judgement:
Criminal Appeal No. 405 of 1978.
From the Judgment and Order dated 9.8.1977 of the High Court of Orissa in Criminal Appeal No. 131 of 1975.
Prithvi Raj and R.K. Mehta for the Appellant.
G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by SEN, J.
After hearing learned counsel for the parties, we are satisfied that the judgment of acquittal entered by the High Court was apparently erroneous and has caused manifest miscarriage of justice.
We are rather surprised that the High Court should have given credence to the de fence plea of mistake of fact under section 79 of the Indian Penal Code, 1860.
The evidence on record shows that the respondent and the deceased had strained relations over grazing of cattles.
On the date of incident the deceased had gone to the house of PW 2 for recital of Bhagbat.
Some other villagers including the respondent was also present there.
At about 10 p.m. recital of Bhagbat was over and the de ceased returned to the house.
Some time thereafter, a hue and cry was raised from near the house of the respondent.
Several villagers including PWs 2, 3, 4 and 5 ran to the place.
They saw the deceased lying on the ground in a pool of blood with a head injury.
The respondent along with his mother and wife were tending the deceased and wiping out blood.
The deceased was till then in his senses and on query by the villagers stated that the respondent had assaulted him.
On being questioned, the respondent stated that during the daytime his bellmetal utensil had been stolen and he was keeping a watch for the thief.
He saw a person coming inside his premises and thinking him to be a thief he dealt a lathi blow but subsequently discovered that it was the 788 deceased.
On being taken back to his house the deceased told his wife PW 6 that he had been assaulted by the respondent in the presence of his son and grandson PWs 8 and 7.
The Doctor PW 9 who performed the post mortem examination found multiple injuries on the body.
On dissection he found a depressed comminuted fracture over the right perietal bone and a transverse fracture extending below left parietal prominence.
As per the doctor, the head injury could have been caused by a single stroke by means of a lathi if the stroke was dealt with great force.
On this evidence, the learned Sessions Judge very rightly and properly held the respondent guilty of culpable homicide not amounting to murder punishable under section 304 Part II of the Indian Penal Code.
According to the High Court, the dying declaration made by the deceased as also the extra judicial confession made by the respondent showed that the deceased had kept the bell metal utensil under water in the pond.
At the time of occurrence, the deceased had been to the pond to take out the bell metal utensil.
Admittedly, it was a dark night.
The defence plea was that the respondent had been apprehensive of further theft of his bell metal utensils.
When he found someone near the pond, he asked who the person was.
As there was no response, believing that person to be a thief, he assaulted him but thereafter discovered that it was the deceased.
The High Court held that in the circumstances, the respondent had not committed any offence and was protected under section 79 of the Indian Penal Code.
It accepted that the onus to establish the facts to sustain the plea of mistake of fact under section 79 lay on the respondent and he had to establish his plea of reasonable probability or, in other words, on preponderance of probability either by adducing evidence or by cross examining the prosecution witnesses.
It referred to some cases where different High Courts under the facts and circumstances of the particular case appearing extended the benefit of section 79 of the Indian Penal Code to the accused where it was proved that the accused had acted under a mistake of fact i.e. an honest and reasonable belief in the existence of circumstances which, if proved, would make the act for which the accused is indicted an innocent act.
Section 79 of the Indian Penal Code provides that noth ing is an offence which is done by any person who is justi fied by law, or who by reason of mistake of fact and not by reason of mistake of law, in good faith, believes himself to be justified by law, in doing it.
Under this section, al though an act may not be justified by law, yet if it is done under a mistake of fact, in the belief in good faith that it is justified by 789 law it will not be an offence.
Such cases are not uncommon where the Courts in the facts and circumstances of the particular case have exonerated the accused under section 79 on the ground of his having acted in good faith under the belief, owing to a mistake of fact that he was justified in doing the act which constituted an offence.
As laid down in section 52 of the Indian Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and attention.
The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. 'Good faith ' re quires not logical infallibility but due care and attention.
The question of good faith is always a question of fact to be determined in accordance with the proved facts and cir cumstances of each case. 'Mistake of fact. ' as put succinct ly in Ratanlal and Dhirajlal 's Law of Crimes, 23rd edn, p. 199 means: " 'Mistake ' is not mere forgetfulness.
It is a slip 'made, not by design, but by mischance '.
Mistake, as the term is used in jurisprudence, is an erroneous mental condition, conception or conviction induced by ignorance, misappre hension or misunderstanding of the truth, and resulting in some act or omission done or suffered errone ously by one or both of the parties to a transaction, but without its erroneous charac ter being intended or known at that time.
" It may be laid down/as a general rule that an alleged of fender is deemed to have acted under that state of things which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.
In the classical work Russel on Crime, vol. 1, p. 76, the concept of mistake of fact is tersely stated thus: "When a person is ignorant of the existence of relevant facts, or mistaken as to them, his conduct may produce harmful results which he neither intended nor foresaw." At p. 79, the law is stated in these words: "Mistake can be admitted as a defence provided (1) that the state of things believed to exist would, if true, have justified the act done, and (2) the mistake must be reasonable, and (3) that the mistake relates to fact and not to law.
" The cases on which the High Court has relied were cases where 790 the circumstances showed that the accused had acted under a bona fide belief that he was legally justified in doing the act owing to ignorance of the existence of relevant facts, or mistake as to them.
There is no need to encumber the judgment with many citations.
We would only refer to three illustrative cases.
In Emperor vs Jagmohan Thukral & Anr., AIR 1947 All. 99 the accused while travelling from Saharan pur to Dehradun near the Mohand pass picked up the loaded gun when he saw the eyes of an animal and fired at it which unfortunately hit two military officers.
There was nothing to show that the accused knew that there was a military camp or that any military exercise was going on.
The question was whether the accused was liable for having committed an offence punishable under section 307 of the Indian Penal Code.
The Court held that the accused was protected by section 79 observing.
"If he mistook something else as an animal, then section 79 Penal Code comes to his rescue.
" That was a case where the accused under a bona fide mistake shot at an object thinking him to be an animal and the mistake was held to be one made in good faith.
In Dhara Singh vs Emperor, AIR 1947 Lahore 249 it was held that the accused was labouring under a mistake of fact with regard to the identity of the persons who had surrounded his house followed by an exchange of fire, thinking them to be his adversaries and by reason of that mistake of fact, Explana tion I to section 99 gave to him a right of private defence.
This again was a case where the accused shot and killed another person under a mistaken belief, in good faith, that such person had intruded his house for the purpose of killing him and that he has a reasonable belief that he was entitled to open fire in exercise of his supposed right of private defence.
In Chirangi vs State, AIR (1952) Nag. 282 where an accused under a moment of delusion, considered that his own son, to whom he was attached, was a tiger and he accordingly assaulted him with an axe, thinking by reason of mistake of fact that he was justified in destroying the deceased whom he did not regard to be a human being but a dangerous ani mal.
It was held that the accused was protected under section 79 of the Indian Penal Code.
The Court held that the poignant case which resulted in a tragedy was due to delusion of mind, and stated: "It is abundantly clear that if, Chirangi had for a single moment thought that the object of his attack was his son, he would have desisted forthwith.
There was no reason of any kind why he should have attacked him and, as shown, they were mutually devoted.
In short, all that happened 791 was that the appellant in a moment of delusion had considered that his target was a tiger and he accodingly assailed it with his axe." These considerations do not arise in the present case.
There was complete absence of good faith on the part of the re spondent.
It cannot be doubted that the deceased and the respondent were having strained relations and the respondent knew full well that the deceased had come for the recital of Bhagbat at the house of PW 2 which he attended along with others.
From the dying declaration as well as the extra judicial confession it is apparent that the deceased after the recital of Bhagbat had gone near the pond to take the bell metal utensil.
Apparently, the respondent was waiting for an opportunity to settle the account when he struck the deceased with the lathi blow and there was no occasion for him in the circumstances proved to have believed that he was striking at a thief.
