judgement:
minal Appeals Nos.
25 27 of 1955.
Appeals from the judgments and order dated February 1, 1955, of the Punjab High Court (Circuit Bench), Delhi in Cr.
Appeals Nos.
5 D, 6 D and 13 D of 1952, arising out of the judgments and orders dated December 22, 1951, of the 1st Class Magistrate, New Delhi in Criminal Cases Nos. 220/2, 221/2 and 223/2 of 1949.
89 Ram Lal Anand and section N. Anand, for the appellant.
H. J. Umrigar and T. M. Sen, for the respondent.
January 20.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
These three appeals have, been filed with certificates granted by the High Court of Punjab under article 134(1) (c) of the Constitution and they arise from three criminal cases filed against the appellant.
The appellant Gopi Chand was the chief cashier, and Hukam Chand was an assistant cashier, in the United Commercial Bank Ltd., New Delhi.
They were charged with the commission of offences under section 409 in three separate cases.
In the first case No. 223/2 of 1949, the prosecution case was that on or about April 8, 1948, both had agreed to commit, or cause to be committed, criminal breach of trust in respect of the funds of the Bank where they were employed; and in pursuance of the said agreement they had committed criminal breach of trust in respect of the total amount of Rs. 1,65,000.
They were thus charged under sections 408, 409 and 120B of the Indian Penal Code.
The appellant was convicted of the offence under section 409 read with section 120 and sentenced to rigorous imprisonment for seven years.
Against this order of conviction and sentence he preferred an appeal to the High Court of Punjab (No. 5 D of 1952).
The High Court confirmed his conviction but altered the sentence imposed on him by directing that he should suffer four year 's rigorous imprisonment and pay a fine of Rs. 10,000 or in default suffer rigorous imprisonment for fifteen months.
The order of conviction and sentence thus passed gives rise to Criminal Appeal No. 25 of 1955 in this Court.
In the second case (No. 221/2 of 1949) the appellant was charged with having committed an offence under sections 408 and 409 of the Indian Penal Code in that he had committed criminal breach of trust in respect of an amount of Rs. 23,772 8 6.
The trial magistrate ,convicted the appellant of the said offence and sentenced him to suffer rigorous imprisonment for five years.
12 90 On appeal (No. 6 D of 1952) the order of conviction was confirmed but the sentence imposed on him was reduced to three years ' rigorous imprisonment.
This order has given rise to Criminal Appeal No. 26 of 1955 in this Court.
In the third case (No. 220/2 of 1949) the appellant, Hukam Chand and Ganga Dayal were charged with having committed an offence under section 409/408 read with section 120B of the Indian Penal Code in that all of them had agreed to commit criminal breach of trust in respect of the sum of Rs. 10,000 belonging to the Bank and that in pursuance of the said agreement they had committed the criminal breach of trust in respect of the said amount.
The trial magistrate convicted the appellant of the offence charged and sentenced him to four year 's rigorous imprisonment.
On appeal (No. 13 D of 1952) the High Court confirmed the conviction but reduced the sentence to two years ' rigorous imprisonment.
From this order arises Criminal Appeal No. 27 of 1955 in this Court.
The appellant has obtained a certificate from the High Court under article 134(1) (c) of the Constitution because he seeks to challenge the validity of the order of conviction and sentence passe against him in the three cases on the ground that the proceedings in all the said cases are void.
He contends that, whereas the charges framed against him had to be tried according to the procedure prescribed for the trial of warrant cases, the learned trial magistrate tried all the cases according to the procedure prescribed for the trial of summons cases and that makes void all the proceedings including the final orders of conviction and the sentences.
The point arises in this way.
The East Punjab Public Safety Act, 1949 (Punj.
5 of 1949), hereinafter called the Act, which came into force on March 29, 1949, was passed to provide for special measures to ensure public safety and maintenance of public order.
It is common ground that the offences with which the appellant was charged would normally have to be tried under the procedure prescribed by ch.
XXI of the Code of Criminal Procedure for the trial of warrant 91 cases but in fact they have been tried under the procedure prescribed by ch.
XX for the trial of summons cases.
The summons procedure differs from the warrant procedure in some material points.
Under the former procedure a charge is not to be framed while under the latter a charge has to be framed under section 254 of the Code.
Similarly an accused person gets( only one chance of cross examining the prosecution witnesses under the summons procedure whereas under the warrant procedure he is entitled to cross examine the said witnesses twice, once before the framing of the charge and again after the charge is framed.
The appellant concedes that the cases against him were tried according to the summons procedure by reason of section 36 of the Act and the notification issued under it; but be contends that the relevant provisions of the Act are ultra vires and he alternatively argues that the proceedings in respect of a substantial part were continued under the summons procedure even after the Act had expired and the relevant notifications had ceased to be operative.
That is how the validity of the trial and of the orders of conviction and sentence is challenged by the appellant.
It would be relevant at this stage to refer to the material provisions of the Act and the relevant notifications issued under it.
The Act came into force on March 29, 1949.
It was passed to provide for special measures to ensure public safety and maintenance of public order.
Section ' 36 of the Act prescribes the procedure for the trial of specified offences; under sub section
(1) all offences under this Act or under any other law for the time being in force in a dangerously disturbed area, and in any other area all offences under this Act and any other offence under any other law which the Provincial Government may certify to be triable under this Act, shall be tried by the courts according to the procedure prescribed by the Code, provided that in all cases the procedure prescribed for the trial of summons cases by ch.
XX of the Code shall be adopted, subject, in the case of summary trials, to the provisions of sections 263 to 265 of the Code.
For the avoidance of doubt sub section (2) provided that 92 the provisions of sub section
(1) shall apply to the trial of offences mentioned therein committed before the com mencement of this Act, and in a dangerously disturbed area committed before the date of the notification under section 20, in respect of it.
Under section 20 the Provincial Government is authorised by notification to declare that the whole or any part of the Province as may be specified in the notification to be a dangerously disturbed area.
Four notifications were issued under section 20.
By the first notification issued on July 8, 1949, the whole of the Province of Delhi was declared to be a dangerously disturbed area by the competent authority.
It appears that on September 28, 1950, the said authority issued the second notification cancelling the first notification with effect from October 1, 1950.
This notification was followed by the third notification on October 6, 1950, which purported to modify it by inserting the words " except as respect things done or omitted to be done before the date of this notification after the words " with effect from October 1, 1950 in other words, this notification purported to introduce an exception to the cancellation of the first notification caused by the second, and in effect it purported to treat the Province of Delhi as a dangerously disturbed area in respect of things done or omitted to be done before the date of the said notification.
The last notification was issued on April 7, 1951.
This notification was issued by the Chief Commissioner of Delhi in exercise of the powers conferred by sub section
(1) of section 36 of the Act, and by it he certified as being triable under the said Act in any area within the State of Delhi not being a dangerously disturbed area the following offences, viz., any offence under any law other than the aforesaid Act of which cognisance had been taken by any magistrate in Delhi before October 1, 1950, and the trial of it according to the procedure prescribed in ch.
4 of the said Act was pending in any court immediately before the said date and had not concluded before the date of the certificate issued by the notification.
Let us now mention the facts about the trial of the 93 three cases against the appellant about which there is no dispute.
, The First Information Report was filed against the appellant on June 30, 1948.
The trial commenced on July 18, 1949, and it was conducted according to the procedure prescribed by ch.
XX of the Code '.
Some prosecution witnesses were examined and cross examined before January 26, 1950, and the ' whole of the prosecution evidence was recorded before August 14, 1951.
The evidence for the defence was recorded up to November 14, 1951, and the learned magistrate pronounced his judgments in all the cases on December 22, 1951.
For the appellant, Mr. Ram Lal Anand contends that section 36(1) of the Act is ultra vires because it violates the fundamental right of equality before law guaranteed by article 14 of the Constitution.
His argument is that since offences charged against the appellant were triable under the warrant procedure under the Code, the adoption of summons procedure which section 36(1) authorised amounts to discrimination and thereby violates article 14.
It is the first part of sub section
(1) of section 36 which is impugned by the appellant.
The effect of the impugned provisions is that, after an area is declared to be dangerously disturbed, offences specified in it would be tried according to the summons procedure even though they have ordinarily to be tried according to warrant procedure.
The question is whether in treating the dangerously disturbed areas as a class by themselves and in providing for one uniform procedure for the trial of all the specified offences in such areas the impugned provision has violated article 14.
The point about the construction of article 14 has come before this Court on numerous occasions, and it has been consistently held that article 14 does not forbid reasonable classifications for the purpose of legislation.
In order that any classification made by the Legislature can be held to be permissible or legitimate two tests have to be satisfied.
