singh was voluntary and true and in his opinion the evidence of Rakha and the other circumstantial evidence with regard to the blood stained clothes of the respective accused persons and the recovery of the weapons afforded sufficient corroboration in material particulars.
That is how he reached the conclusion that the charge of murder has 958 been proved against all the three accused.
On appeal it has been held by the learned Judges of the High Court of Punjab that the evidence given by the approver, Banta Singh, against accused Gurdial Singh was very discrepant and therefore unreliable and so they found that the case against Gurdial Singh had not been proved beyond a reasonable doubt.
In the result Gurdial Singh was acquitted; but the view taken by the learned Judges in respect of the prosecution case against Harbans Singh and Sarwan Singh was that the approver 's evidence supplied the basis for the prosecution case against them and since it was corroborated by circumstantial evidence to which reference has already been made and by the confession of Sarwan Singh, there was no difficulty in confirming the order of conviction and sentence passed against these two accused persons.
It is this view which is challenged before us by the two appellants in the present appeals.
Since the present appeals have been filed by special leave under article 136 of the Constitution, it would normally not be open to the appellants to raise questions of fact before us.
Prima facie the orders of conviction and sentence passed against the appellants are based on concurrent findings of fact and we would be slow to interfere with such findings unless we are satisfied that the said findings are vitiated by errors of law or that the conclusions reached by the courts below are so patently opposed to well established principles of judicial approach, that they can be characterised as wholly unjustified and even perverse.
On behalf of Harbans Singh, it has been urged.
before us by Mr. Kohli that the judgment of the High Court of Punjab suffers from a serious infirmity in that, in dealing with the evidence of the approver, the learned Judges do not appear to have addressed themselves to the preliminary question as to whether the approver is a reliable witness or not.
The problem posed by the evidence given by an.
approver has been considered by the Privy Council and courts in India on several occasions.
It is hardly necessary to deal at length with the true legal position in this matter.
An accomplice is undoubtedly a competent witness under 959 the Indian Evidence Act.
There can be, however, no doubt that the very fact that he has participated in ,the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.
It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars.
If such a view is adopted it would render the evidence of the accomplice wholly superfluous.
On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness.
If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver 's evidence has to satisfy a double test.
His evidence must show that he is a reliable witness and that is a test which is common to all witnesses.
If this test is satisfied the second test which still remains to be applied is that the approver 's evidence must receive sufficient corroboration.
This test is special to the cases of weak or tainted evidence like that of the approver.
Mr. Kohli 's contention is that since the learned Judges of the High Court of Punjab have failed to address themselves to this initial question, their appreciation of the approver 's evidence suffers from a serious infirmity.
In our opinion, this contention is well founded.
We have carefully read the judgment delivered by the High Court but we find no indication in the whole of the judgment that the learned Judges considered the character of the approver 's evidence and reached the 960 conclusion that it was the evidence given by a reliable witness.
The only statement which we find in the judgment dealing with this topic is that " since the main evidence in the case consists of the testimony of the approver it is necessary to consider the case of each J. appellant individually.
" With respect, this observation is open to the criticism which has been made against it by Mr. Kohli.
The argument that the character of the approver 's evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical in the present case because, as we will presently point out, the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the conclusion that the approver in the present case is a wholly unreliable witness.
Indeed it may be legitimate to point out that the learned Judges of the High Court have themselves criticised the evidence of the approver in dealing with the prosecution case against Gurdial Singh and have ultimately found that the account given by the approver is unreliable and, though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh, that would not be enough to sustain his conviction.
It seems to us that if it was found that the approver 's account against one of the accused persons was wholly discrepant, this finding itself should inevitably have led the court to scrutinise his evidence in respect of the other accused persons with greater caution.
Besides, it is somewhat unfortunate that the attention of the learned Judges of the High Court was presumably not drawn to the still more serious discrepancies in the evidence of the approver in regard to the part assigned to Harbans Singh in the commission of the offence.
In the evidence ' given by the approver before the trial court, he has definitely and unequivocally implicated Harbans Singh in the commission of the offence.
It has been brought out in the cross examination that in the very first statement made by the approver before the investigating officer on November 25 he had made statements about Harbans Singh which are wholly inconsistent with the subsequent story.
In this statement, the 961 approver had definitely stated that only the three of them were concerned with the commission of the offence, himself, Sarwan Singh and Gurdial Singh.
He had also stated clearly in the said statement that Harbans Singh did not join in murdering Gurdev Singh.
It is remarkable that in regard to almost every material particular about the part played by Harbans Singh in the commission of the offence the story disclosed by the approver at the trial is inconsistent with his first statement before the police.
In his statement at the trial, the approver assigns Gurdial Singh the possession of lathi and according to him Gurdial Singh subsequently took up the kirpan from Sarwan Singh and murdered Gurdev Singh after which Harbans Singh himself gave a blow with it at the neck of the victim.
In his statement before the police, the approver had said that Gurdial Singh had carried a kirpan.
We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of the approver in his cross examination.
In our opinion, the discrepancies brought out in the evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to only one conclusion and that is that the approver has no regard for truth.
It is true that in his second statement recorded on November 29, the approver substantially changed his first story and involved Harbans Singh in the commission of the offence, and in that sense, his second statement can be said to be consistent with his evidence at the trial.
But we cannot lose sight of the fact that, within three days after the recording of his second statement, he was granted pardon and his statement was recorded under section 164 of the Code of Criminal Procedure on the same day.
Therefore it would be legitimate for the accused to contend that the additions made by the approver in his subsequent statement may be the result of promise held out to him that he would be granted pardon.
Apart from this consideration, in view of the positive statements made by the approver in his first recorded statement, there can be no doubt 124 962 that the subsequent allegations against Harbans Singh are improvements and are the result of his decision to involve Harbans Singh in the commission of the offence.
If this was a case where the statements made by the approver on subsequent occasions merely added details which were not included in the first statement, it may perhaps have been a different matter.
It is true that omissions have not always the same significance as contradictions; but in the present case it is patent that the two sets of statements are wholly inconsistent and irreconcilable and that obviously leads to a very serious infirmity in the character of the witness.
It is indeed to be regretted that the attention of the learned Judges of the High Court was not drawn to this aspect of the matter and they were not invited to consider the initial question as to whether the approver, Banta Singh, was a reliable witness at all.
Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.
If the evidence of the approver is discarded as being unreliable the case against Harbans Singh must inevitably fail.
No doubt there are some circumstances against him on which the prosecution relies.