This is not a case where a person being ignorant of the existence of the relevant facts or mistaken as to them is guilty of conduct which may produce harmful result which he never intended.
Even if he was a thief, that fact by itself would not justify the respondent dealing a lathi blow on the head of the deceased.
The deceased had not effected an entry into the house nor was he anywhere near it.
He had gone to the pond to fetch his bellmetal utensil.
It appears that the respondent stealthily followed him and took the opportunity to settle score by dealing him with a lathi with great force on a vulnerable part of the body like the head which resulted in his death.
There is no suggestion that he wielded the lathi in the fight of self defence.
The respondent therefore must face the consequences.
Although it cannot be said from the circumstances appearing that the respondent had any intention to kill the deceased, he must in the circumstances be attributed with knowledge when he struck the deceased on the head with a lathi that it was likely to cause his death.
The respondent was therefore guilty of culpable homicide not amounting to murder under section 304 Part II of the Indian Penal Code.
We accordingly allow the appeal, set aside the judgment and order of the High Court and convict the respondent for having committed an offence punishable under section 304 Part II of the Indian Penal Code.
The respondent is sentenced to undergo rigorous imprisonment for a term of three years.
The bail bonds of the respondent shall stand cancelled and he shall be taken into custody forthwith to serve out the remaining part of the sentence.
A.P.J. Appeal allowed.

summary:
On the date of incident when the deceased was returning from the 'house of PW 2 after reciting Bhagbat, where some other villagers including the respondent were also present, and reached near the house of the respondent he was assaulted by the respondent.
On hearing a hue and cry several villagers including PWs.
2, 3, 4 and 5 ran to the place and saw the deceased lying on the ground in a pool of blood with a head injury.
The respondent along with his mother and wife were tending the deceased and wiping out blood.
The deceased told the villagers that the respondent had assaulted him.
The respondent stated that during the day time his bell metal utensils had been stolen and he was keeping a watch for the thief, he saw a person coming inside his premises and think ing him to be a thief he dealt a lathi blow but subsequently discovered that it was the deceased.
The deceased also told his wife that he had been assaulted by the respondent.
On the basis of the evidence on record the trial court convict ed and sentenced the respondent under section 304 Part Il of the IPC.
On appeal the High Court accepted the defence plea and held that the respondent had not committed any offence and was protected under section 79 of the IPC and acquitted him.
Allowing the appeal of the State, 786 HELD: 1.
The judgment of acquittal entered by the High Court was apparently erroneous and has caused manifest miscarriage of justice.
It is surprising that the High Court should have given credence to the defence plea of mistake of fact under section 79 of the IPC 1860.
[787E F] 2.
Under section 79 of the IPC although an act may not be justified by law, yet if it is done under a mistake of fact, in the belief of good faith that it is justified by law it will not be an offence.
The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted.
In view of section 52 of the IPC "good faith" requires not logical infallibility but due care and attention.
The question of good faith is always a question of fact to be determined in accordance with the proved facts and circumstances of each case.
It may be laid down as general rule that an alleged offender is deemed to have acted under that state of things which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.
Section 79 is attracted where the circumstances showed that the accused acted under a bona fide belief that he was legally justified in doing the act owing to ignorance of the existence of relevant facts, or mistake as to them.
[789A E; 790A] Rattan Lal and Dhirajlal 's Law of Crimes, 23rd edn., p. 199 and Russel on crimes, vol.
1, p. 76; 79 relied upon and Emperor vs Jagmohan Thukral & Anr., AIR (1947) All. 99, Dhara Singh vs Emperor, AIR (1947) Lahore 249 and Chiranji vs State, AIR (1952) Nag. 282, distinguished.
But the present case was not the one where a person being ignorant of the existence of the relevant facts or mistaken as to them is guilty of conduct which may produce harmful result which he never intended.
There was complete absence of good faith on the part of the respondent.
Un doubtedly the deceased and the respondent were having strained relations.
From the dying declaration as well as the extrajudicial confession it is apparent that the de ceased after the recital of Bhagbat had gone near to the pond to take the bell metal utensils.
Apparently, the re spondent was waiting for an opportunity to settle the ac count when he struck the deceased with the lathi blow and there was no occasion for him in the circumstances proved to have believed that he was striking at a thief.
Even if he was a thief, that fact by itself would not justify the respondent dealing a lathi blow on the head of the deceased.
The deceased had not effected an entry into the house nor he was anywhere near it.
It appears that the respondent stealthily followed him and took the opportunity to settle score by dealing him with lathi 787 with great force on a vulnerable part of the body like the head which resulted in his death.
There is no suggestion that he wielded the lathi in the right of self defence.
The respondent, therefore, must face the consequences.
Although it cannot be said from the circumstances appearing that the respondent had any intention to kill the deceased, he must in the circumstances be attributed with knowledge when he struck the deceased on the head with a lathi that it was likely to cause his death.
Therefore, the respondent is convicted under section 304 Part I1 of the IPC and sentenced to undergo rigorous imprisonment for three years.
[791C G]


judgement:
: Criminal Appeal No. 8 of 1978.
From the Judgment and Order dated the 17.10.1977 of the Bombay High Court in Criminal Appeal No. 1007 of 1974.
Rajinder Singh and A.K. Srivastava for the Appellant.
M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by OZA, J.
This appeal has been filed after obtaining leave from this Court against the conviction of the appellant under Sec. 302 and sentence of imprisonment for life record ed by Additional Sessions Judge Greater Bombay in Sessions Case No. 204/73 and maintained on appeal by High Court of Bombay by its judgment dated 17th Oct., 1977.
904 The prosecution case at the trial was that on the mid night intervening between 25th/26th July, 1972 the appellant alongwith others went to traffic island near Bandra, situat ed on Linking Road where Badshah Umarbax was doing the business of vending eatables from his hand cart kept in that island.
The eatables included heavy non vegetarian items .
Badshah, P.W. 4 was assisted in his trade by his brother in law Sadatali, P.W. 5 and some other servants.
It is alleged that the appellant alongwith his friends had reached there to celebrate the victory of Carom game of the Carom Club run by accused No. 1 and on reaching near the cart accused Nos. 1 and 4 placed order for meat and other preparations.
As the dishes were getting ready the deceased Sheroo Lala came there, driving his red Fiat Car MRT 566.
By his side was his relation Ahmedkhan, who, though cited as a witness, was not examined at the trial, as it was reported that he was not available.
In the back seat sat Chutkhan, P.W. 2 and Alikhan, P.W. 3.
It appears that Chutkan and Kala Topi met in a hotel in Khar and while they were conversing, Sheroo Lala came there together with Alikhan in the Car from Santacruz side.
After gossipping for sometime Sheroo Lala proposed to go to Badshah 's hand cart on Linking Road, for taking food.
That is how all of them arrived near the Bads hah 's hand cart where the appellant and his friends had reached earlier.
This car went and stopped very near the hand cart.
The other cars which brought the appellant and his friends earlier were parked there.
It was at 11.45 p.m. and there were two petromax lights burning on the hand cart.
There were also some street lights.
It is alleged that Sheroo Lala got down from his car and proceeded for placing the order and just as he did so he was stopped by Maruti, one of the accused persons who addressed him in a loud tone.
This was followed by heated exchange of words and suddenly the present appellant accused No. 1 in the courts below who was behind Maruti came forward with an open Rampun knife and inflicted a stab wound in the stomach of Sheroo.
The other accused also assaulted Sheroo Lala with a stick on the head.
The other persons who were tried, it is alleged were also there.
It is alleged that in the meantime Chutkhan, Kala Topi and Ahmedkhan had come near the spot where Sheroo was stabbed and Sheroo keeping his hand on the injury walked towards the north and ultimately fell down in a pool of blood collected on the spot.
Chutkan, Kala Topi and Ahmedk han, it is alleged, got down from the car probably to meet the assailants but just then Maruti who was accused No. 3 in the courts below, picked up a Sun from Badshah 's hand cart and aimed a blow at Chutkan but Chutkan grappled with it and got hurt near the thumb on the palm of 905 his right hand.
