judgement:
: Criminal Appeal No. 16 of 1972.
Appeal by Special Leave from the Judgment and Order dated 14 6 1971 of the Mysore High Court in Criminal Revi sion Petition No. 229 of 1971.
N. Nettar, for the Appellant.
K.R. Nataraja, for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short but interesting question of law.
The facts giving rise to the appeal are few and briefly stated as follows: On 1st October, 1970 the police filed a chargesheet against the respondent in the court of the Judicial Magis trate, First Class, Badami, charging him with having commit ted an offence punishable under Section 34 of the Mysore Excise Act, 1965.
The learned Judicial MagiStrate by an order dated 3rd October, 1970 refused to take cognizance of the offence on this charge sheet, since it was filed by the Police and not by an Excise official.
The view taken by the learned Magistrate was that under Section 60 clause (b) as amended by Mysore Ordinance No. 4 of 1970 which represented the law as it then stood, it was not competent to him to take cognizance of an offence punishable under Section 34, except on the complaint or report of an Excise Officer and since the charge:sheet in the present case was filed by the police and not by an Excise Officer, he was precluded from taking cognizance of the offence.
The learned Judicial Magistrate on this view directed that the charge sheet be returned to the police and ordered release of the respond ent.
The State thereupon preferred a Revision Application to the Sessions Court, Bijapur.
The learned Sessions Judge agreed with the view taken by the Judicial Magistrate and holding that the Judicial Magistrate was right in refusing to take cognizance of the offence on the charge sheet filed by .the police, rejected the Revision Application summarily.
This led to the filing of a Revision Application by the State before the High Court.
The High Court too summarily rejected the Revision Application and hence the State pre ferred the present appeal with special leave obtained from this Court.
Now in order to appreciate the contention that has been raised on behalf of the State in support of the appeal, it is necessary to notice the various changes which Section 60 of the Principal Act went 546 through from time to time during the relevant period.
Section 60 clause (b) as it originally stood provided that no Magistrate shall take cognizance of an offence punishable under any Section of the Act other then Section 35 or 38 or 46 or 48 "except on his own knowledge or suspicion or on the complaint or report of an Excise or Police Officer".
But before the charge,sheet in the present case came to be filed by the Police, an amendment was made in Section 60 clause (b) by Mysore Ordinance No. 4 of 1970 which came into force on 7th August 1970.
Section 18 of this amending ordinance omitted the words "or police" in clause (b) of Section 60.
The result was that cognizance of an offence punishable under Section 34 could not be taken by a Magistrate "except on his own knowledge or suspicion or on the complaint or report of an excise officer".
Section 60 (B) was also added at the same time and by this new Section inter alia offence under Section 34 was made cognizable and the provisions of the Code of Criminal Procedure 1898 with respect to cog nizable offences were made applicable to such offence.
It was on the basis of the amended clause (b) Section 60 that the learned Judicial Magistrate as well as the Sessions Judge held that cognizance of the offence under Section 34 charged against the respondent could not be taken, since the charge,sheet was filed by the police and not by an excise officer.
The learned counsel appearing on behalf of the State contended before us that even on the language of the amended clause (b) of Section 60 without the words "or police", it was competent to the Judicial Magistrate by reason of the enactment of Section 60(B) to take cognizance of the offence, but it is necessary for us to examine this contention since we find that before the Revision Applica tion came to be heard by the High Court, a further amendment was made in clause (b) of Section 60 by Mysore Act 1 of 1971 and that restored the position which obtained prior to the amendment made by Mysore Ordinance No. 4 of 1970.
Mysore Act No. 1 of 1971 was deemed to have come into force on 7th August 1970 and Section 23 of this Act provided inter alia that the amendment to Section 60 made by Mysore Ordinance No. 4 of 1971 shall be deemed never to have been made and the provisions of Section 60 as they stood prior to the said amendment shall be deemed to continue to be in force.
The result of the enactment of this provision by Mysore Act 1 of 1971 was that the amendment made in Section 60 clause (b) by deleting the words "or police" by Mysore Ordinance 4 of 1970, was obliterated and wiped out with retrospective effect so that in the eye of the law it was never made at all.
It is now settled law that when a legal fiction is enacted by the Legislature, the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it.
We must, therefore, proceed on the basis that the words "or police" were always there in clause (b) of Section 60, even at the time when the learned Judicial Magistrate made his order dated 3rd October, 1970 refusing to take cognizance of the offence and returning the charge sheet to the police.
If these words were in clause (b) of Section 60 at that time, then obviously the learned Magistrate was in error in refus ing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police.
That is the clear effect of the legal 547 fiction enacted in Section 23 of Mysore Act 1 of 1971 and that this would be so is amply supported by the decision of this Court in M.K. Venkatachalam I.T.O. and Another vs Bombay Dyeing and Mfg. Co. Ltd.(1) The High Court as well as the Court of Sessions, were therefore, clearly in error in affirming the order made by the learned Judicial Magis trate and it must be held that the charge sheet was validly filed before the learned Judicial Magistrate by the police and the Judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet.
We accordingly allow the appeal, set aside the orders made by the learned Judicial Magistrate, Sessions Judge and the High Court and remand the case to the Judicial Magis trate with a direction to him to deal with the charge sheet filed by .the police in accordance with law in the light of the observations contained in this judgment.
ORDER After we delivered the judgment in this case, our atten tion was drawn to the fact that subsequent to the decision of the High Court, a fresh charge sheet for .the same of fence was filed by the police against the respondent and in view of the amendment made in section 60, clause (b) by Mysore Act I of 1971, the learned Judicial Magistrate took cognizance of the offence and tried the respondent and ultimately as a result of the trial, the respondent was convicted and sentenced to imprisonment and in fact by :the time the appeal came to be heard by us, he had already served out his sentence of imprisonment.
In view of this fact, it is unnecessary to remand the case to the learned Judicial Magistrate for taking cognizance of the offence.
We accordingly direct that the last part of the final order made by us which commences with the words "and remand the case" be deleted.
S.R. Appeal allowed.

summary:
The Mysore Ordinance 4 of 1970 which came into effect from 7th August 1970 omitted the words "or police" in section 60(b) of the Mysore Excise Act, 1965 which provided for taking of cognizance by the Magistrate "on his own knowledge or suspicion or on the complaint or report of an excise or police officer".
It also inserted a new section 60B whereby offence under section 34 was made cognizable and the provisions of the Criminal Procedure Code 1898 with respect to cogniz.
able offences made applicable to such offence.
The earlier position which obtained prior to the said Ordinance was restored by the Mysore Amendment Act No. 1 of 1971 which received the President 's assent on 20th January 1971 but which was deemed to have come into force on 7th August 1970.
Section 23 of the 1971 Act provided that the amendment to section 60 made by the Ordinance of 1970 shall be deemed never to have been made and the provisions of section 60 as they stood prior to the said amendment shall be deemed to continue to be in force.
The judicial Magistrate, Badami, on a complaint filed by a police officer refused to take cognizance of an offence for the illegal Possession of 41/2 tolas of ganja under section 34 of the Mysore Excise Act 1965 in view of the provisions if section 60(b) ibid which represented the law as it then stood.
The revision application before the Sessions Court was dismissed on 15 1 1971.
A further revision filed before the High Court on 14 6 1971 was also dismissed in limine.
However after the dismissal of the revision by the High Court on a fresh complaint filed by the police in respect of the same offence as per the amending Act I of 1971, the judicial Magistrate took cognizance of the of fence, convicted the accused and sentenced hun to simple imprisonment for three months and also to pay a fine of Rs. 100/ .
Notwithstanding the conviction the State pressed its appeal by special leave against the judgment of the High Court dismissing the revision.
Allowing the appeal, the Court, HELD: (1) The High Court as well as the court of Ses sions were clearly in error in affirming the order made by the learned judicial Magistrate.
[547A] (2) The charge sheet was validly filed before the learned judicial Magistrate by the Police and the judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet.
[547A B] (3) The result of the enactment of section 23 by Mysore Act I of 1971 was that the amendment made in section 60 clause (b) by deleting the words "or police" by Mysore Ordinance No. 4 of 1970 as oblitarated and wiped out with retrospective effect so that in the eye of the law it was never made at all.