The classification must be based on an intelligible differentia which distinguishes persons or things grouped together in one class from others left out of it, and the differentia must have a 94 reasonable or rational nexus with the object sought to be achieved by the said impugned provision.
It is true that, in the application of these tests uniform approach might not always have been adopted, or, in dealing with the relevant considerations emphasis might have shifted; but the validity of the two tests that have to be applied in determining the vires of the impugned statute under article 14 cannot be doubted.
In the present case the classification has obviously been made on a territorial or geographical basis.
The Legislature thought it expedient to provide for the speedy trial of the specified offences in areas which were notified to be dangerously disturbed areas ; and for this purpose the areas in the State have been put in two categories, those that are dangerously disturbed and others.
Can it be said that this classification is not founded on an intelligible differentia.? In dealing with this question it would be relevant to recall the tragedy of the holocaust and the savage butchery and destruction of property which afflicted several parts of the border State of Punjab in the wake of the partition of India.
Faced with the unprecedented problem.
presented by this tragedy, the Legislature thought that the dangerously disturbed areas had to be dealt with on a special footing; and on this basis it provided inter alia for the trial of the specified offences in a particular manner.
That obviously is the genesis of the impugned statute.
That being the position, it is impossible to hold that the classification between dangerously disturbed areas of the State on the one hand and the non_ disturbed areas on the other was not rational or that it was not based on an intelligible differentia.
Then again, the object of the Act was obviously to ensure public safety and maintenance of public order; and there can be no doubt that the speedy trial of the specified offences had an intimate rational relation or nexus with the achievement of the said object.
There is no doubt that the procedure prescribed for the trial of summons cases is simpler, shorter and speedier; and so, when the dangerously disturbed areas were facing the problem of unusual civil commotion and strife, the Legislature was justified 95 in enacting the first part of section 36 so that the cases against persons charged with the commission of the specified offences could be speedily tried and disposed of.
We are, therefore, satisfied that the challenge to the vires of the first part of sub section
(1) of section 36 cannot be sustained.
In this connection we may refer to the recent decision of this Court in Ram Krishna Dalmia vs Justice Tendolkar (1).
The judgment in that case has considered the previous decisions of this Court on article 14, has classified and explained them, and has enumerated the principles deducible from them.
The application of the principles there deduced clearly supports the validity of the impugned provisions.
It is, however, urged by Mr. Ram Lal Anand that the decision of this Court in Lachmandas Kewalram Ahuja vs The State of Bombay (2) supports his contention that section 36(1) is invalid.
We are not impressed by this argument.
In Ahuja 's case (2) the objects of the impugned Act were the expediency of consolidating and amending the law relating to the security of the State, maintenance of public order and maintenance of supplies and services essential to the community in the State of Bombay.
These considerations applied equally to both categories of cases, those referred to the Special Judge and those not so referred; and so, on the date when the Constitution came into force, the classification on which section 12 was based became fanciful and without any rational basis at all.
That is why, according to the majority decision section 12 contravened article 14 of the Constitution and as such was ultra vires.
It is difficult to see how this decision can help the appellant 's case.
The impugned provision in the present case makes no distinction between one class of cases and another, much less between cases directed to be tried according to the summons procedure before January 26, 1950, and those not so directed.
The summons procedure is made applicable to all offences under the Act or under any other law for the time being in force; in other words, all criminal offences are ordered to be tried according to the summons procedure in the dangerously disturbed areas.
That being (1) ; (2) ; , 731.
96 so, we do not think that the decision in Ahuja 's case (1) has any application at all.
Thus we feel no difficulty in holding that the impugned provision contained in the first part of section 36(1) is constitutional and valid.
Then it is urged that the Act which came into force on March 29, 1949, was due to expire and did expire on August 14, 1951, and so the proceedings taken against the appellant under the summons procedure after the expiration of the temporary Act were invaid.
It is argued that, in dealing with this point, it would not be permissible to invoke the provisions of section 6 of the General Clauses Act because the said section deals with the effect of repeal of permanent statutes.
This argument no doubt is well founded.
As Craies has observed, " as a general rule, unless it contains some special provisions to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect " (2).
This principle has been accepted by this Court in Krishnan vs The State of Madras (3).
" The general rule in regard to a temporary statute is ", observed Patanjali Sastri J., " that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires".
It is true that the Legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision, and the effect of such a saving provision is in some respects similar to the effect of the provisions of section 6 of the General Clauses Act.
As an illustration, we may refer to the decision in Wicks vs Director of Public Prosecutions (4).
In that case ail offence against Defence (General) Regulations made under the Emergency Powers (Defence) Act, 1939, was committed during the currency of the Act and the offender was prosecuted and convicted after the expiry of the Act.
The contention raised by the offender that his prosecution and conviction were invalid because, at the relevant time, the temporary (1) ; , 731.
(2) Craies on " Statute Law ", 5th Ed., P. 377.
(3) ; , 628.
(4) [1947] A.C. 362.
97 Act had expired was rejected in view of the provisions of.,;.
11, sub section
3 of the Act.
This sub section had provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done.
The House of Lords agreed with the view expressed by the Court of Criminal Appeal and held that it was clear that Parliament( did not intend sub section 3 to expire with the rest of the Act and that its presence in the statute is a provision which preserved the right to prosecute after the date of its expiry.
Since the impugned Act does not contain an appropriate saving section the appellant would be entitled to contend that, after the expiration of the Act, the procedure laid down in it could no longer be invoked in the cases then pending against the appellant.
We would like to add that, in the present case, we are not called upon to consider whether offences created by a temporary statute cease to be punishable on its expiration.
For the respondent, Mr. Umrigar, however, contends that the appellant is wrong in assuming that the Act in fact expired on August 14, 1951.
He has invited our attention to the provisions of Act No. I of 1951 by which the President extended some of the provisions of the earlier temporary Act in exercise of the powers conferred by section 3 of the Punjab State Legislature (Delegation of Powers) Act, 1951 (46 of 1951), The provisions of that Act extended to the whole of the State of Punjab and came into force on September 13, 1951.
Mr. Umrigar relied on section 16 of Act 46 of 1951 which repealed the East Punjab Public Safety Act, 1949 (Punj.
5 of 1949) and the East Punjab Safety (Amendment) Ordinance, 1951 (5 of 1951) but provided that notwithstanding such repeal any order made, notification or direction issued, appointment made or action taken under the said Act and in force immediately before the commencement of this Act shall, in so far as it is not inconsistent therewith, continue in force and be deemed to have been made, issued or taken under the corresponding provisions of this Act.
It must, however, be pointed out that this 13 98 Act does not continue the material provisions of the impugned Act such ass. 20 and section 36 ; and so section 16 cannot be invoked for the purpose of validating the continuation of the subsequent proceedings against the appellant in the cases then pending against him.
Besides, it is necessary to recall that section 36(1) of the Act prescribed the application of the summons procedure in the trial of specified offences only in dangerously disturbed areas; and so, unless it is shown that the relevant area could be treated as a dangerously disturbed area at the material time, section 36(1) would be inapplicable.
In other words, the adoption of the summons procedure would be justified only so long as the area in question could be validly treated ,as a dangerously disturbed area and it is therefore pertinent to enquire whether at the relevant time the area in question was duly and validly notified to be a dangerously disturbed area.
We have already referred to the four notifications issued by the competent authority.
The second notification purported to cancel with effect from October 1, 1950, the first notification which had declared the whole of the Province of Delhi as a dangerously disturbed area.
A week thereafter, the third notification sought to introduce an exception to the cancellation as notified by the second notification.
Apart from the question as to whether, after the lapse of a week, it was competent to the authority to modify the second notification, it is difficult to understand how it was within the jurisdiction of the notifying authority to say that the whole of the Province of Delhi had ceased to be a dangerously disturbed area " except as respects things done or omitted to be done before the date of this notification ".
Section 20 of the Act under which this notification has been issued authorised the Provincial Government to declare that the whole or any part of the Province was a dangerously disturbed area.
The notification could declare either the whole or a part of the Province as a dangerously disturbed area; but section 20 does not empower the notifying authority to treat any area as being dangerously disturbed in respect of certain things and not dangerously disturbed 99 in regard to others.
Authority to ' declare areas as dangerously disturbed has no doubt been validly delegated to the Provincial Government; but no authority has been conferred on the delegate to treat any area as disturbed for certain things and not disturbed for others.
We have, therefore, no doubt that in introducing the exception to the cancellation effected by the second notification the third notification has gone outside the authority conferred by section 20 and is clearly invalid.