The evidence of Rakha (P.W.8) would show that Harbans Singh and the other accused persons were concerned with the purchase of a pistol from Rakha.
Incidentally this pistol has not been used in the commission of the offence at all and that, in the circumstances, it is difficult to explain.
However, the purchase of a pistol from Rakha may merely raise a suspicion against Harbans Singh but suspicions, however strong, cannot take the place of proof.
Harbans Singh had injuries on his person and the conduct of Harbans Singh soon after the commission of the offence was very suspicious.
That again may raise a suspicion against Harbans Singh but without the basis of the approver 's evidence the suspicious circumstances can play no effective part in a criminal trial.
The discovery of clothes alleged to have been made at 963 the place of Gurdev Kaur cannot be pressed into service against Harbans Singh because Gurdev Kaur herself has not been examined and the importance of the recovery of a kirpan and a red scabbard from the spot cannot obviously be exaggerated.
In our opinion, there is no doubt whatever that, if the approver 's evidence is rejected as unreliable, the other evidence on which the prosecution relied against Harbans Singh cannot possibly sustain his conviction of the offence of murder.
We must, therefore, hold that the finding of the learned Judges of the High Court that the offence of murder has been proved against Harbans Singh is vitiated by a serious infirmity to which we have just referred and must be reversed.
If the learned Judges have failed to address themselves to the initial question of law before dealing with the merits of the approver and if, in dealing with his evidence, they have failed to take into account the glaring and obvious inconsistencies in the account given by the approver, it is open to the appellant to challenge the validity of their conclusion.
In the result, the appeal preferred by Harbans Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged.
That takes us to the case of accused No. 3, Sarwan Singh.
We have already pointed out that the order of conviction passed against Sarwan Singh is in the words of the judgment of the High Court based on the fact that " there is the evidence of the approver and it is corroborated in every particular by his own confessional statement ".
Besides, there is other circumstantial evidence to which reference has already been made in narrating the prosecution story at the beginning of this judgment.
It would at once be noticed that, if we come to the conclusion that the approver is an unreliable witness, the basis of the evidence of the approver on which the learned Judges of the High Court proceeded even while dealing with the case against Sarwan Singh has been shaken.
If, in our opinion, the approver is unworthy of credit, then it would not be possible to consider the question 964 of the corroboration that his evidence receives from the confessional statement made by Sarwan Singh himself.
It is, however, true that Sarwan Singh has made a confession and in law it would be open to the court to convict him on this confession itself though he has retracted his confession at a later stage.
Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement.
What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.
In the present case, the learned Sessions Judge has considered the question about the voluntary character of the confession made by Sarwan Singh and has found in favour of the prosecution.
The judgment of the High Court shows that the learned Judges agreed with the view of the learned trial Judge mainly because the evidence of the Magistrate who recorded the confession appeared to the learned Judges to show that the confession was voluntary.
It is this view which is seriously challenged before us by Mr. Mathur on behalf of Sarwan Singh.
Prima facie whether or not the confession is voluntary would be a question of fact and we would be reluctant to interfere with a finding on such a question of fact unless we are satisfied that the impugned finding has been reached without applying the true and relevant legal tests in the matter.
As in the case of the evidence given by the approver, so too unfortunately in the case of the confession of Sarwan Singh the attention of the learned Judges below does not appear to have been drawn to some salient and grave features which have a material bearing on the question about the voluntary character of the confession.
Sarwan Singh was arrested on November 25.
His clothes were found blood stained and he is alleged to have been inclined to help the prosecution by making the statement which led to the discovery of incriminating articles.
All this happened on the 25th itself and yet, without any ostensible explanation or justification, Sarwan Singh was kept in police custody until November 30.
That is one fact 965 which is to be borne in mind in dealing with the voluntary character of his confession.
What happened on November 30 is still more significant.
On this day he was sent to the Magistrate to record his confessional statement.
The evidence of the Magistrate Mr. Grover shows that the accused was produced before him at about 2 30 p.m.
He was given about half an hour to( think about the statement which he was going to make and soon thereafter the confessional statement was recorded.
It is true that the Magistrate did put to the accused the questions prescribed by the circulars issued by the High Court of Punjab.
Even so, when the learned Magistrate was asked why he did not give more time to the accused before his confessional statement was recorded, his reply was frank and honest.
He said that the accused seemed to insist upon making a statement straightaway.
The Police Sub Inspector who had taken the accused to the Magistrate was apparently standing in the verandah outside in the Magistrate 's office.
The doors of the office were closed but the fact still remains that the Sub Inspector was standing outside.
The evidence of the Magistrate also shows that, soon after the statement was finished, the Sub Inspector went to the Magistrate 's room again.
The person of the accused showed some injuries and.
yet the learned Magistrate did not enquire how the accused came to be injured.
It is in the light of these circumstances that the question falls to be considered whether the confession made by the accused can be regarded as voluntary.
It is hardly necessary to emphasize that the act of recording confessions under section 164 of the Code of Criminal Procedure is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirements of sub section
(3) of section 164 are fully satisfied.
It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under sub section (3) of section 164 should not be allowed to become a matter of a mere mechanical enquiry.
No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused 966 wants to make is in fact and in substance voluntary.
Incidentally, we may invite the attention of the High Court of Punjab to the fact that the circulars issued by the High Court of Punjab in the matter of the procedure to be followed, and questions to be put to the accused, by Magistrates recording confessions under section 164 may be revised and suitable amendments and additions made in the said circulars in the light of similar circulars issued by the High Courts of Uttar Pradesh, Bombay and Madras.
The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in section 24 of the Indian Evidence Act.
There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all.
It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case.
However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession.
Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.
In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter.
Indeed, any Magistrate with enough criminal experience would have immediately decided to give longer time to Sarwan Singh in the present case for the obvious reason that Sarwan Singh appeared to the learned Magistrate to be keen on making a confession straightaway.
The learned Magistrate himself has fairly stated that he would 967 have given him longer time but for his insistence to make a confession without delay.
This insistence on the part of Sarwan Singh to make a confession immediately should have put the learned Magistrate on his guard because it obviously bore, traces of police pressure or inducement.
Unfortunately, the effect of the failure of the learned Magistrate to ' grant enough time to the accused to consider the matter has not been considered by the learned Sessions Judge and has been wholly ignored by the learned Judges of the High Court.
Besides, in neither court below has any attention been paid to the fact that Sarwan Singh appeared to have been kept in police custody without any justification between November 26 and November 30.