[546F] (4) It is now well settled law that when a legal fiction is enacted by the Legislature the court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect to it.
The clear effect of the legal fiction enacted in section 23 of Mysore Act No. 1 of 1971 was that the 545 words "or police" were always there in cl.
(b) of section 60 even at the time when the charge sheet was presented before the learned Magistrate and if that be so, the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police.
[546G H, 547A] M.K.
Venkatachalam I.T.O. & Anr.
vs Bombay Dyeing & Mfg. Co. Ltd. ; , applied.


judgement:
Appeal No. 1694 of 1971.
(From the Judgment and Decree dt. 11 2 70 of the Allaha bad High Court in Civil Misc.
Writ No. 973 of 69).
S.C. Manchanda and O.P. Rana for the Appellants.
K. Sen, J.P. Goyal and Shreepal Singh, for the Re spondent.
The Judgment of the Court was delivered by SHINGHAL J.
This appeal by the State of Uttar Pradesh and three sales tax officers is directed against the judgment of the Allahabad High Court dated February 11, 1970.
The High Court has granted a certificate of fitness under clause (c) of article 133(1) of the Constitution.
Respondent Modi Industries Limited.
hereinafter referred to as the dealer, was known earlier as the Modi Sugar Mills Ltd. It manufactured various articles like sugar, oil, vanaspati and soap.
It exercised the option under section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) of the U.P. Sales Tax Act, 1948, hereinaf ter referred to as the Act, to submit its returns of sales tax on the basis of its turnover of the previous yearns and filed the returns accordingly.
The assessment years for which the returns were filed were 1948 49 and 1949 50, and the corresponding previous years were November 1, 1946 to October 31, 1947, and November 1, 1947 to October 31, 1948 respectively.
The rate of sales tax for certain commodities was enhanced during the assessment year 1948 49, with effect from June 9, 1948, and for some other commodities with effect from July 1, 1948.
The dealer contended that sales tax on its entire turnover of the two previous years should be assessed at the old rate of 3 pies per rupee and not at the enhanced rate of 6 pies per rupee because the enhancement was made after both the previous years had ex pired.
The Sales Tax Officers rejected that contention and assessed 'the sales tax at the enhanced rates.
The appel late authority however upheld the dealer 's contention and the matter went up in revision to the Judge (Revisions).
He upheld the order of the Sales Tax Officer.
The dealer applied for a reference under section 11 (1) and the fol lowing two questions of law were referred to the High Court, "(1) Whether the enhanced rate under notifica tions dated 8th Jane, 1948 and 30th June, 1948 issued under section 3 A of the U.P. Sales Tax Act.
1948 are ap plicable to the sales of goods mentioned in paragraph 2 above which took place before 8th June 1948 and 30th June, 1948.
(2) Whether sub section (ii) of section 3 A of the U.P. Sales Tax Act, 1948, empowers Provincial Government to fix the rate of sales tax in respect of an assessment year or in respect of certain specified sales only ?" 550 By its judgment dated July 24, 1961, the High Court answered question No. 1 in favour of the dealer, but declined to answer the other question.
The High Court took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year was liable to assess ment, on the entire turnover of the previous year, at the rate prevailing on the first day of the relevant assessment year and that any change in the rate of the sales tax during the course of the assessment year could not be applied to that assessment.
The dealer filed an application under section 11(8) of the Act for a direction for the payment of interest on the amount which had become refundable as a result of the judgment of the High Court.
The High Court held in its order dated February 22, 1966 that the dealer was entitled to interest at the rate of two per cent on the refundable amount.
The dealer accordingly made an application to the Revising Authority on October 11, 1968 to pass an order under sub section (6) of section 11 for a refund of Rs. 3,48,420/13 with interest at two percent per annum.
The Additional Judge (Revisions) Sales Tax however dismissed the application by his order dated December 28, 1968, as he took the view that that was not permissible because of the insertion of section 31 in the Act by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 (U.P. Act III of 1963) hereinafter referred to as the Amending Act.
The dealer felt aggrieved and filed a writ petition under article 226 of the Constitution.
It is that petition which has been allowed by the impugned judgment of the High Court dated February 11, 1970 by which the order of the Additional Judge (Revisions) Sales Tax Meerut, dated Decem ber 28, 1968, has been quashed and a direction has been given to him to pass an appropriate order under section 11 (6) of the Act in accordance with the law and in the light of the observations made by the High Court.
This is why the State of Uttar Pradesh and others have come up to this Court in appeal.
We have made a mention of the facts bearing on the controversy, and we may as well refer to the relevant provi sions of the law.
The Act came into force on April 1, 1948.
It provided for payment of the sales tax on several commodities at a uniform rate of 3 pies in the rupee.
Section 3 A was in serted by Act XXV of 1948 conferring certain powers on the Provincial Government.
The provincial Government issued a notification under that section declaring.
inter alia, that with effect from June 9, 1948 the rate of sales tax in respect of the turnover of the goods specified in the noti fication shall be as stated in the schedule to the notifica tion.
The rate of tax was thus enhanced to 6 pies per rupee.
The enhancement of the tax was challenged on the ground that it was not permissible in the case of an asses see who had taken the option to submit his return on the basis of the turnover of the sales in the previous year as he was liable to pay the tax according to the rates pre vailing during the assessment year.
That case came up to this Court at the instance of the present respondent, which was then known as the Modi Sugar Mills Limited.
and it was held in Commissioner of Sales Tax, Uttar Pradesh vs The Modi Sugar Mills Ltd. (1) that the assessee who had (1) ; 551 elected to submit his return on the turnover of the previous year was liable to be assessed to sales tax at the rate force on the first day of the year of assessment because the liability arose on that date, and any subsequent enhance ment of the rate by the notification under section 3 A did not alter the liability, The Legislature however passed the Amending Act and inserted the following as section 31, "31(1) Where any dealer has, in accord ance with the provisions of Section 7, as it stood prior to its amendment by Section 7 of U.P. Act XIX of 1956, opted to be assessed to tax on the basis of his turnover of the previ ous year, he shall be assessed to tax at such rates as are prevalent during the year for which the assessment is being made, and if the rates of tax on any goods or class of goods are altered during such assessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also propor tionately for the same number of days as they are in force during the assessment year.
(2) Notwithstanding any judgment, decree or order of any court, all assessments or orders made, actions or proceedings taken, directions issued, jurisdictions exercised or tax levied or collected by any officer or authority purporting to act under the provi sions of sub section (1) of Section 7, as it stood prior to its amendment by Section 7 of U.P. Act XIX of 1956, shall be deemed to be good and valid in law as if such assessments, orders, actions, proceedings, directions, jurisdictions and tax have been duly made, taken, issued, exercised, levied or collected, as the case may be, under or in accordance with the said provisions of this Act as amend ed by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 and as if the amendment so made had been in force on all material dates.
Explanation For the purposes of this section the expression "previous year" shall have the meaning assigned to it in sub clause (ii) of clause (j) of Section 2 of this Act, as it stood prior to its amendment by Section 2 of the U.P. Act XIX of 1956.
" The validity of the aforesaid section 31 of the Act came up for consideration in this Court in Commissioner of Sales Tax, U.P. vs Bijli Cotton Mills Hathras(1) and was upheld.
It was held that as the Legislature had amended the Act and declared that notwithstanding the option exer cised by the assessee the tax would have to be computed in the light of the rates prevailing in 1948 49 as if they were projected upon the turnover of the previous year, the Legislature had expressly stated that that rule would pre vail as if it were in force during the assessment year and all assessments would be made in the light of the amended provision.
It was observed that in taking that view this Court was seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability (1) [1964]7 S.C.R. 363.
552 arose, for section 31 incorporated by the Amending Act was to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court.
It was held further that this would be the position even if the laws were amended with retroactive operation during the pendency of a reference to the High Court.
It was accordingly held that "if the law which the Tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended.
" The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills ' case and have in fact not been challenged by counsel for the dealer.