If that be so, it must be held that the whole of the Province of Delhi ceased to be a dangerously disturbed area as from October, 1, 1950.
It was probably realised that the third notification would be invalid and hence the fourth notification was issued on April 7, 1951.
This purports to be a certificate issued by the competent authority under the second part of section 36, sub section (1).
This certificate seeks to achieve the same result by declaring that though the State of Delhi was not a dangerously disturbed area, the offences specified in the notification would nevertheless continue to be tried according to the summons procedure.
This notification is clearly not authorised by the powers conferred by the second part of section 36, sub section
What the Provincial Government is authorised to do by the second part of section 36(1) is to direct that in areas other than those which are dangerously disturbed all offences under the Act and any other offence under any other law should be tried according to the summons procedure.
It is clear that the notification which the Provincial Government is authorised to issue in this behalf must relate to all offences under the Act and any other offence under any other law.
In other words, it is the offences indicated which can be ordered to be tried under the summons procedure by the notification issued by the Provincial Government.
The Provincial Government is not authorised to issue a notification in regard to the trial of any specified case or cases; and since it is clear that the notification in question covers only pending cases and has no reference to offences or class of offences under the Indian Penal Code,, it is outside the 100 authority conferred by the second part of section 36(1).
It is obvious that the third and the fourth notifications attempted to cure the anomaly which it was apprehended would follow in regard to pending cases in the absence of a saving section in the Act.
If through inadvertence or otherwise the Act did not contain an appropriate saving section, the defect could not be cured by the notifications issued either under section 20 or under section 36(1) of the Act.
In issuing the said notifications the competent authority was taking upon itself the functions of the Legislature and that clearly was outside its authority as a delegate either under section 20 or under section 36(1) of the Act.
Mr. Umrigar, then, argues that the competent authority was entitled to modify the notification issued by it because the power to issue a notification must also involve the power either to cancel, vary or modify the same; and in support of this argument Mr. Umrigar relies on the provisions of section 19 of the Punjab General Clauses Act, 1898 (Punj. 1 of 1898) which in substance corresponds to cl. 21 of the (10 of 1897).
In our opinion, this argument is not well founded.
Section 19 of the Punjab , like section 21 of the , embodies a rule of construction, the nature and extent of the application of which must inevitably be governed by the relevant provisions of the statute which confers the power to issue the notification.
The power to cancel the notification can be easily conceded to the competent authority and so also the power to modify or vary it be likewise conceded; but the said power must inevitably be exercised within the limits prescribed by the provision conferring the said power.
Now section 20 empowers the Provincial Government to declare the whole or any part of the Province to be a dangerously disturbed area; and if a notification is issued in respect of the whole or any part of the Province it may be either cancelled wholly or may be modified restricting the declaration to a specified part of the Province.
The power to cancel or modify must be exercised in reference to the areas of the Province which it is competent for the Provincial 101 Government to specify as dangerously disturbed.
The power to modify cannot obviously include the power to treat the same area as dangerously disturbed for persons accused of crimes committed in the past and not disturbed for others accused of the same or similar A, offences committed later.
That clearly is a legislative function which is wholly outside the authority conferred on the delegate by section 20 or section 36(1).
We must, therefore, hold that the third and the fourth notifications are invalid and as a result of the second notification the whole of the Province of Delhi ceased to be a dangerously disturbed area from October 1, 1950.
This position immediately raises the question about the validity of the proceedings continued against the appellant in the three cases pending against him under the summons procedure.
So long as the State of Delhi was validly notified to be a dangerously disturbed area the adoption of the summons procedure was no doubt justified and its validity Could not be impeached; but, with the cancellation of the relevant notification section 36(1) of the Act ceased to apply and it was necessary that as from the stage at which the cases against the appellant then stood the warrant procedure should have been adopted; and since it has not been adopted the trial of the three cases is invalid and so the orders of conviction and sentence imposed against him are void.
That in brief is the alternative contention raised before us by Mr. Ram Lal Anand.
Mr. Umrigar, urges that since the trial had validly commenced under the summons procedure, it was unnecessary to change the procedure after October 1, 1950, and his case is that the trial is not defective in any manner and the challenge to the validity of the impugned orders of conviction and sentence should not be upheld.
In support of his argument Mr.
Umrigar has invited our attention to some decisions which may now be considered.
In Srinivasachari vs The Queen (1) the accused was tried by a Court of Sessions in December 1882 on charges some of which were triable by assessors and others by jury.
Before the trial was concluded the Code of Criminal Procedure, 1882, came into force (1) Mad.
336. 102 and under section 269 of the Code all the said charges became triable by jury.
Section 558 of the Code had provided that the provisions of the new Code had to be applied, as far as may be, to all cases pending in any criminal court on January 1, 1883.
The case against the accused which was pending on the date when the new Act came into force was submitted to the High Court for orders; and the High Court directed that by virtue of section 6 of the the trial must be conducted under the rules of procedure in force at the commencement of the trial.
It is clear that the decision of the High Court was based both on the specific provisions of section 558 which provided for the application of the new Code to pending cases only as far as may be and on the principles laid down in section 6 of the .
That is why that decision cannot assist the respondent since section 6 of the is inapplicable in the present case.
The decision on Mukund vs Ladu (1) is also inapplicable for the same reasons.
It was a case where one act was repealed by another and so the question as to the applicability of the provisions of the latter act had to be considered in the light of the provisions of section 6 of the .
The judgment in terms does not refer to section 6 but the decision is obviously based on the principles of the said section.
Then Mr.Umrigar relied on Gardner vs Lucas (2).
In that case section 39 of the Conveyancing (Scotland) Act, 1874, with which the court was dealing affected not only the procedure but also substantive rights; and so it was held that the said section was not retrospective in operation.
This decision is wholly inapplicable and cannot give us any assistance in the present case.
Mr. Umrigar also placed strong reliance on a decision of the Full Bench of the Punjab High Court in Ram Singh vs The Crown (3).
That decision does lend support to Mr. Umrigar 's contention that the continuation of the trial under the summons procedure did not introduce any infirmity and was in fact appropriate (1) (2) (3) A.I.R. 1950 East Punjab 25. 103 and regular.
The case against Ram Singh had been sent to the Court of Session under the provisions of section 37 (1) of the Punjab Public Safety Act, 1948 (Punj. 2 of 1948) at a time when Luahiana District was declared to be a dangerously disturbed area; before, however, the trial in the Court of Session actually commenced the District ceased to be a ' dangerously disturbed area.
Even so, it was held that the Sessions Judge should continue with the trial under the provisions of section 37 (1) of the Act and not under the ordinary provisions of the Code regarding sessions trial, and should follow the procedure prescribed for the trial of summons cases.
It appears that the judgment in the case proceeded on the assumption that the principles enacted by section 6 of the were applicable, and so, since at the commencement of the proceedings the adoption of the summons procedure was justified under section 37 (1) of the Act, the trial could continue under the same procedure even after the area had ceased to be a dangerously disturbed area.
In our opinion, it is erroneous to apply by analogy the provisions of section 6 of the to cases governed by the provisions of a temporary Act when the said Act does not contain the appropriate saving section.
Failure to recognise the difference between cases to which section 6 of the applies and those which are governed by the provisions of a temporary Act which does not contain the appropriate saving section has introduced an infirmity in the reasoning adopted in the judgment.
Besides, the learned judges, with respect, were in error in holding that the application of the ordinary criminal procedure was inadmissible or impossible after the area ceased to be dangerously disturbed.
No doubt the learned judges recognised the fact that ordinarily the procedural law is retrospective in operation, but they thought that there were some good reasons against applying the ordinary procedural law to the case, and that is what influenced them in coming to the conclusion that the summons procedure had to be continued even after the area ceased to be dangerously disturbed.
In this connection the learned 104 judges referred to the observation in Maxwell that " the general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it (1) ; and they also relied on the decision of the Privy Council in Delhi Cloth and General Mills Co., Ltd. vs Income tax Commissioner, Delhi (2) in which their Lordships have referred with approval to their earlier statement of the law in the Colonial Sugar Refining Co. vs Irving (3) that " while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them".
The learned judges took the view that these principles justified their conclusion that "where the provisions of a statute dealing with matters of procedure are inapplicable to a certain proceeding pending at the time the statute came into force, they must be regarded as textually inadmissible so far as those proceedings are concerned ".
We are disposed to think that this view is not sound.
We do not think that the adoption of the ordinary warrant procedure was either inadmissible or inapplicable at the stage where the trial stood in the case against Ram Singh (4).
It was wrong to assume that the ses sions procedure would be inapplicable for the reason that the provisions of the Code in regard to the commitment of the case to the Court of Session had not been complied with.
