judgement:
Appeal No. 2632 of 1969.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 27, 799 1969 of the Allahabad High Court in Election Petition No. I of 1969.
G. N. Kikshit, for the appellant.
K. C. Sharma, M. section Gupta and section K. Dhingra, for respondent No. 1.
The Judgment of the Court was delivered by Bhargava, J.
This is an appeal by Manti Lal who was one of the candidates for election to the U.P. Legislative Assembly from Ahirori (Scheduled Caste) Constituency of Hardoi District, and who was defeated at that election by respondent No. 1 Parmai Lal.
The election was challenged on two principal grounds.
One ground was that respondent No. I was disqualified under section 8(2) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") for being chosen as a member of the Legislative Assembly, because he was convicted for offenses under sections 148 and 304 of the Indian Penal Code on 11th January, 1969, and was sentenced to imprisonment exceeding two years.
The other ground was that a number of ballot papers cast in favour of the appellant had been wrongly rejected instead of being counted in favour of the appellant, that some ballot papers were wrongly counted for respondent No. I instead of being rejected, and that some ballot papers were wrongly counted in favour of respondent No. 1 instead of being counted in favour of the appellant or other candidates.
The High Court of Allahabad framed three different issues in respect of this claim of wrong rejection or wrong counting of the ballot papers, In the written statement,respondent No. I pleaded that a number of ballot papers were wrongly counted in favour of the appellant instead of being counted in favour of the other candidates, that a number of ballot papers were wrongly rejected instead of being counted in favour of respondent No. 1, and, further, that a number of ballot papers were wrongly counted in favour of the appellant instead of being rejected.
The learned Judge, who tried the election petition, framed three issues in respect of these pleadings also which were put forward in the written statement and not by way of a petition of recrimination.
On the basis of examination of the ballot papers and the evidence before him, a finding was recorded that, after correcting the errors made in counting, the net result would ' be that the appellant will have a net gain of only 6 votes, while respondent No. I would have a net loss of 24 votes.
It appears that respondent No. I had received 13,508 votes, while the appellant had received 13,271 votes.
After taking into account the finding, the valid votes received by the appellant would total to 13,277, while respondent No. I would still have 13,484 valid ' votes, so that the election of respondent No. 1 could not be declared 800 void.
The appellant had claimed that, on a proper counting, . it would be found that he had a majority of votes, and had prayed for a declaration that he is the successful candidate.
On the finding recorded, both the prayers of the appellant failed.
The High Court further held that respondent No.
I was not disqualified under section 8 (2) of the Act and, consequently, his election was valid.
The petition having been dismissed by the High Court, the appellant has now come up in this appeal under section II 6A of the Act.
On the issue relating to disqualification, the facts that need be .noticed are that 9th January, 1969 was the last date for filing nominations in this constituency and respondent No. 1 was convicted two days later on 11th January, 1969 and sentenced, inter alia .to ten years ' rigorous imprisonment under section 304, I.P.C.
On 16th January, 1969, he filed an appeal against this conviction in the High Court.
Polling took place on 9th February, 1969 and the result was declared on 11th February, 1969.
Respondent No. 1 was declared as the successful candidate having secured the largest majority of votes.
On 30th September, 1969, his appeal was allowed by the High Court and his conviction and sentence were set aside.
At this time, the election petition was still pending.
In fact, the judgment in the election petition was delivered on 27th October, 1969.
On these facts, it is clear that, though the conviction of respondent No. 1 was recorded by the trial Court on 11th January ', 1969, he was acquitted on 30th September 1969 in appeal which acquittal had the effect of completely wiping out the conviction.
The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded.
In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction; it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower Court.
The disqualification relied upon by the appellant wag laid under section 8 (2) of the Act read with Article 102 (1 ) (e) of the Constitution.
The provision is that a person convicted by a court in India for any offence and sentenced ,to imprisonment for not less than two years shall be, disqualified .from the date of such conviction and shall continue to be disqualified for a further period of five years since his release.
The argument on behalf of the appellant was that, though respondent No. I was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9th February, 1969, the date of polling, as well as on 11th February, 1969, when the result, was declared, because his conviction had been recorded and he had been sentenced to ten years ' rigorous imprisonment on 11th January, 1969.
It was further urged that, though the appeal had been filed, that 801 appeal did not have the effect of Wiping out this conviction.
In these circumstances, it was urged that his election was void and should have been set aside on the ground of this disqualification.
This argument overlooks the fact that an appellate order of acquittal, takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded.
Once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all.
The disqualification, which existed on the, 9th or 11th February, 1969 as a fact, was wiped out when the conviction recorded on 11th January, 1969 was set aside and that acquittal took effect from that very date.
It is significant that the High Court, under section 106 ( 1) (a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that, on the date of his election, a returned candidate was dot qualified, or was disqualified, to be chosen to fill the seat under the Constitution or the Act.
It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but, this opinion is to be formed by the High Court at the time of pronouncing the judgment in the elec tion petition.
In this.
case, the High Court proceeded to pronounce the judgment on 27th October, 1969.
The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January, 1969.
It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11th February, 1969, respondent No. 1 was disqualified.
The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election void could not be formed.
The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal section 8 (2) of the Act retrospectively with effect from 11th January, 1969.
Learned counsel conceded that, if a law had been passed repealing section 8 (2) of the Act and the law had been deemed to come into effect from 11th January, 1969, he could not have possibly urged thereafter, when the point came up before the High Court, that respondent No. 1 was disqualified on 9th or 11th February, 1969.
The setting aside of the conviction and sentence in appeal has a similar effect of wiping out retrospectively the disqualification.
The High Court was, therefore, right in holding,, that respondent No. 1 was not disqualified and that his election was not void on that ground.
On the second point, the main argument of counsel for the appellant was that the High Court committed the error of framing three issues on the basis of pleadings in the written statement which challenged the correctness of the acceptance or rejection of ballot papers without any recrimination being filed by respondent L 169 Sup.
C I (P)/71 7 802 No. 1 under section 97 of the Act.
Counsel wanted to argue this question of law in detail, but we consider that, in the present case, 10 is not necessary to go into this point at all.
Even if the three issues framed on the basis of pleadings in the written statement are ignored, and account is taken only of findings recorded on the three issues framed on the basis of pleadings in the election petition, it would be found that respondent No. 1 still had a majority of valid votes, and the appellant could not claim that the election of respondent No. 1 be set aside and the appellant be declared as the successful candidate.
The findings of fact recorded by the Judge are that, under Issue No. 5, 18 ballot papers mentioned in Schedules III and IV should be counted as valid votes for the appellant, while 24 ballot papers were wrongly counted in favour of respondent No. 1.
Under Issue No. 3, the finding is that the appellant is entitled to add 111 valid votes in his favour and, under Issue No. 4, the finding is that 74 votes would be lost by respondent No. 1.
If these figures are accepted and taken into account, the appellant would receive 13,400 valid votes, being the total of 13,271 votes found in his favour at the time of declaration of the result and 129 votes which the appellant is entitled to add as a result of the findings on the three issues.
So far as respondent No. 1 is concerned, he loses 98 votes as a result of the findings recorded by the High Court; and, on deducting these votes from 13,508 received by him, respondent No. 1 is left with 13,410 votes.
Respondent No. 1, thus, has a majority of 10 votes, so that his election is valid. ' Counsel, however, challenged one finding recorded by the High Court in respect of 64 ballot papers which, the appellant had claimed, had been wrongly rejected and should have been counted in his favour.
These ballot papers have not been produced before us.
The learned Judge held that they were invalid votes because "thy bear no recognizable seal impression that might be said to have been made with the instrument supplied for marking the vote.
" The argument of counsel for the appellant is that, even on this finding recorded by the High Court, these votes should have been counted in his favour, because they cannot be held liable to rejection under rule 56(2) (b) of the Conduct of Elections Rules, 1961.