It may be mentioned that in its judgment in Bijli Cotton Mills ' case this Court took notice of its earlier decision in the Modi Sugar Mills ' case (supra) so that it is well settled that the amendment made by section 31 is retroac tive and applies to assessments pending or closed as if the Amending Act had been in force at material times.
The question is whether the judgment of the High Court dated July 24, 1961 answering question No. 1 of the afore said reference by stating that the sales tax had to be charged from the dealer for the assessment year 1948 49 at the rate applicable to the various commodities on April 1, 1948, and for the assessment year 1949 50 at the rate applicable on April 1, 1949, was binding on the Additional Judge (Revisions) in spite of the amendment made by the Amending Act by insertion of section 31 in the Act ? The High Court has taken 'the view in its impugned judgment dated February 11, 1970 that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on "any ground whatsoever", including the ground of any subsequent amendment in the law, and that it was bound to decide the case in conformity with the judgment of the High Court.
The High Court has expressed its view as follows , "The judgment of the High Court may be said to have become erroneous as a result of the amendment but so long as the judgment stands, it is binding upon the parties and the revising authority has no option except to give effect to it in its c, order passed under section 11(6).
" The High Court further made the following observation, "We however, express no opinion as to the course.
which the department should.
adopt in a situation like this, but we have no doubt in our mind that the amendment brought about by section 31 of the Act does not make the judgement of the High Court a nullity and the Judge '(Revisions) was not free to ignore it for any reason whatsoever.
" The question is whether lifts view of the High Court is correct ? The answer to the question depends on the answer to the further question whether the proceedings for the assessment of the sales tax had become final after the High Court 's judgment dated July 24, 553 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions) ? Sub section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment.
" So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects.
It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy.
According to sub section (2) of that section, the assessments made at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates.
It was expressly provided by the sub section that that was to be so notwithstanding any judgment, decree or order of any court.
The order of the Additional Judge (Revisions) dated December 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates,and sub section (2) of section 31 had the effect of making them "good and valid in law".
It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31.
It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub section C(6) of section 11 of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of the specific provi sions of subsection (2) of section 31, so that the position would have been the same as if no such order had been passed at all.
The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the depart ment to be erroneous, it could have filed an appeal against it to this Court.
under article 136 of the Constitution to have it set set aside or modified.
It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter.
The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department.
In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned 554 judgment of the High Court dated February 11, 1970 and has come up in appeal against it.
And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an order.
It has next been argued that the amendment made in the Act by insertion of section 31 can not possibly be implemented as no machinery has been provided to give effect to it and that it should therefore have been ignored altogether.
This argument has been made with reference to this Court 's decision in Modi Sugar Mills ' case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case.
So when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provi sions of sub section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968.
The appeal is allowed and the impugned judgment of the High Court dated February 11, 1970, is set aside.
In the circumstances of the case, the parties shall pay and bear their own costs.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent filed its sales tax returns for the assessment years 1948 49 and 1949 50 on the basis of its turnover of two previous years.
In respect of certain commodities, the rate of sales tax was enhanced with effect from certain dates falling within the assessment years.
The High Court on reference took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year of assessment, was liable to be assessed at the rule prevailing on the first day of the relevant assessment year and that any change in the rate during the assessment year could not be applied to that assessment.
The assessee, who had paid tax at the enhanced rate, applied for refund of the excess tax together with interest thereon under section 11(6) of the U.P. Sales Tax Act, 1948.
The Additional Judge (Revisions), however, rejected the applica tion holding that refund was not permissible in view of section 31 introduced by the Amending Act (U.P. Act 3 of 1963).
That section provided that where a dealer opted to be as sessed to tax on the basis of his turnover of the previous year, he shall be assessed to tax at such.rates as are prevalent during the year for which the assessment is being made, and if the rates of tax are altered during such as sessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also proportionately for the number of days involved as they were in force during the assessment year.
According to sub section (2) of that section the assessments made at the enhanced rates in accordance with the notification dated April 9, 1948 were to be deemed to be good and valid as if they had been duly made and as if the amendment made by the insertion of section 31 had been in force on all material dates.
It was expressly provided by the sub section that that was to be so notwithstanding any judgment, decree or order of any court.
The High Court quashed the order of assessment on the ground that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on any ground whatsoever, including the ground of any subse quent amendment of the law.
Allowing the Appeal to this Court, HELD: There is nothing wrong with the view taken by the Revising Authority.
When section 31 of the Act is valid, and is retroactive .and the Legislature has shown the intention of restoring the assessments and orders made before the amendment as good and valid in law as if they had been duly made.
that was enough to set the controversy at rest.
The amendment made by section 31 was retroactive and applied to assessments pending or closed as if the Amending Act had been in force at all material times.
[554C D; 552C] Commissioner of Sales Tax, U.P.v.
Bijli Cotton Mills, Hathras; , referred to.
(a) Section 31 was sought to be applied to the facts of the case when the Additional Judge (Revisions) was in seisin of the case for the purpose of passing the necessary orders to dispose it of finally in conformity with the judgment of 549 the High Court.
If he had passed an order under section 11(6) of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of section 31(2).
[553B C & F]


judgement:
il Appeal No. 1870 of 1968.
(From the Judgment and Decree dated 6 3 1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.) I. N. Shroff and H.S. Parihar, for the appellant.
S.B. Wad and M.N. Shroff, for respondent No. 1.
556 A. section Bobde, G.L. Sanghi, V.K. Sanghi, Miss Rama Gupta and M.S. Gupta, for respondent No. 2.
The Judgment of the Court was delivered by C.J.
This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay.
The appellant is the State of Madhya Pradesh.
The first respondent is the State of Maharashtra.
The second respondent is the plaintiff decree holder.
They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintiff.
, The trial court passed a decree in favour of the plain tiff.
It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the.
order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative.
The further declara tion was that the: plaintiff shall be deemed to be continu ing in service from 16 September, 1943.
A sum of Rs. 64, 588 2 0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to.
pay the same with interest.
Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff.
Maharashtra preferred an appeal against the decree.
Madhya Pradesh preferred objections against the order of costs.
The High Court confirmed the decree and the declara tions.
The High Court however modified the decree and held Madhya Pradesh liable.
The claim of the plaintiff against Maharashtra was dismissed.
The plaintiff was appointed Assistant Medical Officer in 1938.
In 1939 he was appointed officiating Assistant Surgeon.
He was posted at Elichpur (now Achalpur).
In 1942 he was transferred to Hoshangabad.
In 1943 he ap plied for medical leave for four months.
The Civil Surgeon recommended leave for six weeks.
The plaintiff again ap plied for leave in the month of August, 1943.
The leave was sanctioned by the Civil Surgeon.
The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keep ing good health.
The Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave.
The Government sanc tioned leave for six weeks.
On 28 September, 1943 the plaintiff was suspended by an order with effect from 16 September, 1943.
The plaintiff was served with a notice dated 30 September, 1943 to show cause why he: should not be dismissed from service.
Four charges Were levelled against the plaintiff.
First, that he refused to come to duty at the time of epi demic in August, 1943; Second, that he left his station without permission.
Third, that he refused to attend the Departmental enquiry when ordered to do so.
Fourth, that he wilfully and deliberately acted in total disregard of orders and absented himself from duty though he was declared to be fit to.
resume duty.
557 The Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved.
On 21 June, 1945 the plaintiff was asked to show cause why he.
should not be dismissed or reduced in rank.
On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order.
By order dated 7 November, 1945 the Provincial Government passed an order removing the plaintiff from service with effect from that date.
On 10 May, 1945 the plaintiff filed an appeal to the Governor but it was dismissed.
On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur.
By judgment dated 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to.
be deemed to.
continue in service.
The plaintiff was thereafter reinstated in service aS Assistant Surgeon on 12 December, 1953.
He was posted at Rays Hospital, Nagpur on 15 September, 1953.
On 13 January, 1954 the plaintiff was again suspended from service under order dated 9 January, 1954.
The plain tiff handed over charge on 13 January, 1954.
On 1 February 1954 the plaintiff was served with a notice dated 29 Janu ary, 1954 to show cause why he should not be removed from service.