Another blow was aimed by Maruti, but it was warded of by Chutkhan and it is alleged that at that time accused No. 4 gave a blow with a bamboo on the right hand of Chutkhan and accused No. 7 gave a blow on Ahmedkhan with an iron bar.
Ahmedkhan fell down and sometime later he went away himself.
It is alleged that when this was happening, Kala Topi removed a bamboo, from Badshah 's handcart and started flourishing it in defence.
The other also were doing something to defend themselves.
According to the prosecution in this exchange some injuries were inflicted but so far as the present appeal is concerned, we are not concerned with it as we are concerned with only the appellant Ramesh Laxman Pardeshi.
Chutkhan and Kala Topi, in the meantime, managed to board a taxi and went to K.E.M. Hospital for treatment.
They reached the Hospital at 1.50 A.M.
At about 1.20 A.M. accused No. 3, who was having a bleeding injury on the head, visited the Bandra Police Station alongwith accused No. 4 to lodge a complaint against Sheroo and his companions.
S.I Patl, P.W. 17, who was on duty at the Bandra Police Station, sent Maruti to Podar Hospital alongwith form for medical examina tion in the car of Subhash, another accused person.
Dr. Parandekar, P.W. 15 who was attached to K.E.M. Hospital at the relevant time as Casualty Medical Officer examined Kala Topi and Chutkhan whereas Dr. Muzavar, P.W. 13 examined Maruti at Podar Hospital.
In the meanwhile Police Constable Sawant, P.W. 10, who was on patrol duty that night came across the injured Sheroo on the street north of the traffic island, mortally wounded.
The constable therefore arranged for his removal to K.E.M. Hospital where he reached at about 2.20 A.M. and informed at 2.45 S.I. Patil of Bandra Police Station about this.
Dr. Parandekar examined Sheroo Lala at 2.20 A.M. as an unknown person.
His general condi tion was poor and found an incised injury on his person.
There was another C.L.W. on the left frontal region.
He was admitted in the ward and one Dr. Aggarwal, P.W. 9 examined him at 2.25 A.M. and found him dead.
S.I. Patil received a telephone call at 2.45 A.M. sent by the police Constable Sawant, P.W. 10.
He went to the Hospital immediately and made enquiries but could not ascer tain the name of Sheroo.
He learnt that two pathans meaning thereby Chutkhan and Kala Topi were also in the Hospital.
He contacted them and questioned them.
They were brought down and they identified Shetoo.
The statements which the Sub Inspector Patil recorded of Chutkhan is produced in the case F.I.R. exhibit 6.
After investigation, a charge sheet was 906 filed and on trial the present appellant was convicted for an offence under Sec. 302 and sentenced to imprisonment for life and on appeal his conviction and sentence has been maintained, and it is because of this that the present appeal has been filed.
Learned counsel appearing for the appellant made two submissions:) i) that Maruti one of the accused persons had a contused lacerated wound on the head on the right occipi tal parietal region.
The defence version was that when exchange started between Shetoo and Maruti, it was first that Maruti was assaulted and then in the exchange, one another accused took out a knife and gave a blow to the deceased and thus plea of the accused was that this injury was inflicted on Sheroo in the exercise of right of private defence.
Alternatively it was submitted by the learned counsel appearing for the appellant that both the courts, the Sessions Court and the High Court came to the conclusion that as soon as Sheroo and his party arrived near the hand cart of Badshah, there was a hot exchange between the two sides.
The witnesses examined by the prosecution have not clearly stated what words were uttered and it was pointed out by learned counsel by reference to the Sessions Court 's judgment that the learned Judge felt that the language was obscene and probably the witnesses did not like to mention whereas the High Court felt that the witnesses were not in a position to mention the exact words but it was contended that both the courts did reach a conclusion that there was a hot exchange between the two groups.
It was contended there fore in such a situation it could not be doubted that the party of the accused was provoked and on such grave and sudden provocation at the heat of the moment, this appellant who was carrying a knife took it out and inflicted only one blow.
It was contended that he did not even attempt a second blow and the finding of both the courts is that this hap pened at the spur of the moment without pre meditation and in the heat of passion.
In these circumstances it was con tended that at best the appellant could be convicted for an offence under Sec.
304 Part II.
He has served more than 7 years of sentence already and being an incident of 1972, no useful purpose would be served by sending this appellant to serve a short period of sentence.
As regards the first question about right of private defence, the stand taken by the accused persons including the present appellant has not been accepted by the courts below.
An attempt was made to suggest that it was not the present appellant but another accused who wiped out a knife and inflicted the injury on Sheroo and in that context it was also suggested that first injury was caused on Meruti but both 907 the courts below rejected that story and the learned counsel could not refer to any particular part of the evidence to indicate that there was any material sufficient to come to the conclusion that it was Maruti who was assaulted first.
On the contrary the consistent evidence indicated that on arrival of Sheroo it was Maruti who started the verbal exchange and in view of this evidence, in our opinion, the first submission made by the learned counsel could not be accepted.
As regards the second contention the High Court in its judgment stated "no doubt whatsoever that the words must have been kept back by these witnesses because they were too vulgar and too convincing to be uttered by the witnesses in court.
" It was also contended that if it were the accused per sons who uttered vulgar words which might have caused insult or annoyance or provocation to the witnesses they would not have hesitated in saying what was said to them by the ac cused persons but the witnesses chose not to say the exact words as it was their party itself which started this vulgar verbal talk which provoked the accused appellant.
The learned Judges of the High Court while examining this con tention observed "when they did not uttar these words, there was every liklihood of Sheroo having uttered these words to provoke the accused.
Even assuming that Sheroo had provoked by using such words accused No. 1 had no business to thrust a Rampuri knife inside the stomach of Shetoo in exchange of words.
" Similarly learned Sessions Judge ultimately held "but suddenly in the heat of passion, accused No. 1 may have thought of taking out in his hand and inflicted the injury" and therefore learned Judge found that other accused persons could not be imputed with the intention of causing death.
As regards the words uttered during the exchange the learned Judge observed after referring to the relevant portions of evidence of witnesses" one cannot but feel that the witness es are deliberately not speaking of it.
Something provoca tive seems to have happened but they want to keep it away from the court, on that ground that evidence.
given by these witnesses will have to be examined with suspicion and cau tion.
" It is therefore clear that both the courts the trial court and the High Court were of the view that the words spoken in the hot exchange between the two groups have been suppressed by the prosecution witnesses.
The learned Ses sions Judge felt that the words were such which might have caused provocation and it is only because of this that the prosecution witnesses are trying to keep back these words.
Learned counsel for the appellant contended that if the provocative 908 words were used by the accused persons, the prosecution witnesses may not have kept it back but the only reason for the prosecution witnesses not to say what were the words spoken, appears to be what the learned Sessions Judge felt when he observed what has been quoted above.
It appears that this contention of the learned counsel appears to be cor rect.
The learned Judge was right in reaching this conclu sion as it is apparent that the prosecution witnesses did not say or gave out what words were spoken, the only infer ence could be that if those words were given out, it would have damaged the prosecution case.
The learned Sessions Judge felt that "something provocative seems to have hap pened.
" We are therefore left with no option but to look to the incident that on the arrival of the complainants ' party some hot exchange began.
Words were spoken, the witnesses have categorically stated that they were speaking loudly and still prosecution witnesses have chosen to give excuse for not speaking out the words by saying that they could not hear those words and this clearly goes to show that the words used by the deceased and his friends were such which caused provocation.
Both the courts came to the conclusion that there was no pre meditation.
It was at the spur of the moment and in the heat of passion and it is also not disput ed that only one blow was inflicted by the present appellant and the injury ultimately caused proved tobe fatal.
Learned counsel referred to series of decisions of this Court and contended that in such a situation when under provocation without pre meditation and in the heat of passion, on the spur of moment one injury is inflicted, it could not be said that the accused had the intention of causing death and this is what has been propounded in number of decisions of this Court.