That sub rule runs as follows : "The returning officer shall reject a ballot paper if, to indicate the vote, it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose.
" The argument urged is that, according to the Judge, the impressions on these 64 ballot papers could not be identified with the seal supplied for marking the votes, which only leads to the inference that they may bear marks with that seal or may not.
For 803 rejection under rule 56(2)(b), there must be a definite finding that they bore marks made otherwise than with the seal supplied for the purpose.
In this case, the Returning Officer rejected the ballot pairs holding that the marks made on these ballot papers were mad otherwise than with the instrument supplied for the purpose.
The appellant challenged that decision of the Returning Officer in this election petition.
The burden lay on him to establish that the Returning Officer had wrongly rejected these ballot papers.
He could only succeed if he had proved that the marks made were with the instrument supplied for the purpose.
This the appellant failed to do.
In fact, the finding recorded by the learned Judge of the High Court amounts to holding that the marks made cannot be identified with the seal which was supplied for marking the votes and, consequently, an inference, follows that they must have been made by some other means.
On this finding, the learned Judge was quite correct in not upsetting the order of the Returning Officer rejecting these votes.
If these 64 votes are not counted in favour of the appellant, the appellants case fails for the majority of votes still remains in favour of respondent No. 1.
The appeal, therefore, fails and is dismissed with costs.
Y.P. Appeal dismissed.

summary:
The appellant challenged the election of the first respondent to the State Legislative Assembly on the grounds : (1) the respondent was disqualified under section 8(2) of the Representation of the People Act, because, on the date of his election he stood convicted 'for offenses under .the Penal Code, though later, he was acquitted by the High Court and (ii) the Returning Officer rejected some ' ballot papers cast in the appellant 's favour holding that the marks made on those ballot papers were made otherwise than with the instrument supplied for the purpose and that those ballot papers were therefore liable to rejection under r.56(2) of the Conduct of Election Rules, 1961.
The High Court dismissed the petition.
In appeal to this Court, HELD: Dismissing the appeal, (1) In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction, it has the effect of retrospectively wiping out the conviction and sentence awarded by the lower court.
The opinion whether a successful candidate was disqualified on the date of his election is to be formed by the High Court .at the time of pronouncing judgment in the election petition.
When the High Court had before it the order of acquittal which had taken effect retrospectively, it was impossible for the court to arrive at the opinion that on the date of election the respondent was disqualified.
The High Court was therefore, right in holding that the respondent was not disqualified and that his election was not void on the ground.
[800 F] (2) For rejection under r. 56(2)(d) there must be a definite finding that the ballot papers bore marks made otherwise than with the seal supplied for the purpose.
In the present case, the finding recorded by the High Court amounted to holding that the marks made could not be identified with the seal which was supplied for marking the, votes.
On this finding the High court was right in not upsetting the order of Returning Officer for rejecting these votes, and consequently an inference follows that they must have been made by some other means.
If these votes were not to be counted in favour of the appellant the appellant 's case had to fail, because, on the evidence recorded and the issues framed on the basis of the pleadings in the election petition the respondent had still a majority of valid votes.
[803 A]


judgement:
minal Appeal No. 164 of 1967.
Appeal by special leave from the judgment and order dated October 14, 1966 of the Allahabad High Court, Lucknow Bench, in Criminal Appeal No. 425 of 1964.
O. P. Varma, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Dua, J.
Subedar, appellant, has come up an appeal by special leave from his conviction under section 396 read with section 109, I.P.C. and sentence of life imprisonment imposed by the temporary Civil & Sessions Judge, Hardoi and affirmed on appeal by the Allabad High Court according to which the appellant 's case is covered by the second and third clauses of section 107, I.P.C. read with Explanation 2.
Seven persons, including the appellant, were tried, fixe under section 396, I.P.C. and Subedar, appellant, and Tota under section 396 read with section 109, I.P.C. The trial court convicted six and acquitted one.
The appeal of the convicted persons to the High Court failed.
In this Court only Subedar has appealed.
According to the courts below Subedar and Tota were not amongst the dacoits.
They are, however, stated to have assembled at the time of the dacoity which was committed on the night between the 21st and 22nd March, 1963.
Subedar, it is not disputed, is a first cousin of the victims of the dacoity (Gajodhar 828 and Chhotey Lal) and is a resident of village Zafarpur where the dacoity was committed.
Gajodhar, it may be stated, was killed during the course of the dacoity.
The circumstances on which the prosecution relied against Subedar in the High Court are (1) bitter enmity between Gajodhar and Chhotey Lal and, Subedar and Tota who are fast friends on the other; (2) the nature of the incident suggests that the primary object of the culprits was to commit the murder of Gajodhar and Chhotey Lal and touch the culprits did not succeed in killing Chhotey Lal his property was looted as an incidental venture; (3) on the evening preceding the night of dacoity, Subedar and Tota were seen in a grove south of the village within less than a mile from Zafarpur in the company of five or six persons including appellant, Gajju son of Chheda, armed with kantas, bhallas and lathis.
On the night following the dacoity was committed at the house of Gajodhar and Chhotey Lal when Gajodhar was killed and Chhotey Lal seriously injured and in the commission of that offence Gajju son of Chheda participated; (4) Subedar, who was inimical towards Gajodhar.
and Chhotey Lal tried to show false sympathy for them by raising an alarm at the time of dacoity; (5) on the following morning Subedar lodged first information report by way of Peshabandi in order to, put the police on wrong track.
None of these circumstances is, in our view, established on the record; nor can they be considered either singly or collectively to be sufficiently cogent to bring home to the appellant abetment of the offence under section 396, I.P.C. beyond the possibility of a reasonable doubt.
According to Chhotey Lal undoubtedly there was a dispute in regard to property between him and the appellant who is his first cousin and indeed court litigation was pending between them.
But it seems to be an exaggeration to say that there was bitter enmity between the parties.
In support of the second circumstance also we are unable to find any evidence on the record.
The inference seems to be conjectural, not supported by the material on the record on any rational basis.
The charge under section 396, I.P.C. also postulates murder in the course of the commission of dacoity and does not quite support the High Court 's view.
In any event it does not implicate the appellant.
After dealing with the last two circumstances we will turn to the third.
Subedar, it is conceded, actually lodged the first information report (exhibit Ka 7) on the, morning of 22nd March.
It was a writ 829 ten report covering nearly three printed pages.
Now, merely because there was some dispute or litigation pending in courts between the parties it does not follow that the report was lodged by the appellant with the object of misleading the police or in order to forestall suspicion against him.
From the contents of the report it is not possible to draw this inference.
There is nothing mis leading in it and certainly nothing indicative of a design to put the police on a wrong track.
In fact its detailed nature suggests.
that it must have emanated from the persons who had taken full account of the loss and had even evaluated the articles stolen.
The dacoity and murder it may be recalled was committed on the night between 21st and 22nd March.
The written information was given by Subedar on the morning of the 22nd at 6.15 a. M. at the police station about 7 miles away.
In these circumstances the suggestion of Peshabandi (to forestall suspicion) by the appellant seems to be wholly insupportable.
Chhotey Lal, who appeared as P.W. 2, admitted in his cross examination that Subedar, accused, had gone to the, police station to lodge a report regarding the occurrence in question.
Though he denied that he had sent Subedar to lodge the report he was constrained to admit that the following day at 9 or 10 O 'clock the Sub Inspector had also told him that Subedar had gone to the police station to lodge the report.
He also admitted that when the Sub Inspector informed him about Subedar having gone to lodge the report on his behalf he did not tell the Sub Inspector that Subedar was inimical to him and his report should, therefore , be shown to him for scrutiny The detailed nature of the report, the contents of which have not been show in to be incorrect, were presumably given to the appellant by Chhotey Lal.
These circumstances support rather than negative the theory that Chhotey Lal had sent Subedar for lodging the report.