We have carefully considered all the relevant facts bearing on this question and we see no escape from the conclusion that the failure of the learned Judges of the High Court to take into account these material facts has introduced a serious legal infirmity in their conclusion that the confession made by Sarwan Singh is voluntary.
That is why we think we must reverse this conclusion.
There is, besides, another fact which is equally fatal to the. prosecution case.
Even if the confession is held to be voluntary, it must also be established that the confession is true and for the purpose of dealing with this question it would be necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities in the case.
In our opinion, some material points mentioned in the confessional statement are not shown to be true.
Sarwan Singh says that when Gurdev Singh was assaulted he and his brother Harbans Singh were walking together.
On the other hand the prosecution story is that Harbans Singh had first contacted his accomplices and had told them that he would send Gurdev Singh towards the spot where the accomplices would lie in wait for him.
The story further is that when Gurdev Singh suspected that there were some people near about he shouted to Harbans Singh and before Harbans Singh came on the spot assault had begun.
This part of the prosecution story as deposed to by the 968 approver is inconsistent with the material statement in the confession.
According to the confession, Dial Singh gave a Dang blow to Gurdev Singh on the head from the front.
This statement is not borne out by medical evidence.
There does not appear to be a corresponding injury on the head of the victim.
Sarwan Singh says that he took the kirpan which was first used by Harbans Singh and gave two blows to Gurdev Singh on his thigh.
This statement again is not borne out by the medical evidence about the injuries on the body of the victim.
Similarly, the statement of Sarwan Singh that the handle of the kirpan was broken and he got his finger injured with it is not easily reconcilable with the medical evidence about the injury itself.
Unfortunately these discrepancies between the confessional statement and the main prosecution evidence given by the approver have not been noticed by the learned Judges of the High Court.
Indeed, after having found that the confession was voluntary,it appears to have been assumed by the learned Judges that the confession was true and that, in our opinion, is another infirmity in the conclusion reached by the High Court.
That leaves the other circumstances which have been proved against Sarwan Singh to be considered.
There were injuries on his person.
They are thus described by the doctor: " 1.
A superficial incised wound with a scab, 3/8" x 1/12" on the left side of the face, just above the left moustache.
2.An abrasion with a scab 1/2" x 1/4" on the outer surface of the middle digit of the left ring finger.
An abrasion with a scab 1/8" x 1/8" on the outer surface of the middle digit of the left little finger.
4.An abrasion with a scab 1/4" x 1/4" on the outer surface of the terminal inter digital joint of the left little finger.
All the injuries were simple and of about two days duration.
Injury No. 1 was caused by sharpedged weapon and the rest by some blunt weapon.
" 969 In his cross examination Dr. Singh admitted that injury No. I could have been caused by razor blade as suggested by the counsel for Sarwan Singh and injuries Nos. 2 to 4 could have been caused by rubbing against some hard substance.
In other words, on medical evidence it is difficult to reject the explanation of the accused as unreasonable or palpably untrue.
Then we have the evidence of blood stains on the shirt and chadar worn by Sarwan Singh.
If the explanation given by Sarwan Singh about his injuries is not unreasonable then the presence of blood stains on his dress cannot be seriously pressed against him.
The evidence of Rakha about the negotiations and purchase of a pistol from him and about the part of Sarwan Singh in that transaction no doubt may suggest that Sarwan Singh was associated with the criminals but that is very far from proving the charge of murder against him.
Incidentally, as we have already observed, if the pistol was purchased it is difficult to understand why it was not used.
Then we have the evidence of the shoes which were found on the spot.
The evidence of the shoe maker Santa Singh suggests that he had identified the pair of shoes as belonging to Sarwan Singh that very night.
According to him, he has been manufacturing shoes like this pair though not on a large scale ' Unfortunately, in his examination under section 342 of the Code, no question had been put to Sarwan Singh about these shoes.
It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet.
In any event, failure to give him an opportunity to explain the circumstances by putting an appropriate question to him under section 342 justifies his argument that this circumstance should not be used against him.
Besides, like the evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan Singh is being tried.
The result is that, if the approver 's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to 125 970 bring home to Sarwan Singh the charge framed against him.
If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder.
It is no doubt a matter of regret that a foul cold blooded and cruel murder like the present should go unpunished.
It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants.
Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true; but between 'may be true ' and 'must be true ' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.
We have carefully considered all the arguments which Mr. Gopal Singh urged before us; but we do not think it would be possible to regard the approver as a reliable witness or to hold that the confession of Sarwan Singh is voluntary or true.
In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged.
Apppeals allowed.

summary:
The appellants and G were convicted of the offence of murder by the Sessions Court on the basis of the evidence of the approver, which it considered reliable, and the confession made by the first appellant which it found to be voluntary and true.
The High Court held that the evidence of the approver as against G was very discrepant and.
unreliable and set aside his conviction but, nevertheless, confirmed the conviction of the appellants.
The appellants appealed to the Supreme Court.
It was found (1) that the statement originally made by the approver as against the second appellant was wholly inconsistent and irreconcilable with the evidence given by him in Court and that the High Court did not consider the question as to whether the approver was a reliable witness at all, (2) that the Magistrate who recorded the confession did not fully comply with the procedure to be adopted to ensure that it was voluntary, (3) that the prosecution story as deposed to by the approver was inconsistent with the material statement in the confession, and (4) that the High Court while deciding whether the confession was voluntary assumed that it was true.
Held, that the conviction of the appellants must be set aside.
The appreciation of an approver 's evidence has to satisfy a double test.
It must show that be is a reliable witness and that his evidence receives sufficient corroboration.
The act of recording confessions under section 164 of the Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take care to see that the requirements of sub section
(3) Of section 164 are fully satisfied.
When an accused person is produced before the Magistrate by the investigating officer, it is of the utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and he must be sent to jail custody and given adequate time to consider whether he should make a confession at all.
Ordinarily, he should be given at least 24 hours to decide.
Even if a confession is voluntary, it must also be established that it is true and, for that purpose, it is necessary to examine it 123 954 and compare it with the rest of the prosecution evidence and the probabilities of the case.


dataset_name: IN-Abs

summary:
The respondent a monthly rated employee of the appellant a public limited company, ceased to be an employee on attaining the age of superannuation after completing 35 years of service.
