judgement:
Criminal Appeal No. 94 Of 1987.
From the Judgment and Order dated 8.2.1985 of the Cal cutta High Court in Crl.
A.No. 112 of 1984.
Parijat Sinha and B.D. Ahmed for the Appellant.
K.C. Aggarwala and P.K. Chakravarthy for the Respondents.
The Order of the Court was delivered: ORDER Special ' leave granted.
Arguments heard.
The short question involved in this appeal is whether the High Court was justified in allowing the appeal pre ferred by the accused persons against their conviction under section 148 and s.302 reads with section 149 of the Indian Penal Code, 1860 without having the records of the Court of Sessions before it and without perusal of the evidence adduced by the prosecution.
Normally, this Court, as a matter of practice, is reluc tant to interfere with an order of acquittal recorded by the High Court at the instance of a private complainant, but the circumstances of the case 307 are such that there is no other alternative for us but to interfere.
We wish to mention that earlier the Court had in Special Leave Petition (Crl.) No. 2025/84 dated 15.10.1984 allowed the petitioner complainant to withdraw the petition to move the High Court for review.
The petitioner on 5.12.
1984 filed an application for review but the High Court dismissed the same by its order dated 8.2.1985 on the ground that it had no power to review its judgment under the Code of Criminal Procedure, 1973.
The complainant has accordingly applied for special leave.
The application is much belated but we have no other alternative but to interfere.
The facts.
Aggrieved by their conviction and sentence under section 148 and s.302 read with section 149 of the Indian Penal Code by the Additional Sessions Judge, 1st Court, Burdwan by his judgment and sentence dated 19.3.1984, the respondents preferred an appeal to the Calcutta High Court.
On 22.3.1984 a Division Bench of the High Court (P.C. Barooah and section Chakravarty, JJ) admitted the appeal but did not grant bail to the respondents on that date and reserved them liberty to apply for bail later.
It directed that the records be requi sitioned from the Court of Sessions.
Within a fortnight thereafter i.e. on 12.4.1984, the application for bail moved by the respondents came up for consideration.
On that day the appeal was not listed for heating.
The records which had been requisitioned from the Court of the Additional Sessions Judge had not been received and notices of the bail had not been issued.
Instead of dealing with the application for bail, the learned Judges appeared to have acted on an al leged concession made by the learned Public Prosecutor and acquitted the respondents.
The learned Judges during the course of their order observed that the contention on behalf of the respondents in support of their bail application was that the alleged dying declaration made by the deceased Jagannath Ghose having been disbelieved by the learned Additional Sessions Judge, no reliance could be placed on the testimony of the eye wit nesses as the place of incident was not visible from where they are alleged to have seen the occurrence and also that about 100 persons had surrounded the victim and as such it was not possible to definitely state that only the 8 accused i.e. the respondents were involved.
After stating this, the learned Judge observed: "The learned Public Prosecutor in his usual fairness has pointed out that although the witnesses spoke of 4/5 in juries, the deceased had actually 27." 308 and added that this was a fit case where benefit of doubt should be given to the accused and accordingly said that no useful purpose would be served in having a paper book pre pared and keeping the accused in further agony.
In that view, the learned Judges allowed the appeal, set aside the conviction and sentence passed on the respondents on their conviction under section 148 and s.302 read section 149 of the Indian Penal Code.
We are constrained to observe that the procedure adopted by the High Court was no in consonance with the procedure established by law.
Under s.385 of the Code of Criminal Procedure, it was obligatory for the High Court to fix a date for the hearing of the appeal and then send for the records of the Court of Sessions and hear the parties on merits.
There was no warrant for the procedure adopted by the learned Judges in disposing of the appeal in this cha valler manner.
It does no credit to any branch of adminis tration of justice that an appeal against conviction should be allowed without the Appellate Court having the records before it and without perusing the evidence adduced by the prosecution.
To say the least, there has been a flagrant carriage of justice.
It may be, as the High Court records in order, that the learned Public Prosecutor conceded that there was no evidence but then the High Court had to satisfy itself upon perusal of the records that there was no reli able and credible evidence to warrant the conviction of the accused under section 148 and s.302 read with section 149 of the Indian Penal Code.
The result therefore is that the appeal succeeds and is allowed.
The order of acquittal recorded by the High Court is set aside and we direct the High Court to admit the appeal to its file and dispose of it afresh notice to the parties and after the records requisitioned are received by it.
After the respondents nos. 2 9 are taken into custody, they may apply to the High Court for being enlarged on bail.
The High Court will deal with the application on its merits.
S.R. Appeal allowed.

summary:
Respondents 2 to 9 preferred an appeal to the Calcutta High Court against their conviction and sentence dated 19.3.
On 22.3.
1984 a Division Bench of the High Court admitted the appeal but did not grant bail on that date.
Within a fortnight thereafter, i.e. on 12.4.
1984, the application for bail moved by the Respondents came up before the Bench for consideration.
The appeal was not set for hearing on that day.
The records which had been requisi tioned from the Court of the Additional Sessions Judge had not been received and notices of the bail had not been issued.
Acting on an alleged concession made by the Public Prosecutor, the Bench allowed the appeal itself and acquit ted the respondents.
The appellant complainant 's Special Leave Petition No. 2025/84 dated 15.10.
1984 against the said orders of acquittal was allowed to be withdrawn to move the High Court for review.
The appellants ' review petition dated 5.12.
1984 having been dismissed on the ground that the High Court had no power to review its judgment under the Code of Criminal Procedure, 1973, the appellant has now come in appeal by special leave.
Allowing the appeal, the Court, HELD: 1.
Normally, the Supreme Court, as a matter of practice, is reluctant to interfere with an order of acquit tal recorded by the High Court at the instance of a private complainant, but the circumstances of the case are such that there is no other alternative but to interfere in this 306 case.
The procedure adopted by the High Court was not in consonance with the procedure established by law and has resulted in flagrant miscarriage of justice.
[306H; 307A] Under Section 385 of the Code of Criminal Procedure, 1973 it was obligatory for the High Court to have fixed a date for the hearing of the appeal and sent for the records of the Court of Sessions and thereafter hear the parties on merits.
It does no credit to any branch of administration of justice that an appeal against conviction or acquittal should be allowed without the Appellate Court having the records before it and without pursuing the evidence adduced by the prosecution.
Assuming that the learned Public Prose cutor conceded that there was no evidence, the High Court had time to satisfy itself upon perusal of the record that there was no reliable and credible evidence to warrant the conviction of the accused under section 148 and s.302 read with section 149 of the Indian Penal Code.
[308B E]


judgement:
Criminal Appeal No. 823 Of 1981 Etc.
From the Judgment and Order dated 27.7.1981 of the Karnataka High Court in Crl.
A.NO. 215 of 1981.
M. Veerappa for the Appellant.
M.B. Lal (Amicus Curiae) K.R. Nagaraja for the Respondents.
The Judgment of the Court was delivered by, OZA, J.
These appeals have been preferred by the State of Karnataka against the judgment of the High Court of Karnataka setting aside conviction of the respondents and remanding the cases before the Sessions Court for retrial.
The respondents were committed for trial to the Sessions Judge, Metropolitan Area, Bangalore City in number of Ses sions cases including Sessions Case No. 35 of 1980 in re spect of an offence under Sec. 302 for which after trial the respondent Kuppuswamy was sentenced to death and also for offence under Sec.
332 of the Indian Penal Code and sentence of rigorous imprisonment of one year.
Against the conviction and sentences appeal were preferred before Hon 'ble the High Court.
Kuppuswamy 's matter also came before the High Court apart from his appeal also by reference.
The facts which gave rise to these appeals were that about 2 A.M. on 9th April 1980 it was alleged that Kuppuswa my the present respondent stabbed Narayanaswamy who expired at 11 P.M., and also Ramu who expired at 8.05 P.M. and Sunil Kumar, Sub Inspector of Police, who expired at 2.30 A.M. on the next day.
Sunil Kumar and his police party happened to go there in a van on hearing galata in the railway platform of the Cantonment railway station, Bangalore, and when Sunil Kumar caught hold of the wrist of the accused respondent.
298 he somehow managed to slip out and stabbed him.
PW 1 Ulaga nathan, who was the Senior Trains Clerk, went and lodged the First Information Report exhibit
Investigation was taken up and after investigation chargesheet was filed.
It is not necessary for us to go into these question as question involved in these appeals is merely a technical question pertaining to procedure and does not pertain to the merits of the matter.
The accused persons were committed to the Sessions Court, Metropolitan Area, Bangalore City and it appears that the Principal Sessions Judge Metropolitan Area, made over the Sessions case in exercise of his powers under Section 194 of the Code of Criminal Procedure to II Additional Sessions Judge, Metropolitan Area, Bangalore City who framed charges on 21.8.80 and recorded to plea of the accused persons.
On 17th November 1980 City Civil Courts Act came into force.