There is, however, positive evidence in the statement of Dammar (P.W. 5) that Chhotey Lal had sent the appellant to lodge airport.
Dammar (P.W. 5) had also accompanied Subedar along with Lila Pradhan and the chowkidar.
We see no reason for disbelieving the testimony of P.W. 5.
P.W. 17 Chaudhari Ishrat Husain, Sub Inspector, has stated that Subedar was arrested by him on the 15th April, 1963 The statement of Babu Ram (P.W. 7) and Khanna (P.W. 8), the two witnesses on whose evidence the appellant is convicted were recorded by him on the 28th March, 1963.
It is, however, not known as to what they had stated during the investigation.
A day earlier on 27th March, 1963 P.W. 17 had actually framed a charge sheet against Jitta and Gajjoo son of Rupan Pasi.
On the,.
9th April, 1963 an application by Chhotey Lal was received by P.W. 17 in which suspicion was cast on Subedar and Tota.
Prior to 9th April, according this witness, he had no proof of these two persons having participated in the dacoity though he admits that he had already recorded Chhotey Lal 's statement before 9th April.
In fact Sub Inspector Deorary (P.W. 15) had recorded 830 Chhotey Lal 's statement as early as March 22, 1963 and it was from P.W. 15 that P.W. 17 took over the investigation.
P.W. 15 does not say that Chhotey Lal or anyone else suspected the, appellant The foregoing discussion strongly indicates that the implication of Subedar, appellant, was an after thought.
Circumstances nos.
4 and 5 have thus no basis and appear to be purely conjectural.
We may now appropriately refer to the statements of the, two witnesses whose sole, testimony appears to be the basis of the appellants conviction.
The third circumstance is found on their evidence.
Babu Ram (P.W. 7) whose statement was recorded in court on the 28th March, 1964 has deposed that about a year earlier he was returning to his village, from the Consolidation Office at Thomharwa in the evening when the sun was about to set.
Khanna and Bashir were with him.
When they reached near the big grove lying to the south of village Daulatpur, he saw five or Six persons in the grove.
Out of them he knew only Tota and with Subedar.
Others were not known to him.
They were armed ballam, kanta and lathis.
On the same night a dacoity was committed at the residence of Gajodhar and he was killed by the dacoits.
Khanna (P.W. 8) has deposed in similar terms.
The contradictions elicited in their cross examination would show that their statement on the question of the presence of the appellant in the grove, cannot be safely relied upon.
According to Babu Ram who had on the day in question gone from Katghara (which was also the village of Khanua, P.W. 8) to the Consolidation Office in village Thomharwa along with Khanna and Bashir, they had made merely oral request in regard to their grievance without subMitting any application.
Khanna (P.W. 8) has, on the other hand, stated that Bashir and Babu Ram met him only on his way back home.
He professes to have submitted his application but expresses ignorance about Babu Ram and Bashir having done so because they had not met him, in the Consolidation Office.
This contradiction on the facts and circumstances of this case is very material and casts a serious doubt on the veracity of their version in regard to the circumstances in which they profess to have seen the appellant I near the grove.
In their cross examination a suggestion was also thrown that Subedar had appeared as a defence witness in a case, against one Jailal, Chamar, in which case these two witnesses had appeared for the prosecution.
This suggestion was apparently intended to indicate the motive on the part of these two witnesses to falsely implicate the appellant.
The evidence of these two witnesses seems to us to be too infirm to carry conviction to their deposition that they saw the appellant as alleged.
It is indeed some what surprising how their evidence was accepted by the courts below, without appropriate scrutiny, in holding the presence of the appellant in the grove.
But even assuming that the appellant was seen by them as alleged, that by 831 itself is not sufficient to connect him with the offence charged.
It cannot be said that from this it follows as a necessary and the only rational or reasonable inference that the appellant was as abetter of the dacoity _and murder.
On a practical approach the reasonable possibility of his innocence cannot be ruled out.
The courts below have erroneously ignored this vital aspect.
At this stage we may refer to some evidence which was recorded in the High Court on appeal.
It appears that on behalf of the present appellant and Tota it was complained in the High Court by their counsel that the circumstance that these two accused persons had been seen with the culprits who Committed dacoity in question was not clearly put to them under section 342, Cr.
P.C. by the trial court, and that they were misled in their defence because the trial court had questioned them in a manner which suggested that they been charged with having actually committed dacoity along with the other culprits.
The High Court, therefore, summoned Subedar and Tota who were on bail.
This order was passed on 11th August, ' 1966.
Subedar was accordingly examined by the High, Court on the 24th August and was confronted with the statement of Babu Ram and Khanna (PWs 7 and 8).
The appellant denied that he was ever in the grove as stated by these witnesses and stated that he had enmity with them and added that they were police witnesses.
Subedar also expressed a desire to produce witnesses in his defence.
Lila Pradhan was in the circumstances examined by the High Court as D.W. 4.
It may be, recalled that according to Danunar, Lila Pradhan was also one of the persons who had gone to lodge the report with him and Subedar.
Lila Pradhan deposed in his examination in chief in the High Court that Chhotey Lal had asked Subedar to go and lodge a report in the police station about the dacoity in question.
Subedar also raised an alarm at the time of the dacoity.
This witness, after his cross examination by the counsel for the State., was examined by the High Court at some length He was village Pradhan for six years.
His statement seems to be a frank and straightforward.
From the evidence on the record we are also, inclined to think that the appellant must have been included in the original list of prosecution witnesses.
This view finds Support from the statement of Sub Inspector, Deorary, (P.W. 15) who had recorded the statements of Chhotey Lal and Dammar and of other witness" on the day following the. dacoity, P.W. 17 seems to us to have wrongly denied this fact.
Apart from the material which we have just discussed.
there is no other relevant material to which our attention has been invited or which we have come across on this record relevant to the case against Subedar.
From this it is crystal clear that there was no real suspicion against Subedar and that it was in April that be was involved as an afterthought presumably because of some other ulterior consideration.
Both the trial court and the High 832 Court seem to us to have completely gone wrong in convicting Subedar.
The respondent 's counsel strongly contended that this Court should not interfere On Special leave appeal under article 136 with the conclusions of the two courts below holding die appellant guilty.
We do not agree with this submission.
This Court undoubtedly does not normally proceed to review and reappraise for itself the evidence in criminal cases when hearing appeals under article 136.
But when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or mistake in the reading of evidence or by ignoring material evidence, then it is not only empowered but is expected to interfere to promote the cause of justice.
Article 136 is worded in very wide terms and the power conferred by it is not hedged in by any technical hurdles.
This over riding and exceptional power has been vested in this Court to be exercised sparingly and only in furtherance of the cause of justice.
In the present case which depends only on circumstantial evidence, the courts below have completely ignored the warming given by this Court in Hanumant vs The State of Madhya Pradesh(1) against the danger of conjectures and suspicions taking the place of proof.
The caution was reiterated thus : "It is well to remember that in cases where the evidence of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete is not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act , must have been done by the accused." (PP 1097 8).
Of course,the evidence on basic or primary facts has to be approached in the ordinary practical way but the conclusions in the case of circumstantial evidence must necessarily point only to the guilt of the accused excluding any reasonable possibility of his innocence.
We are not satisfied that the evidence against the appellant in this case satisfies this test.
The appeal accordingly succeeds.
The order of the court below as against the appellant is set aside and the appellant acquitted.
Y.P. Appeal allowed.
(1) (1952) S.C.R. 1091.

dataset_name: IN-Abs

summary:
Seven persons including S (the appellant) and T were tried together, five under section 396 I.P.C. and the appellant and T under section 396 read with section 109 I.P.C. The prosecution case depended only on circumstantial evidence and mainly on the testimony of two witnesses.
The trial court convicted six accused, including the appellant and acquitted one.