Learned counsel for the State, on the other hand, con tended that there was some previous trouble between the parties and that furnish some motive and on that basis an attempt was made to contend that this opportunity was taken to seek vengeance.
This story of some earlier trouble and the motive suggested by the prosecution has not been accept ed by both the courts below and it is also clear that there was not a pre arranged plan.
Admittedly it was by chance that the party of Sheroo also chose to go to the same spot i.e. hand cart of Badshah at that odd hour at night where the appellant and his friends had already reached.
It is not as if seeing the deceased Sheroo and his friends that the appellant and his friends reached.
On the contrary Sheroo and his friends arrived later.
In this view of the matter both the courts were fight in coming to the conclusion that hot exchange of 909 filthy language resulted in some kind of provocation and in the heat of passion without pre meditation this injury was inflicted and in the circumstances it could not be held that it was inflicted with an intention to cause death.
The only intention which could be attributed to the appellant in the circumstances of this case could be to cause such bodily injury as is likely to cause death.
Consequently the appel lant could only be convicted for an offence under Sec.
304 Part I but as the appellant has already served out more than 7 years, in our opinion, the sentence already undergone will meet the ends of justice.
The appeal is therefore allowed, the conviction of the appellant is altered from one under sec.
302 to Sec.
304 Part I and sentenced to sentence al ready undergone.
If the appellant is in custody, he shall be set at liberty forthwith.
A.P.J. Appeal al lowed.

dataset_name: IN-Abs

summary:
The appellant alongwith others was prosecuted for caus ing the death of Sheroo Lala.
It was alleged that during the exchange of hot words between the party of the deceased and the party of the appellant, the appellant inflicted a stab wound in the stomach of Sheroo with a Rampuri knife as a result of which he died.
On trial the appellant was convict ed for an offence under section 302 of the Indian Penal Code and sentenced to imprisonment for life and on appeal his convic tion and sentence was maintained.
In the appeal to this Court, on behalf of the appellant it was contended; (1) that Maruti one of the accused persons had a contused lacerated wound on the head on the right occipital parietal region and the defence version was that when exchange started between Sheroo and Maruti, first Maruti was assaulted and then in exchange, one another accused took a knife and gave a blow to the deceased and thus plea of the accused was that this injury was inflicted on Sheroo in the exercise of right of private defence; and (2) that both the Courts below came to the conclusion that as soon as Sheroo and his party arrived near the hand cart of Badshah, there was a hot exchange between the two sides.
The witnesses examined by the prosecution have not clearly stated what words were uttered and the trial court felt that the language was obscene and probably the witnesses did not like to mention whereas the High Court felt that the wit nesses were not in a position to mention the exact words.
However, both the Courts did reach a conclusion that there was a hot exchange between the two groups and, therefore, in 902 such a situation it could not be doubted that the party of the accused was provocated and on such grave and sudden provocation at the heat of the moment, the appellant who was carrying a knife took it out and inflicted only one blow and did not even attempt a second blow and the findings of the both the Courts is that this happened at the spur of the moment without pre meditation and in the heat of the passion and, therefore, at best the appellant could be convicted for an offence under section 304 Part II because in these circum stances no intention of causing death could be attributed to the appellant and since he has already served for more than 7 years of sentence, no useful purpose would be served by sending him to serve a short period of sentence.
On behalf of the respondent State, it was contended that there was some previous trouble between the parties which furnish some motive and this opportunity was taken to seek vengeance.
Allowing the Appeal, HELD: 1.
The conviction of the appellant is altered from one under section 302 to section 304 Part I I.P.C. and since the appellant has already served out more than 7 years, he is sentenced to sentence already undergone.
[909C] 2.
The plea of right of private defence taken by the accused persons including the appellant has not been accept ed by the Courts below.
Both the Courts below have rejected the story that it was not the appellant but another accused who wiped out a knife and inflicted the injury on Sheroo and that first injury was caused on Maruti.
There is no evidence to indicate that there was any material sufficient to come to the conclusion that it was Maruti who was assaulted first.
On the contrary the consistent evidence indicated that on arrival of Sheroo it was Maruti who started the verbal exchange and in view of this evidence, the submission that the injury was inflicated on Sheroo in the exercise of right of private defence cannot be accepted.
[906H; 907A B] 3.
The Trial Court was right in concluding that "some thing provocative seems to have happened".
It is apparent that the prosecution witnesses did not say or give out what words were spoken.
The only inference could be that if those words were given out, it would have damaged the prosecution case.
[908B C] 4.
On the arrival of the complainants ' party some hot exchange began.
Words were spoken, the witnesses have cate gorically stated that 903 they were speaking loudly and still prosecution witnesses have chosen to give excuse for not speaking out words by saying that they could not hear those words and this clearly goes to show that the words used by the deceased and his friends were such which caused provocation.
Both the Courts came to the conclusion that there was no pre meditation.
It was at the spur of the moment and in the heat of passion and it is also not disputed that only one blow was inflicted by the present appellant and the injury ultimately caused proved to be fatal.
[908C E] 5.
The story of some earlier trouble and the motive suggested by the prosecution has not been accepted by both the Courts below and it is also clear that there was not a pre arranged plan.
Admittedly it was by chance that the party of Sheroo also chose to go to the same spot i.e. hand cart of Badshah at that odd hour at night where the appellant and his friends had already reached.
It is not as if seeing the deceased Sheroo and his friends that the appellant and his friends reached.
On the contrary, Sheroo and his friends arrived later.
In this view of the matter, both the Courts were right in coming to the conclusion that hot exchange of filthy language resulted in some kind of provocation in the heat of passion without premeditation this injury was inflicted and in the circumstances it could not be held that it was inflicted with an intention to cause death.
The only intention which could be attributed to the appellant in the circumstances of this case could be to cause such bodily injury as is likely to cause death.
Conse quently, the appellant could only be convicted for an of fence under section 304 Part I. [908G H; 909A B]


judgement:
Civil Appeal Nos.
1449 1456 of 1974.
From the Judgment and Order dated 15/21.9.1972 of the Calcutta High Court in I.T.R Nos. 128 and 160 of 1967.
S.C. Manchanda, V.Gauri Shankar, M.B. Rao and Ms. A. Subhashini for the Appellants.
Dr. Devi Pal, H.K. Dutt, Ms. section Seal and D.N. Gupta for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by the Revenue by special leave and are directed against the decision of the Calcutta High Court dated 15.9.1972 rendered upon references made under section 256(1) of the Income tax Act of 1961.
The Tribunal referred the following six questions for opinion of the Court: 1.
Whether on the facts and in the circumstances of the case and on a proper construction of the agreement between the Indian Company and the Export Company, the Tribunal was 886 right in holding that the six non resident companies in Group A had a business connection with the Indian Company and therefore that the Indian Company was correctly treated as an agent of the said non resident companies under section 163 of the Income tax Act, 1961? 2.
If the answer to question No. 1 is in the affirma tive, then, whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that any profit could be deemed to accrue or arise in India to the six non residents in the United Kingdom in respect of the goods sold by them to customers in India? 3.
Whether, on the facts and in the circumstances of the case and on a proper construction of the agreement dated 22.3.
1955 between the Indian Company and Crane Packing Ltd. (company in Group B), the Tribunal was right in holding that the non resident company had business connection with the Indian Company and, therefore, the Indian Company was cor rectly treated as an agent of the said non resident company under section 163 of the Income tax Act, 1961? 4.
If the answer to question No. 3 is in the affirma tive then, whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that any profit could be deemed to accrue or arise in India to the aforesaid non resident company in respect of the goods sold by it to customers in India? 5.
Whether, on the facts and in the circumstances of the case and on proper construction of the agreement dated 1.6.1954 between the Indian Company and Budy Tubing Co. (Australia) Pvt.
Ltd. (non resident company in Group B), the Tribunal was right in holding that the non resident company had business connection with the Indian Company and, there fore, the Indian Company was correctly treated as an agent of the said nonresident company under section 163 of the Income tax Act, 1961? 6.