Since he was entitled to payment of Gratuity under the , the appellant calculated the amount of gratuity payable under sub s.(2) of s.4 on the basis that 'fifteen days ' wages" meant half of the monthly wages last drawn i.e., for 13 working days.
there being 26 working days in a month, The respondent being dissatisfied with this payment, made a claim under sub s(1) of s.7, before the Controlling Authority, for payment of an additional sum of gratuity on the ground that the daily wages should be ascertained on the basis of what he actually got for 26 days and the amount of "fifteen days ' wages" should be calculated accordingly, not by just taking half of his wages for a month of 30 days or fixing his daily wages by dividing his monthly wages by 30.
The Controlling Authority held; that for the purpose of calculating "fifteen days ' wages" it was necessary to ascertain one day 's wage and since a 665 month consists of 26 working days, the amount of gratuity should be calculated by dividing the monthly wages last drawn by 26 and multiplying by 'fifteen '; and not by just taking half of the monthly wages or by dividing such monthly wages by 30.
On appeal, the Appellate Authority, held that there was an error in the mode of computation of the amount of gratuity that was payable, and held that the gratuity payable would have to be calculated at half of the monthly rate of wages, i.e. wages earned in a consecutive period of 15 days and the daily wages had to be multiplied by "thirteen" and not by "fifteen" for every completed year of service or part thereof not exceeding six months.
The amount of gratuity payable was accordingly reduced.
The High Court under Article 226, held following the decision of this Court in Shri Digvijay Woollen Mills Ltd. etc.
vs Mahendra Prataprai Buch etc. ; that in order to determine "fifteen days ' wages" of a monthly rated employee under sub s.(2) of s.4 of the Act, it was necessary to determine one day 's wages last drawn by him, and them multiply the same "fifteen ' times.
and the resultant sum has to be multiplied by twenty to arrive at the maximum amount of gratuity payable under sub s.(3) of s.4 of the Act.
The orders of the Controlling Authority were restored.
In the Appeals and Special Leave Petitions it was contended on behalf of the Management: that the words "fifteen days ' wages" occurring in sub s.(2) of s.4 of the Act are clear and unambiguous and must mean half a month 's wages and therefore there was no scope for an artificial calculation being made by dividing the wages for a month by the number of working days.
Dismissing the Appeals and Special Leave Petitions, ^ HELD: 1.(i) The was enacted to introduce a scheme for payment of gratuity for certain industrial and commercial establishments as a measure of social security.
The significance of this legislation lies in the acceptance of the principle of gratuity as a compulsory statutory retiral benefit.
[672G; 673B] (ii) In construing a social welfare legislation, the Court should adopt a beneficent rule of construction and if a section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed.
When the language is plain and unambiguous.
the Court must give effect to it whatever may be the consequence.
The argument of inconvenience and hardship is only admissible in construction where the meaning of the statue is obscure and there are two methods of construction.
In an anxiety to advance the beneficent purpose of the legislation, the Court must not yield to the temptation of seeking ambiguity when there is none.
[675B D] 2.(1) The intention of the Legislature in enacting sub s.(2) of s.4 of the Act was not only to achieve uniformity and reasonable degree of certainty, but 666 also to create and bring into force a self contained, all embracing, complete and comprehensive code relating to gratuity as a compulsory, retiral benefit.
The quantum of gratuity payable under sub s(2) of s.4 of the Act has to be "fifteen days ' wages" based on rate of wages last drawn by the employee concerned for every completed year of service or more in excess of six months 'subject to the maximum of 20 months ' wages as provided by sub section
[676G H; 677A] Shri Digvijay Woollen Mills Ltd. etc.
vs Mahendra Prataprai Buch etc.
; , , referred to.
Associated Cement Co. Ltd. Kistna Cement Works, Kistna Guntur Distt.
vs The Appellate Authority under (Regional Assistant Commissioner of Labour, Guntur) & Ors.
and Swamy & Ors.
vs Controlling Authority under & Ors.
, [1978] 52 IFJ 138 over ruled.
(ii) The word 'rate ' appears twice in sub s.(2) of s.4 and it necessarily involves the concept of actual working days.
Although a month is understood to consist of 30 days, gratuity payable under the Act treats the monthly wages as wages for 26 working days.
[675A] (iii) Sub ss.(2) and (3) of the Act are designed to achieve two separate and distinct objects and they operate at two different stages.
While sub section
(2) provides for the mode of calculation of the amount of gratuity, sub s:(3) seeks to impose a ceiling on the amount of gratuity payable at 20 months wages.
It is meant to provide in incentive to employees to serve for the period of 30 years or more.
Sub s.(2) of s.4 of the Act which uses the words "fifteen days ' wages" and not half a months wages, cannot be called in aid for construction of the words "20 month ' wages ', appearing in sub s.(3) of s.4 of the Act.
[677F G] 3.
The definition of 'appropriate government ' in s.2(a)(1) in relation to an establishment makes a distinction between establishments and factories.
In relation to an establishment belonging to, or under the control of, the Central Government and of a factory belonging to, or under the control of, the Central Government, the appropriate government is the Central Government.
But the Central Government is the appropriate government only in relation to an establishment having branches in more than one State.
There is no like provision made in relation to such an establishment having factories in different States.
[678F G] 4.
Whenever doubt or difficulty is expressed by the High Courts in the application of provisions of social security measures, namely, retiral benefits, gratuity, provident fund etc., the Government must always introduce legislation to cure the defect rather than wait judicial interpretation by the highest Court.
[680H] Lalappa Lingappa and Ors.
vs Laxmi Vishnu Textile Mills., Ltd. referred to.
667 5.
The Government may consider the desirability of setting up a National Labour Commission which may be entrusted not only with the task of making periodical review of social welfare legislations from time to time but also to suggest radical reform of the laws relating to industrial relations which must be brought in tune with the changing needs of the society.
[681A B]


judgement:
Special Leave Petition (Civil) No. 9795 of 1983.
From the Judgment and Order dated the 20th April, 1983 of the Karnataka High Court in Misc.
First Appeal No. 639 of 1983.
K.R. Nagaraj, Naresh Kaushik, R.S. Hegde and B. Krishna Prasad, Miss CS Lalitha for the Petitioners.
The following Orders were delivered CHINNAPPA REDDY, J.
The question for consideration in this petition for special leave to appeal under Article 136 of the Constitution of India is whether the expression 'wages ', defined by s.2(22) of the , includes 'House Rent Allowance ', 'Night Shift Allowance, paid to those employees who are obliged to work in the night shift and the 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance ' paid by an employer to his employees.