On appeal to the High Court by the convicted persons additional evidence was recorded and section and T were also reexamined as accused for explaining the prosecution evidence.
In the High Court prosecution relied on the following five circumstances against S and T : 1.
Bitter enmity between G and C on the one side and S and T who were fast friends on the other; 2.
The nature of the incident suggests that the primary object of the culprits was to commit the murder of G and C and having failed to kill C his property was looted as incidental venture; 3.
On the evening preceding the night of dacoity S and T were seen in the company of five or six persons including the accused Gajju armed with kanthas, ballas and lathis, 4.
S, who was inimical to G and C, raised false alarm at the time of dacoity to show false sympathy; and 5.
On the following morning after dacoity S lodged F.I.R. by way of Peshabadi for putting the police on wrong track.
The appeal was dismissed by the High Court.
According to both the courts below S and T were, not amongst the dacoits.
They were only stated to have assembled at the time of the dacoity.
S is a first cousin of G and C, two victims of the dacoity.
G was killed during the course of the dacoity.
On appeal by special leave in the Supreme Court counsel for the respondent State contended that it should not interfere with the conclusions of the two courts below holding the appellant guilty.
Disagreeing with this contention.
HELD: This Court undoubtedly does not normally proceed to review and reappraise for itself the evidence in criminal cases when hearing appeals under article 136.
But when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or mistake in the reading of evidence or by ignoring material evidence then this Court is not only empowered but is expected to interfere to promote the cause 827 of justice.
Article 136 is worded in very wide terms and the power conferred by it is not hedged in by any technical hurdles.
This over riding and exceptional power has been vested in this Court to be exercised sparingly and only in furtherance of the cause of justice.
In the present case which depends only on circumstantial evidence.
the courts below have completely ignored the warning given by this Court in Hanumant vs The State of Madhya Pradesh [1952 S.C.R. 1091] against the danger of conjectures and suspicions taking the place of proof.
Evidence on basic or primary facts has of course to be approached in the ordinary practical way but the conclusions in the case of circumstantial evidence must necessarily point only to the guilt of the accused excluding any reasonable possibility of innocence.
[832 B].
After considering the evidence on the record, HELD : None of the five circumstances were established on the record; nor could they be considered either singly or collectively to be sufficiently cogent to bring home to the appellant abetment of the offence charged beyond the possibility of reasonable doubt.
The evidence in the case did not satisfy the test required in cases founded on circumstantial evidence.
The appeal was allowed.


judgement:
iminal Appeal No. 56 of 1968.
Appeal from the judgment and order dated February 9, 1968 of the Kerala High Court in O.P. No. 5032 of 1967 (Contempt).
699 Y. K.Krishna Menon, D. P. Singh, N. Nettar and Y. J. Francis, for the appellant.
A. Y. V. Nair, for the respondent.
M. R. K. Pillai, for the intervener.
The Judgment of the Court was delivered by Hidayatullah, C. J.
Mr. E. M. section Naniboodiripad.
(former Chief Minister of Kerala) has filed this appeal against his conviction and sentence of Rs. 1000 fine or simple imprisonment for one month by the High Court of Kerala for contempt of Court.i Judgment, February 9, 1968, was by majority Mr. justice Raman Nair (now Chief Justice) and Mr. justice Krishamoorthy lyer formed the majority.
Mr. Justice Mathew dissented.
The case has been certified by them as fit for appeal to this Court under article 1 3 4 ( 1 ) (c) of the Constitution.
The conviction is based on certain utterances of the appellant, when he was Chief Minister, at a Press Conference held by him at Trivandrum, on November 9, 1967.
The report of the Press Conference was published the following day in some Indian newspapers.
The proceedings were commenced in the High Court on the sworn information of an Advocate of the High Court, based mainly on the report in the lndian Express.
The appellant showed cause against the notice sent to him and in an elaborate affidavit stated that the report 'was substantially correct, though it was incomplete in some respects. ' The offending parts of the Press Conference will be referred to in this judgment, but we may begin by reading it as a whole.
This is what was reported : "Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set up his (sic) not undergone any change it continues to be so, Mr. Nambudiripad told a news conference this morning.
He further said that Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot bellied rich man and a poor ill dressed and illiterate person the judge instinctively favors the former, the Chief Minister alleged.
The Chief Minister said that election of Judges would be a better arrangement, but unless the basic state set up is changed, it could not solve the problem.
700 Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the constitutional provisions are practiced. 'I have not taken any oath ' the Chief Minister said "that every word and every clause in the Constitution is sacred".
Before that he had also taken an oath, Mr. Nambudiripad said, holding aloft a copy of the Marxist party 's programme and read out extracts from it to say that the oath had always held that nothing much could be done under the limitations of the Constitution.
Raising this subject of Constitution and judiciary suo motu at the fag end of his Dews conference the Chief Minister said so many reports have appeared in the press that Marxists like himself, Mr. A. K. Gopalan, and Mr. Imbichi Baba (Transport Minister) were making statements critical of the judiciary "presumably with the idea that anything spoken about the court is contempt of court".
His party had always taken the view, the ' Chief Minister said that judiciary is part of the class rule of the ruling classes.
And there are limits to the sanctity of the judiciary.
The judiciary is weighted against . workers, peasants and other sections of the working classes and the law and the system of judiciary essentially serve the exploiting classes.
Even where the judiciary is separated from the executive it is still subject to the influence and pressure of the executive.
To say this is not wrong.
The judiciary he argued was only an institution like the President or Parliament or the Public Service Commission.
Even the President is subject to impeachment.
After all, sovereignty rested not with any one of them but with the people.
Even with regard to Judges confidential records are being kept why ? The judge is subject to his own idiosyncrasies and prejudices.
"We hold the view that they are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred, and class prejudices.
In these conditions we have not pledged ourselves not to criticise the judiciary or even individual judgments.
" This did not mean, he explained that they could challenge the integrity of the individual judge or cast reflections on individual judgments, the Chief Minister contended.
He did not subscribe to the view that it was an aspersion on integrity when he said that judges are guided 701 and dominated by class hatred and class prejudices.
"The High Court and the Supreme Court can haul me up, if they want" he said".
The affidavit Which he filed later in the High Court explained his observations at the press conference, supplied some omissions and pleaded want of intention to show disrespect and justification on the ground that the offence charged could not be held to be committed, in view of guarantee of freedom of speech and expression under the Constitution.
He stated that his observations at the press conference did no more than give expression to the Marxist philosophy and what.
was contained in Chapter 5 of the Programme of the Communist Party of India (Marxist) adopted in November 1964.
His pleas in defence were accepted by Justice Mathew who found nothing objectionable which could be termed contempt Of court.
The other two learned Judges took the opposite view.
Judgment was entered on the ' basis of the majority view.
In explaining his press conference the appellant added that it did not offend the majesty of law, undermine 'the dignity of courts ' or obstruct the administration of justice.
Nor did it have any such tendency.
He claimed that it contained a fair criticism of the system of judicial administration in an effort to make it conform to the peoples ' objective of a democratic and egalitarian society based on socialism.
He considered that it was not only his right but also his duty to educate public opinion.
He claimed that the statement read as a whole amounted to a fair and reasonable criticism of the present judicial system in our country, hat it was not intended to be a criticism of any 'Particular judge.
his judgment or his conduct, and that it could not be construed as contempt of court.
He added that he had always enforced the judgments of the courts and shown respect to the judiciary and had advocated the independence of the judiciary and decried all attempt to make encroachments upon it.
Criticism of the judiciary, according to him, was his right and it was being exercised by other parties in India.
He denied that it was for the courts to.
tell the people what the law was and asserted that the, voice of the Legislatures should be supreme.
He, however, found is party at variance with the other parties in that according to he political ideology of his party the State (including all the three limbs the Legislature, the Executive and the Judiciary) was the instrument of the dominant class or classes, so long as society was divided into exploiting and exploited classes, and parliamentary democracy was an organ of class oppression.