,Monthly statements of cases wherein the accused persons were in custody were prepared and it appears that these statements also reached the High Court and have been made use of by the learned Judges in disposing of these appeals.
It has been observed by the learned High Court that in the monthly statement of October 1980 Sessions Case No. 35 of 1980 (with which we are concerned) is shown having been pending on the board of II Additional Sessions Judge, Metropolitan Area, Bangalore City and was posted for evi dence.
It is further observed by the learned Judges of the High Court that the statement of November 1980 which was prepared after the Bangalore City Civil Courts Act was brought into force and powers of Sessions were conferred on all the City Civil Judges under Sec.
9(3) Cr.
P.C. by the High Court, this case has been shown as pending before the IV Additional City Civil and Sessions Judge, Metropolitan Area, Bangalore City.
The High Court has also referred to a Notification issued on 30th January 1981 by the Registrar of Bangalore City Civil Courts saying that Sessions cases and other matters pending before the II, III and VI Additional City Civil and Sessions Judges are to be tried by them and on 12th Jan. 1981 the III Additional City Civil and Sessions Judge, Bangalore City recorded the evidence in the case.
It is also observed by the High Court in its judgment that the Office informed the learned Judges that there was no order of transfer under Sec.
407 Cr.
P.C. transferring this case viz. Sessions Case No. 35 of 1980 from the file of the IV Additional City Civil and Sessions Judge to the file of III Additional City Civil and Sessions Judge.
299 Under Sec.
194 Cr.
P.C. the Principal City Civil and Sessions Judge, Metropolitan Area, Bangalore has the power to make over a Sessions case for trial and disposal in accordance with law.
The High Court, it appears, has pro ceeded on the basis that as the plea was recorded when the case was pending before the II Additional City Civil and Sessions Judge, the Sessions Judge could not transfer the case to the board of III Additional City Civil and Sessions Judge under the provisions contained in Sec.
409 clause 2.
The High Court also proceeded on the assumption that there is no order of the Sessions Judge presiding over the Princi pal City Civil Court for allotment of this case to the Court of III Additional City Civil and Sessions Judge.
The learned High Court also came to the conclusion that provisions contained in Sec.
465 also will not remedy the defect.
Consequently the High Court allowed the appeals, quashed the convictions and directed remand for retrial of the cases.
What appears from the judgment of the High Court is that after commitment this case i.e. Sessions Case No. 35 of 1980 was shown in the list of October 1980 as pending in the Court of II Additional Sessions Judge as it was made over to that Court in exercise of powers conferred under Sec. 194 by the Principal Sessions Judge and this also was inferred by the High Court from the fact that the II Additional Sessions Judge framed charges on 21.8.80 in this case and recorded the plea of the accused on the same day.
After the coming into force of the City Civil Courts Act in November 1980, in the list this case was shown to be pending before the IV Additional City Civil and Sessions Judge and what further has been observed by the High Court is that on 12th January 1981 the evidence in the case com menced on the board of III Additional City Civil and Ses sions Judge.
It appears that the learned Judges of the High Court looked into the Notification issued by the Registrar of the City Civil Court and also the list of pending cases pertaining to accused in custody which probably was sent to the High Court every month and also made enquiries from the Office of the High Court as to whether any sessions trial was transferred by orders of the High Court under Sec.
407 but it appears that the learned Judges did not direct to get the orders passed by the Principal Sessions Judge of the Sessions Division under Sec.
194 Cr.
As the Principal Sessions Judge of the Division under Sec.
194 had power to allot any Sessions case to any one of the Additional Ses sions Judges of the Division.
At the same time such orders under Sec. 194 could be passed by the Principal Sessions Judge either for individual cases or by general orders allotting particular 300 areas to particular Additional Judge of the Division.
In fact Sec.
194 contemplates that all the Sessions Judges (Principal and Additionals) who are the Sessions Judges in the Division, have been notified as Sessions Judges in the Division and therefore each one of them has jurisdiction to try the case arising out of an incident in that Division.
What has been observed by the learned Judges of the High Court that this case from IV Additional City Civil and Sessions Judge went to the III Additional City Civil and Sessions Judge for which they could not find any order of transfer passed under Sec.
407 by the High Court but it appears that if enquiries were made it might have been discovered that the case might have been transferred in exercise of powers under Sec. 194 by the Principal Sessions Judge.
The usual practice in big places (Sessions Divisions) where a number of cases are committed and there are number of courts exercising the same jurisdiction in respect of the whole Division, distribution memos are prepared by the Principal Sessions Judge so that cases are so distributed to all the Additional Judges so that they are disposed of expeditiously.
It appears that this aspect of the matter was not brought to the notice of the learned Judges of the High Court even by the counsel appearing for the State.
It is not disputed that the Metropolitan Area, Bangalore City has a Sessions Division and is presided over by a Principal Sessions Judge and has a number of Additional Sessions Judges.
It is also not disputed that all the Ses sions Judges sitting in this Division are notified as Ses sions Judges for the Division and therefore it is also not disputed that all of them have jurisdiction to try a case arising out of the Sessions Division.
Even the judgment of the High Court does not indicate any lack of inherent juris diction.
What has weighed with the High Court is that as the charge was framed by the II Additional Sessions Judge the case could not be transferred to the board of III Additional City Civil and Sessions Judge without an order of transfer by the High Court as it was observed that under Sec. 194 the case could not be withdrawn by the Principal Sessions Judge after commencement of the trial and this was inferred from the provisions contained in Sec.
409 clause reads as under: "Additional and Assistant Sessions Judges to try cases made over to them: An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the Division may, by general or special order, make over to 301 him for trial or as the High Court may, by special order, direct him to try.
" Sec. 194 authorises an Additional Sessions Judge or an Assistant Sessions Judge to try a Sessions case arising in the Sessions Division when such a case is allotted to him either by a special or general order or a case which has been allotted to him by the High Court.
Apparently therefore the III Additional City Civil and Sessions Judge who tried the case, tried it as it must have been allotted to him.
It is not disputed that it must have been allotted to him as the distribution orders have not been sent for by the High Court nor have been produced nor it is disputed but what is observed by the High Court is that as the charge was framed by the II Additional City Civil and Sessions Judge it could not have been withdrawn under Sec. 409 clause 2 and allotted to any other Additional Sessions Judge: "Section 409 reads: "Withdrawal of cases and appeal by Sessions Judge: (1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to any Assistant Sessions Judge; or Chief Judicial Magistrate subordinate to him.
(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Ses sions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(3) Where a Sessions Judge withdraws or re calls a case or appeal under sub section (1) or sub section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provi sions of this Code to another Court for trial or hearing, as the case may be." Clause 2 talks of "before the trial of the case . commenced.
" In fact the scheme of Sec. 409 indicates that the Sessions Judge had powers to withdraw any case and to allot to any one of the Additional Sessions Judges.
In a Sessions trial recording of plea whether will amount to commencement of the trial or not has not been discussed by the High 302 Court and it is not necessary for us also to go into this question.
So far as the trial of the case is concerned it is not found by the High Court that the Sessions Judge who tried the case had no jurisdiction.
On the contrary it is not disputed before us that he had the jurisdiction to try the case arising out of the Sessions Division, the only objection which has prevailed with the High Court is that as charge was framed and plea was recorded by the II Additional City Civil and Sessions Judge it could not have been with drawn by the Principal Sessions Judge and made over to III Additional City Civil and Sessions Judge.
It is not disputed that it was withdrawn and made over.
In this view of the matter therefore the provisions contained it Sec.
465 are of some importance.
The High Court, however, observed that provisions of Sec.
465 Cr.
P.C. can not be made use of to regularise this trial.
No reasons have been stated for this conclusion.
465 Cr.
P.C. reads as under: "Finding or sentence when reversible by reason of error, omission or irregularity: (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other pro ceedings under this Code, or any error, or irregularity in any sanction for the prosecu tion, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
" It is provided that a finding or sentence passed by a Court of competent jurisdiction could not be set aside merely on the ground of irregularity if no projudice is caused to the accused.
It is not disputed that this question was neither raised by the accused at the trial nor any prejudice was pleaded either at the trial or at the appellate stage and 303 therefore in absence of any prejudice such a technical objection will not affect the order or sentence passed by competent court.
Apart from Sec.
provides for remedy in cases of trial in wrong places.
462 reads as under: "Proceedings in wrong place: No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions divi sion, district, sub division or other local are unless it appears that such error has in fact occasioned a failure of justice.
" This provision even saves a decision if the trial has taken place in a wrong Session Division or Sub Division or a district or other local area and such an error could only be of some consequence if it results in failure of justice otherwise no finding or sentence could be set aside only on the basis of such an error.
It is therefore clear that even if the trial before the III Additional City Civil and Sessions Judge would have been in a Division other than the Bangalore Metropolitan Area for which III Additional City Civil and Sessions Judge is also notified to be a Sessions Judge still the trial could not have been quashed in view of Sec. 462.