If the answer to question No. 5 is in the affirma tive, then, whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that any profits could be deemed to accrue or arise in India to the aforesaid non resident company in respect of the goods sold to the customers in India? 887 The short facts relevant for appreciating the background in which these questions arose are these T.I.& M. Sales Ltd., assesseerespondent, was assessed to income tax as a representative assessee of ten non resident companies.
The Tribunal grouped the ten nonresident companies under three heads six in Group A, three in Group B and one in Group C.
In regard to the companies under Group A, the assesee had no direct agreement but had dealings by virtue of its agreement with the exporting company.
So far as the three companies under Group B are concerned, the assessee had no business connection with them and so far as the only company under Group C is concerned, the assessee 's stand was that it had an agreement dated 16.12.1948 with the export company, but no liability accrued under the law in respect of the trans actions.
The Income tax Officer referred specifically to the agreement of 1948 and refuted the stand of the assessee by saying: "The agreement of 6.12.1948 referred to above which continued during the relevant years is clear authority that the non resident had employed the Indian Company for selling its goods in India on commission.
The agreement certainly brings into existence a business connection between the two.
The Indian Company is in receipt of commission calculated with reference to the aforesaid values of goods sent not only by the non residents, but also by some manufacturers of the T.I. Group in the United Kingdom with which the Indian Company had no direct contract, but which supply goods to India as per orders placed by the Indian Company through the non residents . . ".
The Income tax Officer also found that the Group A companies belonging to the T.I. Group were connected with the Indian Company through the export company.
Appeals challenging the assessment were taken to the Appellate Assistant Commissioner.
Before him, the assessee tried to establish the actual course of dealing between the Indian Company and the ten non residents and contended that no liability under the Act accrued.
The Appellate Authority dismissed the contentions of the assessee by holding that "the assessee has produced no proof of its assertions and on the contrary, has blocked the enquiry by me thereon".
Along with the grounds of the appeal filed before the Tribunal, an affidavit dated 27.12.1965 of Carol Sturart Cameron was filed.
Cameron stated in that affidavit that he was the Secretary of the assessee and was in superin 888 tendence of the proceedings relating to the assessments of the assessee as representative assessee of the ten non residents.
In that affidavit, he denied the fact that before the Appellate Assistant Commissioner any obstruction was offered to an attempted probe by the said Appellate Authori ty.
On the other hand, the affidavit stated that several documents were made available before the Appellate Authority and were available and actually placed before him and in case the Appellate Authority wanted any information or further documents to be produced, Cameron was prepared to do so.
We shall again refer to the affidavit in its appropriate place later.
Before the Tribunal, some argument was raised with reference to the affidavit but ultimately the Tribunal upheld the assessments but referred the questions indicated above for the opinion of the High Court.
The High Court by the impugned judgment reported in referred to the provisions of sections, 4, 42 and 43 of the Income tax Act of 1922 corresponding to sections 5, 9 and 163 respec tively of the Income tax Act of 1961.
In the light of the affidavit of Cameron, it took note of the fact that no attempt had been made by the Revenue to traverse the facts stated therein, referred to and relied upon the decision of this Court in the case of Commissioner of Income tax, Punjab vs R.D. Aggarwal & Co., and came to hold that there was no element of business connection and, therefore, the assessee was not liable.
Questions 1, 3 and 5 were thus answered in the negative and against the Revenue and, there fore, Questions 2, 4 and 6 which were required to be an swered only if the answer to the other three questions was in the affirmative did not arise.
In , this Court held: "A relation to be a business connec tion must be real and intimate, and through or from which income must accrue or arise whether directly or indirectly to the nonresident.
The expression business connection undoubtedly means something more than business.
A business connection in section 42 involves a relation between a business carried on by a non resi dent which yields profits or gains and some activity in the taxable territories which contributes directly or indirectly to the earning of those profits or gains.
It predi cates an element of continuity between the business of the non resident and the activity in the taxable territories, a stray or isolat ed transaction is normally not to be regarded as a business connection.
Business connection may take several forms it may include carrying on a part of 889 the main business or activity incidental to the main business of the non resident through an agent.or it may merely be a relation be tween the business of the non resident and the activity in the taxable territories, which facilitates or assists the carrying on of that business.
In each case the question whether there is a business connection from or through which income, profits or gains arise or accrue to a nonresident must be determined upon the facts and circumstances of the case." "A relation to be a business connec tion must be real and intimate, and through or from which income must accrue or arise whether directly or indirectly to the nonresident.
But it must in all cases be remembered that by section 42, income, profit or gain which accrues or arises to a non resident outside the taxable territories is sought to be brought within the net of the Income tax law, and not income, profit or gain which accrues or arises or is deemed to accrue or arise within the taxable territories.
Income re ceived or deemed to be received, or accruing or arising or deemed to be accruing or arising within the taxable teritories in the previous year is taxable by section 4(1)(a) & (c) of the Act, whether the person earning is a resident or non resident.
If the agent of a non resident receives that income or is enti tled to receive that income, it may be taxed in the hands of the agent by the machinery provision enacted in section 40(2).
Income not taxable under section 4 of the Act of a non resident becomes taxable under section 42(1) if there subsists a connection between the activity in the taxable territories and the business of the non resident, and if through or from that connection income directly or indirectly arises.
" Whether a relationship would amount to "business connec tion" as provided in section 163(1)(b) of the Income tax Act of 1961 for the purpose of giving rise to liability under section 9(1) of the Act would depend upon a set of facts arising in a particular case.
The High Court, relying upon the facts stated in the affidavit of Cameron, has found that during the hearing or the appeals before the Appellate Assistant Commissioner, Court had produced certain records to show the manner in which the business had been carried on and the nature of the transactions.
The Appellate Assistant Commissioner in his order indicated: 890 "The assessee submits that the contracts for the supply of goods ordered by the Indian buyers are accepted in the foreign country, that the property in the goods shipped passes to the Indian buyers at the port of shipment in the foreign country, that the payment for the goods is received by the non residents in the foreign country that the sale and pur chases are as between principal and principal and, therefore, cannot be said that the non residents have either a business connection in India or have any income which could be deemed to accrue or arise in India as attributable to any operation carried out in India.
I may here touch briefly on that the assessee has pro duced no proof of these assertions and, on the contrary, has blocked enquiry by me therein." "The assessee is aggrieved that in the orders under section 143, the Income tax Officer assumed ipsi dixit that the sales were made in India.
It submits that while it is true that the non residents ' products were sold to persons in India, that does not con clude the question and, on the facts of this case, the property in the goods sold passed to the Indian buyers outside India and, there fore, the Income tax Officer 's axiomatic assumption that there were any sales in India is incorrect and if there were no sales in India, there is no income which could be deemed to accrue or arise in India by invoking the provisions of section 9 as no operation is carried out in India.
" The order of the Appellate Assistant Commissioner shows that Cameron appeared before him at the hearing on 3.9.1965 and 4.9.1965 and the appeals were dismissed by order dated 17.9.1965.
This Court 's judgment in C.I.T.v.
R.D. Aggarwal & Co. (supra) was pronounced on 6th of October, 1964.
The order of the Appellate Assistant Commissioner makes casual reference to this judgment but the ratio thereof had not been put to use in any manner and the same does not appear to have had any perceptible effect on the decision of the Appellate Assistant Commissioner.
Along with the memoranda of appeal filed before the Tribunal, the assessee filed the affidavit of Cameron.
That affidavit is dated 27.12.1965.
The Revenue had notice of it and the Tribunal in its decision has stated "along with the grounds of appeal before us, there is an 891 affidavit by Shri Cameron setting out the course of dealing and alleging that several of these representatives files were inspected by the Appellate Assistant Commissioner at the time of hearing of the appeals.
" The Tribunal however did not dealt with the affidavit by saying: "For the purpose of a decision as to whether the Indian company could be appointed agent under section 163 by virtue of business con nection with the non resident companies, it is not necessary to go into the terms of the affidavit.