Section 2(22) defines 'wages ' as meaning: "all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, 714 express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock out, strike which is not illegal or lay off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include (a) any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowance or the value of travelling concession; (c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (d) any gratuity payable on discharge.
" The is a welfare legislation and the definition of 'wages ' is designedly wide.
Any ambiguous expression is, or course, bound to receive a beneficent construction at our hands too.
Now, under the definition first, whatever remuneration is paid or payable to an employee under the terms of the contract of the employment, express or implied is wages; thus if remuneration is paid in terms of the original contract of employment or in terms of a settlement arrived at between the employer and the employees which by necessary implication becomes part of the contract of employment it is wages: second, whatever payment is made to an employee in respect of any period of authorised leave, lock out: strike which is not illegal or lay off is wages; and third, other additional remuneration, if any paid at intervals not exceeding two months is also wages; this is unqualified by any requirement that it should be pursuant to any term of the contract of employment, express or implied.
However, 'wages ' does not include any contribution paid by the employer to any pension fund or provident fund, or under the Act, any travelling allowance or the value of any travelling concession, any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment and any gratuity payable on discharge.
Therefore wages as defined includes remuneration paid or payable under the terms of the contract of employment, express or implied but further extends to other additional remuneration, if any, paid at intervals not exceeding two months, though outside the terms of employment.
Thus remuneration paid under the terms of the contract of the employment lexpress or implied) or otherwise if paid at intervals not exceeding two months is wages.
The interposition of the clause 'and includes any payment to an employee in respect of any period of authorised leave, lock out, strike which is not illegal or lay off ' between the 715 first clause, 'all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express of implied, was fulfilled ' and the third clause, 'other additional remuneration, if any, paid at intervals not exceeding two months, 'makes it abundantly clear that while 'remuneration ' under the first clause has, to be under a contract of employment, express or implied, 'remuneration ' under the third clause need not be under the contract of employment but may be any 'additional remuneration ' outside the contract of employment.
So, there appears to our mind no reason to exclude 'House Rent Allowance ', Night Shift Allowance ', Incentive Allowance ' and 'Heat, Gas and Dust Allowance ' from the definition of 'wages '.
A Full Bench of the Karnataka High Court in N.G.E.F. Ltd. vs Deputy Regional Director, E.S.I.C., Bangalore considering the question at some length held that the amount paid by way of incentive under the scheme of settlement entered into between the Management and its workman was wages ' within the meaning of section 2(22) of .
It was observed by the Full Bench of the Karnataka High Court as follows: "It is true that the word 'remuneration ' is found both in the first and second parts of the definition.
But the condition attached to such payment in the first part cannot legitimately be extended to the second part.
The other 'additional remuneration ' referred to in the second part of the definition is only qualified by the condition attached thereto (that is, paid at intervals not exceeding two months).
That was also the view taken by a Full Bench of the Andhra Pradesh High Court in Employees State Insurance Corpn.
Hyderabad vs Andhra Pradesh Paper Mills Ltd. and also the Bombay High Court in M/s Mahalaxmi Glass Works Pvt. Ltd. vs Employees ' State Insurance Corpn.
But this aspect of the matter has been completely overlooked by this Court in Kirloskar 's case.
" In Employees State Insurance Corporation, Hyderabad vs Andhra Pradesh Paper Mills Ltd., Rajahumundry, a Full Bench (Divan, C.J., Raghuvir and Gangadhara Rao, J.) of the Andhra Pradesh 716 High court held that incentive bonus paid to an employee (which the Court, on the facts of the case, found was not remuneration in terms of the contract of employment, express or implied) fell within the third part of the definition of 'wages ' that is 'additional remuneration ' if any, paid at intervals not exceeding two months '.
The Full Bench said: "The word 'other ' appearing at commencement of the third part of the definition of wages under s.2(22) indicates that it must be remuneration or additional remuneration other than the remuneration which is referred to in the earlier part of the definition viz., all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and incentive bonus in the present scheme is certainly additional remuneration.
It must be emphasized at this stage that under the third part of the definition of 'wages ' it is actual factum of payment which counts because the word used is 'paid ' as distinguished from 'paid ' or payable.
The moment you get any additional remuneration other than the remuneration payable under the contract of employment and if this additional remuneration is paid at intervals not exceeding two months, it becomes wages by virtue of the third part of the definition of 'wages '.
" The learned judges of the Full Bench referred to the judgment of a learned Single judge of the Calcutta High Court in Bengal Potteries Ltd. vs Regional Director, W. Bengal Region, Employees, State Insurance Corporation and others, where the learned Judges had held that "the additional remuneration sought to be included by the expression ' and includes other additional remuneration ' must be remuneration which though no part of the wages could be paid as part of the terms of contract of employment." The Full Bench did not agree with the view expressed by the learned Single Judge and said: "We are unable to agree with this part of his reasoning and for the reason which we have set out hereinabove we disagree with this part of his judgment in para (3)".
717 We express our respectful agreement with what has been said by the Full Bench of the Andhra Pradesh High Court in the above extracted passage and their dissent from the view expressed by the learned Single Judge of the Calcutta High Court.
The Full Bench further held that 'House Rent Allowance ' paid by an employer to his workmen would constitute wages within the meaning of the section 2(22) of the Act.
Our attention was also invited to the case of Braithwaite & Co. (India) Ltd. vs The Employees ' State Insurance Corporation (V. Bhargava and C.A. Vaidialingam, JJ).
The case arose prior to the amendment of the in 1966 when the explanation to section 41 was bodily lifted from section 41 into the definition of 'wages ' in s.2(22).
The case related to the payment of an ex gratia reward styled as an 'Inam ' (a bounty) which was admittedly not claimed to be 'additional remuneration, if any, paid at intervals not exceeding two months ' but claimed to be 'remuneration paid or payable to in cash to an employee if the terms of the contract of employment, express or implied was fulfilled ' which the Court found it was not.
The case has been sufficiently explained by the Full Bench of the Andhra Pradesh High Court in E.S.I. Corpn., Hyderabad vs A.P. Paper Mills Ltd. (supra) and by the Full Bench of the Karnataka High Court in N.G.E.F. Bangalore vs Deputy Regional Director, E.S.I.C., Bangalore.
We do not think that it is necessary to say anything further in this matter.
In this view, the special leave petition is dismissed.
AMARENDRA NATH SEN,J.