The former report of the Enquiry Officer dated 22 February, 1945 was also given to the plaintiff.
On 2 February, 1956 the plaintiff was removed from service.
He appealed to the Governor.
The appeal was dismissed.
On 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur against Madhya Pra desh and Maharashtra.
The plaintiff asked for a declaration that the order dated 9 January, 1954 suspending the plain tiff as well as the order dated 2 February, 1956 is illegal.
The plaintiff asked for a declaration that he is deemed to continue in service.
He claimed recovery of Rs. 64,588 2 0 as arrears of salary.
The plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are "liable to make good the plaintiff 's claim the liability for which is not exclusive but joint and several".
The alternative case.
of the plaintiff in the suit was that "if it will be held that the State of Maha rashtra and not the State of Madhya Pradesh is liable or viceversa the plaintiff will claim the decree ' against such State as would be liable".
The Civil Judge passed the.
decree on 25 April 1959 ' declaring: the order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 remov ing the plaintiff from service as illegal, void and inopera tive.
The decree further stated that the 558 plaintiff was deemed to continue in service from 16 Septem ber, 1943.
The Civil Judge passed a decree against the State of Bombay with the direction to pay Rs. 64,588 2 0 with 'interest at 6 per cent.
Both Maharashtra and Madhya Pradesh went up in appeal.
The Division Bench of the Bombay High Court placed the matter before a larger Bench and referred these two ques tions for the decision of the Larger Bench.
(1) Whether in the events that have happened which of these two States of Maharashtra and Madhya Pradesh can be compelled to take the plaintiff in service.
(2) Whether both or only one of the two States can be made liable for the payment of ar rears of salary of the plaintiff, if so, which State is liable.
The larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into.
force on 1 November, 1956 is the principal successor State of the former State of Madhya Pradesh.
The High Court further said that the State of Maharashtra is the successor State of the former Madhya Pradesh inasmuch as certain territo ries, namely, Vidharbha which formed part of the former St. ate of Madhya Pradesh became: a part of the new State of Maharashtra.
The High Court then referred to.
clause (B) of section 88 of the Act and said that Maharashtra would be liable for the claim of the plaintiff only if the cause of action has arisen in its entirety within the territories which formed part of Maharashtra, otherwise initial liabil ity for the plaintiff 's claim will be on the principal successor State Madhya Pradesh under section 88(c) of the Act.
The larger Bench therefore referred the matter to the Division Bench to consider the question whether the cause of action for the plaintiff 's claim arose in its entirety within the territories which formed part of the Maharashtra.
The High Court held that under section 88(c) of the Act Madhya Pradesh is responsible for the claim of the plain tiff.
The High Court further held that the plaintiff was appointed under conditions of service Prescribed for him and accepted by him, and, therefore, the plaintiffs claim for arrears of salary would be governed by section 87 of the Act and not by section 88 of the Act.
The High Court said that the plaintiffs claim for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms.
of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff.
The High Court also said that at the time of the plaintiff 's appointment in 1939 the plaintiff 's services were available for the then entire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh.
Therefore, the High Court said that section 87(b) of the Act would not apply.
Under the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the appointed day not exclusively purposes of any of the two successor States.
Madhya Pradesh raised three contentions.
First, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the.
suit filed by the. plaintiff in 1949 and was 559 therefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claim ing the salary and allowances for the period of 16 Septem ber, 1943 to 31 August, 1953 in the second suit which was filed on 6 October, 1956.
Second, the plaintiff 's claim in the second suit for salary and allowances prior to 6 October 1953 would be barred by the reason of Article 102 of the Limitation Act 1908.
Third, the liability, if any, would be under section 88(b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned.
Reference was made to section 8(1) (c) of the Act for the purpose.
Further it is said by the appellant that on or after 1 November, 1956 the plain tiff could continue the suit only against the State of Bombay later known as State of Maharashtra and not against the State of Madhya Pradesh as constituted on or after 1 November, 1956.
Maharashtra contended that the liability was of Madhya Pradesh because of the provisions contained in section 88(c) of the Act.
It was said on behalf of Maharashtra that the plaintiff had been appointed to service in Central Prov inces and Berar which became the principal successor State of Madhya Pradesh.
The order of removal was also by the existing State which became the principal successor State of Madhya Pradesh.
In order to appreciate the rival contentions reference is necessary to two sections of the Act.
Section 87 speaks of liability in the case of contracts. 'Broadly stated, the provisions of section 87 of the Act are that where before the appointed day "1 November 1956" an existing State has made any contract in the exercise of 'its executive power for any purposes of the State, that contract shah be deemed to have been made in the exercise of the executive power (a) if there be only one successor States of the State; and (b) if there be two or more successor States and the purposes of the contract are,as from the appointed day, exclusively purposes of any one of them of that State; and (c) if there be two or more successor States and the purposes of the contract are,contract are, as from that day, not exclusively purposes of any one of them. of the principal successor State: and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State be rights or liabilities of the successor State or the principal succes sor State.
The proviso to section 87 of the Act is that where the liability attaches under clause (c) the initial allocation of rights and liabilities made by this sub section shall be subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the central Government may by order direct.
Section 88 of the Act provides that where before the appointed day, an existing State is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall (a) if there be only one successor State, be a liability of that State; (b) if 560 there be two or more successor ' States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and (c) in any other case, be initially a liability of the principal successor State, but subject to such financial adjustment as may be agreed upon between 'all the successor States concerned, of in default of such agreement, as the Central Government may by order direct.
The claim for declaration that the order of suspension as welt as the order of dismissal was void is in respect of an actionable wrong other than breach of contract.
In order to.
determine as to which of the two States would be liable e under section 88 of the '.
1956 Act it has to be found out whether the cause of action arose wholly within the territories of one of the States or arose partly in the territories of one State and partly in the territo ries of the1 other.
The departmental enquiry which was alleged to be illegal was held at Hoshangabad which has all along been a part of the State of Madhya Pradesh only.
final orders which were challenged in the suit were passed at Nagpur which became part of the State of Bombay and later on known as Maharashtra.
The plaintiff 's cause of action comprises of every fact which is necessary to be proved.
The plaintiff based his claim with regard to de partmental enquiry which was held at Hoshangabad and also with regard to impugned order passed at Nagpur.
The appel lant State is the principal successor State of the former State of Madhya Pradesh.
Maharashtra was one of the succes sor States, like Madhya Pradesh.
Section 88(a) of the 1956 Act in the present case has no .application because it speaks of only one successor State.
Section 88(b) of the 1956 Act refers to the State.
where the cause of action wholly arose within the territories of either of the.
successor States.
In the present case, it cannot be said that the cause of action arose wholly within the successor State of Maharashtra.
Therefore, the residuary 'provision contained in section 88(c) of the 1956 Act applies and the liability is of the principal successor State, namely, Madhya Pradesh.
The High Court was right in arriving at the conclusion that Madhya Pradesh is liable.
The plaintiff 's suit in 1949 was only for setting aside the impugned orders.
The plaintiff did not ask for relief for arrears of salary for the obvious reason that the plain tiff in the 1949 suit asked fox ' setting aside of the im pugned orders and an order that the plaintiff was deemed to be continuing in service.
The plaintiff proceeded on the existing law as it stood by reason of the decision in High Commissioner for India vs 1.
M. Lall(1).
The Judicial Committee in that case held that a civil servant was not entitled to.
sue the State for recovering arrears of salary and pay.
Counsel for Madhya Pradesh relied on the decision in Province of Punjab vs Pandit Tara Chand (2) which held that a public servant had a right to bring a suit for ar rears .of pay.
The decision of the Judicial Committee in Lall 's case (supra) takes a contrary view to the decision of the Federal Court in Pandit (1) 75 I.A. 225.
(2) 561 Tara Chand 's case (supra).
It it true that the decision of the Federal Court in Pandit Tara Chand 's case (supra) was not brought to the notice of the Privy Council.
Under section 208 of the Government of India Act 1935 the law declared by the Judgment of the Privy Council had to be followed by all the Courts including the Federal Court.
Therefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in Lall 's case (supra).