These facts might have a bearing on the quantum of the income deemed to arise to the non resident companies from the business connection.
" The Tribunal obviously fell into an error in brushing aside the affidavit for the reason it indicated.
The facts stated in the affidavit had a direct bearing on the point in issue, namely, whether there was any business connection between the assessee and the non resident companies.
In course of the argument of the matter before the High Court, sumptuous reference was made by the counsel for the Revenue to the affidavit of Cameron.
The judgment of the High Court says: "Mr Pal (for the department) submits that the affidavit of Mr. Carol Stuart Cameron, Secre tary of the Indian Company affirmed on 27.12.1965 which was filed before the Appel late Tribunal contains facts which must be read in the light of the agreement between the parties. ?".
This would indicate that there was no objection to the acceptance of the affidavit and use of its content while dealing with the matter and the High Court relied upon the affidavit and stated: "In our case, the facts as they appear from the documents on record and the affidavit of Mr. Cameron referred to above, which inciden tally has not been traversed by the department are (a) procuring of raw materials and manu facture of finished goods took place outside the taxable territories, (b) contracts for sale of goods were entered into outside the taxable territories, (c) price was received by the non residents outside the taxable territo ries and (d) delivery was also made outside the taxable territories.
Moreover, Cameron in his affidavit categorically states that the orders which were sent from India were accept ed by the 892 non residents in London and intimation of such acceptance was communicated either to the Indian company or to the Indian customers and the orders became binding contracts only after being accepted in this manner.
In other words, the Indian company had no authority to accept any offers on behalf of any of these non residents whether they belonged to Group A or Group B. The department, as we have stated, has not adduced any evidence to contradict the facts stated by Cameron either from the course of dealings between the parties or otherwise." "The position, therefore, is that in a case like this there can be no business connection unless the Indian assessee has the authority to accept offers or to enter into contracts on behalf of the non residents.
The Tribunal has found that in the case of one company only there was an express prohibition against acceptance of offers.
But in the other contracts there was no such express prohibi tion.
The Tribunal has granted relief in the case of express prohibition but has taken a different view with regard to those contracts in which there was no such prohibition.
In our opinion, having regard to the facts stated by Cameron and the course of dealings between the parties, absence of express prohibition, in the instant case, is immaterial.
It is true that the Indian company was the sole agent of the Group B companies.
But it appears, from the evidence on record that in spite of being the sole agent, the Indian company had no authority given to it by the Group B companies to accept offers on their behalf.
So far as Group A companies are concerned, there was no privity of contract at all either of agency or of any other variety.
In these premises we cannot but hold that the Indian assessee had no business connections with the non resident companies belonging either to Group A or Group B within the meaning of section 42 of the 1922 Act corresponding to section 9 of the 1961 Act.
" Learned counsel for the appellant was very critical about the manner in which the High Court utilised the affidavit and came to its conclusions regarding the facts in dispute.
The criticism is not without force.
Ordinarily, the High Court should have declined to use the assertions in the affidavit for the purpose of recording findings of fact and if, at all, in its opinion the affidavit was to be utilised, the matter should 893 have gone before the Tribunal for a fresh disposal of the appeals.
The facts of this case are, however, somewhat peculiar.
Rule 10 of the Income Tax (Appellate Tribunal) Rules, 1963 provides: "Where a fact which cannot be borne out by or is contrary to the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit.
" It is the stand of the respondent that Cameron 's affida vit came within the ambit of Rule 10 and had, therefore, been filed along with the memoranda of appeals before the Tribunal.
We are satisfied that the Revenue had full notice of the affidavit and as pointed out by the High Court, it did not dispute the facts stated in the affidavit by filing objection or counter thereto.
The affidavit had not been rejected by the Tribunal but had only been brushed aside by saying that it was not relevant.
Before the High Court, counsel for the Revenue also used the affidavit.
We do not think it would be appropriate at this stage to accept the submission made at the Bar on behalf of the appellant and put back the matter to the stage of the second appeal before the Tribunal.
The assessments relate to a period about a quarter of a century back and by its conduct, the Revenue appears to have waived its fight to dispute the facts as serted in the affidavit on one hand by not challenging its admissibility and on the other, by not disputing the con tents thereof.
We have been told during the hearing of the appeals that Cameron is now dead.
Once the facts stated in the affidavit are accepted, the ratio of the decision of this Court in C. LT.
R.D. Aggarwal & Co. (supra) would be fully applicable and the High Court has utilised the ratio in that decision to find out whether any business connection between the assessee and the non resident companies had been established.
There is no dispute that unless the matter comes under section 163(1)(a) of the Act, there will be no liability for assessment.
In that view of the matter, these appeals have to fail.
The appeals are therefore dismissed but without any order for costs.
N.P.V. Appeals dis missed.

summary:
The assessee respondent was assessed to income tax as a representative assessee of ten non resident companies.
The companies were grouped under three heads six in Group A, three in Group B and one in Group C.
In regard to the companies under Group A, the assessee had no direct agree ment but had dealings by virtue of its agreement with the exporting company; as regards the three companies under Group B, the assessee had no business connection with them; and so far as the only company under Group C was concerned, the assessee 's stand was that it had an agreement dated December 16, 1948 with the export company, but no liability accrued under the law in respect of the transactions.
The Income tax Officer referred specifically to the agreement of 1948 and refuted the stand of the company.
He held that the agreement was a clear authority that the non resident had employed the Indian Company for selling its goods in India on commission and that it brings into exist ence a business connection between the two companies.
He also held that the Group A companies were connected with the Indian Company through the export company.
Appeals were filed by the assessee challenging the assessments before the Appellate Assistant Commissioner.
The assessee tried to establish the actual course of dealing between the Indian Company and the ten non residents and contended that no liability under the Act accrued.
The Appellate Authority dismissed the contentions of the asses see by holding that the assessee had produced no proof of its assertions and on the contrary had blocked the inquiry.
Before the Tribunal, an appeal was filed by the asses see.
Along with the grounds, an affidavit dated December 27, 1965 of the Secretary of the assessee was also filed and it was stated therein that there was no 884 obstruction to the proceedings before the Appellate Assist ant Commissioner with regard to the attempted probe by the Appellate Authority and that several documents were made available before the Appellate Authority and were actually placed before him, and in case the Appellate Authority wanted any information or further documents to be produced, the Secretary was prepared to do so.
The Tribunal did not deal with the aforesaid affidavit on the ground that it was not necessary for the purpose of determining whether the Indian Company could be appointed agent under Section 163 of the Act.
It upheld the assess ments and referred to the High Court the questions whether the non resident companies had business connection with the Indian Company and whether the Indian Company was correctly treated as an agent of the said non resident companies under Section 163 of Income tax Act, 1961.
The High ,Court held that the Indian assessee had no business connections with the non resident companies within the meaning of Section 9 of the Act.
Dismissing the appeals of the Revenue, this Court, HELD: 1.
The High Court was right in holding that the Indian assessee had no business connections with the non resident companies within the meaning of Section 9 of the 1961 Act.
Unless the matter comes under Section 163(1)(a) of the Act, there will be no liability for assessment.
[893F] 2.
Whether a relationship would amount to "business connection" as provided in Section 163(1)(b) of the Income tax Act of 1961 for the purpose of giving rise to the li ability under Section 9(1) of the Act would depend upon a set of facts arising in a particular case.
[889F G] 3.
The, order of the Appellate Assistant Commissioner shows that the Secretary appeared before him at the hearing on September 3 and 4, 1965 and the appeals were dismissed by order dated September 17, 1965.
[890F] 4.
Ordinarily, the High Court should have declined to use the assertions in the affidavit for the purpose of recording findings of fact and if, at all, in its opinion the affidavit was to be utilised, the matter should have gone before the Tribunal for a fresh disposal of the ap peals.
[892H] 885 5.