I have read the judgment of my learned brother O. Chinnappa Reddy, J. I entirely agree that on true interpretation of the word 'wages ' defined in S.2(22) of the , 'wages ' must necessarily include 'House Rent Allowance, Night Shift Allowance, Heat, Gas and Dust Allowance and Incentive Allowance '.
The definition of 'wages ' has been set out in the judgment of my learned brother.
The inclusive part and the exclusive portion in the definition clearly indicate, to my mind, that the expression 'wages ' has been given a very wide meaning.
The inclusive part of 718 the definition read with exclusive part in the definition clearly shows to my mind, that the inclusive portion is not intended to be limited only to the items mentioned therein.
Taking into consideration the excluding part in the definition and reading the definition as a whole the inclusive part, to my mind, is only illustrative and tends to express the wide meaning and import of the word 'wages ' used in the .
The is a piece of social welfare legislation enacted for the benefit of the employees.
The Act has to be necessarily so construed as will serve its purpose and objects.
I entirely agree with my learned brother that on a proper interpretation of the term 'wages ' the legislative intent is made manifestly clear that the term 'wages ' as used in the Act will include House Rent Allowance Night Shift Allowance, Heat, Gas and Dust Allowance and Incentive Allowance.
The definition, to my mind, on its plain reading is clear and unambiguous.
Even if any ambiguity could have been suggested, the expression must be given a liberal interpretation beneficial to the interests of the employees for whose benefit the has been passed.
All other aspects including the various decisions of the High Courts on this question have been considered by my learned brother in his judgment.
I entirely agree with the views of my learned brother and I have nothing more to add.
With these observations I agree with my learned brother that this Special Leave Petition has to be dismissed.
N.V.K. Petition dismissed.

summary:
The question was whether the expression 'wages ' as defined in section 2 (22) of the includes 'House ' Rent Allowance ', Night Shift Allowance ' 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance ' paid by an employer to his employees, ^ HELD: By the Court 1.
is a piece of social welfare legislation.
The definition of 'wages ' is designedly wide.
The definition on its plain reading is clear and unambiguous.
Even if there is any ambiguity, the expression has to be given a liberal interpretation and receive beneficent construction.[714C] 2.
'Wages ' as defined in section 2 (22) of the must necessarily include 'House Rent Allowance ', 'Night Shift Allowance ', 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance '.
[715C] Braithwaite & Co. (India) Ltd. vs The Employees ' State Insurance Corporation, [1968]1 S.C.R. 771, referred to N.G.E.F. Ltd. vs Deputy Regional Director, E.S.I.C., Bangalore, and Employees ' State Insurance Corporation, Hyderabad vs Andhra Pradesh Paper Mills Ltd., Rajahamundry, , approved.
Bengal Potteries Ltd. vs Regional Director, W. Bengal Region, Employees 713 State Insurance Corporation and others, [1973] LAB.
I.C. 1328 (V , over ruled.
Per Chinnappa Reddy, J. Wages as defined in section 2 (22) of the Act includes not only remuneration paid or payable under the terms of the contract of employment, express or implied but further extends to other additional remuneration, if any paid at intervals not exceeding two months, though outside the terms of employment.
[714G] 'Remuneration ' under the first clause has to be under a contract of employment, express or implied while 'remuneration ' under the third clause need not be under the contract of employment but may be any 'additional remuneration ' outside the contract of employment, [715B] Per Amarendra Nath Sen, J.
The inclusive part and the exclusive portion in the definition of 'wages ' in section 2 (22) clearly indicate that the expression 'wages ' has been given a very wide meaning.
The inclusive part of the definition read with the exclusive part in the definition clearly shows that the inclusive portion is not intended to be limited only to the items mentioned therein.
Taking into consideration the excluding part in the definition and reading the definition as a whole the inclusive part, is only illustrative and tends to express the wide meaning and import of the word 'wages '.
[717H; 718A B]


judgement:
Special Leave Petition (Civil) No. 284 of 1982.
From the Judgment and Order dated the 2nd September 1981 of the Rajasthan High Court in Civil Revision Petition No. 273 of 1981 K.G. Bhagat, Addl.
Sol General, Miss A. Subhashini and Vijay Panjwani for the Petitioners.
702 The Judgment of the Court was delivered by VENKATARAMIAH, J.
The precise question which arises for consideration in this petition is whether a suit filed by the State of Rajasthan against the Union of India for recovery of compensation for loss on account of the damage caused to the goods despatched through the Indian Railways in a civil court at Rajasthan is maintainable or whether it should be filed in this Court under Article 131 of the Constitution.
The facts of the case are these.
The District Administrator of Baarmer in Rajasthan was in need of a certain number of tents and their accessories and at his request 170 bundles of tents and their accessories were despatched by Chief Commandant, Mana Shivir (Raipur) Madhya Pradesh to the Collector, Barmer through the Indian Railways under R.R. No. 423978 dated February 17, 1972 to be delivered at Barmer.
No intimation was received about the arrival of the consignment at Barmer till August 6,1972.
On hearing that the consignment had reached Barmer on August 6, 1972, the Additional Collector and the District Rehabilitation Officer went to Barmer on August 6, 1972 for taking delivery but it was found that the packings of the goods had been seriously damaged and as a consequence thereof the tents as well as the accessories had become unfit for use.
The delivery was not, therefore, taken and a request was made for assessing the damages.
The goods were auctioned and a sum of Rs. 15,000 was fetched in the auction.
Since the claim of the consignee was not settled by the Railway Administration, after issuing necessary notice to the General Manager, Northern Railway, New Delhi, a suit was filed by the State of Rajasthan through the District Rehabilitation Officer Barmer claiming damages amounting to Rs. 1, 57,825.80 against the Union of India in the Court of the District Judge, Balotra on July 23,1977.
The suit was contested by the Union of India and the Railway Administration on various grounds and one of them was that the suit was not maintainable in the District Court in view of Article 131 of the Constitution which according to them conferred exclusive jurisdiction on the Supreme Court to decide all disputes arising between a State and the Union.
The 6th issue framed in the suit related to the competence of the District Court to entertain the said suit.
The above issue was heard as a preliminary issue and the District Judge held by his order dated April 16, 1981 that he 703 had jurisdiction to try the suit.
Against the order of the District Judge a revision petition was filed before the High Court of Rajasthan and that petition came to be dismissed on September 2,1981.
This petition for Special Leave is preferred under Article 136 of the Constitution against the order of the High Court.
After the case was heard for some time, the learned Additional Solicitor General very fairly stated that the suit could be allowed to be proceeded with before the District Court.