This goes a long way to show that even if a trial takes place in a wrong place where the Court has no territorial jurisdiction to try the case still unless failure of justice is pleaded and proved, the trial can not be quashed.
In this view of the matter therefore reading Sec.
462 alongwith Sec.
465 clearly goes to show that the scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure an order or sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved which will mean failure of justice.
But in absence of such a plea merely on such technical ground the order or sentence passed by a competent court could not be quashed.
It is not disputed that the plea of prejudice or failure of justice is neither pleaded nor proved.
Not only that even the judgment of the High Court does not indicate any possi bility of prejudice or failure of justice.
Learned counsel appearing for the respondent also did not suggest.
any possibility of projudice or failure of justice.
Under these 304 circumstances therefore the view taken by the High Court does not appear to be correct in view of the language of Sec.
462 read with Sec. 465.
The judgment of the High Court is therefore set aside.
The direction of remand made by the High Court is also quashed.
It is unfortunate that these matters pertaining to incidents of 1980 should not have been disposed of till today and that the matter should have remained pending on such technical grounds for all these years.
We therefore direct that the appeals be remitted back to the High Court so that they are heard and disposed of on merits as expeditiously as possible.
P.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The case of the respondent accused was committed to the Sessions Court, Metropolitan Area, Bangalore City and made over under section 194 Cr.
P.C. by the Principle Sessions Judge for trial to the II Additional Sessions Judge who framed charges on August 21, 1980 and recorded the plea of the accused persons.
In the monthly statement of October, 1980 the case was shown pending on the board of II Additional Sessions Judge and listed for evidence.
On November 17, 1980 the Bangalore City Civil Courts Act came into force and powers of Sessions were conferred on all the City Civil Judges under s.9(3) Cr.
In the monthly statement prepared thereafter for November, 1980 the case was shown pending before the IV Additional City Civil and Sessions Judge.
However, the evidence in the case was recorded and the respondent accused convicted under s.302 and 332 IPC by the III Additional City Civil and Sessions Judge.
In appeal and reference the High Court looked into the monthly statements of pending cases and observing that there was no order under s.407 Cr.
P.C. transferring the case from the file of the IV Additional City Civil and Sessions Judge to the file of III Additional City Civil and Sessions Judge, that as the charge was framed and plea recorded when the case was pending before the II additional Sessions Judge the case could not be withdrawn by the Principle Sessions Judge under s.409(2) after the commencement of the trial and allotted to any other Additional Sesssion Judge that there was no order of the Principal Session Judge under section 194 transferring the case to the board of III Additional City Civil and Sessions Judge and that the defect could not be remedied under s.465 Cr.P.C., quashed the conviction and directed remand for retrial.
The State came in appeal to this Court.
Allowing the appeal, the Court, 296 HELD: 1.1 The view taken by the High Court was contrary to the language of ss.462 and 465 of the Code of Criminal Procedure.
The judgment of the High Court could not, there fore, be sustained.
[304A] 1.2 Reading section 462 alongwith s.465 goes to show that the scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction, merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure an order of sentence award ed by a competent court could not be set aside unless preju dice is pleaded and proved, which will mean failure of justice.
[303F G] In the instant case, it is not found by the High Court that the Sessions Judge who tried the case arising out of the Sessions Division had no jurisdiction.
The Metropolitan Area, Bangalore City has a Sessions Division and is presided over by a Principal Sessions Judge and has a number of Additional Sessions Judges.
All the Sessions Judges sitting in this Division are notified as Sessions Judges for the Division and, therefore, all of them have jurisdiction to try a case arising out of the Sessions Division.
the plea of prejudice of failure of justice is neither pleaded nor proved.
Not only that, even the judgment of the High Court does not indicate any possibility of prejudice or failure of justice.
There was no suggestion either of any possibility of prejudice or failure of justice.
The order passed by the 1II Additional City Civil and Sessions Judge could not, therefore, be quashed.
[302A C] 2.
Section 462 Cr.
P.C. even saves a decision if the trial has taken place in a wrong Sessions Division or Sub Division or a district or other local area where the court has no territorial jurisdiction, and such an error could only be of some consequence if it results in failure of justice, otherwise no finding or sentence could be set aside only on the basis of such an error.
Therefore, even if the trial before the III Additional City Civil and Sessions Judge would have taken place in a Division other than the Bangalore Metropolitan Area for which III Additional City Civil and Sessions Judge is also notified to be a Sessions Judge, still the trial could not have been quashed in view of s.462.
[303C E] 3.1 The scheme of s.409 indicates that the Sessions Judge had powers to withdraw any case and to allot it to any one of the Additional Sessions Judges.
The Principal Ses sions Judge of the Division under section 194 had power to allot any Sessions case to any one of the Additional Sessions Judges of the Division.
He could pass such orders either for individual cases or allot particular areas to particular Additional Judge of the Division.
[299H; 300A] 297 3.2 The III Additional City Civil and Sessions Judge who tried the instant case apparently tried it as it must have been allotted to him.
The Case must have been allotted to him as the distribution orders have not been sent for by the High Court nor have they been produced.
If enquiries were made it might have been discovered that the case had been transferred in exercise of the powers under section 194 by the Principal Sessions Judge.
[300B C]


judgement:
ions Nos, 95 and 96 of 1957.
311 Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
N. C. Chatterjee, Charan Das Puri and Naunit Lal, for the petitioners (in both the petitions).
C. K. Daphtary, Solicitor General of India, Lachman Das Kaushal, Deputy Advocate General for the State of Punjab and T. M. Sen, for the respondents.
September 6.
The following Judgment of the Court was delivered by DAS C.J.
In these two petitions under article 32 of the Constitution of India the petitioners call in question the validity of the Punjab Special Powers (Press) Act, 1956 (being Act No. 38 of 1956), hereinafter referred to as " the impugned Act ", and pray for an appropriate writ or order directing the respondents to withdraw the Notifications issued by them on the two petitioners as the editors, printers and publishers of two newspapers, Pratap and Vir Arjun.
The Daily Pratap was started about 38 years back in Lahore, the capital of the united Punjab.
It is a daily newspaper printed in the Urdu language and ,script.
Since the partition of the country the Daily Pratap is being published simultaneously from Jullundur and from New Delhi Vir Arjun is a Hindi daily newspaper also published simultaneously from Jullundur and from New Delhi.
Virendra, the petitioner, in Petition No. 95 of 1957 is the editor, printer and publisher of the two papers published from Jullundur and K. Narendra is the editor, printer and publisher of the two papers published from New Delhi.
The petitioners allege that after the appointment of the States Reorganisation Commission on December 29, 1953, the Akali party in the Punjab started a campaign for the partition of the State of Punjab on communal and linguistic basis.
According to the petitioners this agitation soon degenerated into a campaign of hatred which threatened the peace of the State.
The petitioners maintain that the Hindu inhabitants of the State belonging to all shades of opinion and also a section of the Sikh community and 312 the Congress Party were strongly opposed to that proposal.
It is in the circumstances reasonable to infer that the Hindus would also indulge in a counter propaganda in the Press and from the platform against the agitation started by the Akali party.
It is admitted that the policy of these two papers, the Daily Pratap and Vir Arjun, has been to oppose the Akali demand for partition of the State of Punjab.
Obviously a good deal of tension was generated in the State by reason of the two bitterly opposing parties trying to propagate their respective ideologies.
About a year back the Congress Party, which is the ruling party, is said to have surrendered to the communal pressure of the Akalies and accepted what has since come to be known as the regional formula.
It was amidst the din and bustle of this ideological war and to prevent and combat any possible activity prejudicial to the maintenance of communal harmony that the Legislature of the State of Punjab found it necessary to pass the impugned Act which received the assent of the President on October 19, 1956, and came into force on the 25th of the same month.
The provisions of the impugned Act, in so far as they are material, may now be referred to.
Section 2 (1) (a) runs as follows: " 2(1) The State Government or any authority so authorised in this behalf if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may, by order in writing addressed to a printer publisher or editor, (a) prohibit the printing or publication in any document or any class of documents of any matter relating to a particular subject or class of subjects for a specified period or in a particular issue or issues of a newspaper or periodical; Provided that no such order shall remain in force for more than two months from the making thereof; Provided further that the person against whom the order has been made may within ten days of the 313 passing of this order make a representation to the State Government which may on consideration thereof modify, confirm or rescind the order;" Section 2(1)(b) authorises the State Government or any authority so authorised in this behalf to require that any matter covering not more than two columns be published in any particular issue or issues of a newspaper or periodical on payment of adequate remuneration and to specify the period (not exceeding one week) during which and the manner in which such publication shall take place.
Clause (c) of section 2(1) authorises the State Government or the delegated authority to impose pre censorship.
Sub section (2) of section 2 enables the State Government or the authority issuing the order in the event of any disobedience of an order made under section 2 to order the seizure of all copies of any publication and of the printing press or other instrument or apparatus used in the publication.