In the instant case, the High Court relying upon the affidavit of the Secretary of the assessee had found that during the hearing of the appeals before the Appellate Assistant Commissioner, the Secretary had produced certain records to show the manner in which the business had been carried on and the nature of the transactions.
The Tribunal obviously fell into an error in brushing aside the affida vit.
The facts stated therein had a direct bearing on the point in issue, namely, whether there was any business connection between the assessee and the non resident compa nies.
[889G H; 891C D] 6.
The assessments relate to a period about a quarter of a century back and by its conduct, the Revenue appears to have waived its right to dispute the facts asserted in the affidavit on one hand by not challenging its admissibility and on the other by not disputing the contents thereof.
It would not be appropriate at this stage to put back the matter to the stage of the second appeal before the Tribu nal.
[893D El Commissioner of Income Tax, Punjab vs
R.D. Aggarwal and Company and another, , referred to.


judgement:
vil Appeal No. 1371 of 1980 ETC.
& ETC.
From the Judgment and Order dated 29.8.1978 of the Punjab and Haryana High Court in C.W.P. No. 1220/1978.
Pankaj Kalra for the Petitioners.
V.C. Mahajan, C.V. Subba Rao, I.S. Goel, and N.S. Das Bahl for the respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The appellants in the Civil Appeal and the petitioners in the Writ Petitions are all 'trained Graduates ', that is to say, all of them possess the B.Ed.
or B.T. degree in addition to the B.A. degree.
They are teach ers in Government schools in the State of Haryana.
They did not possess the B.Ed.
or B.T. degree when they joined serv ice initially.
They acquired the B.Ed.
or B.T. degree quali fication subsequent to their joining service which was between the years 1953 and 1973.
Some of them acquired the B.Ed.
or B.T. degree qualification before September 5, 1979 and in some cases after September, 5, 1979.
The importance of the date September 5, 1979 will become evident as we proceed to state the facts.
It appears that in the Haryana Educational Service, there were two categories of teachers described as Masters and Basic Trained teachers.
25% of the posts of Masters were reserved for promotion from the posts of Basic Trained teachers.
Masters could be promoted to higher posts.
There appears to have been some dissatisfac tion regarding the scales of pay for teachers and so in 1957, there was a revision of the scales of pay by an order dated July 23, 1957.
All teachers, according to their quali fications, 926 were placed in two broad categories, category 'A ' consisting of B.A/ B.SC./B.Com/B.Sc (Agriculture) and B.T., and Catego ry 'B ' consisting of 4 groups of whom Group 1 was "Matrics with basic training (including JBT)".
The Government order mentioned the scales of pay as: "Category 'A ': Rs.110 8 190/10 250 with a higher start for M.A. & M.Sc.
As at present.
The existence percentage of posts fixed by Government for scales of Rs.110 8 190/10 250 and Rs.250 300 should remain unchanged at 35% and 15% respectively.
Category 'B ': Lower Rs.60 4 80/5 120 Middle Rs.120 5 175.
Upper Rs.140 10 200.
With a view to providing incentives, it has been decided that posts falling in these groups should be in the following as: Group I: Lower Scale 85% Middle Scale 15% 15% of teachers in this group should straight away be promoted to the middle scale by a selection based on seniority and merits, while the rest should be given the lower scale.
" What is important to be noticed here is that the scale of pay was linked to the qualification.
A question was raised whether teachers who started as Basic Trained teachers and later acquired the B.Ed. or B.T. qualification, but who could not be adjusted against posts of Masters would be entitled to the grade of Rs.110 250? Answering a query, the Secretary of the Department of Education replied, "Your presumption that teachers holding B.A., B.T./B.A., B.Ed.
qualifications would henceforth be placed in Category 'A ' is confirmed".
The question also came to be considered judi cially, first by the High Court of Punjab & Haryana and later by the Supreme Court in State of Punjab vs Kirpal Singh Bhatia, ; The Supreme Court, affirming the judgment of the High Court of Punjab & Haryana, held as follows: "The High Court rightly referred to the letter of the Secretary of the Department dated 24th September, 1957 that teachers holding B.A., B.T./B.A., B.Ed.
qualification 927 would henceforth be placed in Category 'A '.
The High Court tightly came to the conclusion that the scale of pay of Rs.110 250 Would be effective either from the date when the teach ers would pass the examination of Bachelor of Teaching or its equivalent or 1st May, 1957 whichever is latter.
" While the writ petitions were pending in the High Court, the Government of Haryana issued an order directing further revision of the scales of pay of teachers working in Govern ment schools in 1960.
It was expressly stated in the order that the scales of pay were being revised consequent on the acceptance of the recommendations of the "Kothati Commis sion".
One of the questions which the Kothari Commission had considered in great detail was the scales of pay of teach ers.
The Commission had strongly expressed the view that the scales of pay should be linked to educational qualifica tions.
In paragraph 3.15 of their report, the Commission said: "3.15 Our first proposal is that the existing multiplicity of scales of pay should be re duced and that there should be three main scales of pay for school teachers: (1) A scale of pay for teachers who have completed the secondary course and are trained and who would form the vast bulk of teachers at the primary stage; (2) A scale of pay for trained graduates who would form a small proportion of teachers at the primary stage but the vast bulk of teachers at the lower secondary stage; (3) A scale of pay for teachers with post graduate qualifications who would form a small proportion of teachers at the lower secondary stage, but the bulk of teachers at the higher secondary stage.
Incentives to teachers of special subjects or to teachers with additional quali fications can be given in the form of advance increments or special allowance.
The scales of pay of special teachers (i.e. for drawing, craft, physical education, etc.) can also be related to these three basic scales in some suitable manner.
The scales of pay for librar ians should also be related to those for teachers in a suitable manner.
" 928 Again in paragraph 3.16(3), they said: "Our attention has been drawn to an anomaly which must be removed as early as possible.
Several States restrict, on finan cial grounds, the number of posts which carry the scale of trained teachers who have com pleted the secondary school course.
The re maining posts are usually assigned to lower scales of pay sanctioned for teachers with lower qualifications.
Not infrequently, per sons with lower qualifications are recruited to these posts even when qualified and trained teachers are available.
This is bad enough; but what is worse, even trained and qualified teachers who are recruited against the posts are given, not the salaries of qualified and trained teachers to which they are entitled but the lower salaries meant for these posts.
As the completion of secondary school course and two years of professional trained are accepted as the minimum qualification for a primary teacher, this practice should be abandoned as early as possible and the princi ple adopted that every trained teacher who has completed the secondary school course received the scale of pay sanctioned for such teachers.
This will remove an injustice now being done to a large number of teachers in service, and create an incentive for unqualified or un trained teachers to become qualified and trained.
" In Paragraph 3.17(3), they said: "The scales of pay of trained graduate teach ers should have a minimum of Rs.220 rising to Rs.400 in a period of about 20 years.
There should be a selection grade which would rise to Rs.500 and be available to about 15 per cent of the cadre.
" We mentioned earlier that even in 1957, the Government of Punjab (which at that time included Haryana) had already accepted the principle of linking pay to qualification as evident from their order dated July 23, 1957.
Accepting the Kothari Commission 's recommendations, they revised the scales of pay with effect from December 1, 1967 in the following manner: 929 "Sr. Category of teachers Revised Grade No. ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ 1.
J.B.T./J.S.T/J.A.V.C & V i) Rs.125 5 150/5 250 teachers drawing masters.
(for 85% of the cadre) Tailoring Mistress Art & ii) Rs.250 10(for 15% of Craft teachers, Demestic the cadre).
Science Mustresses & Shashtries.
N.B. The untrained teachers with High Secondary/Matricula tion qualifications will draw the starting of Rs.100 per mensem and they will be integrated in the regular pay of scales Only after they attain necessary provisional qualifi cation.
i) (Rs.220 8 300/10 400 (for 85% of the cadre) 2.
Masters/Mistresses ii) Rs.400 20 500 (Trained Graduates) (for 15% of the cadre) N.B. i) The 1st and 2nd class Graduates will be entitled to draw one advance increment in addition.