He concluded that his approach to the judiciary was : (a) the verdicts of the courts must be respected and enforced; 702 (b) no aspersions should be cast on individual judges or judgments by attributing motives to judges; (c) criticism of the judicial system or of judges going against the spirit of legislation should be permissible; and (d) education of the people that the State (including the judiciary) was an instrument of exploitation of the majority by the ruling and exploiting classes, was legitimate.
These principles, he submitted, were not transgressed by him and also summed up his observations and the press conference.
The law of contempt stems from the right of the courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice.
This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts.
Formerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts.
There are many kinds of contempts.
The chief forms of contempt are insult to judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalising the judges or the courts.
The last form occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard.
In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority.
Such contempt may be committed in respect of a single judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system.
The question is whether in the circumstances of this case the offence was committed.
In arguing the case of the appellant Mr. V. K. Krishna Menon contended that the law of contempt must be read without en croaching upon the guaranteed freedom of speech and expression in article 1 9 ( I ) (a) of the Constitution, that the intention of the contemner in making his statement at the press conference should be examined in the light of his political views as he was at liberty to put them before the people and lastly the harm done to the 703 courts by his statements must be, apparent.
He admitted that it might be possible to say that the speech constituted contempt of court but submitted that it would be inexpedient to do so.
He stated further that the species of contempt called 'scandalising the court had fallen in desuetude and was no longer enforced in England and relied upon Mcleod vs St. Aubyn(1).
He further submitted that the freedom Of speech and expression gave immu nity to the appellant as all he did was to give expression to the teachings of Marx, Engels and Lenin.
Lastly, he contended that a general remark regarding courts in general did not constitute contempt of court and relied upon The Government Pleader, High Court, Bombay v, Tulsidas Subhanrao Jadhav (2 ) and the observations of Lord Denning M. R. in R. vs Metropolitan Police Commissioner(3).
It is no doubt true that Lord Morris in at p. 561 observed that the contempt of court known from the days of the Star Chamber as Scandalum Justiciae Curiae or scandalising the judges, had fallen into disuse in England.
But as pointed out by Lord Atkin in Andre Paul Terence Ambard vs The Attorney General of Trinidad and Tobago (4) the observations of Lord Morris were disproved within a year in The Queen vs Gray(5).
Since then many convictions have taken place in which offence was held to be committed when the act constituted scandalising a judge.
We may dispose of the Bombay case above cited.
The con temner in that case had expressed contempt for all courts.
Beaumonth C. J. (Wasoodew, J. concurring) held that it was not a case in which action should be taken.
The case did not lay down that there could never be contempt of court even though the court attacked was not one but all the courts together.
All it said was that action should, not be taken in such a case.
if the Chief Justice intended laying down the broad proposition contended for we must overrule his dictum as an incorrect statement of law.
But we think that the Chief Justice did not say anything like that.
He was also influenced by the unconditional apology and therefore discharged the rule.
Another case cited in 'this connection may be considered here.
In Criminal Appeal No. 110 of 1960 (In Re Basuddeo Prasad, Advocate, Patna High Court) decided on May 3, 1962, the offending statement was that many lawyers without practice ' get appointed as judges of the High Courts.
The remark was held by this Court not to constitute contempt of court.
The remark was made after the report of the law Commission was pub (1) (3) (2) I.L.R. (4) A.I.R. 1936 P.C. 141 at 143.
(5) at 40.
704 lished and this Court held that the person concerned, who was then the Secretary of the Indian Council of Public Affairs and an advocate, was entitled to comment on the choice of judges and that the remarks were within the proper limits of public criticism on a question on which there might be differences of, opinion.
In our judgment that case furnishes no parallel to the case we have here.
Each case must be examined on its own facts and the decision must be reached in the context of what was done or said.
The appellant has contended before us that the law of con tempt should be so applied that the freedom of speech and expression are not whittled down.
This is true.
The spirit underlying article 19 (1) (a) must have due play but we cannot overlook the provisions of the second clause of the article.
While it is intended that there should be freedom of speech and expression, it is also intended that in the.
exercise of the right, contempt of court shall not be committed.
The words of the second clause are "Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of t he right conferred by the sub clause. . in relation to contempt of court, defamation or incitement to an offence." These provisions are to be read with articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves.
Article 19(1) (a) guarantees complete freedom of speech and expression but it also makes an exception in respect of contempt of court.
The guaranteed right on which the functioning of our democracy rests, is intended to give protection to expression of free opinions to change political and social conditions and to advance human knowledge.
While the right is essential to a free society, the Constitution has itself imposed restrictions in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt.
or that attacks upon judges and courts will be condoned.
Mr. V. K. Krishna Menon read to us observations from Samuel Roth vs United States of America( '), Arthur Terminiello vs City of Chicago (2), Charlotte Anita Whitney vs People of the State of California( ') and New York Times Company vs L. B. sunivan (4 ) on the high toned objective in guaranteeing freedom of speech.
We agree with the observations and can only say that (2) 93 LM Ed. 1131 at 1134.
(1) 1 L. Ed.2d 1489 it 1506.
(3) 71 L. ed.
(4) II L. ed.
705 reedom of speech and expression will always prevail except where contempt is manifest, mischievous or substantial.
The question always is on which side of the line the case falls.
The Observations of this Court in Kedar Nath Singh vs State of Bihar(4) in connection with sedition do not lend any assistance because the topic there discussed was different.
Freedom of speech goes far but not far enough to condone a case of real contempt of court.
We, shall,, therefore, see whether there was any justification for the appellant which gives him the benefit, of the guaranteed right.
The appellant has maintained that his philosophy is based upon that of Marx and Engels.
Indeed he claims to be descended from the last philosophe and seeks to educate the exploited peoples on the reality behind class oppression.
As a Marxist Leninist he advocates the radical and revolutionary transformation of the State from the coercive instrument of exploiting classes to an instrument which the exploited majority can use against these classes.
In this transformation he wishes to make the state wither away and with the, state its organs, namely, the Legislature, the Executive and the Judiciary also to change.
He has justified the press conference as an exposition of his ideology and claims protection of the first clause of article 19(1) which guarantees freedom of speech and expression.
The law of contempt, he says, cannot be used to deprive him of his rights.
All this is general but the appellant attacked the judiciary directly as "an instrument of oppression" and the judges as "dominated by class hatred, class interests and class prejudices", "instinctively" favoring the rich against the poor, He said that as part of the ruling classes the judiciary "works against workers, peasants and other sections of the working classes" and "the law and the system of judiciary essentially serve the exploiting classes".
Even these statements, he claims, are the teachings of Marx, Engels and Lenin whose follower he is.
This was also the submission of his counsel to us.
The appellant is only partly right.
He and his counsel may be said to have distorted the approach of Marx, Engels and Lenin, and we proceed to explain how Marx believed man 's inherent rationalism and virtue and depended upon them to create a better society where there would be no injustice and oppression and everyone would be able to share the fruits of man 's labour and genius.
attacked all forms of social evils.
Hence his, sympathy for the neglected and the 'injured and insulted ' laboring masses.
Marx was neither first nor alone in this.
Before him the Judeo Christians demanded social justice, Others who preached social (1) [1962] 2 Supp.
S.C.R.769 706 equality and denounced social injustice were the Utopian Socialists and the Christian Socialists.
They had all pointed out inequalities of civilization based on urban industrial development.
We had thus Auguste Comte 's Cours de philosophie positive, Feuerbach 's History of New Philosophy and the writings of Hegel.
Marx 's contribution was to create a scientific and ethical approach to the problem of inequality.
He adopted the Hegelian dialectical form to explain how the capitalist society had arisen and showed how it would meet its fall.
His view was that it nursed within itself the germ of its own destruction.
In his classic book Das Kapital he disclosed the clues for the transition from capitalism to socialism.