This Court in State of Bihar vs Abdul Majid(1) stated that a Government servant could ask for arrears of salary.
Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid 's case (supra) declared what the exist ing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit.
It is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Proce dure would not be entitled to claim salary in the 1956 suit.
The contention of Madhya Pradesh cannot be accepted.
The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to.
sue for that relief.
It will not be correct to say that while the decision of the Judicial Committee in Lall 's case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary.
On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim.
If at the date of the former suit the plain tiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit.
The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit.
A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure.
See Amant Bibi vs Imdad Husain(2).
The crux of the matter is presence or lack of awareness of the right at the time of first suit.
This Court in Om Prakash Gupta vs State of Uttar Pradesh(2) considered the prayer for refund of court fees on a claim which was abandoned.
The plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal.
In view of the decision in Lall 's case (supra) the plaint in that casewas amended by deleting the claim for arrears of salary and also for damages.
The plaintiff thereupon praved for refund of the court fees which had been paid on arrears of salary for damages.
Both the trial Court (1) (2) 15 I.A. 106, 112.
(3) ; 562 and the High Court rejected the claim for refund of court fees.
This Court also upheld the same view.
The reason given by this Court was that at the time the suit was insti tuted the law as it then stood permitted such a claim to be made.
The decision of the Privy Council made it clear that no such claim could be made.
The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood.
The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions con tained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit.
The plain tiff could not have asked for " arrears of salary on the law as it then stood.
The plaintiff did not know of or possess any such right.
The plaintiff, therefore, cannot be said to have omitted to sue for any right.
Another reason why the bar under Order 2 Rule 2 of the Code of Civil Procedure cannot operate is that the plain tiff 's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit.
See Pavana Reena Saminathan vs Palaniappa(1).
This Court in Jai Chand Sawhney vs Union of India (2) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred.
The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in service throughout the period during which the order of dismissal remains operative.
Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.
The same view has been taken by this Court in Sakal Dean Sahai Srivastava vs Union of India(3).
In that case the plaintiff filed a suit on 27 November, 1962 for a declara tion that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.
Relying on the decision of this Court in Jai Chand Sawhney 's case and Sakal Deep 's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years ' salary.
The present case is not one of setting aside an order of dismissal simpliciter.
When the plaintiff filed a suit in 1949 he could not ask for arrears of salary.
Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953.
Three features are to be borne in mind in appreciating the plaintiff 's case from the point of view of limitation.
First the plaintiff became entitled to salary for the period 16 September, 1943 up to the date of rein statement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953.
Second, the plain tiff was (1) I.A. 142.
(2) (3) ; 563 again suspended on 19 January, 1954 and was dismissed on 23 February 1956.
The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary.
Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.
On these facts two consequences arise in the present appeal.
First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953.
Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53.
Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54.
Therefore, the plaintiff 's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953.
The plaintiff 's salary accrued only when he was reinstated as a result of the decree setting aside the orders of sus pension and of dismissal.
The rulings of this Court in Jai Chand Sawhney 's case (supra) and Sakal Deep 's case (supra) do.
not apply to the present appeal because there was no aspect of any suspen sion order remaining operative until the fact of rein statement pursuant to the decree.
The plaintiff 's cause of action for arrears of salary is this.
When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plain tiff became entitled to salary which was suspended during the period of suspension.
_ The plaintiff was again suspend ed from 19 January, 1954 and he was dismissed from service on 23 February, 1956.
Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspen sion dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.
The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953.
Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiff 's claim for salary accrued due.
This salary was again suspended from 19 January, 1954.
Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension.
The order of suspension does not put an end to his service.
Suspension merely suspends the claim to salary.
During suspension there is suspension allowance.
See Khem Chand vs Union of 2 112 SCI/77 564 India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary.
Under Fundamental Rule 52 'the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date.
of his dismissal or remov al.
Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismiss al stand.
The High Court was correct in the conclusion that the plaintiff 's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.
For the foregoing reasons the appeal is dismissed.
There will be costs only to the plaintiff respondent to be paid by the State of Madhya Pradesh.
M .R. Appeal dismissed.

summary:
Dismissing the appeal, the Court, HELD: (1) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.
A right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a "portion of his claim" within the meaning of Order 2 Rule 2 of the C.P.C. The crux of the matter is presence or lack of awareness of the right at the time of first suit.
[561D E, 562 B] Amant Bibi vs Imdad Hussain 15 I.A. 106 at 112, applied.
Om Prakash Gupta vs State of Uttar Pradesh ; , distinguished.
High Commissioner for India vs I. M. Lall 75 I.A. 225; Province of Punjab vs Pandit Tara Chand ; State of Bihar vs Abdul Majid , referred to.
The bar under Order 2 Rule 2 of the C P.C. cannot oper ate when the litigant 's cause of action in an earlier suit is totally different from the cause.
of action in a later suit.
[562 C] Pawana Reena Saminathan vs Palaniappa 41 I.A.142, applied.
(2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53.
The cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.
[563C D] Jai Chand Sawhney vs Union of India, and Sakal Dean Sahai Srivastava vs Union of India, ; , distinguished.
(3) Under Fundamental Rule 52 the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal.
Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand.
[564 B C] Khem Chand vs Union of India, [1963] Supp 1 S.C.R. 229, followed.


judgement:
minal Appeal No. 150 of 1954.
On appeal by leave from the judgment and order dated the 23rd March 1954 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 112 of 1953 connected with Criminal Reference Register No. 15 of 1953 arising out of the judgment and order dated the 24th February 1953 in Sessions Trial No. 5 of 1952 of the Sessions Court at Lucknow.
1037 B, B. Tawakley, (K. P. Gupta and A. D. Mathur with him) for the appellant.
S.P. Sinha (K. B. Asthana and C. P. Lal with him) for the respondent.
December 7.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal by special leave against the judgment of the High Court of Allahabad affirming the conviction of the appellant by the Sessions Judge, Lucknow under sections 409 and 477 A of the Indian Penal Code.
On 12 2 1949 a Society known as the Model Town Co operative Housing Society, Ltd., was registered under the provisions of the Co operative Societies Act (II of 1912), its object being to acquire vacant sites in the town of Lucknow and to allot them to its members so as to enable them to build houses of their own.
The appellant was the chief promoter thereof, and collected monies from prospective shareholders by way of share money.
The first general body meeting of the Society was held on 1 3 1949.
At that meeting, the appellant was elected Honorary Secretary and one Sri Munna Lal Tewari as Treasurer.
The latter having resigned, one section C. Varma was appointed Treasurer in his stead.
On 22 4 1949, there was a meeting of the Managing Committee, at which the appellant was directed to band over the accounts of the Society and its funds to its Treasurer.
The ap pellant gave a list of 38 persons as members of the Society, delivered cheques issued by 13 of them as their share money, and paid a sum of Rs. 3,500 being the amount stated to have been received by him from the other 25 members as share money.
The Society did not function thereafter.
On 16 7 1949 some of the members wrote a letter to the Registrar of Co operative Societies pointing out that the Society had not functioned ever since its incorporation, and asking that steps might be taken for examination of its accounts and, if necessary, for its being wound up.
On this, there was an investigation of the affairs of the Society by two Assistant 1038 Registrars, and on the basis of their reports dated 22 2 1950 and 18 5 1950 the present prosecution was started against the appellant charging him under sections 409 and 477 A of the Indian Penal Code.
The charge under section 409 was that he had received a sum of Rs. 500 from one Sri Chaturvedi, a sum of Rs. 100 from Dr. 0.
P. Bhanti and another sum of Rs. 100 from Dr. R. section Seth, all as share money in December 1948, and that he had misappropriated the same.
The charge under section 477 A was that on 22 4 1949 the appellant acting as the Secretary of the Society falsified the minute book, Exhibit P 18, by omitting to show therein the share money received from the three persons above mentioned.
The defence of the appellant was that the three amounts aforesaid were paid to him not as prospective Secretary for the purpose of allotment of shares, but were deposited with him in his individual capacity for purchasing shares, in case the Society worked well.