With respect, the learned judges failed to consider the fact that the procedure adopted in sending the case to the Court of Session under section 37(1) of the relevant Act was valid and the only question which they had to decide was what procedure should be adopted after Ludhiana ceased to be a dangerously disturbed area.
Besides, it was really not a case of retrospective operation of the procedural law; it was in fact a case where the ordinary procedure which had become inapplicable by the provisions of the temporary statute became applicable as soon as the area in question ceased to be dangerously disturbed.
(1) Maxwell on " Interpretation of Statutes ", 9th Ed.
,P. 226.
(2) (3) (4) A.I.R. (1950) East Punjab 25. 105 In this connection it is relevant to refer to the decision of this Court in Syed Qasim Razvi vs The State of Hyderabad (1).
In that case this Court was dealing with the regulation called the Special Tribunal Regulation (V of 1358 Fasli) which had been promulgated by the Military Governor of the Hyderabad State.
The said regulation had provided that the( Military Governor may, by general or special order, direct that any offence or class of offences should be tried by such tribunal, and the procedure for trial laid down by it differed from the provisions of the Hyderabad Criminal Procedure Code in several material particulars.
The cases against the accused were directed to be tried by the Special Tribunal on October 6, 1949.
The accused were convicted in September 1950 and their conviction on some of the charges was upheld by the High Court in appeal in April, 1951.
The accused then appealed to this Court and also applied under article 32 of the Constitution for quashing the orders of conviction and sentence on the ground that the Special Tribunal Regulation became void on January 26, 1950, as its provisions contravened articles 14 and 21 of the Constitution which came into force on that date, and the continuation of the trial and conviction of the accused after that date was illegal.
It is true that the final decision in the case, according to the majority view, proceeded on the footing that the accused had substantially the benefit of a normal trial though there were deviations in certain particulars and so his conviction could not be set aside merely because the Constitution of India came into force before the termination of the trial.
As we will presently point out, the relevant facts in this case in regard to the deviation from the normal procedure are different from those in Syed Qasim Razvi 's case (1), but that is another matter.
What is important for our purpose is the view expressed by this Court that the regulation issued by the Military Governor of Hyderabad State could not be impeached and so the Special Tribunal must be deemed to have taken cognisance of (1) 14 106 the case quite properly and its proceedings up to the date of the coming in of the Constitution would also have to be regarded as valid.
Dealing with this point, Mukherjea, J., who delivered the judgment of the Court, quoted with approval the observations made in Lachmandas Kewalram Ahuja vs The State of Bombay(1) that ,as the Act was valid in its entirety before the date of the Constitution, that part of the proceedings before the Special Judge, which, up to that date had been regulated by the special procedure cannot be questioned ".
Unfortunately this aspect of the matter was not properly placed before the Full Bench of the Punjab High Court in the case of Ram Singh (2).
If the learned judges had proceeded to deal with the question referred to them on the basis that the initial submission of the case to the Court of Session under section 37(1) of the Act was valid they would not have come to the conclusion that the sessions procedure was inadmissible or inapplicable to the continuation of the case after Ludhiana had ceased to be a dangerously disturbed area.
That is why we think that the view taken by the Full Bench is erroneous.
The position then is that as from October 1, 1950, the three cases against the appellant should have been tried according to the warrant procedure.
It is clear that, at the stage where the trial stood on the material date, the whole of the prosecution evidence had not been led and so there was no difficulty in framing charges against the appellant in the respective cases and thereafter continuing the trial accord ing to the warrant procedure.
Having regard to the nature of the charges framed and the character and volume of evidence led, it is difficult to resist the appellant 's argument that the failure to frame charges has led to prejudice; and it is not at all easy to accept the respondent 's contention that the double opportunity to cross examine the prosecution witnesses which is available to an accused person under the warrant procedure is not a matter of substantive and valuable benefit to him.
The denial of this opportunity must, (1) ; , 731, (2) A.I.R. 1950 East Punjab 25.
107 in the circumstances of the present cases, be held to have caused prejudice to him.
We must accordingly hold that the continuation of the trial of the three cases against the appellant according to the summons procedure subsequent to October 1, 1950, has vitiated the trial and has rendered the final orders of conviction and sentence invalid.
We must accordingly set aside the orders of conviction and sentence passed against the appellant in all the three cases.
That takes us to the question as to the final order which should be passed in the present appeals.
The offences with which the appellant stands charged are of a very serious, nature; and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial.
In our opinion, having regard to the gravity of the offences charged against the appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law.
We also direct that the proceedings to be taken against the appellant hereafter should be commenced without delay and should be disposed of as expeditiously as possible.
Appeal allowed.
Retrial ordered.

dataset_name: IN-Abs

summary:
Section 36(1) of the East Punjab Public Safety Act, 1949, (Punj.
5 Of 1949), which was passed in the wake of the partition disturbances in India with a view to ensure public safety and the maintenance of public order, provided that offences mentioned therein land committed in the area declared to be dangerously disturbed under section 20 Of the Act, should be tried under the summons procedure prescribed by Ch.
XX of the Code of Criminal Procedure.
By the first notification issued under section 2o of the Act, the whole of the Province of Delhi was declared to be a dangerously disturbed area; subsequently the second notification purported to cancel the first.
The third notification then sought to modify the second by inserting into it the words "except as respect things done or omitted to be done before this notification ".
The fourth and last notification issued under section 36(1) of the Act sought to save proceedings thereunder pending after the cancellation of the first notification.
The appellant who was put up for trial in three cases for offences ordinarily triable under the warrant procedure, was tried under the summons procedure according to section 36(1) of the Act and the first notification and the trials were continued even after the expiry of the Act in respect of substantial parts of them under the same procedure and ended in his conviction which was affirmed by the High Court in appeal.
The Act was a temporary Act and contained no provision saving pending proceedings. 'It was contended on behalf of the appellant that the first part of section 36(1) of the Act in treating the disturbed areas as a class by themselves and providing a uniform procedure for the trial of specified offences violated article 14 Of the Constitution and that the continuance of the trials under the summons procedure even after the expiry of the Act was invalid.
Held, that the two tests of the validity of the classification made by the Legislature were, (1) that the classification must be based on an intelligible differentia and (2) that this differentia must be reasonably connected with the object of the legislation.
Thus tested, there could be no doubt, in the present case, that the classification on a geographical basis made by the impugned 88 Act between areas that were dangerously disturbed and other areas, in the interest of speedy trial of offences, was perfectly justified.
Ram Krishna Dalmia vs justice Tendolkar; , , relied on.
Lachmandas Kewalram Ahuja vs The State of Bombay, ; , held inapplicable.
But since the impugned Act was a temporary Act and contained no appropriate provision saving the summons procedure prescribed by it, that procedure could not, on the expiry of the Act, apply to the cases pending against the appellant.
Krishnan vs The State of Madras, ; , relied on.
Wicks vs Director of Public Prosecutions, [1947] A.C. 362, referred to.
The third and the fourth notifications, obviously intended to cure the absence of a saving provision in the Act, were 'wholly outside the authority conferred on the delegate by section 2o or section 36(1) of the Act and must be held to be invalid.
With the issue of the second notification, therefore, the entire province of Delhi ceased to be a dangerously disturbed area.
It was erroneous to apply by analogy the provisions of section 6 of the General Clauses Act to cases governed by a temporary Act, such as the one in question, which did not contain the appropriate saving provision and contend that since the trials had commenced validly, their continuance under the same procedure even after the declaration had ceased to operate and subsequent orders of conviction and sentence passed therein were valid as well.
Srinivasachari vs The Queen, Mad. 336, Mukund vs Ladu, and Gardner vs Lucas, , held inapplicable.
Ram Singh vs The Crown, A.I.R. 1950 East Punjab 25, dis approved.
Syed Qasim Razvi vs The State of Hyderabad, [1953] S.C.R. 589, referred to and distinguished.


judgement:
Appeal No. 1934 of 1978.
From the Judgment and Order dated 21.12.1977 of the Allaha bad 11 High Court in Civil Misc.
Writ Petition No. 227 of 1977.
Ms. Rachna Gupta for the Appellant.
S.C. Manchanda and K.P. Bhatnagar for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The Income tax Act, 1961 replaced the Indian Income tax Act, 1922 w.e.f. 1.4.1962.
The repeal of the earlier Act necessitated the enactment of transitional provisions to facilitate the change over.
Perhaps the sim plest course would have been to provide that the new Act would apply to all proceedings for the assessment year 1962 63 and thereafter.
The legislature, however, evolved a more complicated procedure.