Section 3(1) runs as follows: " The State Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudical to the maintenance of communal harmony affecting or likely to affect public order, may, by notification, prohibit the bringing into Punjab of any newspaper, periodical, leaflet or other publication.
" Sub section (2) of section 3 gives power to the State Government or the authority issuing the order, in the event of any disobedience of an order made under section 3, to order the seizure of all copies of any newspaper, periodical, leaflet or other publication concerned.
Section 4 provides punishment for the contravention of any of the provisions of the Act by imprisonment of either description which may extend to one year or with fine up to one thousand rupees or with both.
It appears that on or about May 30, 1957, a movement known as the "save Hindi agitation " was started by a Samiti which goes by the name of Hindi Raksha Samiti.
The Arya Samaj, which claims to be a cultural and religious society, joined this campaign 314 for changing what they conceive to be the objectionable features of the regional formula and the Sachar formula on language.
According to the petitioners the Hindi Raksha Samiti, the sponsor of the " save Hindi agitation " claims that it has the support of practically all sections of the Hindus of the State.
The petitioners who are the editors, printers and publishers of the two newspapers published simultaneously from Jullunder and New Delhi respectively consider that the objectionable clauses of those formulae are not only unjust and unfair to the cause of propagating that national language in the country, but are also a contrivance to secure the political domination of the minority community over the majority.
Admittedly the petitioners have been publishing criticisms and news concerning the agitation which, according to them, are quite fair and legitimate, but they allege that newspapers like Prabhat and Ajit, which support the Akali party in the State have been publishing articles and news couched in a strong and violent language against the " save Hindi agitation " and the Hindu community.
The agitation apparently followed the usual course and pattern of all political agitation of this kind with its attendant demonstrations, slogans and satyagraha by the volunteers and lathi charge by the police.
Eventually on July 10, 1957, the agitation culminated in the " save Hindi agitation " volunteers ' forcible entry into the Secretariat of the Punjab Government at Chandigarh.
It was in these circumstances that the four Notifications complained of were issued.
On July 13, 1957, a Notification under section 2(1)(a) of the impugned Act was issued against the petitioner Virendra, as the editor, printer and publisher of the Daily Pratap published from Jullundar.
It was in the following terms: " Whereas 1, Ranbir Singh, Home Secretary, Punjab Government, authorised by the said Government under section 2(1) of the Punjab Special Powers (Press) Act, 1956, on examination of the publications enumerated in the annexure relating to the " save Hindi agitation " have satisfied myself that action is 315 necessary for combating the calculated and persistent propaganda carried on in the newspaper the Pratap ' published at Jullundar to disturb communal harmony in the State of Punjab; And whereas the said propaganda by making an appeal to communal sentiments has created a situation which is likely to affect public order and tranquillity in the State ; And therefore in pursuance of the powers conferred under sub clause (a) of clause (1) of section 2 of the said Act, 1 prohibit Shri Virendra, the printer, publisher and the editor of 'Pratap ' from printing and publishing any article, report, news item, letter or any other material of any character whatso ever relating to or connected with "save Hindi agitation" for a period of two months from this date.
Sd./ Rome Secretary to Government Punjab.
No: 8472 C(H) 57/14679 " The annexure referred to in the Notifications sets out the headings of fifteen several articles published in this paper between May 30, 1957, to July 8, 1957.
Another Notification in identical terms with an annexure setting forth the heading of sixteen articles published during the same period in Vir Arjun was issued on the same day against Virendra as the editor, printer and publisher of Vir Arjun published from Jullundar.
On July 14, 1957, two Notifications in identical terms were issued under section 3 of the impugned Act against K. Narendra as the editor, printer and publisher of Daily Pratap and Vir Arjun published from New Delhi.
It will suffice to set out the Notification in respect of Daily Pratap which ran as follows: Punjab Government Gazette Extraordinary Published by Authority Chandigarh, Sunday, July 14, 1957.
Home Department Notification The 14th July, 1957, 41 316 No. 8453 C(H) 57/14580: Whereas 1, Ranbir Singh, Home Secretary to Government, Punjab, authorised by the said Government under section 3 of the Punjab Special Powers (Press) Act, 1956, have satisfied myself that it is necessary to combat and prevent the propaganda relating to " save Hindi agitation " carried on in the Pratap with the object of disturbing communal harmony in the State of Punjab and thereby affecting public order; Now, therefore, in exercise of the powers conferred by section 3(1) of the said Act, I do hereby prohibit the bringing into Punjab of the newspaper printed and published at Delhi, from the date of publication of this notification.
" The petitioners contend that both sections 2 and 3 of the impugned Act are ultra vires the State Legislature, because they infringe the fundamental rights of the petitioners guaranteed by articles 19(1)(a) and 19(1)(g) of the Constitution and are not saved by the protecting provisions embodied in article 19(2) or article 19(6).
In the first place it is contended that these sections impose not merely restrictions on but total prohibition against the exercise of the said fundamental rights, for in the case of the Notifications under section 2 there is a total prohibition against the publication of all matters ' relating to or in connection with the " save Hindi agitation " and in the case of the Notifications made under section 3 there is a complete prohibition against the entry and the circulation of the papers published from New Delhi in the whole of Punjab.
There is and can be no dispute that the right to freedom of speech and expression carries with it the right to propagate and circulate one 's views and opinions subject to reasonable restrictions.
The point to be kept in view is that the several rights of freedom guaranteed to the citizens by article 19(1) are exercisable by them throughout and in all parts of the territory of India.
The Notifications under section 2(1)(a) prohibiting the printing and publishing of any article, report, news item, letter or any other material of any character whatsoever relating to or connected with " save Hindi agitation " or those under section 3(1) imposing a ban against the entry 317 and the circulation of the said papers published from New Delhi in the State of Punjab do not obviously take away the entire right, for the petitioners are yet at liberty to print and publish all other matters and are free to circulate the papers in all other parts of the territory of India.
The restrictions, so far as they extend, are certainly complete but whether they amount to a total prohibition of the exercise of the fundamental rights must be judged by reference to the ambit of the rights and, so judged, there can be no question that the entire rights under articles 19(1)(a) and 19(1)(g) have not been completely taken away, but restrictions have been imposed upon the exercise of those rights with reference to the publication of only articles etc.relating to a particular topic and with reference to the circulation of the papers only in a particular territory and, therefore, it is not right to say that these sections have imposed a total prohibition upon the exercise of those fundamental rights.
Learned counsel then urges that assuming these sections impose only restrictions they are, nevertheless, void as being repugnant to the Constitution, because the restrictions are not reasonable.
As regards the right to freedom of speech and expression guaranteed by article 19(1)(a) it is qualified by article 19(2) which protects a law in so far as it imposes reasonable restriction on the exercise of the right conferred by article 19(1)(a) "in the interests of. . . . . . . public order. . .
Likewise the right to carry on any occupation, trade or business guaranteed by article 19(1)(g) is out down by article 19(6) which protects a law imposing "in the interests of the general public" reasonable restrictions on the exercise of the right conferred by article 19(1)(g).
As has been explained by this Court in Ramji Lal Modi vs The State of U. P. (1) the words " in the interests of " are words of great amplitude and are much wider than the words " for the maintenance of ".
The expression " in the interest of " makes the ambit of the protection very wide, for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and yet it (1) Petition No. 252 of 1955 decided on April 5, 1957.
318 may have been enacted "in the interests of " the public order or the general public as the case may be.
It is against this background, therefore, that we are to see whether the restrictions imposed by sections 2 and 3 can be said to be reasonable restrictions within the meaning of articles 19(2) and 19(6).
The test of reasonableness has been laid down by this Court in The State of Madras vs V. G. Row (1) in the following words: " It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reason ableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
This dictum has been adopted and applied by this Court in several subsequent cases.
The surrounding circumstances in which the impugned law came to be enacted, the underlying purpose of the enactment and the extent and the urgency of the evil sought to be remedied have already been adverted to.
It cannot be overlooked that the Press is a mighty institution wielding enormous powers which are expected to be exercised for the protection and the good of the people but which may conceivably be abused and exercised for anti social purposes by exciting the passions and prejudices of a section of the people against another section and thereby disturbing the public order and tranquillity or in support of a policy which may be of a subversive character.
The powerful influence of the newspapers, for good or evil, on the minds of the readers, the wide sweep of their reach, the modern facilities for their swift circulation to territories, distant and near, must all enter into the judicial verdict and the reasonableness of the restrictions imposed upon (1) ; ,607. 319 the Press has to be tested against this background.
It is certainly a serious encroachment on the valuable and cherished right to freedom of speech and expression if a newspaper is prevented from publishing its own views or the views of its correspondent& relating to or concerning what may be the burning topic of the day.
Our social interest ordinarily demands the free propagation and interchange of views but circumstances may arise when the social interest in public order may require a reasonable subordination of the social interest in free speech and expression to the needs of our social interest in public order.
Our Constitution recognises this necessity and has attempted to strike a balance between the two social interests.