The trial of the offence under section 409 was held with the aid of assessors and that under section 477 A with the aid of a jury, the same persons acting both as assessors and jurors, and they returned a verdict of not guilty with reference to the charges under both the sections.
The Sessions Judge, disagreeing with the verdict of the jury under section 477 A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure.
He also disagreed with the opinion of the assessors with reference to the charge under section 409, and held that the appellant was guilty and sentenced him to four years ' rigorous imprisonment and a fine of Rs. 1,000,.
Against this conviction, the appellant preferred an appeal to the High Court.
Both the reference under section 3O7 and the appeal were heard together by the High Court, which agreed with the Sessions Judge that the appellant had received the three amounts as share money and in his capacity as Secretary, and accordingly confirmed his conviction under section 409 and the sentence passed by the Sessions Judge.
Disagreeing with the verdict of the jury, it also held him guilty under section 477 A and sentenced him to 1039 two years ' rigorous imprisonment.
The present appeal by special leave is directed against this judgment.
Mr. Tawakley firstly contended that the finding of the courts below that the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth were paid as share money was erroneous, and in support of this contention relied on a letter written by one of them, Dr. Seth, to the appellant on 3rd May 1951 (exhibit D 5) in which it was stated that the amount was paid on the express understanding that if the Society ran, a share would be allotted to him and otherwise the money would be returned.
This letter was written long after proceedings had been taken by the Registrar, and the courts below did not attach much importance to it.
On the other hand, Dr. Seth himself gave evidence in these proceedings which deprives Exhibit D 5 of very much of its value.
Exhibit P 10 is the receipt granted to Sri Chaturvedi.
It expressly recites that Rs. 500 was received as share money for five shares in the Society.
Notices were also issued to both Sri Chaturvedi and Dr. Bhanti to attend the general body meeting of the Society to be held on 1st March 1949 for electing the President and members of the Managing Committee of the Society, and Dr. Seth and Dr Bhanti actually attended it.
Sri Chaturvedi and Dr. Bhanti have also given evidence that they paid the amounts only as share capital.
The courts below accepted the above evidence, and held that the moneys were not paid to the appellant in his individual capacity.
There are no grounds for disturbing that finding in special appeal.
It is now necessary to deal with the several contentions of law urged by Mr. Tawakley in support of this appeal.
His first contention was that when the Sessions Judge disagreed with the verdict of the jury and with the opinion of the assessors, he should have referred the whole case under section 307 for the decision of the High Court and not merely that part of it which related to the charge under section 477 A, and that his failure to do so vitiated the conviction.
He argued that when the same facts constitute two 1040 distinct offences, one of which is triable with the aid of jurors and the other with assessors, and the accused is charged with both, the reference under section 307 must relate to both the charges, if inconsistent findings by different courts with reference to the same matter is to be avoided.
What would happen, he asked, if, in the present case, the appellant did not file an appeal against his conviction under section 409, but the High Court came to the conclusion in the reference under section 307 that Sri Chaturvedi, Dr. Bhanti and Dr. Seth did not pay the amounts to the appellant as share money, and that no offence had been committed by him under section 477 A? The conviction of the appellant under section 409 based on the finding of the Sessions Judge that those amounts were paid as share money would stand, notwithstanding that it would be against the decision of the High Court.
This anomaly could be avoided, it is argued, by holding that the reference under section 307 must be of the whole case.
Reliance is placed in support of this contention on the observations in Emperor vs Haria Dhobi(1).
We are unable to agree with this contention.
If the procedure adopted by the Sessions Judge is to be held to be illegal, it can only be on the ground that he contravened some provision of law which requires him to refer the whole case to the High Court.
It is conceded that the only provision of law dealing with this matter is section 307.
But that section applies in terms only to trials with the aid of a jury.
There is therefore no power in the Sessions Court to refer cases tried with the aid of assessors for decision of the High Court under that section.
That was the view taken in Pachaimuthu In re(2), where it was held that the Assistant Sessions Judge had no jurisdiction to refer under section 307 the whole case to the High Court, that he should himself dispose of the charges which were triable with the aid of assessors, and that the reference in respect of those charges was bad.
This decision was followed in Emperor vs Lachman (1) A.I.R. 1937 Patna 66 (2) Mad 715.
1041 Gangota(1).
The same view has also been taken by the High Court of Bombay in a number of cases: Vide Emperor vs Kalidas(2), Emperor vs Vyankat Sing(3) and Emperor vs Chanbasappa(4).
We are accordingly of opinion that the Sessions Judge had contravened no provision of law, and had committed no illegality in deciding the case, in so far as it related to the charge under section 409, himself In this case there is the further fact that the appellant preferred an appeal against his conviction under section 409 by the Sessions Judge, and that appeal was heard along with the reference under section 307 in respect of the charge under section 477 A, and that they were both of them disposed of by the same judgment.
It was next contended that the true status of the appellant was that of a servant and not of an agent, and that he should have been charged not under section 409 but under section 408.
The substance of the charge against the appellant is that as the promoter of a Society he lawfully received the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth, but that after its incorporation, when he failed on 22 4 1949 to hand over those amounts to the Treasurer and to include their names as shareholders in the minutes book, he committed offences under sections 409 and 477 A.
Now, what is the status of the appellant as Secretary of the Society in which capacity he committed the offences, servant or agent? The distinction between the two is thus stated in Halsbury 's Laws of England, Volume 22, page 113, para 192 "A, servant acts under the direct control and supervision of the master, and is bound to conform to all reasonable orders given him in the course of his work. .
An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal".
Having regard to the nature of the duties of the appellant as the Secretary of the Society, we are clearly (1) A.I.R. 1934 Patna 424.
(3) (2) (4) A.I.R. 1932 Bom.
61. 1042 of opinion that his status was that of an agent and not a servant.
Moreover, whether the appellant should be charged under section 408 or section 409 is of no importance in the present case, as the sentence imposed on him under section 409, viz., four years ' rigorous imprisonment could be maintained even under section 408.
It was argued by the appellant that an offence under section 408 was triable with the aid of a jury, whereas that under section 409 was triable with the aid of assessors, and that he had been prejudiced in that be bad lost the benefit of a trial by jury.
But this objection was not taken in the trial court, and is not now open.
Vide section 536 of the Code of Criminal Procedure.
It is next contended that there has been a violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409 and one under section 477 A.
But the case is governed by section 235, as the several offences under sections 409 and 477 A arise out of the same acts and form part of the same transaction.
Moreover, the appellant.
has failed to show any prejudice as required by section 537.
This objection must accordingly be overruled.
It was finally contended that there had been no proper examination of the appellant under section 342, and that therefore the conviction was illegal.
This objection was not raised in the Courts below, and is sought to be raised in this Court by a supplemental proceeding.
We find no substance in this objection.
In the result, this appeal fails and is dismissed.

summary:
The appellant was tried by the Sessions Judge with the aid of assessors for an offence under section 409, I.P.C. for misappropriating certain sums of money received as promoter of a Company from three ,different persons for the purpose of allotment of shares and omitted to be brought into the Company after it was formed, and also for an offence under section 477 A, I.P.C. by the same Sessions Judge with the aid of a jury for the offence of falsifying a minute book, the same persons acting both as assessors and jurors.
They returned a verdict of not guilty in respect of both the charges.
The Sessions Judge, disagreeing with the verdict of the jury under section 477 A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure.
Disagreeing also with the opinion of the assessors in respect of the charge under section 409, I.P.C. he held the appellant guilty and sentenced him to 4 years ' rigorous imprisonment.
Against this conviction the appellant appealed to the High Court.
Both the reference under section 307 of the Code of Criminal Procedure and the appeal were heard together by the High Court which confirmed the appellant 's conviction under section 409 and the sentence passed by the Sessions Judge and disagreeing with the verdict of the jury it held him guilty under section 477 A and sentenced him to two years ' rigorous imprisonment.
On appeal by special leave to the Supreme Court: Held (i) that the contention that when the Sessions Judge disagreed with the verdict of the jury and the opinion of the assessors, 1036 he should have referred the whole case under section 307 of the Code of Criminal Procedure to the High Court and not merely that part of it which related to the charge under section 477 A, I.P.C. was without force because the Sessions Judge had contravened no provision of law and committed no illegality in deciding the case which related to the charge under section 409, I.P.C.