While section 297(1) of the new Act declared that the Indian Income tax Act, 1922 stood repealed by the new Act, sub section (2) of the above sec tion made detailed and meticulous provisions in clauses (a) to (m) as to whether the new Act or the old Act will govern in the various situations dealt with therein.
These provi sions have led to a lot of litigation and the controversy in this appeal also arises out of one such provision.
We are concerned here with the scope of proceedings for reassess ment in respect of assessment years prior to 1962 63 and the answer to the question before us turns on the provisions of the following two sections of the 1961 Act: Section 297 "297(1) xxx xxx xxx (2) Notwithstanding the repeal of the Indian Income tax Act, 1922 (11 of 1922) (hereinafter referred to as 'the repealed Act ') xxx xxx xxx xxx (d) where in respect of any assessment year after the year ending on the 31st day of March 1940 (i) a notice under section 34 of the re pealed Act had been issued before the com mencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed; 12 (ii) any income chargeable to tax had es caped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in re spect of any such income are pending at the commencement of this Act, a notice under section 148 may, subject to the provisions contained in section 149 or section 150 be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly.
" Section 150 "150(1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an assessment or reassessment or recom putation in consequence or, or to give effect to, any finding or direction contained in an order passed by any authority in any proceed ing under this Act by way of appeal, reference or revision." (underlining ours) We may proceed now to set out how the question arises in the present case: The appeal arises out of an order of the High Court in a writ petition filed by one Mahadeo Prasad Bais (since deceased, represented by his legal representa tives) challenging reassessment proceedings initiated against him for the assessment years 1953 54 to 1963 64.
The appeal is, however, restricted to the assessment years 1953 54 to 1961 62.
Upto assessment year 1948 49, the appel lant was being assessed as the Karta of a Hindu Undivided Family consisting of himself, his mother, his wife and three sons.
For the assessment year 1949 50 and subsequent years upto 1961 62 he had filed a return in his individual capaci ty on the footing that there had been a total partition of the family within the meaning of Section 25A of the Indian Income tax Act, 1922 and that he was assessable in respect of the income from the properties of the family allotted to him at the partition.
In the alternative, he claimed partial partition of some of the joint family properties.f Both these claims were initially negatived and the entire income was assessed in the hands of the Hindu Undivided Family.
The returns filed by the appellant in his individual capacity were finalised by holding that there was no income assessa ble in his individual capacity.
The Hindu Undivided Family went up in appeals and ultimately the Tribunal accepted the claim of partial partition in respect of some of the proper ties with effect from different dates.
This conclusion of the Tribunal was also affirmed by the High Court in the decision reported as Mahadeo Prasad Bais vs Income tax Officer, which related .
13 to the assessment years 1956 57 to 1958 59.
Consequent on these decisions of the Tribunal and the High Court, the income from some of the erstwhile family properties stood excluded from the assessment of the Hindu Undivided Family and became liable to be included in the hands of the present appellant.
The assessment for 1949 50 and subsequent years upto 1961 62 on the family had been completed and the ap peals and reference disposed of under the Indian Income tax Act, 1922.
The original assessments made on the appellant as an individual for the assessment years 1953 54 to 1961 62 had been completed under the Indian Income tax Act, 1922.
In these assessments no income from the erstwhile joint family properties had been included as the officer was of the view, as in 1949 50, that it was assessable in the hands of the family.
There were no proceedings initiated or pending under Section 34 of the 1922 Act in respect of these assessment years as on 1.4.1962.
Quite sometime after the High Court had decided the reference for 1949 50 in the case of the family, the Income tax Officer thought of steps to include the income assessable in the hands of the appellant conse quent on the decisions of the Tribunal and the High Court which he had failed 10 assess earlier.
He, therefore, served on the appellant on 19.3.1977 notices for reassessment, as required by section 297(2)(d)(ii), under section 148 of the 1961 Act.
The appellant resisted these proceedings, inter alia, on the ground that the notices were barred by limita tion.
The department, however, contended that, though nor mally reassessment proceedings had to be initiated within a period of four, eight or sixteen years as the case may be, under the then provisions of Section 149 of the 1961 Act, the reassessment proceedings in this case were saved by the provisions of Section 150(1) of the 1961 Act set out earli er.
This contention of the department has been accepted by the High Court in the decision under appeal before us which is reported in The issue involved in this appeal is basically a short one turning on the language of section 150(1).
Before con sidering the interpretation of this section, we may, howev er, point out that, on this question, there appears to be a conflict of judicial opinion between the several High Courts.
The Allahabad High Court, in the decision presently under appeal (1980)125 I.T.R. 49 and the Calcutta High Court in I.T.O. vs Eastern Coal Co. Ltd., have taken the view that a reassessment in such circumstances is saved by the provisions of Section 150(1) of the 1961 Act.
An earlier Allahabad decision in C.I.T. vs Kamalapat Moti lal, (1977)110 I.T.R. 769 and an earlier Bombay decision in Ambaji Traders vs 1.T.O., (1976)105 I.T.R. 273 took a simi lar view on the analogous provision contained in section 153(3) of the 1961 Act but a contrary view was taken by the latter 14 High Court in the latter case reported as CIT vs
T.P. Asrani, Both sets of decisions have placed reliance on certain observations of this Court in differing contexts.
But it will be best to have a look at the statuto ry provisions first, in the context of the facts of the present case.
To start with, there is no dispute that reassessment proceedings were rightly initiated under section 148 of the Act.
It is also common ground that on the language of sec tion 148, as it stood at the relevant time, no notice under section 148 could have been issued in March 1977 for the assessment years in question.
The Revenue can successfully support the validity of this notice only by reference to section 150 (1).
Two questions then arise: (i) Are the provisions of section 150 (1) attracted ? (ii) If yes, do they save the impugned proceedings ? The answer to the first question is furnished by section 297 (2) (d) (ii), the very clause which authorises the issue of the notice of reassess ment under section 148.
It permits the issue of the notice under section 148, "subject to the provisions contained in section 149 or section 150".
Though the words "subject to" may be appropriate in the context of section 149 and section 150 (2) (which place restrictions on the issue of the notice u/s 148), they are somewhat inappropriate a propos section 150 (1) which relaxes the conditions for issue.
But there is no doubt that the statute clearly intends that the benefit of enlargement of the time limited under section 149 should be available in respect of the notice issued under section 148 read with section 297 (2) (d) (ii).
The answer to the second question is furnished by section 150 (1).itself.
It removes the bar of time when the reassessment proceedings are initiated in consequence of or to give effect to a finding contained in an order passed by any authority in any proceeding by way of appeal, reference or revision.
There is no difficulty here for the orders of the Tribunal and the High Court for the several years between 1949 50 and 1961 62 were passed in proceedings by way of appeals and reference and there is no dispute that the reassessment proceedings have been initiat ed to give effect to findings in such orders.
There is, however, a catch in applying the terms of section 150(1) ' to this case.
There is no doubt that the whole idea of the sub section was to lift the embargo placed on initiation of reassessment proceedings and to remove the time limit where the notice of reassessment is issued with a view to give effect to a direction or finding contained in an appellate order or an order passed on revision or on reference.
Unfor tunately, however, in expressing its above intention, the legislature has worded the exemption from time limit so as to cover only cases where the finding or direction is con tained in an order passed by any such authority in any such proceeding "under this Act" i.e. the 1961 Act.
In the present case the assessments for 1949 50 and subsequent years in the case of the family were made under the old Act and were the subject matters of appeal to the 15 Appellate Assistant Commissioner and Tribunal and of refer ence to the High Court under the provisions of the 1922 Act.
In other words, the finding in consequence of which the assessments presently under consideration are being sought to be reopened is a finding contained in orders passed not 'under this Act ' but in orders passed under the 1922 Act.
Literally applied, therefore, the language of section 150 (1) does not help the department to overcome the bar of limitation otherwise imposed by Section 149.
Pressing for the literal construction of the sub sec tion, it is contended for the appellant that there are good reasons why this construction should be accepted: (1) To accept the contention of the depart ment would mean the virtual deletion of the words "under this Act" from section 150 (1); (2) It seems clear that the above words have not been inadvertantly used in the statute.
If one turns 10 s.153 (3), which is an extension of section 150 (1 ) removing the time ban for the completion of reassessments initiated for the same purpose, the legislature goes further than section 150 (1) and makes specific refer ence to particular provisions of the new Act; (3) The provisions of section 150 (1) will not become redundant if read in the manner con tended for by the assessee.
While no doubt the proceedings are initiated, in all cases cov ered by section 297 (2) (d) (ii), under the new Act, the orders, for giving effect to a finding or direction in which such proceedings are initiated, may belong to either category they may be orders passed under the old Act or they may be orders passed under the new Act.