It permits the imposition of reasonable restrictions on the freedom of speech and expression in the interest of public order and on the freedom of carrying on trade or business in the interest of the general public.
Therefore, the crucial question must always be : Are the restrictions imposed on the exercise of the rights under articles 19 (1) (a) and 19 (1) (g) reasonable in view of all the surrounding circumstances ? In other words are the restrictions reasonably necessary in the interest of public order under article 19(2) or in the interest of the general public under article 19(6) ? It is conceded that a serious tension had arisen between the Hindus and the Akalis over the question of the partition of the State on linguistic and communal basis.
The people were divided into two warring groups, one supporting the agitation and the other opposing it.
The agitation and the counter agitation were being carried on in the Press and from the platforms.
Quite conceivably this agitation might at any time assume a nasty communal turn and flare up into a communal frenzy and factious fight disturbing the public order of the State which is on the border of a foreign State and where consequently the public order and tranquillity were and are essential in the interest of the safety of the State.
It was for preserving the safety of the State and for maintaining the public order that the Legislature enacted this impugned Statute.
Legislature had to ask itself the question, who will be 320 the appropriate authority to determine at any given point of time as to whether the prevailing cicumstances require some restriction to be placed on the right to freedom of speech and expression and the right to carry on any occupation, trade or business and to what extent? The answer was obvious, namely, that as the State Government was charged with the preservation of law and order in the State, as it alone was in possession of all material facts it would be the beat authority to investigate the circumstances and assess the urgency of the situation that might arise and to make up its mind whether any and, if so.
, what anticipatory action must be taken for the prevention of the threatened or anticipated breach of the peace The court is wholly unsuited to gauge the seriousness of the situation, for it cannot be in possession of materials which are available only to the executive Government.
Therefore, the determination of the time when and the extent to which restrictions should be imposed on the Press must of necessity be left to the judgment and discretion of the State Government and that is exactly what the Legislature did by passing the statute.
It gave wide powers to the State Government, or the authority to whom it might delegate the same, to be exercised only if it were satisfied as to the things mentioned in the two sections.
The conferment of such wide powers to be exercised on the subjective satisfaction of the Government or its delegate as to the necessity for its exercise for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order cannot, in view of the surrounding circumstances and tension brought about or aided by the agitation in the Press, be regarded as anything but the imposition of permissible reasonable restrictions on the two fundamental rights.
Quick decision and swift and effective action must be of the essence of those powers and the exercise of it must, therefore, be left to the subjective satisfaction of the Government charged with the duty of maintaining law and order.
To make the exercise of these powers justiciable and subject to the judicial scrutiny will defeat the very purpose of the enactment.
Even in his dissenting judgment in Dr. N. B. Khare vs The State of Delhi (1) Mukherjea, J., conceded that in cases of this description certain authorities could be invested with power to make initial orders on their own satisfaction and not on materials which satisfy certain objective tests.
It is said that the sections give unfettered and uncontrolled discretion to the State Government or to the officer authorised by it in the exercise of the drastic powers given by the sections.
We are referred to the observations of Mukherjea, J., in Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (2).
That case does not seem to us to have any application to the facts of this case. ' In the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwaraka Prasad 's case (supra).
It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation.
That apart, it will be remembered that the Uttar Pradesh Coal Control Order, 1953, with reference to which the observations were made, prescribed no principles and gave no guidance in the matter of the exercise of the power.
There was nothing in that order to indicate the purpose for which and the circumstances under which the licensing authority could grant or refuse to grant, renew or refuse to renew, or suspend, revoke, cancel or modify any license under that order and, therefore, the power could be exercised by any person to whom the State Coal Controller might have chosen to delegate the same.
No rules had been framed and no directions had been given on the relevant matters to regulate or to guide the exercise of the discretion of the licensing officer.
That cannot, in our judgment, be said about section 2 or section 3 of the impugned Act, for the exercise of the power under either of these two sections is conditioned by the State Government or the authority authorised by the said Government being satisfied that such (1) (2) ; ,813.
322 action was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect the public order.
As explained by this Court in Harishankar Bagla vs The State of Madhya Pradesh(1), the dictum of Mukherjea, J., can have no application to a law which sets out its underlying policy so that the order to be made under the law is to be governed by that policy and the discretion given to the authority is to be exercised in such a way as to effectuate that policy, and the conferment of such a discretion so regulated cannot be called invalid.
The two sections before us lay down the principle that the State Government or the delegated authority can exercise the power only if it is satisfied that its exercise is necessary for the purposes mentioned in the sections.
It cannot, be exercised for any other purposes.
In this view of the matter neither of these sections can be questioned on the ground that they give unfettered and uncontrolled discretion to the State Government or one executive officer in the exercise of discretionary powers given by the section.
It is next said that an executive officer may untruthfully say, as a matter of form, that he has been satisfied and there is nothing in the section which may prevent him from abusing the power so conferred by these sections.
But, as pointed out in Khare 's case (supra), the, exercise of a discretionary preventive power to be exercised in anticipation for preventing a breach of public order must necessarily be left to the State Government or its officers to whom the State Government may delegate the authority.
No assumption ought to be made that the State Government or the authority will abuse its power.
To make the exercise of the power justiciable will defeat the very purpose for which the power is given.
Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of power.
Reference has been made to the principles enunciated by this Court in Ramesh Thappar vs The, State Of (1) , 386, 387.
323 Madras (1), and applied in Chintaman Rao vs The State of Madhya Pradesh(2), namely, that if the language employed in the impugned law is wide enough to cover restriction both within and outside the limits of constitutionally permissible legislative action affecting the guaranteed fundamental rights and so long as the possibility of the statute being applied for purposes not sanctioned by the Constitution cannot be ruled out, the sections must be struck down as ultra vires the Constitution.
We do not think those principles have any applications the instant case.
It will be remembered that Art.19(2), as it was then worded, gave protection to a law relating to any matter which under mined the security of or tended to overthrow the State.
Section 9(1 A) of the Madras Maintenance of Public Order was made "for the purpose of securing public safety and the maintenance of public order".
It was pointed out that whatever end the impugned Act might have been intended to subserve and whatever aim its framers might have had in view, its application and scope could not, in the absence of limiting words in the statute itself, be restricted to the aggravated form of activities which were calculated to endanger the security of the State.
Nor was there any guarantee that those officers who exercised the power under the Act would, in using them, discriminate between those who acted prejudicially to the security of the State and those who did not.
This consideration cannot apply to the case now under consideration.
Article 19(2) has been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order and the language used in the two sections of the impugned Act quite clearly and explicitly limits the exercise of the powers conferred by them to the purposes specifically mentioned in the sections and to no other purpose.
Apart from the limitations and conditions for the exercise of the powers contained in the body of the two sections as hereinbefore mentioned, there are two provisos to section 2(1)(a) which are important.
Under the first proviso the orders made under section 2(1)(a) can only remain (1) ; 42 (2) ; 324 in force for two months from the making thereof.
Further, there is another proviso permitting the aggrieved person to make a representation to the State Government which may, on consideration thereof, modify, confirm or rescind the order.
A power the exercise of which is conditioned by the positive requirement of the existence of the satisfaction of the authority as to the necessity for making the order for the specific purposes mentioned in the section and the effect of the exercise of which is to remain in operation for a limited period only and is liable to be modified or rescinded upon a representation being made cannot, in our opinion, in view of the attending circumstances, be characterised as unreasonable and outside the protection given by article 19(2) or article 19(6).
Under el.(b) of sub section(1) of section 2 also there are several conditions, namely, that the matter required to be published must not be more than two columns, that adquate remuneration must be paid for such publication and that such requirement cannot prevail for more than one week.
A consideration of these safeguards must, in our opinion, have an important bearing in determining the reasonableness of the restrictions imposed by section 2.
The prevailing circumstances which led to the passing of the statute, the urgency and extent of the evil of communal antagonism and hatred which must be combated and prevented, the facility with which the evil might be aggravated by partisan news and views published in daily newspapers having large circulation and the conditions imposed by the section itself on the exercise of the power conferred by it must all be taken into consideration in judging the reasonableness or otherwise of the law and, so judged, section 2 must be held to have imposed reasonable restrictions on the exercise of the rights guaranteed by articles 19(1)(a) and 19(1)(g) in the interest of public order and of the general public and is protected by articles 19(2) and 19(6).
Learned counsel appearing for the petitioner Virendra also maintains that assuming that section 2(1)(a) is valid, the Notifications actually issued thereunder are much too wide in language and cannot be supported.
The 325 operative part of the Notification prevents the petitioner from publishing any article, news item, letter or any other matter of any character whatsoever relating to or connected with the "save Hindi agitation".
It is said that the petitioner cannot even publish a report or a letter from a correspondent against the it save Hindi agitation ".
It cannot publish a report of the statement made on the floor of the House by the Prime Minister deprecating the " save Hindi agitation ".
This argument appears to us to have no real substance.