Since the question was of importance and that every suit instituted by any State Government against the Railway Administration may give rise to a similar issue, we propose to dispose of this Special Leave Petition with our reasons.
Article 131 of the Constitution reads thus: "131.
Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court have original jurisdiction in any dispute (a) between the Government of India one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
" The provision corresponding to Article 131 of the Constitution in the Government of India Act, 1935 was section 204 of that Act.
That section prior to its amendment by the India (Provisional Constitution) Order, 1947, read as: 704 "204.
Original jurisdiction of Federal Court.
(1) Subject to the provisions of this Act, the Federal Court shall to the exclusion of any other court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the provinces or any of the Federated States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to (a) a dispute to which a State is a party, unless the dispute (i) concerns the interpretation of this Act or of an Order in Council made thereunder, or the extent of the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or (ii) arise under an agreement made under Part VI of this Act in relation to the administration in that States of a law of the Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to make laws for that State; or (iii)arises under an agreement made after the establishment of the Federation, with the approval of His Majesty 's Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State and the Federation or a Province, being an agreement which expressly provides that the said jurisdiction shall extend to such a dispute, (b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend to such a dispute.
(2) The Federal Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment.
" 705 It may be noted that while the main part of sub section (1) of section 204 of the Government of India Act, 1935 is more or less similar to Article 131 of the Constitution, there is a difference between the structure of the proviso to Article 131 and the structure of the proviso to section 204 (1).
Article 131 of the Constitution provides that subject to the provisions of the Constitution, the Supreme Court shall to the exclusion of any other Court, have original jurisdiction in any dispute (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
That means that if there is any dispute involving any question about the existence of a legal right or even where the existence of legal right is admitted if there is a dispute about its scope between or amongst the States and the Government of India as stated therein, the Supreme Court would have exclusive jurisdiction to decide the question whether of law or fact.
No other court has jurisdiction to deal with it.
Similarly under section 204 of the Government of India Act, 1935 the Federal Court had exclusive jurisdiction to decide similar questions which arose between or amongst the Federation, any of the Provinces or any of the Federated States.
Under the proviso to that section, however, it was provided that the said jurisdiction would not extend to dispute to which a State (a Federated State) was a party, unless the dispute concerned matters mentioned in clauses (i) to (iii) thereof.
Under the proviso to Article 131 of the Constitution the original jurisdiction of the Supreme Court does not extend to matters referred to therein.
In the State of Bihar vs Union of India & Anr.
after reviewing the constitutional history which led to the enactment of Article 131 of the Constitution, a Constitution Bench of this Court observed at pages 529 530 thus: "Although article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as section 204 of the Government of India Act, and we do not find it necessary to do so, this much is certain that the legal right which is the subject of dispute must arise in the context of the Consti 706 tution and the Federation it sets up.
However, there can be no doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly or jointly with another unit or the Government of India." (Underlining by us) The Constitution Bench ultimately held in; the above case that if a private person, firm or corporation was also impleaded as a party the dispute could not be tried by the Supreme Court under Article 131 of the Constitution.
In Union of India vs State of Mysore, the question was whether a writ petition filed in the High Court by a State against the Union of India questioning the correctness of the order of the Central Government passed on a revision petition filed under the rejecting the contention of the State Government against the levy of excise duty on goods in stock with the state 's Implements Factory was maintainable.
The High Court held that the Central Government being a Tribunal as such while disposing of the revision petition in the exercise of power conferred on it by Section 36 of the could not be a disputant in the dispute it decided.
The Central Government was only interested in the recovery of duty which was properly payable but that by itself did not transform it from a Tribunal into a disputant.
The High Court observed that: "A dispute falls within Article 131 of the Constitution only when the Central Government is a disputant as such.
The dispute must directly arise between the State and the Central Government as the repository of the executive power of the Union.
An indirect interest in the collection of the revenue in the form of excise duty if the excise duty demanded by the Central Excise is exigible, is far too slender a foundation for the postulate that in every controversy arising under the provisions of the Central Excise Act the Central Government is necessarily a disputant.
The acceptance of such interpretation would make the Central Government a party to every proceeding under the Central 707 Excise Act in the role of a disputant, and, that consequence can scarcely fit into its constitution as a tribunal under section 36 of the Act." (Vide State of Mysore.
vs Union of India & Ors.
Accordingly the contention raised by the Union of India was negatived by the High Court.
This Court affirmed the above view of the High Court in the case of Union of India vs State of Mysore (supra) at page 845 thus: "Mr. Raman tried to argue that the High Court erred in not applying article 131 of the Constitution to the controversy even though the writ petition was barred thereunder as it fell exclusively within the jurisdiction of this Court under article 131 of the Constitution as a dispute between the Government of India and the State of Mysore.
The argument is however futile because there is nothing on the record to show that there was any such dispute between the Central and the State Government.
As the High Court has pointed out, the Union of India was made a party to the writ petition merely because it had dismissed the revision application of the State Government." In State of Rajasthan & Ors. etc. etc.
vs Union of India etc.
while explaining the scope of Article 131 of the Constitution Chandrachud, J. (as he then was) said at page 54: "The dispute between the Union of India and a State cannot but be a dispute which arises out of the differences between the Government in office at the Centre and the Government in office in the State. 'In office ' means 'in power ' but the use of the latter expression may prudently be avoided with the realization of what goes with power.
But there is a further prerequisite which narrows down the ambit of the class of dispute which fall within article 131.
That requirement is that the dispute must involve a question whether of law or fact, on which the existence or extent of a legal right depends.
It is this qualification which affords the true guide for determining whether a particular 708 dispute is comprehended with article 131. .
The purpose of article 131 is to afford a forum for the resolution of disputes which depend for their decision on the existence or extent of a legal right.
" In State of Karnataka vs Union of India & Anr.
Beg C.J. Stated as under: "It has to be remembered that Article 131 is traceable to section 204 of the Government of India Act.
The jurisdiction conferred by it thus originated in what was part of the federal structure set up by the Government of India Act, 1935.
It is a remnant of the Federalism found in that Act.
It should, therefore, be widely and generously interpreted for that reason too so as to advance the intended remedy.
It can be invoked, in my opinion, whenever a State and other States or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a State.
It makes no difference to the maintainability of the action if the powers of the State, which are Executive, Legislative and Judicial, are exercised through particular individuals as they necessarily must be.
It is true that a criminal act committed by a Minister is no part of his official duties.