The terms of section 150 (1) will be effective in the latter category of cases; and (4) The provisions contained in Ss. 150 (1) and 153 (3) are provisions exempting the applicability of a normal rule of limitation otherwise applicable to actions for reassess ment and such provisions should be construed strictly.
On the other hand, it is contended for the department that the object of the provision being very obvious, namely, that where reassessment proceedings are initiated to give effect to orders on appeal, reference or 16 revision, there should be no time limit tying down the hands of the Revenue as such orders are seldom likely to be passed within the limits of time mentioned in section 149, we should give effect to the clear intention of the legislature and should not frustrate its object.
It is, therefore, necessary to examine the provisions of section 297 (2) (d) (ii) and section 150 (1) a little more closely and examine which of the two interpretations is preferable.
Taking up the appellant 's interpretation first, it has no doubt the attractiveness of simplicity.
It is a strict and literal interpretation of section 150 (1).
This apart, learned counsel drew our attention to the fact that the decided cases have referred to certain decisions of this Court in this context.
We do not, however, think that the decisions of this Court in Jain vs Mahendra, and Govinddas vs I.T.O, (1976)103 ITR 123 cited by appellant 's counsel arc of any assistance to them.
In the former case, a notice u/s 34 had been issued before 1.4.1962 but it had been quashed as without jurisdiction as it was barred by time.
The question was whether the proceedings initiated by the notice can be said to have been pending as on 1.4.1962.
The Court answered the question in the affirma tive.
It held that, for purposes of section 297 (2) (d) (ii), all that had to be seen was whether proceedings under section 34 of the 1922 Act were factually pending on 1.4.1962.
That the notice issued before that date was barred by time and was held so later was immaterial.
The notice had in fact been quashed by the High Court in a writ only much later, on 6.3.1963, and so proceedings under section 34 were pending as on 1.4.1962.
We are unable to see how this decision is of any help here.
In the second case, the claim by the assessee, a Hindu undivided family, that there had been a partial parti tion on 15.11.1955 (as a result of which the share income from two firms had ceased to be the income of the family from that date) was accepted by the Income tax Officer.
Subsequently, the assessments of the two firms for the assessment years 1950 51 to 1956 57 had been reopened and reassessments were made on them enhancing their income.
Consequently action was also taken to reopen the assessments of the family (which, for the relevant previous years had a share in the firms ' income).
These assessments were initiat ed under the new Act in accordance with the provisions of section 297 (2) (d) (ii).
The assessee had no grievance thus far.
But, while completing the reassessment, the officer, in addition to reassessing the family, also took advantage of the provisions enacted in Ss. 171(6) and (7) of the 1961 Act which had no counter part in the 1922 Act and passed orders apportioning the tax assessed on the family amongst its members.
This was objected to by the assessee.
The department, referring to the language of section 297 (2) (d) (ii) "that all the provisions of this Act shall apply ac cordingly", contended that the I.T.O. could legitimately invoke the provisions of Ss. 171 (6) and (7) as well while 17 making the reassessments.
This contention was negatived.
The Court observed: "These words merely refer to the machinery provided in the new Act for the assessment of the escaped income.
They do not import any substantive provisions of the new Act which create rights or liabilities.
The word "ac cordingly" in the context means nothing more than "for the purpose of assessment" and it clearly suggests that the provisions of the new Act which are made applicable are those relating to the machinery of assessment.
" It will be at once clear that this line of approach can have no validity in the context of section 297 (2) (d) (ii).
Here there is no need to guess or speculate on which provi sions of the new Act are to apply.
The section itself, in so many words, provides that Ss. 148, 149 and 150 will apply to the initiation of a reassessment proceeding under section 297 (2) (d) (ii) and this cannot be negatived by the last few words of that clause.
On the contrary, as pointed out earlier, they place it beyond all doubt that the provisions of the 1961 Act have to be applied to the reassessment on the basis that Ss. 148 to 150 apply.
This case also does not, there fore, advance the case of the assessees.
It is next contended by the appellant 's counsel that the very issue before us had been considered in the decision of this Court in Seth Gujarmal Modi vs CIT, and this concludes the issue in his favour.
The second headnote at page 261 seems to bear out this contention.
It reads: " . .
Since the Appellate Assistant Com missioner 's order was not passed under the 1961 Act, the department could not take any support from section 150 (1) of the Act." A perusal of the decision shows, indeed, that this was the ground on which a separate contention urged on behalf of the department on the basis of section 150 (1) was repelled.
It is no doubt seen from the facts of the case that it was a case of reassessment under section 297 (2) (d) (i) of the Act and the Court specifically held that reassessment pro ceedings should have been initiated under section 34 of the 1922 Act and not under section 148 of the 1961 Act.
In view of this conclusion no question of drawing any support from section 150 (1) could at all arise.
Still an argument was addressed and was repelled on the basis of the words "under this 18 Act" used in section 150 (1) thus upholding the literal construction argument now addressed on behalf of the asses see.
We shall consider this decision later after considering the department 's contentions.
As against the above contentions, Sri Manchanda submits that the provisions of section 150 (1) should be applied not blindly but with necessary modifications to suit the situa tion.
In support of this plea, he relies strongly on the last few words of section 297 (2) (d) (ii).
It is urged that the expression :"all the provisions of this Act shall apply accordingly" should be so construed as to enable the Revenue to invoke reassessment proceedings on the footing that the orders on appeal or reference were ones passed "under this Act" within the meaning of section 150 (1).
Sri Manchanda cited two decisions in support of his contention.
In Third I.T.O. vs Damodar Bhat, the question was whether proceedings under section 226 (3) of the new Act would apply with respect to a tax liability incurred under the 1922 Act.
The answer to this question, in the affirmative, turned on the language of section 297 (2) (j).
which provided that any tax or other dues payable under the 1922 Act may, notwithstanding the repeal of the 1922 Act, be recovered under the Act.
The contrary interpretation accepted by the High Court in that case would have had the effect of nulli fying the provisions of section 297 (2)(j).
Again, in Jain Bros. v,.
Union of India; , , it was held that penalty could be imposed under section 271 (1) of the 1961 Act in respect of returns filed before 1.4.1962 and assessments completed after 1.4.1962 but under the 1922 Act.
This was because of section 297 (2) (g), the special transitory provision in this behalf, which provided that "any proceeding for the initiation of a penalty in respect of any assessment for the year ending on the 31st day of March 1962 or any earlier year, which is completed on or after the 1st day of April, 1962, may be initiated and any such penalty may be imposed under this Act.
" Here again section 297 (2) (g) had been enacted to provide for the exact situation in question and to have held to the contrary would have rendered the provisions of section 297 (2) (g) meaningless and redundant.
The position is no doubt a little different here.
The provisions of section 150 (1) have been specially made applicable and operative in respect of the notice under section 148 issued in pursuance of section 297 (2) (d)(ii) and, as pointed out earlier, the application of the provisions of section 297 (2)(d)(ii) gives rise to two sets of situations to one of which the language of section 150(1) would squarely apply and so the interpretation sought for by the appellant does not render the words of section 150 (1) redundant.
Despite this point of difference in the two situations, we think that the principle of the above decisions that the mutatis mutandis rule should be invoked in interpreting 19 section 297 (2) has application here also.
Not to do so would no doubt not make section 150(1) redundant but it will bring about an unintended and inequitable situation.
It is clear that section 150 (1) will operate to lift the time bar in cases where the reassessment is initiated under section 148 to give effect to an order passed under the 1961 Act.
Equal ly, where assessments had been reopened under section 34 of the 1922 Act before 1.4.1962 to give effect to orders passed under the 1922 Act and are continued after that date by virtue of section 297 (2) (d) (i), the provisions of the second proviso to section 34 (3) of that Act would preclude the operation of the normal rule of limitation for reassess ments.
In this situation, it will be a great anomaly to reach the conclusion that the time limit will operate in cases where proceedings under section 148 are initiated to give effect to an order on appeal, revision and reference merely because such order is one passed under the 1922 Act.
Neither reason nor rhyme can explain how the statue could have intended such anomaly or why it should be so interpret ed as to result in a discriminatory treatment only to this class of cases.
An interpretation which will result in such anomaly or absurdity should be avoided.
It is also necessary to remember that section 297 (2) is a provision enacted with a view to provide for continuity of proceedings in the context of repeal of one Act by a fresh one broadly containing analogous provisions and the transitory provisions should, as far as possible, be construed so as to effect such conti nuity and not so as to create a lacuna.