If the section is good and that is what we hold it to be and that is what, for the purposes of this part of the argument, learned counsel is prepared to assume then the section has conferred on the State Government this power to be exercised if it is satisfied as to the necessity for its exercise for the purposes mentioned in the section.
In other words the exercise of the power is made dependent on the subjective satisfaction of the State Government or its delegate.
If the State Government or its delegate is satisfied that for the purposes of achieving the specified objects it is necessary to prohibit the publication of any matter relating to the " save Hindi agitation " then for the court to say that so much restriction is not necessary to achieve those objects is only to substitute its own satisfaction for that of the State Government or its delegate.
The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval of everything which might run counter to that agitation.
It is admitted that the policy of the papers is to support the " save Hindi agitation ".
Therefore, a grievance that the papers are not allowed even to publish anything against the agitation sounds hollow, wholly unconvincing and of no substance at all.
It may not be unreasonable for the Government to hold the opinion, in 326 view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse comments.
Further, if there happens to be a change in their policy there will be nothing to prevent the petitioner from making a representation to the State Government asking it to modify its Notifications.
In our view, having regard to the body of section 2(1)(a) and the two provisos thereto, namely, the conditions as to the satisfaction of the authority in respect of certain matters specified in the section, the time limit as to the efficacy of the Notifications and the right to make a representation given to the aggrieved party makes this grievance wholly illusory.
It is said that the Notifications should have been qualified so as to prohibit the publication of any matter relating to the " save Hindi agitation " which was likely to prejudicially affect the public order.
Suppose such a qualification had been super added, then there should be somebody who would have to judge whether any given publication did or did not affect the public order.
If the editor claimed that it did not but the State held that it did who would decide and when ? It would obviously be the court then which would have to decide whether the publication was likely to prejudicially affect the public order.
If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the court that for preventing the public order being prejudicially affected it was necessary to stop such circulation.
That would be the issue before the court.
Likewise if the Government launched a prosecution under section 4 then also the issue would be the same.
That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as valid.
Thequestion of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being 327 satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be considered.
The ' only issue that can then arise will be whether the Notification has been complied with and the court will only have to decide whether there has been a contravention of the Notification.
To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny.
That, as we have explained, will defeat the very purpose of the section itself.
It is lastly contended that the impugned Notifications have been made mala fide in order only to suppress legitimate criticisms and fair comments on public affairs.
We have perused the articles annexed to the affidavit in opposition and referred to in the Notifications themselves and we are not satisfied that no reasonable person reading those articles could entertain the opinion and feel satisfied that it was necessary to make the order for the purposes mentioned in the section.
We are unable to hold, on the materials before us, that the Notifications issued under s.2 were mala fide.
The observations hereinbefore made as to the safeguards set forth in the provisions of section 2(1)(a) and (b) cannot, however, apply to the provisions of section 3.
Although the exercise of the powers under section 3(1) is subject to the same condition as to the satisfaction of the State Government or its delegate as is mentioned in section 2(1)(a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State Government.
The absence of these safeguards in section 3 clearly makes its provisions unreasonable and the learned Solicitor General obviously felt some difficulty in supporting the validity of this 328 section.
It is surprising how in the same statute the two sections came to be worded differently.
For reasons stated above petition No. 95 of 1957 (Virendra vs The State of Punjab) which impugns the Notifications issued under section 2(1)(a) must be dismissed and petition No. 96 of 1957 (K. Narendra vs The State of Pun ab) which challenges section 3 must be allowed.
In the circumstances of these cases we make no order as to the costs of these applications.
Petition No. 95 of 1957 dismissed.
Petition No. 96 of 1957 allowed.

summary:
These two petitions challenged the constitutional validity of the Punjab Special Powers (Press) Act, 1956 (No. 38 of 1956) passed by the State Legislature in the wake of the serious communal tension that had arisen between the Hindus and the Akali Sikhs over the question of the partition of the State on a linguistic and communal basis.
The petitioners were the editors, printers and publishers, respectively, of the two daily newspapers, Pratap and Vir Arjun, printed and published simultaneously from jullundur and New Delhi, whose admitted policy was to support the "Save Hindi agitation".
Two notifications under section 2(1)(a) of the impugned Act were issued against the editor, printer and publisher of the two papers published from Jullundur by the Home Secretary prohibiting him from printing and publishing any matter relating to the 'Save Hindi agitation ' in the two papers for a period of two months.
Two other notifications in identical terms were issued under section 3(1) of the impugned Act against the other petitioner, the editor, printer and publisher of the two papers in New Delhi prohibiting him from bringing into the Punjab the newspapers printed and published in.
New Delhi from the date of the publication of the notifications.
Unlike section 2(1) of the impugned Act which provided a time limit for the operation of an order made thereunder as also for a representation to be made by the aggrieved person, section 3 of the Act made no such provision.
It was contended on behalf of the petitioners that both the sections were ultra vires the State Legislature inasmuch as they infringed articles 19(1)(a) and 19(1)(g) of the Constitution and were not saved by articles 19(2) and 19(6) of the Constitution.
It was urged that the sections imposed not merely restrictions but a total prohibition against the exercise of the said fundamental rights by prohibiting the publication of all matters relating to the 'Save Hindi agitation ' under section 2(1)(a) and by a complete prohibition of the entry of the two papers into the whole of the Punjab under section 3(1) of the Act, that even supposing 309 that the sections merely imposed restrictions and not a total prohibition, the restrictions were not reasonable, that the sections gave unfettered and uncontrolled discretion to the State Government and its delegate, that the Act did not provide for any safeguard against an abuse of the power, that the language of the sections being wide enough to cover restrictions both within and cutside the limits of constitutionally permissible legislative action they were ultra vires the Constitution and that the notification under section 2(1)(a) of the Act as made would prevent even the publication of anything against the 'Save Hindi agitation ' and should have been restricted to such matters alone as were likely to prejudicially affect the public order.
Held, that the restrictions imposed by section 2(1)(a) of the impugned Act were reasonable restrictions within the meaning of article 19(2) of the Constitution and the petition directed against the notifications issued thereunder must fail, but since section 3 Of the Act did not provide for any time limit for the operation of an order made thereunder nor for a representation by the aggrieved party to the State Government, the restrictions imposed by it were not reasonable restrictions under article 19(6) of the Constitution and the petition directed against the notifications made thereunder must succeed.
Held further, that there can be no doubt that the right of freedom of speech and expression carries with it the right to propagate one 's views and the several rights of freedom guaranteed by article 19(1) of the Constitution are exercisable throughout India but whether or not any restrictions put on those rights amount to a total prohibition of the exercise of such rights must be judged by reference to their ambit.
So judged, the restrictions imposed in the instant cases with regard to the publications relating to only one topic and the circulation of the papers only in a particular territory could not amount to a total prohibition of the exercise of the fundamental rights.
The expression "in the interest of" in articles 19(2) and 19(6) of the Constitution makes the protection they afford very wide and although free propagation and interchange of views are ordinarily in social interest, circumstances may arise when social interest in public order is greater and the imposition of reasonable restrictions on the freedom of speech and expression and on the freedom of carrying on trade or business becomes imperative.
Regard being had to the surrounding circumstances in which the impugned Act was passed, its object, the extent and urgency of the evil it sought to remedy, and the enormous power wielded by the Press, with modern facilities of quick circulation, and the consequence that any abuse of it might lead to, the restrictions imposed by the impugned Act must be held to be reasonable restrictions under the Articles.
The State of Madras vs V. G. Row, ; , followed.
310 It was only in the fitness of things that the State Legislature should have left the wide preventive powers under the sections to the discretion of the State Government, charged with the maintenance of law and order, or to its delegate, to be exercised on their subjective satisfaction.
To make the exercise of these powers justiciable and subject to judicial scrutiny would be to defeat the purpose of the enactment.
Dr. N. B. Khare vs The State of Delhi, ; , referred to.
But such discretion was by no means unfettered and uncontrolled.
The two sections laid down the principle that the State Government or its delegate could exercise such powers only if they were satisfied that such exercise was necessary for the purpose mentioned in the sections and not otherwise.
Where there was any abuse of such powers, therefore, what could be struck down was the abuse itself but not the statute.
Dwaraka Prasad Laxmi Nayain vs The State of Uttar Pradesh, ; , held inapplicable.
Harishankar Bagla vs The State of Madhya Pradesh, , relied on.
In view of the amended provisions of article 19(2) of the Constitution and the language of the two sections limiting the exercise of the powers to the purposes specifically mentioned therein, the principles enunciated by this Court in Ramesh Thappay 's case and applied to Chintaman Rao 's case could have no application to the instant cases.
Ramesh Thappay vs The State of Madras, ; and Chintaman Rao vs The State of Madhya Pradesh, (1950) S.C. R. 759, held inapplicable.
The two provisos to section 2(1)(a) and cl.