His labour theory was that the capitalist did not give to labour a due share from the value of the goods produced by labour because of the iron law of wages and this left the surplus labour value thereby saved in the hands of the capitalist.
In this way the capitalist became an exploiter who grew rich on the exploited labour surplus and could indulge in what he called 'capitalist luxuries '.
The introduction of machinery 'further cut down labour value and increased unemployment leading to reduction of wages.
In this way the means of production passed into the hands of a few.
Marx saw that this led to tensions which Marx thought would ultimately destroy the capitalist system.
He saw the Revolution drawing nearer which would destroy 'classes ' and the exploitation of man by man. 'Mere was in his view one obstruction to the triumph of the working classes and that was government established by the capitalists who could frame laws to enforce the differences.
From this stemmed his hostility to the state, its government and its laws.
The Communist Manifesto, which spoke of class struggle, particularly between the bourgeoisie and the proletarians gave a history of the domination of the ruling classes converting everyone not belonging to itself into paid wage laborers.
He said that these reactonaries were gearing all production to their own benefit and power.
Describing the communists in this context, the Manifesto said that they had no separate interests but represented the proletariat as a whole, irrespective of nationalities and that the class struggle was universal.
The communists were to settle the lines of action and their aim was abolition of property not property of the common man but the bourgeois property of the capitalist created by surplus from wage labour and resulting in accumulation of capital in the hands of the capitalist.
According to the communists, this capital became not a personal but social power and the fight visualised in the Manifesto was the termination of its class character.
Wage labour would thus leave no surplus, nor would it lead to accumulation of more wage labour yielding still greater surplus but the gains of 707 production would go to enrich labour in the communist society.
Freedom according to the Manifesto.never meant the abolition property in to but the abolition of the bourgeois individuality.
hat was done away with was not property but the means of subjugating labour of others to one 's own use.
This in short is the communist thesis of social equality as one gathers from the Manifesto.
Next follow the steps for achieving the betterment of what Saint Simon described as the largest and poorest class.
Engels in his Analysis of Socialism explained the different types but we are hot concerned with them here.
The radicals ' appeal followed, the forces of reaction released in the 1880s by Tzar Alexander 111.
The Populists of Plekhanov were routed and driven out.
Then in 1890s the young intellectuals took up the cause of socialism and Marxism provided the answer where the moderation and escapism of the Populists had failed.
The former was based on a scientific approach while Populism was empiric and tended to make Russia, as Bulgakov wrote, 'a peasant and crude country '.
The Populists based themselves on the Peasant Communes.
The rise of Vladimir Lenin at this time determined the future of Marxism and his classic "the State and Revolution" appears to be in the mind of the appellant when he made his pronouncements.
We are doubtful if he has fully appreciated the literature, if he has read it.
Lenin 's teachings on the State had removed the distortions of Marxism from the minds of the people.
He quoted long extracts from Marx and Engels to establish his points.
Lenin first took up Engel 's Origin of the Family, Private Property and the State.
The State, according to Engels, was not the image and reality of Reason as Hegel had maintained before.
It was the product of society, a power standing above society like the Leviathan of Hobbes.
According to Lenin the State was the product and manifestation of the irreconcilability of class antagonism.
The State emerged when class antagonisms could not objectively be reconciled.
The distortion which had crept into Marxism was that the State was regarded as an organ for the reconciliation of the classes.
Lenin reinterpreted Marx and, according to him, the State could neither arise nor maintain itself if it were possible to reconcile classes.
Marx had thought of the State as an organ of class rule and an organ of oppression.
The views of the Menshiviks and other Socialist revolutionaries were exactly the converse.
The disputes which have arisen in our country over the inviolability of property as a fundamental right have the same foundations.
One side views that the chapter on Fundamental Rights reconciles, through itself, the basic and fundamental class antagonisms and the state is no longer required to play any part.
The other side would give to one of the organs of the state, namely, 708 the legislature, a continual power of readjustment through laws and amendments of the Constitution.
Both views do not accord with the Communist Manifesto and hence the distrust of the Constitution by the communists disclosed, by the appellant.
Lenin, however, though that the State degenerated into an, instrument for the exploitation of the oppressed classes ' 'and wielded special public powers to tax and maintain armies.
Engels thought that this made the State stand above society and the officers of the State were specially protected as they had the protection of the laws.
From this sprung his hostility to the State.
Engels summed it up thus "The State is by no means a power forced on society, from without, Neither as little is it 'the reality of the ethical idea ', 'the image and reality of reason ' as Hegel maintains.
The state is a product of society at certain stage of development; it is the admission that this society has become entangled in an insoluble contradiction with itself, that it 'is cleft into irreconcilable antagonisms which it is powerless to dispel.
But in order that these antagonisms, classes with conflicting economic might not consume themselves and society in sterile struggle, a power seemingly standing above society becomes necessary for the purpose of moderating the conflict, of keeping it within the bounds of 'order '.
And this power, arisen out of society, but placing itself above it, and increasingly alienating itself from it, is the state." Lenin resumed this thought further thus : "This expresses with perfect clarity the basic idea of Marxism on the question of the historical role and meaning of the state.
The State is the product and the manifestation of the irreconcilability of class antagonisms.
The state arises when, where and to the extent that class antagonisms objectively cannot be reconciled.
And, conversely, the exis tence of the state proves that the class antagonisms are irreconcilable." Having viewed the state in this way these writers from Marx to Lenin viewed it as the instrument for the exploitation of the oppressed classes.
The Paris Commune of 1871 had stated its conclusions how the state gets above society but it was blurred in a reactionary manner later by Kautsky in 1912.
Lenin cleared the misconception in an exposition of Engel 's philosophy : ". .As the state arose from the need to hold class same antagonisms in check, but as it arose, at the time, in the midst of the conflict of these classes, it is, as a 709 rule, the state of the most powerful economically dominant class, which through the medium of the state.
becomes also the politically dominant class and thus acquires means of holding down and exploiting the oppressed classes. . the modern representative state is an instrument of exploitation of wage labour by capital.
" Engels added further "In a democratic republic wealth exercises its power indirectly, but all the more surely 'first by means of the 'direct corruption of officials ' and second, by means of 'an alliance between the Government and Stock Exchange." Lenin gave the example that "at the present time, imperia lism and the domination of the banks have 'developed ' both these methods of upholding and giving effect to the omnipotence of wealth in democratic republics of all descriptions into an unusually fine art".
He concluded that "a democratic republic is the best possible political shell 'for capitalism" and that "it establishes its power so securely, so firmly, that no change whether of persons, of institutions, or of parties in the bourgeois democratic republic can shake it".
Therefore, Marx, Engels and Lenin thought in terms of 'withering away of the state '.
Although Lenin thought that Engel 's doctrines were an adulteration of Marxism, he was not right.
Marx himself believed this.
In his Poverty of Philosophy, Marx says ". .
The working class, in the course of development, will substitute for the old bourgeois society an association which will exclude classes and their antagonism, and there will be no more political power properly so called, since political power is precisely the official expression of antagonism in bourgeois society.
" Marx and Engels in the Manifesto had considered the true state to be 'the proletariat organised as the ruling class '.
It was the Kautskyites (the Dictatorship of the Proletariat) who, misunderstanding the doctrines of Marx, taught that the proletariat needed the state.
According to Marx the proletariat needed a state which must wither away leading to the dictatorship of the proletariat.
In this fight for power the Communist Manifesto gave a purely abstract solution.
It was substitution of the commune for the bourgeois state machinery and a fuller democracy.
The Army 710 was to be replaced by armed people, the officials were to be elected and also the judges.
The Commune was not to be 'a talking parliament ' but a 'working ' body '.
It was to be the executive and the legislature at the same time.
The principles were formulated by Engels thus "The necessity of political action by the proletariat and of its dictatorship as the transition to the abolition of classes and with them the state. . . ".