For these reasons we think that it will be appropriate to so read the words of section 297 (2)(d)(ii) as to permit the applicability of section 150 (or section 153) with the necessary modifica tions.
To paraphrase, the last words of section 297(2)(d)(ii) should be read to mean that where the proceedings initiated under section 148, subject to the relaxations and limitation of Ss. 149 and 150, all the provisions of the Act shall apply accordingly: that is to say, in the same manner as they would apply in case of proceedings normally initiated under these provisions.
Since reassessment proceedings so initiat ed to give effect to orders on appeal, revision or reference will not be subject to a time limit, the proceedings like wise initiated under section 297(2)(d)(ii) read with section 148 will also not be subject to any limitations save to the extent mentioned in section 150(2).
We would like to add that, even if section 150(1) is to be read literally and considered as posing a hurdle as contended for by the appellant, we think this result can be overcome by a liberal interpretation of section 297(2)(k).
This clause reads: "any agreement entered into, appointment made, approval given, recognition granted, direc tion, instruction, notification, 20 order, or rule issued under any provision of the repealed Act shall, so far as it is not inconsistent with the corresponding provision of this Act, be deemed to have been entered into, made, granted, given or issued under the corresponding provision aforesaid and shall continue in force accordingly;" This is principally a provision intended to save admin istrative steps taken under the 1922 Act by deeming them to be steps taken under the 1961 Act.
Strictly construed, the words "order issued" also would seem, prima facie, to carry only a similar connotation.
But we see no objection, for our present purposes, in the way of our construing these words liberally and consequently deeming the orders passed and issued by the Tribunal and the High Court in this case for the assessment year 1949 50 and subsequent assessment years as orders passed or issued under the corresponding provi sions of the new Act.
Once this deeming is made, there is no difficulty in the way of accepting the Revenue 's contention.
We think that the circumstances justify a slight straining of the language of this clause and applying it so interpret ed to the problem before us so as to avoid a meaningless anomaly.
Thus construed, the statute can be said not to have misfired in its application to the situation in the present case.
We should, before we conclude, refer to the decision of this Court in the Gujar Mat Modi case.
As we have pointed out earlier, the principal conclusion reached in that case was that proceedings under section 148 could not have been initiated as the case fell under the provisions of section 297(2)(d)(i).
It was, therefore, unnecessary to deal with the contention based upon section 150.
Moreover, this part of the decision was only based on a prima facie reading of section 150(1) and contains no discussion of the various aspects that need consideration and have been touched upon above.
We do not, therefore, think that the above decision can be treated as conclusive on the issue before us which, for the reasons discussed above, we think, should be an swered differently.
We affirm the conclusion of the High Court and dismiss the appeal.
No costs.
Y.L. Appeal dismissed.

summary:
The appellant (since deceased) was being assessed as the Karta of the Hindu Undivided Family consisting of himself, his mother, his wife and three sons until the assessment years 1948 49.
For the assessment year 1949 50 and subse quent years upto 1961 62 he filed a return in his individual capacity claiming that there had been a total partition of the family and that he was assessable in respect of the income from the properties of the family that fell to his share on partition; in the alternative he claimed partial partition.
Both of his claims having been negatived, the entire income was assessed in the hands of the Hindu Undi vided Family and the returns filed by the appellant in his individual capacity were finalised on the footing that there was no income assessable in his individual capacity.
The Hindu Undivided Family went up in appeals and ultimately the Tribunal accepted the claim of partial partition in respect of some of the properties.
The conclusion of the Tribunal was affirmed by the High Court, with the result that the income from some of the erstwhile family properties stood excluded from the assessment of the Hindu Undivided Family and became liable to be included in the hands of the appel lant.
The original assessments made on the appellant as an individual for the assessment upto 1961 62 had been complet ed under the Income tax Act, 1922 and in these assessments no income from the erstwhile joint family properties had been included as the Income Tax Officer was of the view, as in 1949 50, that it was assessable in the hands of the family.
There were no proceedings initiated or pending under Section 34 of the 1922 Act in respect of these assessment years as on 1.4.1962, when the 1922 Act was repealed by the 1962 Act.
The Income Tax Officer therefore, served a notice for reassessment on the appellant, invoking the provisions of Section 297(2)(d)(ii) of the Act.
The appellant resisted the reassessment proceedings on the ground that notice was barred by limitation while the department contended that the reassessment proceedings in this case were saved by the provisions of Section 150(1) of the 1961 Act.
The High Court accepted the contention of the department.
10 Dismissing the assessee 's appeal, this Court, HELD: The provisions of Section 150(1) have been spe cially made applicable and operative in respect of a notice under section 148 issued in pursuance of Section 297(2)(d)(ii).
The application of the provisions of Section 297(2)(d)(ii) gives rise to two sets of situations to one of which the language of Section 150(1) would squarely apply.
Section 150(1) will operate to lift the time bar in cases where the reassessment is initiated under section 148 to give effect to an order passed under the 1961 Act.
Section 297(2) is a provision enacted with a view to provide for continuity of proceedings in the context of repeal of one Act by a fresh one broadly containing analogous provisions and the transitory provisions should as far as possible, be construed so as to affect such continuity and not so as to create a lacuna.
It will therefore be appropriate to so read the words of section 297(2)(d)(ii) as to permit the applica bility of section 150 (or section 153) with the necessary modifications.
[18 G, 19A B, D E] The last words of Section 297(2)(d)(ii) should be read to mean that where the proceedings initiated under Section 148, subject to the relaxations and limitation of Sections 149 and 150, all the provisions of the Act shall apply accordingly: that is to say, in the same manner as they would apply in case of proceedings normally initiated under these provisions.
Since reassessment proceedings so initiat ed to give effect to orders on appeal, revision or reference will not be subject to a time limit, the proceedings like wise initiated under Section 297(2)(d)(ii) read with Section 149 will also not be subject to any limitations save to the extent mentioned in Section 150(2).
[19 E F] Income Tax Officer vs Eastern Coal Co. Ltd., ; Commissioner of Income Tax ' vs Kamalapat Moti lal, ; Ambaji Traders vs Income Tax Officer, ; Commissioner of Income Tax vs
T.P. Asrani, ; Jain vs Mahendra, ; Govinddas vs Income Tax Officer, ; Seth Gujannal Modi vs Commissioner of Income Tax, ; Third Income Tax Officer vs Damodar Bhat, ; Jain Bros. vs Union of India, ; , referred to.


judgement:
Appeal No. 1690 of 1981.
167 From the Judgment and order dated 10.4.1980 of the Delhi High Court in Civil Writ No. 450 of 1971.
H.K. Puri for the Appellant.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Whether the National Council of Educational Research and Training (NCERT) is "State" as defined under Article 12 of the Constitution ? This is the only question that calls for decision in this appeal.
The appellant was an employee of the NCERT.
This services were terminated by the Secretary of NCERT.
Challenging the termi nation he moved the Delhi High Court under Article 226 of the Constitution.
The NCERT raised a preliminary objection as to the maintainability of the writ petition.
The objection was that the NCERT is not amenable to the writ jurisdiction of the High Court as it is not an instrumentality or other authority within the meaning of Article 12 of the Constitu tion.
The High Court has upheld the preliminary objection and dismissed the writ petition.
The decision of the High Court has been challenged in this appeal.
There are only general principles but not exhaustive test to determine whether a body is an instrumentality or agency of the Government.
Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the Government and those which are not.
The powers, functions, finances and control of the Government are some of the indicating factors to answer the question whether a body is "State" or not.
Each case should be han dled with care and caution.
Where the financial assistance from the State is so much as to meet almost entire expendi ture of the institution, or the share capital of the corpo ration is completely held by the Government, it would afford some indication of the body being impregnated with govern mental character.
It may be a relevant factor if the in stitution or the corporation enjoys monopoly status which is State conferred or State protected.
Existence of deep and pervasive State control may afford an indication.
If the functions of the institution are of public importance and related to governmental functions, it would also be a rele vant factor.
These are merely indicative indicia and are by no means conclusive or clinching in any ease See Sukhdev Singh vs Bhagat Ram, ; ; R.D. Shetty vs Inter national Airport Authority, [1979]3 SCC 489; Ajay Hasia vs Khalid Mujib Sehravardhi, [1981]1 SCC 722 and Som Prakash Rekhi vs Union of India, [1981]1 SCC 449.
168 Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Govern ment within the sweep of expression "State".
A wide enlarge ment of the meaning must be tempered by a wise limitation.
It must not be lost sight of that in the modern concept of Welfare State; independent institution, corporation and agency are generally subject to State control.
The State control does not render such bodies as "State" under Article 12.