(b) of section 2(1) clearly show that the restrictions imposed by section 2 are reasonable restrictions on the exercise of the rights guaranteed by articles 19(1)(a) and 19(1)(g) and are, therefore, protected by articles 9(2) and 19(6) of the Constitution.
There could be no basis for the grievance that the notifica tion under section 2(1)(a) prevented the publication even of matters against the 'Save Hindi agitation '.
If there was a change in the policy of the papers, the time limit provided for the operation of the notifications and the right to make a representation provided ample remedies for the petitioner.
To introduce into the notifications the suggested qualification would be to make the exercise of the powers conferred by the section dependent on an objective test subject to judicial scrutiny and defeat the very purpose of the section.


judgement:
ivil Appeal No. 161 Of 1986.
From the Judgment and Order dated 17.9.85 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED(SB) (T) 463/84 D. Soli J. Sorabjee, Ravinder Narain, Harish Salve, section Ganesh and P.K. Ram for the Appellant.
B. Datta, Additional Solicitor General, Mrs. Indra Sawhney and Ms. section Relan for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The fate of this appeal under sec tion 35(L) of the , de pends upon the meaning and scope of the Explanation appear ing in section 11A of the Act.
The High Court of Karnataka by its order dated 4.6.1976 in Writ Petition No. 2632 of 1976 gave the following direc tion: 311 "Pending disposal of the aforesaid writ Peti tion, it is ordered by this Court that collec tion of excise duty as a fabric be and the same is hereby stayed.
It is further ordered that the petitioner shall however continue to pay exercise duty as yarn and shall further maintain an account in square metres for future clearance." The said Writ Petition was ultimately dismissed by the High Court on 16.2.
The operative part of the Court 's final order ran thus: "For the reasons aforesaid, we make the fol lowing order: (i) Rule discharged; (ii) We decline to interfere at this stage leaving open to the petitioner to urge all the contentions in reply to the show cause notices.
" On 20th May, 1982, a notice to show cause was issued to the appellant by the Assistant Collector, being Notice No. 913, and with this the Collector sought to raise a demand for the period from 20th June, 1976 to 28th February, 1981 apart from for the period between 1.4. 1975 to 18.8.1975 in respect of which an earlier show cause notice dated 29.1.
1976 had already been issued.
It is not disputed by the Revenue that the appropriate period of limitation to apply to the facts of the case is six months as provided in section 11A of the Act and that the Notice issued on 20th of May, 1982 was beyond that period.
Reliance was placed on the Explanation for obtaining extension of that period.
The Explanation reads thus: "Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be." The provision in the Explanation incorporates a well known principle of law.
Section 15 of the Limitation Act of 1908 (also of Section 15 of the Limitation Act of 1963) incorpo rates the same principle.
This Court in Sirajul Haq Khan & others vs The Sunni Central Board of Waqf, U.P. & others, dealt with the effect of an order of injuc tion in the matter of computation of limitation.
At page 1302 of the Reports, Gajendragadkar, J. as he then was, spoke for the Court thus.
312 "It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit.
And so in cases falling under Section 15, the party instituting the suit would by such institution be in contempt of court.
But in our opinion, there would be no justifi cation for extending the application of section 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation . . " In the instant case, the order of stay passed by the Karna taka High Court had only stayed the collection of the excise duty, which is a stage following levy under the scheme of the Act.
Obviously there was no interim direction of the High Court in the matter of issue of notice for the purpose of levy of duty.
The relevant portion of Section 11A provid ed. "(1) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erro neously been made, requiring him to show cause why he should not pay the amount specified in the notice: (2) The Assistant Collector of Central Excise shall, after considering the representation, if any, made by the person on whom notice is served under sub section (1), determine the amount of duty of.excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. ' ' Reference to Section 3 of the Act which contains the charg ing provision clearly shows that levy and collection are two distinct and separate 313 steps.
This Court in N.B. Sanjana, Assistant Collector of Central Excise, Bombay & Ors.
vs Elphinstone Spinning & Weaving Mills Co. Ltd., ; , at page 514 stat ed: " .
The charging provision section 3(i) specifically says "there shall be levied and collected in such a manner as may be pre scribed the duty of excise . . "It is to be noted that sub section (i) uses both the expressions "levied and collected" and that clearly shows that the expression "levy" has not been used in the Act or the Rules as meaning actual collection." The High Court having directed stay of collection had, therefore, not given any interim direction in the matter of issue of notice or levy of the duty.
The Explanation in clear terms refers to stay of service of notice.
The order of the High Court did not at all refer to service of notice.
Therefore, there is force in the submission of the appellant that the benefit of the Explanation is not available in the facts of the case.
No notice seems to have been issued in this case in regard to the period in question.
Instead thereof an out right demand had been served.
The provisions of Section 11A (1) and (2) make it clear that the statutory scheme is that in the situations covered by the sub section (1), a notice of show cause has to be issued and sub section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the mount has to be determined.
The scheme is in consonance with the rules of natural justice.
An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made, before making the order thereof.
Notice is thus a condition precedent to demand under sub section (2).
In the instant case, compliance with this statutory requirement has not been made, and, there fore, the demand is in contravention of the statutory provi sion.
Certain other authorities have been cited at the hearing by counsel for both sides.
Reference to them, we consider, is not necessary.
The appeal has to be allowed and the demand raised for the period 19.8.1975 to 23.2.1981 has to be set aside.
There shall be no order for costs.
The tax paid, if any, shall be refunded to the appellant.
S.R. Appeal al lowed.

summary:
A show cause notice dated 29.1.1976 issued by the re spondent to the appellant calling upon him to explain as to why excise duty treating his product as "fabric" and not as "yarn" may not be levied, was challenged in the High Court of Karnataka in Writ Petition No. 2632/ 1976.
Pending final disposal of the writ petition, an interim order staying the collection of excise duty as a "fabric" for the period 1.4.1975 to 18.8.75 alone was passed with a specific direc tion that the appellant should continue to pay excise duty as "yarn".
Finally the writ petition was dismissed on 16.2.1981.
On 20th May, 1982, another notice No. 913 to show cause was issued to the appellant simultaneously seeking to raise a demand for the period from 20.6.1976 to 28.2.1981 apart from for the period between 1.4.1975 to 18.8.1975 challenged in the earlier writ petition.
The Karnataka High Court having rejected the plea of bar of limitation under section 11A of the raised in the writ petition challenging the said second show cause notice and demand, the appellant has come in appeal by way of special leave.
Allowing the appeal, the Court, HELD: 1.1 Section 3 of the Act which contains the charg ing provision clearly shows that levy and collection are two distinct and separate steps.
[312H] 1.2 The provision of section 11A(1) and (2) of the make it clear that the statutory scheme is that in the situations covered by the sub section(1), a notice of show cause has to be issued and sub section(2) requires that the cause shown by way of representation has to be considered by the prescribed au thority and then 310 only the amount has to be determined.
The scheme is in consonance with the rules of natural justice.
An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made, before making the order thereof.
Notice is thus a condition prece dent to a demand under sub section(2).
In the instant case, compliance with this statutory requirement has not been made, and, therefore, the demand is In contravention of the statutory provision.
[313E G] 2.
Explanation to section 11A of the , which incorporates a well known principle of law, in clear terms refers to 'stay of service of notice '.
The High Court order did not at all refer to service of notice.
The High Court having directed stay of collection of duty as 'fabric ' has not issued any interim direction in the matter of issue of notice of levy of the duty.
Therefore, the benefit of Explanation to section 11A of the Act is not available to the Respondent.
[313C D] Sirajul Haq Khan & Ors.
vs The Sunni Central Board of Waqf, U.P. & Ors.
, ; and N.B. San jane As sistant Collector of Central Excise, Bombay & Ors.
vs El phinstone Spinning & Weaving Mills Co. Ltd., ; , 514 referred to.


judgement:
Criminal Appeal No. 378 of 1986.
From the Judgment and Order dated 11.10.
1985 of the Bombay High Court in Crl.
Revision Appln.
No. 167 of 1985.
V.N. Ganpule for the Appellant.
A.M. Khanwilkar, A.S. Bhasme and G.B. Sathe for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only point that is involved in this appeal by special leave is whether the respondent No. 1 is entitled to claim maintenance from the appellant, his married daugh ter, under section 125(1)(d) Cr.
The appellant Dr. Mrs. Vijaya Arbat, a medical practi tioner at Kalyan, District Thane, is the married daughter of the respondent No. 1 Kashirao Rajaram Sawai, by his first wife.
Her mother died in 1948.
Thereafter, the respondent No. 1 remarried and is living with his second wife.
The respondent No. 1 filed an application before the Judicial Magistrate, First Court, Kalyan, claiming maintenance from the appellant, his daughter, at the rate of Rs.500 per month on the ground that he was unable to maintain himself.
At the outset, the appellant raised a preliminary objec tion to the maintainability of the application on the ground that section 125(1)(d) Cr.
P.C. does not entitle a father to claim maintenance from his daughter.