The thesis on the withering away of the state was to be accompanied by a restatement of the functions of the law.
Law made by the bourgeois rulers was castigated as involving class supremacy.
The Hegelian doctrine of the apotheosis of Reason was replaced by the invocation of economic necessity as the only foundation for laws.
The laws which preserved privileges were to go, laws which kept the power of the bourgeois above the people were to go, only laws creating equality and preserving society from internal decay and disruption to be tolerated.
In all the writings there is no direct attack on the judiciary selected as the target of people 's wrath.
Nor are the judges condemned personally.
Engels regarded the courts as one of the means adopted by the law for effectuating itself.
It was thus that he wrote "The centralised state power, with its ubiquitus organs, standing army, police, bureaucracy, clergy, and judicature organs wrought after the plan of a systematic and hierarchic division of labour originates from the days of absolute monarchy, serving nascent middle class society as mightly weapons in its struggles against feudalism".
This is not a castigation of the judiciary as being dishonestly ranged against the people but only a recital of a historic fact in feudal societies.
He only said that the judicial functionaries must be divested of 'sham independence ' which marked their subservience to succeeding governments, and, therefore, be elected.
In one of his letters to the Spanish Federal Council of the International Workingmen 's Association, London, February 13, 1871, he talked of the power of the possessing classes the landed aristocracy and the bourgeoisie and said that they kept the working people in servitude not only by their wealth got by the exploitation of labour but also by the power of the state, by the army.
the bureaucracy, and the courts.
He was not charging the .judiciary with taking sides but only as an evil adjunct of the administration of class legislation.
The fault was with the state 711 and the laws and not with the judiciary.
Indeed in no writing, which we have seen or which has been brought to our notice,, Marx or Engels has said what the appellant quotes them as saying.
We have summarized into a very small compass, many thousands of words in which these doctrines have been debated from Plekhanov to Lenin through the thoughts of Kautsky, Kerensky, Lasalle, Belinsky and others who attempted a middle line between the revisionism of Bernstein and the Bolshevik views of Lenin.
We have done so because Mr. V. K. Krishna Menon sneared that many people learn about communism through Middleton Murray! It will be noticed that in all these writings there is not that mention of judges which the appellant has made.
Either he does not know or has deliberately distorted the writings of Marx, Engels and Lenin for his own purpose.
We do not know which will be the more charitable view to take.
Marx and Engels knew that the administration of justice must change with laws and changes in society, there was thus no need to castigate the judges as such beyond saying that the judicial system is the prop of the state.
The courts in India are not sui generis.
They owe their existence, from, powers and jurisdictions to the Constitution and the laws.
The Constitution is the supreme law and the other laws are made by Parliament.
It is they that give the courts their obligatory duties, one such being the settlement of disputes in which the state (by which we mean those in authority) are ranged against citizens.
Again they decide disputes in which class interests are apparent.
The action of the courts when exercised against the state proves irksome to the state and equally when it is between two classes, to the class which loses.
It is not easily realized that one of the main functions of courts under Constitution is to declare actions, repugnant to the Constitution or the laws (as the case may be), to, be invalid.
The courts as well as all the other organs and institutions are equally bound by the Constitution, and the laws.
Although the courts in such cases imply the widest powers in the other jurisdictions and also give credit where it belongs they cannot always decide either in favour of the state or any particular class.
There are innumerable cases in which the decisions have gone against what may be described in the language of communism as the exploiting classes.
For those who think that the laws are defective, the path of reform is open but in a democracy such as ours to weaken the judiciary is to weaken democracy itself.
Where the law is silent the courts have discretion.
The existence of law containing its 712 own guiding principles, reduces the discretion of courts to a minimum.
The courts must do their duty according to their own, understanding of the laws and the obligations of the Constitution.
They cannot take their cue from sentiments of politicians nor even indirectly give support to something which they consider to be wrong against the Constitution and the laws.
The good faith of the judges is the firm bed rock on which any system of administration securely rests and attempt to shake the people 's confidence in the courts is to strike at the very root of our system of democracy.
The oft quoted anger of the Executive in the United States at the time of the New Deal and the threat to the Supreme Court (which the United States had the good sense not be pursue) should really point the other way and it should be noted that today the security of the United States rests upon its dependence on Constitution for nearly 200 years and that is mainly due to the Supreme Court.
The question thus in this case, is whether the appellant has said anything which brings him out of the protection of article 19 (I) (a) and exposes him to a charge of contempt of court.
It is obvious that the appellant has misguided himself about the true.
teachings of Marx, Engels and Lenin.
He has misunderstood the attack by them On state and the laws as involving an attack on the judiciary.
No doubt the courts, while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impure motives.
They do not range themselves on the side of the exploiting classes and indeed resist them when the law does not warrant an encroachment.
To charge the judiciary as an instrument of oppression, the judge as guided and dominated by class hatred, class interests and class prejudices, in stinctively favoring the rich against the poor is to draw a very distorted and poor picture of the judiciary.
It is clear that it is an attack upon judges.
which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions.
It weakens the authority of law and law courts.
Mr. V. K. Krishna Menon tried to support the action of the appellant by saying that judges are products of their environment and reflect the influences upon them of the society in which they move.
He contended that these subtle influences enter into decision making and drew our attention to the writings of Prof. Laski, Justice Cordozo, Holmes and others where the subtle influences, of one 's upbringing are described.
This is only to say that judges are as human as others.
But judges do not consciously take a view against the conscience or their oaths.
What the appellant, wishes to say is that they do.
In this he has been guilty, of a great calumny.
We do not find it necessary to refer to these 713 writings because in our judgment they do not afford any justification for the contempt which has patently been committed.
We agree with Justice Raman Nair that some of them have the exaggerations of the confessional.
Others come from persons like the appellant, who have no faith in institutions hallowed by age and respected by the people.
Mr. V. K. Krishna Menon exhorted us to give consideration to the purpose for which the statement was made, the position of the appellant as the head of a State, his sacrifices, his background and his integrity.
On the other hand, we cannot ignore the occasion (a press conference), the belief of the people in his word as a Chief Minister and the ready ear which many in party and outside would to him.
The mischief that his words would cause need not be assessed to find him guilty.
The law punishes not only acts which do in fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, axe likely to produce a particular result.
Judged from the angle of courts and administration of justice, there is not a semblance of doubt in our minds that the appellant was guilty on contempt of court.
Whether he misunderstood the teachings to Marx and Engels or deliberately distorted them is not to much purpose.
The likely effect of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people.
That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification.
We uphold the conviction.
As regards sentence we think that it was hardly necessary to impose heavy sentence.
The ends of justice in this case are amply served by exposing the appellant 's ignorance about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine.
We accordingly reduce the sentence of fine to Rs. 50/ .
In default of payment of fine he will undergo simple imprisonment for one week.
With this modification the appeal will be dismissed.

summary:
The appellant, who was the Chief Minister of Kerala at the time.
, at ' a press conference held by him on November 9, 1967, made various critical remarks relating to the judiciary referring to it inter alia as "an instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "instinctively" favoring the rich against the poor.
He also stated that as part of the ruling classes the, judiciary "works 'against workers, peasants and other sections of the working classes" and "the law and the system of judiciary essentially served the exploiting classes".
These remarks were reported in the newspapers and thereafter in proceedings commenced ' in the High Court the appellant was called upon to show cause why he should not be committed for contempt.
In an affidavit in reply the appellant stated that the reports were "substantially correct", though incomplete in some respects.
He supplied some omissions and pleaded want of intention to show disrespect to the judiciary and justification on the ground that the offence charged could not be held to be committed, in view of the guarantees of freedom of speech and expression under the Constitution.
He claimed that his observations did no more than give expression to the Marxist philosophy and what was contained in the programme of the Communist Party of India.