That section 307, Code of Criminal Procedure applies in terms only to trials by a jury and the Sessions Judge had no power under that section to refer cases tried with the aid of assessors for the decision of the High Court.
In the present case there was the further fact that both the appeal against the conviction under section 409, I.P.C. and the reference under section 307 of the Code of Criminal Procedure in respect of the charge under section 477 A were disposed of by the same judgment; (ii)that the contention that the appellant 's true status was that of a servant and not that of an agent and that he should have been tried not under section 409, I.P.C. but under section 408, I.P.C. was also without force inasmuch as his status was that of an agent and not that of a servant in view of his duties as Secretary of the Society.
The distinction between the two is this a servant acts under the direct control and supervision of the master, and is bound to con form to all reasonable orders given to him in the course of his work.
An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal; (iii)that the contention that there had been violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409, I.P.C. and one under section 477 A was also without force as the case was governed by section 235 of the Code of Criminal Procedure as the several offences under section 409, I.P.C. and section 477 A, I.P.C. arose out of the same acts and formed part of the same transaction.
Emperor vs Haria Dhobi, (A.I.R. 1937 Patna 662), Pachaimuthu In re, ([1932] I.L.R. , Emperor vs Lachman Gangota, (A.I.R. 1934 Patna 424), Emperor vs Kalidas, ([1898] , Emperor vs Vyankat Sing ([1907] and Emperor vs Chanbasappa (A.I.R. , referred to.


judgement:
ivil Appeal No. 651 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 19 6 1974 of the Bombay High Court in S.C.A. No. 1251 of 1970.) M.N. Phadke, Girish Chandra and M.N. Shroff, for the appellants.
S.V. Gupte, N. Kamalakar and A.G. Ratnaparkhi, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
On the reorganisation of States on November 1, 1956 the respondent who was working as an Agri cultural Overseer in the then State of Madhya Pradesh was allocated first to the State of Bombay and later to the State of Maharashtra.
By a resolution dated February 17, 1958 the Government of Bombay equated the post of Agricul tural Overseer with that of an Agricultural Assistant, Grade II.
In July 1958 the respondent was promoted as an Agricul tural Supervisor and in April 1967 he was appointed to the post of an Agricultural Officer.
On the reorganisation of States, a provisional combined seniority list of Agricultural Assistants, Grade II, was published by the Government of Maharashtra in 1961.
That list was revised from time to time, and ultimately the Government of India approved the final seniority list which came to be published on May 29, 1973.
The respondent has no grievance against ' his placement in that list, but his case is that under the seniority lists prepared from time to time by the State Government, he was erroneously accorded a lower place of seniority with the result that persons who were in fact junior to him came to be promoted on the assumption that they were senior to him.
The respondent therefore filed the present writ petition on October 14, 1970 asking for due recognition of his seniority.
He later amended that peti tion and asked for arrears of pay and allowances retrospece tively from the date on which he ought to have been promoted in accordance with the seniority list approved by the Cen tral Government.
The writ petition having been allowed by the Nagpur Bench of the Bombay High Court, the State of Maharashtra has filed this appeal by special leave.
The sole question which arises for determination in this appeal is whether the respondent is entitled to arrears of pay with effect from the date on which he would, in the normal course, have been promoted if his seniority Were recognised as it eventually came to be 589 recognised under the seniority list approved by the Central Government in 1973.
The answer to this question depends on whether the rights of the respondent are governed by the circular dated March 10, 1960 or by the circular dated February 25, 1965.
The case of the State Government is that the former, and not the latter circular, applies whereas the respondent contends that he is entitled to arrears of salary for the entire period under the latter circular.
We find it impossible to accept the respondent 's conten tion, which has found favour with the High Court, that the circular of February 25, 1965 governs the matter.
That circular reads thus: "Retrospective promotions of those who had been superseded earlier.
GOVERNMENT OF MAHARASHTRA GENERAL ADMINISTRATION DEPARTMENT Circular Memorandum No. SRV 1064 .D, Sachiva laya, Bombay 32 (B.R.) 25th February, 1965/Falgune 6, 1886.
CIRCULAR MEMORANDUM OF GOVERNMENT A question has been raised whether in cases in which Government servants who were super seded for promotion to the higher post are later promoted on the orders of higher author ities who consider the supersession unjusti fied and who having powers to set aside the order of supersession, do so, their promotion should be effective from the date on which they are actually promoted or from the date they should have been promoted had they not been wrongly superseded.
The Government has, considered this question and decided that in such cases, the Government servants concerned, should be deemed to have been promoted to higher post from the date from which they would have been promoted, but for their wrong ful supersession i.e. from the date from which their juniors who were promoted by superseding them started to officiate in such posts and they should be allowed pay in such post as if they were promoted on the dates on which their juniors were promoted and also paid arrears of pay and allowances from such dates.
(2) Orders in paragraph 1 above apply also to the cases of persons, who are superseded for promotion to gazetted post within the pur view of the Public Service Commission ordered by Government but are later promoted when their earlier supersession is considered in consultation with the Commission unjustified.
(3) Pending cases should be regulated in accordance with these orders in paragraphs 1 and 2 above, and arrears of 590 pay and allowances should be paid to the persons concerned provided that if the arrears relate to any period prior to the 1st May 1960, the payment is restricted to the period after that date, i.e. after the st May 1960.
(4) This Circular Memorandum issues with the concurrence of the Finance Department VIDE that department unofficial reference No. 581/V, dated the 2nd February, 1965.
By Order and in the name of Government of Maharashtra.
Sd/ K.P. Nadkarni, Deputy Secre tary to Govt.
" The language of this circular is singularly inappropriate to cover cases concerning equation and seniority consequent upon formation of new States.
The circular deals with cases where government servants who are superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjusti fied and who, having powers to set aside orders of superses sion, have set aside such orders.
In such cases, the circu lar provides, the government servant concerned should be deemed to have been promoted to the higher post from the date from which he would have been promoted but for his wrongful supersession.
There is no question in the present case of the respondent being promoted on the basis of any order passed by a higher authority.
Nor indeed did any higher authority consider the so called supersession of the respondent as unjustified.
While approving the revised seniority list in which the respondent occupied a much higher place than previously, the Central Government did not set aside any order of the respondent 's supersession nor did it pass any order directing that the respondent be promoted to a higher post.
We are clear that the circular of Febru ary 25, 1965, on which judgment.of the High Court rests, is not intended to govern questions of seniority and superses sion arising as a result of reorganisation of States.
That circular, by its language, is designed to meet cases in which a government servant, apart from the provisions of the States Reorganisation Act and apart from problems arising out of reorganisation of States, was denied his rightful seniority but is later accorded a due and appropriate place in the seniority list.
Paragraph 2 of the circular which speaks also of posts within the purview of the Public Serv ice Commission affords some indication that the circular is intended to apply only to cases of routine supersessions in the normal course of a service career.
If the circular of February 25, 1965 were intended to apply to a case like the present, it would have atleast referred to the circular of March 10, 1960 which specifical ly governs matters relating to fixation of seniority conse quent upon the reorganisation of States.
That circular, insofar as relevant, reads thus: 591 "Fixation of Seniority and pay on promotion according to final gradation lists.
GOVERNMENT OF BOMBAY Political and Services Department Circular No. SR INT 1059 VI Sachivalaya, Bombay, 10th March, 1960 CIRCULAR OF GOVERNMENT Promotions made on and after the 1st November, 1956, have been treated as provi sional pending absorption of the personnel and finalisation of gradation lists in accordance with the allocated Government Servants ' (Absorption, Seniority, Pay and Allowances) Rules 1957.
They are also subject to review in the light of the changes that may be made in the gradation lists as a result of the decisions on the representations Submitted by the Government Servants concerned.
Question has been raised as to how seniority and pay in the promotion post should be fixed in the case of a Government servant who in the light of the final gradation list, is promoted later than the date on which he was due for promo tion.