The State control, however, vast and pervasive is not determinative.
The financial contribution by the State is also not conclusive.
The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is "State".
If the Govern ment operates behind a corporate veil, carrying out govern mental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as "State" within the meaning of Article 12 of the Constitution.
See: P.K. Ramachandra lyer vs Union of India, [1984]2 SCC 141 Central Inland Water Transport Corporation vs Brojonath Gangoli, and Tekraj Vasandhi alias K.L. Basandhi vs Union of India, [1988]2 SCR 260.
The NCERT is a society registered under the Societies Registration Act.
Like all societies, it has a Memorandum of Association.
It has Rules for internal management.
The High Court has elaborately examined the Memorandum of Association and the rules of the NCERT.
The relevant part of the discus sion by the High Court is as follows: "The NCERT is governed by a Memorandum of Association subscribed to by seven officers of the Government of India on 6.6.1961.
Under clause 3.1 of the Memorandum of Association the object of the Council is to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education particularly school education.
Under clause 3.2 the Council is empowered for the realisa tion of the above objectives to undertake several kinds of programmes and activities which include coordination or research, exten sion services and training, dissemination of improved educational techniques and practices in schools, collaboration in educational programmes, distribution of ideas and informa tion, preparation and publication of books, materials, periodicals and other literature and allied activities.
Under clause 5 the income and property of the Council is to be applied towards the promotion of its ob 169 jects and cannot be disposed of by way of dividends, bonus etc.
But under this clause, the Council is free to apply the income and property towards its objectives in such manner as it may think fit.
It is subject to the limitations placed by the Government of India in this regard only in respect of the expendi ture of grants made by the Government.
Under clause 6 the Government of India could review the work and progress of the Council and take appropriate action to give effect to the reports received on enquiries.
In addition, the Government could at any time issue direc tions to the Council on important matters of policy and programmes.
" Rule 3 of the Rules of the Council provides for Constitution of the Council which consists mainly of various Government officials but also includes the Chairman of the University Grants Commission, four Vice Chancellors and a number of nomi nees, four from school teachers and several others.
Rule 7 enables the Government to fix the period of appointment of the members and to extend it from time to time.
The council 's affairs are conducted by the Executive Commit tee whose constitution is outlined in Rule 23.
This includes various Government servants but it also includes four educationists and three Professors and Heads of Departments who may be nominated by the President.
Rule 37 provides that if there is any difference of opinion the view of the majority will prevail subject to a veto which could be exercised by the Govern ment of India within a month.
It also enables the President to refer any question for the decision of the Government.
Rule 40 enables the Executive Committee to frame and amend Regulations not inconsistent with the rules.
Rule 42 empowers the Executive Committee to enter into arrangements.
with Government, public or private organisations or individuals in furtherance of its objectives and implemen tation of its programmes.
Rule 57 provides that the funds of the council shall consist of (i) grants made by Government; (ii) contribu tion from other sources; (iii) Income from the assets of the Council; and (iv) Receipts of the Council from other sources.
" The object of the NCERT as seen from the above analysis is to assist and advise the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education.
The NCERT undertakes several kinds of programmes and activities connected with the coordination of , 170 research extension services and training, dissemination of improved educational techniques, collaboration in the educa tional programmes.
It also undertakes preparation and publi cation of books, materials, periodicals and other litera ture.
These activities are not wholly related to Government functions.
The affairs of the NCERT are conducted by the Executive Committee comprising of Government servants and educationists.
The Executive Committee would enter into arrangements with Government, public or private organisa tions or individuals in furtherance of the objectives for implementation of programmes.
The funds of the NCERT consist of: (i) grants made by the Government, (ii) contribution from other sources and (iii) income from its own assets.
It is free to apply its income and property towards the promo tion of its objectives and implementation of the programmes.
The Government control is confined only to the proper utili sation of the grant.
The NCERT is thus largely an autonomous body.
Almost a similar case was considered by this Court in Tekraj Vasandhi alias K.L. Basandhi vs Union of India, [1988]2 SCR 260.
This Court was required to determine wheth er the Institute of Constitutional and Parliamentary Studies (ICPS) was State under Article 12.
The ICPS was a registered society financed mostly by the Central Government and partly by gifts and donations from Indian and foreign agencies.
The first President of the society was the then Speaker of the Lok Sabha.
Out of the five vice presidents three were the then central ministers; the other two were the then Chief Justice of India and the Attorney General.
The objects of the society were to provide for constitutional and parlia mentary studies, promotion of research in constitutional law, setting up of legislative research and reference serv ice for the benefit of legislators, organisation of training programmes in matters of parliamentary interest and impor tance and publication of a journal.
The Court found that ICPS was born as a voluntary organisation.
It found further that though the annual financial contribution from the State was substantial, it was entitled to receive aid from the public and in fact received contributions from other sources.
Its objects were not governmental business.
As regards the argument that the government exercised pervasive control over ICPS, the Court said: "In a Welfare State . . . .
Gov ernmental control is very pervasive and touch es all aspects of social exist ence . . .
A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion." In the light of all these factors it has held that ICPS was not "State". 171 In the present case, the High Court has relied upon the Constitution Bench decision of this Court in Sabhjit Tewari vs Union of India and Ors., ; There it was held that the Council of Scientific and Industrial Research (CSIR), which was sponsored and controlled by the Central Government and registered under the Societies Registration Act was not "State" within the meaning of Article 12.
But this decision has been distinguished and watered down in the subsequent decisions particularly in Ajay Hasia and Ramchan dra lyer cases (supra).
Counsel for the appellant strongly relied upon the decision in P.K Ramchandra lyer case where this Court held that Indian Council for Agricultural Research (ICAR) was "State" under Article 12.
But it may be noted that ICAR was originally an attached office of the Government of India and its position was not altered when it was registered as a society.
That case, therefore is clearly distinguishable.
In our opinion, the case on hand, having regard to the indications to which we have called attention earlier, does not satisfy the requirements of "State" under Article 12 of the Constitution.
We, therefore, agree with the conclusion of the High Court and dismiss the appeal.
In the circum stances of the case, we make no order as to costs.
R.P. Appeal dis missed.

summary:
In a writ petition challenging the termination of serv ices of the appellant, who was an employee in the National Council of Educational Research & Training (NCERT), the High Court upheld the preliminary objection that the writ peti tion was not maintainable as NCERT was not an instrumentali ty or authority within the meaning of article 12 of the Consti tution.
Aggrieved, the appellant filed the appeal by special leave to this Court.
On the question whether NCERT is "State" as defined under Article 12 of the Constitution, Dismissing the appeal, the Court, HELD: 1.1.
Like all societies, having a Memorandum of Association and Rules for internal management, the National Council of Educational Research and Training is a society registered under the Societies Registration Act.
[168 E] 1.2.
Having regard to the object, functions, activities, sources of funds of NCERT, freedom of application of its income and property towards the promotion of its objectives and implementation of programmes, confinement of Government control only to proper utilisation of the grant, and largely being an autonomous body, the institution does not satisfy the requirements of "State" under Article 12 of the Consti tution.
[169 G H; 170A C; 171 C D] Tekraj Vasandhi alias K.L. Basandhi vs Union of India ; , Sabhjit Tewari vs Union of India and Ors., ; , referred to.
166 Ajay Hasia vs Khalid Mujib Sehravardhi, ; P.K. Ramachandra Iyer vs Union of India, ; distinguished.
Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Govern ment within the sweep of the expression "State".
A wide enlargement of the meaning must be tempered by a wise limi tation.
It must not be lost sight of that in the modern concept of Welfare State; independent institution, corpora tion and agency are generally subject to State control.
The State control does not render such bodies as "State" under Article 12.
The State control, however vast and pervasive, is not determinative.
The financial contribution by the State is also not conclusive.
[168 A B] 3.
The powers, functions, finances and control of the government are some of the indicating factors to answer the question whether a body is "State" or not.
These are merely indicative indicia and are by no means conclusive or clinch ing in any case.
Each case should be handled with care and caution.
[167 E G] Sukhdev Singh vs Bhagat Ram, ; ; R.D. Shetty vs International Airport Authority, [1979]3 SCC 489, and Sore Prakash Rekhi vs Union of India, ; , referred to.
4.1 The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is "State".
[168 B C] 4.2.
If the Government operates behind a corporate veil, carrying out governmental activity and governmental func tions of vital public importance, there may be little diffi culty in identifying the body as "State", within the meaning of Article 12 of the Constitution.
[168 C] Central Inland Water Transport Corporation vs Brojo nath Gangoli, , Tekraj Vasandhi alias K.L. Basandhi vs Union.
of India, ; , referred to.