By a majority judgement the appellant was convicted for contempt of court and fined Rs. 1000/ or simple imprisonment for one month.
In appeal to this Court it was contended on behalf of the appellant that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression in Article 19(1)(a) : and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people; he sought to justify the remarks as an exposition of his ideology which he claimed was 'based on the teachings of Marx and Engels and on this ground claimed protection of The first clause of article 19(1).
HELD : Upholding the appellant 's conviction The law punishes not only act which do not fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result.
, Judged from the angle of courts and administration of justice" there was no doubt that the appellant was guilty of contempt of court.
Whether he misunderstood the teachings of Marx and Engels or deliberately distorted them was not to much purpose.
The likely effect of his words must be seen and they clearly had the, effect of lowering the prestige of judges and courts 698 in the eyes of the people.
That he did not intend any such result may be a matter for consideration in the sentence to he imposed on him but could not serve as a justification.
It was obvious that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin.
He had misunderstood the attack by them on state and the laws as involving an attack on the judiciary.
No doubt the courts, while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impure motives.
They do not range themselves on the side of the exploiting classes and indeed resist, them when the law doe.
not warrant an encroachment.
To charge the judiciary as an instrument of oppression, the judges as guided and dominated by class hatred, class interests and class prejudices, instinctively favoring the rich against the poor is to draw a very distorted and poor picture of the judiciary.
It was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions.
It weakened the authority of law and law courts.
[712 E] While the spirit underlying Art 19)(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article.
Its provisions are to be read with articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves.
Although article 19(1)(a) guarantees complete freedom of speech and expression, it also makes an exception in respect of contempt of court.
While the right is essential to a free society, the Constitution has itself imposed restrictions in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon judges and courts will be condoned.
[704, C] Samuel Roth vs United States of America, I L.Ed.2d 1489 at 1506; Arthur Terminiello vs City of Chicago.
; at 1134; Charlotte Anita Whitney vs People of the State of California, ; , New York Times Company vs L. B. Sulivan, 686; and Kedar ' Nath Singh vs State of Bihar, [1962] 2 Supp.
S.C.R. 769, referred to.
While it is true that Lord Morris in Mcleod vs St. Aubyn at p. 561 observed that the contempt of court known from the days of the Star Chamber as Scandalum Justiciae Curiae or scandalising the Judges, had fallen into disuse in England, as pointed out by Lord Atkin in Andre Paul Terence Ambard vs The Attorney General of Trinidad, and Tobago, A.I.R. 1936 P.C. 141 at 143, the observations of Lord Morris were disproved within a year in The Queen vs Gray.
at 40.
Since then many convictions had taken place in which offence was held to be committed when the act constituted scandalizing a Judge.[703 D] The Government Pleader, High Court, Bombay vs Tulsidas Subhanrao Jadhav, I.L.R. ; explained.
In re : Basudeo Prasad, Cr. Appeal No. 110 of 1960 decided on May 3, 1962; distinguished.


judgement:
Appeals Nos. 262 to 265 of 1970.
Appeals by special leave from the judgment and order dated May 1, 1969 of the Allahabad High Court in Sales Tax Reference Nos. 249, 250, 251 and 571 of 1966 and Civil Appeals Nos. 266 and 267 of 1970.
Appeals by special leave from the judgment and order dated January 29, 1969 of the Allahabad High Court in Sales Tax Reference Nos. 604 and 603 of 1965.
H. R. Gokhale, Gobind Das, D. N. Mishra and B. P. Singh, for the appellant (in all the appeals).
C. B. Agarwala and 0.
P. Rana, for the respondent (in all the appeals).
732 The Judgment of the Court was delivered by Hegde, J.
These are connected appeals by special leave.
The only question raised in these appeals is whether 'Sarin Tooth Powder ' manufactured by M/s. Sarin Chemicals Laboratory is "cosmetic" or a "toilet requisite" as held by the High Court of Allahabad or it is an unspecified commodity liable to sales tax at all points of sale as held by the Additional Judge (Revisions) Sales Tax, Agra.
The contention of M/s. Sarin Chemical Laboratory who is the appellant in all the appeals is that the turn over relating to the sales of tooth powder is liable to be taxed at the rate of 3 pies per rupee under section 3 of the U.P. Sales Tax Act (to be hereinafter referred to as the Act) whereas Commissioner of Sales Tax, U.P. contends that the said turn over is liable to be taxed at single point under section 3(A) of that Act read with Entry 6 of the notification No. 905/X dated March 31, 1956.
The High Court has accepted the contention of the Commissioner.
In these appeals the assessee challenges the conclusion reached by the High Court and supports the view taken by the Additional Judge (Revisions) Sales Tax, Agra, who held that the tooth powder is an unspecified commodity liable to tax under section 3 of the Act.
Neither the expression 'cosmetic ' nor 'toilet requisite ' has been defined in the Act.
The dictionary meaning of the expression 'cosmetic ' (see Webster 's international Dictionary) is "A preparation to beautify or alter appearance of the body or for cleansing, coloring, conditioning or protecting skin, 'hair, nails, eyes or teeth".
The same dictionary gives the meaning of the expression "toilet" thus : 'an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of one 's person".
The word "toiletry" is explained in the said dictionary as meaning "an article or preparation used in making one 's toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc.
According to the dictionary meaning tooth powder is regarded both as an item of cosmetic and toilet: but as observed by this Court in Bamavatar Budhaiprasad vs The Asstt.
Sales Tax Officer, Akola and another(1), the names of articles, the sales and purchases of which are liable to be taxed given in a statute unless defined in the statute must be construed not in a technical sense but as understood in common parlance.
Therein this Court was called ' upon to consider whether 'betel leaves ' could be considered as 'vegetable ' under item No. 6 of Schedule II of the C. P. Berar Sales Tax Act, 1947.
In that case this Court observed that the word 'vegetable ' had not been defined in the Act and being a word of every day use, (1) 12, section T. C. 286; 733 it must be construed in a popular sense, meaning "that sense which people conversant with the, subject in matter with which statute is dealing would attribute to it.
" Applying that test this Court ruled that betel leaves cannot be considered as 'vegetable '.
In common parlance a tooth powder is considered as a toilet.
That meaning ,accords with the dictionary meaning, as well.
The question whether tooth powder can be considered as a toilet came up before the Madras High Court in V. P. Sanasundara Mudaliar vs State of Madras( ') and before the Bombay High Court in Commissioner of Sales Tax vs Vicco Laboratories(2).
Both the courts took the view that the tooth powder is a toilet.
The same view has been taken by the Allahabad High Court.
We are in agreement with that view In the result these appeals fail and they are dismissed with costs hearing fee one set.
Y.P. Appeals dismissed.
(1) 14.
section T. C. 943.
(2) 22.
section T. C. 169.

summary:
On the question whether tooth powder manufactured by the assessees was "cosmetic" or a "toilet requisite" liable to tax under section 3(A) of the U.P. Sales Tax Act, read with Entry 6 of Notification No. 905/X dated March 31, 1956/or whether it is an unspecified commodity liable to tax under section 3 of the Act, HELD : Tooth powder is a toilet and therefore taxable under section 3(A) of the U.P. Sales Tax Act, read with the Notification.
Neither the expression 'cosmetic, nor 'toilet requisite ' has been defined under the Act.
The names of articles, the sales and purchases of which are liable to be taxed given in a statute, unless defined in the statute, must be construed not in a technical sense but as understood in a common parlance.
In common parlance a tooth powder is considered as a toilet and that meaning accords with the dictionary meaning as well.
[732 E, H] Bamavater Budhaiprasad vs The Asstt.
Sales Tax Officer, Akola and Another, 12, S.T.C. 286, followed.
V. P. Sanasundara Mudaliar vs State of Madras 14, S.T.C. 943; Commissioner of Sales Tax vs Vicco Laboratories, 22 S.T.C. 169, approved.