Government is pleased to direct that seniority and initial pay on promotion according to the final gradation list should be fixed as if the Government servant had been promoted on the date on which he would have been promoted had the gradation list been finalised on the 1st November 1956.
The date on which he would have been promoted should be admitted on the basis of a certificate given by the appointing authority specifying the date.
No arrears of pay should, however, be paid for the period prior to the date of actual promotion.
" Under this circular, the seniority and initial pay of the respondent has to be fixed as if he was promoted on the date on which he would have been promoted if the gradation list had been finalised on November 1, 1956.
But no arrears of pay can be paid to him for the period prior to the date of actual promotion.
The State Government relied upon this circular by their counter affidavit filed in the High Court but no challenge was made by the respondent to the vires or the validity of that circular even though he had his peti tion amended in order to ask for arrears of salary.
On the assumption that the circular is within the powers of the State Government, we have no doubt that the respondent 's case .must fail within that circular, in which case he would not be entitled to the arrears of salary for the period prior to the date of his actual promotion.
Mr. Gupte appearing on behalf of the respondent relies upon rule 21 of "The Allocated Government Servants ' (Absorption, Seniority, Pay and Allowances) Rules, 1957" and argues that since 592 under that rule the respondent is entitled to draw .his pay and allowances with effect from the date of his promotion to the higher post including the deemed date of promotion, the Government of Maharashtra has no power, in view of the proviso to section 115(7) of the States Reorganisation Act, to alter his conditions o[ service to his prejudice.
This argument is being advanced for the first time in this Court, but, apart from that, we are unable to agree either that rule 21 has the effect contended for or that the circular issued by the State Government fails within the mischief of the proviso to.
section 115(7).
By rule 21, the arrears of pay and allowances "which may become due to an allocated govern ment servant" on the fixation of his pay as on November 1, 1956 shall be payable only with effect from the date from which he became available for service in the State of Bombay or would have been so available but for the causes mentioned in rule 2(d).
Rule 21 is not in the nature of an entitle ment.
On the other hand, it restricts the right of the allocated government servant to receive pay and allowances "only with effect from the date" from which he became avail able for service in the State of Bombay or would have been so available except for the causes mentioned in rule 2(d).
The circular issued by the Government of Maharashtra on February 25, 1965 does not take away from the respondent the right, if any, which was available to him under rule 21.
For these reasons we set aside the judgment of the High Court, allow this appeal and direct that the respondent 's writ petition shall stand dismissed.
In view of the order passed at the time when special leave was granted, appel lant shall pay the costs of the appeal to the respondent.
Appeal allowed.

summary:
Consequent to reorganisation of States, the Maharash tra Government published seniority lists from time to time, erroneously according to the respondent a lower place of seniority with the result that juniors got promoted and his promotion was unduly delayed.
The respondent filed a writ petition asking for due recognition of his seniority, and later amended his petition, claiming arrears of pay and allowances retrospectively from the date on which he ought to have been promoted according to the final gradation list wherein he was placed correctly and which was approved by the Central Government.
The writ petition was allowed by the High Court.
Before this Court the respondent contended that under rule 21 of the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, he was entitled to draw his pay and allowances from the date of his promo tion including the deemed date of promotion.
Allowing the appeal by Special Leave, the Court, HELD: (1) The Maharashtra Government circular No. SRV 1064 dt.
25.2.1965 does not have the effect of altering the respondent 's conditions of service to his prejudice since the said circular issued by the State Government does not fall within the mischief of proviso to section 115(7) of the States Reorganisation Act.
[592 A] (2) The circular deals with cases where Government servants who were superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjustified and who having power to set aside orders of supersession have set aside such orders.
[590 D] (3) The circular dt.
25.2.1965 is not intended to govern questions of seniority and supersession arising as a result of Reorganisation of States.
That circular by its language is designed to meet cases in which a Government servant apart from the provisions of States Reorganisation Act and apart from the problems arising out of reorganisa tion of States was denied his rightful seniority but is later accorded a due and appropriate place in the seniority list.
[590 F G] (4) The circular issued by the Government of Maharashtra on February 25, 1965 does not take away from the respondent the right, if any, which was available to him under rule 21.
Rule 21 is not in the nature of an entitlement.
On the other hand, it restricts the right of the allocated Government servant to receive pay and allowances "only with effect from the date" from which he became available for service or would have been so available except for the causes mentioned in rule 2(d).
[592 B D] 588 (5) The respondent 's case must fall within the Bombay Government Circular No. SR INT 1059 VI dt. 10.3.1960 in which case he would not be entitled to the arrears for salary for the period prior to the date of his actual ' promotion.
[591 G]


judgement:
: Criminal Appeal No. 20 of 1977.
Appeal by Special Leave from the Judgment and Order dated 28 2 75 of the Andhra Pradesh High Court in Crl.
A. No. 462 of 1973.
S.C. Agarwala and A.P. Gupta for the Appellants.
P.P. Rao, G.N. Rao and T.V.S.N. Chari for the Respondent. 'The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave is against the judgment of the Andhra Pradesh High Court dismissing the appeal filed by the appellants.
The appellants were convicted by the Additional Sessions Judge Visakhapatnam for offences under sections 147, 148 and 352 Indian Penal Code.
Some of the appellants were also convicted for offences under section 5 of the Explosive Substances Act and section 25 of the Indian Arms Act.
They were sentenced to various terms of imprisonment and the sentences were ordered to run concurrently.
The total sentence of imprisonment to be undergone by some of the appellants was 600 two years while in the case of the other appellants it was one year.
The appellants went up in appeal to the High Court against the judgment of the trial court.
The High Court referred to the fact that the appellants had been in custody during the course of the investigation, inquiry and trial, for about two years.
The appellants were held entitled under section 428 of the Code of Criminal Procedure, 1973 to set off the period of detention against the sentence of impris onment imposed upon them.
The High Court in view of the above dismissed the appeal after observing that it was unnecessary to go into the matter as it would be only of an academic interest.
We have heard Mr. Agarwala on behalf of the appellants and Mr. Rao on behalf of the State, and are of the opinion that the judgment of the High Court in so far as it has refrained from going into the merits of the conviction of the appellants, cannot be sustained; The fact that a con victed person has already undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under deten tion during the course of investigation, inquiry and trial cannot prevent the said person from challenging his convic tion in appeal.
Conviction for an offence entails certain consequences.
Conviction also carries with it a stigma for the convicted person.
A convicted person in challenging his conviction.
in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be ' wiped out.
In case the convicted person undergoes the sentence of imprisonment imposed upon him or he is otherwise entitled to be set at liberty by the time his appeal against conviction comes up for hearing in view of the length of the period he was in detention during the course of investigation, inquiry or trial, such a person would still be entitled to challenge his conviction.
The fact that he is set at liberty and would not have to undergo any further sentence of imprison ment would not debar him from questioning the validity of his conviction.
The object of such a challenge to convic tion is to avoid the other consequences flowing from convic tion and also to erase the stigma resulting from the convic tion.
The High Court, in our view, was in error in so far as it declined to go into the validity of the conviction of the appellants.
We, therefore, remand the case to the High Court for disposing of the appeal of the appellants on merit.
S.R. Appeal allowed and case remanded.

summary:
The appellants, upon conviction under the relevant sections of the Indian Penal Code, Explosive Substances Act and Arms Act, were sentenced to various terms of imprison ment.
The total sentence of imprisonment to be undergone for some of the appellants was two years while in the case of other appellants it was one year.
The High Court dis missed the appeal in view of the appellants ' entitlement to set off the period of their pre trial detention against the entire sentence of imprisonment imposed upon them after observing that it was not necessary to go into the matter as it would be only of an academic interest.
Accepting the appeal by Special Leave and remanding the cases to the High Court for disposing of on merits, the Court, HELD: (1 ) The High Court was in error in so far as it declined to go into the validity of the conviction of the appellants.
[600 F] (2) The object of a challenge to conviction is to avoid certain consequences flowing from conviction and also to erase the stigma resulting from the conviction.
The fact that the convicted person has already Undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under deten tion during the course of investigation, enquiry and trial cannot prevent the accused from challenging his conviction in appeal.
[600 C F]