But, if any of the organs of the State claim exclusive power to take cognizance of it, the state, such, becomes interested in the dispute about the legal competence or extent of powers of one of its organs which may emerge.
" On a careful consideration of the whole matter in the light of the decisions of this Court referred to above, we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc.
flowing therefrom.
Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental 709 to the ordinary functions of Government, a consumer of railway services etc.
like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution.
It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court.
It is well to remember that the constitutional proposals of the Sapru Committee advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction on the original side so that the Federal Court could act as an interpreter and guardian of the Constitution and as a tribunal for the determination of the disputes between the constituent units of the Federation.
The Joint Committee on Indian Constitutional Reforms was also of opinion that the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kind specified between the Federation and the Provinces as the constituent units of the Federation should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit.
The Special Committee consisting of Sriyuts section Varadachariar, Alladi Krishnaswami Ayyar, B.L. Mitter.
K.M. Munshi and B.N. Rau appointed by the constituent Assembly to consider and report on the constitution and powers of the Supreme Court suggested 'that the Supreme Court, like the Federal Court under the 1935 constitution, would be the best available forum for the adjudication of all disputes between the Union and a unit and between one unit and another and proposed that the court should have an exclusive original jurisdiction in such disputes '.
(Vide The Framing of India 's Constitution A Study by Shri B. Shiva Rao at p. 483).
Considered in the light of the foregoing the conclusion becomes inevitable that disputes of the nature involved in this case could not have been in the contemplation of the framers of the constitution when they adopted Article 131 of the Constitution.
In the instant case the legal right of the State of Rajasthan to sue for damages for the loss suffered by it on account of the damage caused to the goods transported through the Railway Administration as such is not in dispute between the Union Government and like State of Rajasthan.
The State Government has made a claim the any other consignee of goods despatched through the railway for 710 compensation and its success or failure in the suit depends on proof of facts which have to be established in the same way in which a private person would have to establish.
This is not even a case where a formal contract is entered into between the Union of India and the State of Rajasthan in accordance with the requirements of Article 299 of the Constitution.
It is just a commercial contract under which an officer of the State of Rajasthan was entitled to claim delivery of the goods consigned as any ordinary consignee.
It may be noticed that the jurisdiction of the Supreme Court under Article 131 of the Constitution is subject to the other provisions of the Constitution.
Under Article 298 of the Constitution the executive power of the Union and of each State extends to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose.
That Article further provides that the said executive power of the Union shall, in so far such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State and said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.
The claim involved in this case is one based on section 80 of the Indian Railways Act 1890.
Under that section a suit for compensation for loss of life of, damage, deterioration or non delivery of animals or goods may be instituted if the passenger was or the animals or goods were booked from one station to another on the railway of the same Railway Administration against that Railway Administration and if the passenger was or the animals of goods were booked through over the railways of two or more railway administrations against the Railway Administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage, as the case may be, or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction or damage or deterioration occurred and in either case the suit may be instituted in a court having jurisdiction over the place at which the passenger obtained his pass or purchased his ticket or the animals or goods were delivered for carriage, as the case may be, or over the place in which the destination station lies or the loss, injury, destruction, damage or deterioration occurred Section 80 of the Indian Railways Act 1890 indicates that the claim made under it is essentially against the Railway Administration concerned.
The Union of Indian is impleaded as a party to suits instituted thereunder being the owner of the Indian Railways by 711 virtue of Article 300 of the Constitution.
The statute, however, treats the dispute as one between the Railway Administration concerned and the person instituting the suit.
Neither of the parties to these proceeding, is questioning the applicability of the provisions of the Indian Railways Act, 1890 to these proceedings.
It is, therefore, difficult to hold that in these proceedings is any question which falls within the scope of Article 131 of the Constitution.
The High Court and the District Judge were, therefore, right in holding that the suit was entertainable by the District Court.
For the foregoing reasons, this Special Leave Petition fails and hereby dismissed.
H.S.K. Petition dismissed.

summary:
The respondent, State of Rajasthan through its District Rehabilitation Officer, Barmer filed a suit in the court of the District Judge, Balotra against the appellant, Union of India, and the Railway Administration claiming damages for the loss suffered by it on account of the damage caused to the goods transported by rail through the Railway Administration.
The appellant contended that the suit was not maintainable in the District Court in view of Article 131 of the Constitution which, according to it conferred exclusive jurisdiction on the Supreme Court to decide all disputes arising between a State and the Union.
The District Judge held that he had jurisdiction to try the suit.
A Revision Petition filed against the order of the District Judge was dismissed by the High Court.
Hence this petition for special leave to appeal.
Dismissing the petition, ^ HELD: The suit was entertainable by the District Court.
On a careful consideration of the whole matter in the light of the decisions of this Court, it is felt that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties.
immunities, liabilities, disabilities etc.
flowing therefrom.
Any dispute 701 which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to exercise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government, a consumer of railway services etc.
like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution.
It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court.
[708G H; 709A B] State of Bihar vs Union of India & Anr., ; , Union of India vs State of Mysore, [1977] S.C.R. 842.
State of Mysore vs Union of India & Ors.
A.I.R. at pages 239 240, State of Rajasthan & Ors., etc.
vs Union of India etc.
; , , State of Karnataka vs Union of India & Anr., ; at page 92 and The Framing of India 's Constitution A Study by Shri B. Shiva Rao at page 483, referred to.
In the instant case, the State Government has made a claim like any other consignee of goods despatched through the railway for compensation and its success or failure in the suit depends on proof of facts which have to be established in the same way in which a private person would have to establish.
This is not even a case where a formal contract is entered into between the Union of India and the State of Rajasthan is accordance with the requirements of Article 299 of the Constitution.
It is just a commercial contract under which an officer of the State of Rajasthan was entitled to claim delivery of the goods consigned as any ordinary consignee.
The claim involved in this case is one based on section 80 of the Indian Railways Act, 1890.
Section 80 of the Indian Railways Act, 1890 indicates that the claim made under it is essentially against the Railway Administration concerned.
The Union of India is impleaded as a party to suits instituted thereunder being the owner of the Indian Railways by virtue of Article 300 of the Constitution.
The statute, however, treats the dispute as one between the Railway Administration concerned and the person instituting the suit.
Neither of the parties to these proceedings is questioning the applicability of the provisions of the Indian Railways Act, 1890 to these proceedings.
It is, therefore, difficult to hold that in these proceedings there is any question which falls within the scope of Article 131 of the Constitution.
[709H; 710A B; D; H; 711A B]