The preliminary objec tion was overruled by the learned Magis 334 trate, and it was held by him that the application was maintainable.
Being aggrieved by the order of the learned Magistrate, the appellant moved the Bombay High Court in revision.
The High Court affirmed the order of the learned Magistrate and held that the application of a father for maintenance who is unable to maintain himself is maintain able against his married daughter having sufficient means.
In that view of the matter the High Court dismissed the revisional application of the appellant.
Hence this appeal by special leave.
Sub section (1) of section 125 Cr.
P.C. provides as under: "If any person having.
sufficient means ne glects or refuses to maintain (a) his wife, unable to maintain herself or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has at tained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allow ance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
" Sub section (1) of section 125 confers power on the Magistrate of the First Class to order a person to make a monthly allowance for the 335 maintenance of some of his close relations like wife, chil dren, father and mother under certain circumstances.
It has been observed by this Court in Bhagwan Dutt vs Kamla Devi, ; that the object of section 125 Cr.
P.C. is to provide a summary remedy to save dependents from destitu tion and vagrancy and thus to serve a social purpose.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents.
It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve.
Apart from any law, the Indian society casts a duty on the chil dren of a person to maintain their parents if they are not in a position to maintain themselves.
It is also their duty to look after their parents when they become old and infirm.
The learned Counsel, appearing on behalf of the appel lant, has urged that under clause (d) of section 125(1) a father is not entitled to claim maintenance from his daugh ter whether married or not.
Our attention has been drawn to the use of the pronoun 'his ' in clause (d) and it is submit ted that the pronoun indicates that it is only the son who is burdened with the obligation to maintain his parents.
Counsel submits that if the legislature had intended that the maintenance can be claimed by the parents from the daughter as well, it would not have used the pronoun 'his '.
We are unable to accept this contention.
It is true that clause (d) has used the expression "his father or mother" but, in our opinion, the use of the word 'his ' does not exclude the parents claiming maintenance from their daugh ter.
Section 2(y) Cr.
P.C. provides that words and expres sions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code.
Section 8 of the Indian Penal Code lays down that the pronoun 'he ' and its derivatives are used for any person whether male or female.
Thus, in view of section 8 IPC read with section 2(y) Cr.
P.C., the pronoun 'his ' in clause (d) of section 125(1) Cr.
P.C. also indicates a fe male.
Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words import ing the masculine gender shall be taken to include females.
Therefore, the pronoun 'his ' as used in clause (d) of sec tion 125(1) Cr.
P.C. includes both a male and a female.
In other words, the parents will be entitled to claim mainte nance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled.
Before ordering maintenance in 336 favour of a father or a mother against their married daugh ter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
Much reliance has been placed by the learned Counsel for the appellant on a decision of the Kerala High Court in Raj Kumari vs Yashodha Devi, In that case it has been held by a learned Single Judge of the Kerala High Court, mainly relying upon the report of the Joint Committee on the Criminal Procedure Code Bill, 1973, that a daughter is not liable to maintain her parents who are unable to maintain themselves.
The Joint Committee in their report made the following recommendations: "The committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recog nised by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means.
If there are two or more children the parents may seek the remedy against any one or more of them" (Emphasis supplied).
The learned Judge of the Kerala High Court did not refer in his judgment to the sentence which has been underlined.
It is true that in the first part of the report the word 'son ' has been used, but in the latter part which has been underlined the recommendation is that if there are two or more children the parents may seek the remedy against any one or more of them.
If the recommendation of the Joint Committee was that the liability to maintain the parents, unable to maintain themselves, would be on the son only, in that case, in the latter portion of the report the Joint Committee would not have used the word 'children ' which admittedly includes sons and daughters.
In our opinion, as we read the report of the Joint Committee, it did not place the burden of maintaining the parents only on the son, but recommended that the liability to maintain the parents should be of the sons and the daughters as well.
We have referred to the report of the Joint Committee inasmuch as the same has been relied upon in Raj Kumari 's case (supra) by the Kerala High Court and also on behalf of the appellant in the instant case.
When the statute provides that the pronoun 'his ' not only denotes a male but also a female, we do not think it necessary to refer to the report of the Joint Committee for the 337 interpretation of clause (d) of section 125(1) Cr.
The father or mother, unable to maintain himself or herself, can claim maintenance from their son or daughter.
The expression "his father or mother" is not confined only to the father or mother of the son but also to the father or mother of the daughter.
In other words, the expression "his father or mother" should also be construed as "her father or mother".
In M. Areera Beevi vs Dr. K.M. Sahib, [1983] Cr.L.J. 412, and Repalli Masthanamma vs Thota Sriramulu, , another Single Bench of the Kerala High Court and the Andhra Pradesh High Court have respectively taken the view that the parents who are unable to maintain them selves can claim maintenance also from their daughters under section 125(1)(d) Cr.
P.C. We are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves.
It has been rightly pointed out by the High Court that a daugh ter after her marriage does not cease to be a daughter of the father or mother.
It has been earlier noticed that it is the moral obligation of the children to maintain their parents.
In case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, in that case, parents having no son but only daughters and unable to maintain themselves, would go desti tute, if the daughters even though they have sufficient means refuse to maintain their parents.
After giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liabil ity on both the son and the daughter to maintain their father or mother who is unable to maintain himself or her self.
Section 488 of the old Criminal Procedure Code did not contain a provision like clause (d) of section 125(1).
The legislature in enacting Criminal Procedure Code, 1973 thought it wise to provide for the maintenance of the par ents of a person when such parents are unable to maintain themselves.
The purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain their parents.
The judgment of the High Court is affirmed and this appeal is dismissed.
There will, however, be no order as to costs.
338 The learned Magistrate will now dispose of the applica tion under section 125(1)(d) Cr.
P.C. of the respondent on merits in accordance with law.
We make it clear that we have not expressed any opinion on the merits of the case.
S.R. Appeal dis missed.

summary:
The appellant, a medical practitioner at Kalyan, Dis trict Thane, is the married daughter of Respondent No. 1, Kashirao Rajaram Sawai, by his first wife, who died in 1948.
Thereafter, Respondent No. 1 remarried and he is living with his second wife.
He filed an application before the Judicial Magistrate, First Court Kalyan claiming maintenance from the appellant at the rate of Rs.500 per month on the ground that he was unable to maintain himself.
A preliminary objection raised to the effect, that an application under section 125(1)(d) Criminal Procedure Code by a father to claim maintenance from his daughter was not maintainable was overruled by the Trial Magistrate and upheld by the High Court in revision.
Hence the daughter 's appeal by Special leave.
Dismissing the appeal, the Court, HELD: 1.1 An application under section 125(1)(d) of the Code of Criminal Procedure, 1973, by a father claiming maintenance from his married daughter is perfectly maintain able.
[337C] 1.2 Section 125(1)(d) of the Code (a new provision) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself.
[337F] 1.3 The object of section 125 Criminal Procedure Code is to provide a summary remedy to save dependents from destitu tion and vagrancy and thus to serve a social purpose.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her 332 parents.
It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve.
Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves.
It is also their duty to look after their parents when they become old and infirm.
[335B C] Bhagwan Dutt vs Kamla Devi, ; , referred to.
2.1 It is true that clause (d) has used the expression 'his father or mother ' but, the use of the word 'his ' does not exclude the parents claiming maintenance from their daughter.
Section 2(y) Criminal Procedure Code provides that words and expressions used herein and not defined but de fined in the Indian Penal Code have the meanings respective ly assigned to them in that Code.
Section 8 of the Indian Penal Code lays down that the pronoun 'he ' and its deriva tives are used for any person whether male or female.
Thus, in view of section 8 Indian Penal Code read with section 2(y) Criminal Procedure Code, the pronoun 'his ' in clause (d) of section 125(1) Criminal Procedure Code also indicates a female.
Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words import ing the masculine gender shall be taken to include females.
Therefore, the pronoun 'his ' as used in clause (d) of sec tion 125(1) Criminal Procedure Code includes both a male and a female.
In other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are ful filled.
Before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
[335E H; 336A B] 2.2 When the statute provides that the pronoun 'his ' not only denotes a male but also a female, it is not necessary to refer to the report of the Joint Committee on Criminal Procedure Code Bill for the interpretation of clause (d) of section 125(1) Criminal Procedure Code.
The father or moth er, unable to maintain himself or herself, can claim mainte nance from their son or daughter.
The expression 'his father or mother, is not confined only to the father or mother of the son but also to the father or mother of the daughter.
In other words, the expression 'his father or mother ' should also be construed as 'her father or mother '.
[336H; 337A B] 333 2.3 A daughter after her marriage does not cease to be a daughter of the father or mother.
If it is not so, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents.
[337D E] Raj Kumari vs Yashodha Devi, , overruled.
M. Areera Beevi vs Dr. K.M. Sahib, and Repalli Masthanamma vs Thota Sriramulu, [1982] An.
W.R. 393, approved.