(ii) The untrained Graduates will be allowed the starting salary of Rs.200 per mensem and will be entitled for the regular scales of pay only after attaining the prescribed professional training.
" Though the 1968 order had come into force with effect from December 1, 1967, it was not suggested either before the High Court or before the Supreme Court when Kirpal Singh Bhatia 's case was decided that the 1968 order had made any departure from the principle of the 1957 order that trained Graduates would be entitled to the higher scales of pay.
The question however was raised in Civil Writ No. 2505 of 1972 in the High Court of Punjab and Haryana and it was decided in that case that teachers who did not originally possess the B.T./B.Ed.
qualification but who acquired such qualifi cation on various dates between 1960 and 1970 were entitled to the higher scale of pay of Rs.220 300/ 400 with effect from the respective dates of their acquiring the qualifica tion irrespective of the dates on which they were adjusted against the posts of Masters.
After the judgment of the High Court was pronounced consequential orders were issued by the Government on November 20, 1973.
The question arose again in Civil Writ No. 1991 of 930 1976 and other cases when it was disposed of by a Division Bench of the High Court of Punjab and Haryana on November 1980 with the following order: "The learned counsel for the parties are agreed that the matter in this and writ petitions Nos. 1991 of 1976, 3829 of 1975, 4449 of 1974, 5227 of 1975, 5539 of 1975, 2247 of 1973, 7726 of 1976 and 7813 is covered by the decision of the Supreme Court reported as State of Punjab and Others vs Kirpal Singh Bhatia and Others, [1975] 2 Service Law Re porter 621 and these petitioners have to be allowed to in terms of the aforesaid judgment of the Supreme Court.
The learned Advocate General, Har yana states that the benefit which flowed because of the Judgment of the Supreme Court in Kirpal Singh Bhatia 's case (supra) has been given to the petitioners in all these peti tions.
Mr. J.L. Gupta learned counsel for the petitioners, shows ignorance about this fact.
Whatever be the circumstances, the petitioners are allowed in view of the judgment of the Supreme Court in Kirpal Singh Bhatia 's case (supra) with no order as to costs.
" It is thus seen that from 1957 to 1980 whenever the question arose, it was always accepted that teachers who acquired the B.T. or B.Ed.
qualification would be entitled to the higher scale of pay as soon as they acquired the qualification irrespective of the dates when they were adjusted against the posts of Masters.
The adjustment against the posts of Masters was relevant for the purpose of seniority in the posts of Masters and for the further purpose of promotion from that post.
So far as the scale of pay was concerned, irrespective of adjustment against the post of Master, a teacher was always held to be entitled to the higher scale of pay from the date of the acquisition of the B.T. or B. Ed. qualification.
On September 5, 1979, the Government of Haryana issued an order in the following words: "Sanction of the Governor of Haryana is hereby accorded w.e.f.
5.9.1979 of the grant of Masters grade to unadjusted J.B.T. teachers who have passed B.A.,B.Ed.
, subject to the following conditions: 931 (i) That the expenditure involved would be met from the savings of the current year revised sanctioned estimates.
(ii) That these teachers will not be allowed any seniority in the cadre of masters.
(iii) That it will not form a precedent for future.
(iv) That the award of Master 's grade to the concerned teachers would be personal to them." This order of the Government is now sought to be interpreted and it has been so interpreted by the High Court of Punjab and Haryana in the judgment under appeal that those teachers who had acquired the B.T. or B.Ed.
qualification subsequent to December 1, 1967 (the date on which the 1968 order came into force) and before September 5, 1979 would be entitled to the higher grade but with effect from September 5, 1979 only and that those who acquired the qualification subse quent to September 5, 1979 would not be entitled to the higher grade.
According to the judgment of the High Court under Appeal, the 1968 order did away with the principle of the 1957 order that teachers acquiring B.T. or B.Ed.
quali fication should get the higher grade and that a concession was shown in 1979 enabling the teachers who acquired the B.T. or B.Ed.
qualification between 1968 and 1979 to get the higher scale from 1979.
In our opinion this is plainly to ignore all the events that took place between 1957 and 1980.
The principle that pay should be linked to qualifica tion was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia 's case was argued in the High Court and in the Supreme Court there was not the slightest whisper that the principle had been departed from in the 1968 order.
In fact the 1968 order expressly stated that the Government had accepted the Kothari Commission 's report in regard to scale of pay was the linking of pay to qualification.
That was apparently the reason why no such argument was advanced in Kirpal Singh Bhatia 's case.
Even subsequently when sever al writ petitions were disposed of by the High Court of Punjab and Haryana and when the Government issued consequen tial orders, it was never suggested that the 1968 order was a retraction from the principle of qualification linked pay.
The 1968 order must be read in the light of the 1957 order and the report of the Kethari Commission which was accepted.
If so read there can be no doubt that the Government never intended to retract from the principle that teachers acquir ing the B.T. or B.Ed.
would be entitled to the higher grade with effect from the respective dates of their acquiring 932 that qualification.
The 1979 order was indeed superfluous.
There was no need for any special sanction for the grant of Master 's grade to unadjusted JBT teachers who had passed B.A., B.Ed.
That was already the position which obtained both as a result of the 1957 and 1958 orders and the several judgments of the Court.
We do not think that the Punjab and Haryana High Court was justified in departing from the rule in the judgment under appeal.
The rule had been well estab lished and consistently acted upon.
Nor was it open to the Government to act upon the principle in some cases and depart from it in other cases.
In the result we allow the appeal and the Writ Petitions and direct the respondents to give the higher grade admissible to Masters to all the teachers who have acquired the B.T./B.Ed.
qualification with effect from the respective dates of their acquiring the qualification.
The appellants and the petitioners are enti tled to their costs.
N.P.V. Appeal allowed.

summary:
In the Haryana Educational Service, there were two categories of teachers described as Masters and Basic Trained Teachers.
25% of the posts of Masters were reserved for promotion from the posts of Basic Trained teachers.
Masters could be promoted to higher posts.
By an order dated July 23, 1957 there was a revision of the scales of pay.
Teachers were placed according to their qualifications in two categories, Catetogy A consisting of B.A, B.Com, B.Sc.
(Agriculure) and B.T., and Category 'B ' consisting of four groups of whom Group I was Matric with basic training (including J.B.T.).
The scale of pay was linked to the qualification and for category 'A ' it was Rs.110 250 with a higher start for M.A. and M.Sc.
and for Category 'B ' it was Lower Rs.60 120, Middle Rs.120 175 and Upper Rs.140 200.
While Kripal Singh Bhatia 's case and other petitions were pending, the Government of Haryana issued an order further revising the scales of pay of teachers working in Government schools in 1968 consequent on the acceptance of the recommendations of the Kothari Commission with effect from December 1, 1967.
There was, however, no departure from the principle of the 1957 order, that trained graduates would be entitled to the higher scales of pay.
On September 5, 1979, the Government issued an order granting Masters grade to unadjusted J.B.T. teachers who had passed B.A., B.Ed.
subject to certain conditions.
This order was challenged before the High Court by 'trained graduates ' i.e. those who possessed the B.Ed.
or B.T. degree in addi tion to B.A. degree.
They did not possess this degree ini tially but acquired it subsequent to their joining service which was between 1953 and 1973.
The High Court held that those teachers who had acquired the B.T. or B.Ed.
qualifica tion subsequent to December 1, 1967 (the date on which the 1968 order came into force) 924 and before September 5, 1979 would be entitled to the Higher grade but with effect from September 5, 1979 only and that those who acquired the qualification subsequent to September 5, 1979 would not be entitled to the higher grade.
It fur ther held that the 1968 order did away with the principle of the 1957 order, that teachers acquiring B.T. or B.Ed.
quali fication should get the higher grade, and that a concession was shown in 1979 enabling the teachers who acquired the B.T. or B.Ed.
qualification between 1968 and 1969 to get the higher scale from 1979.
Allowing the appeal, this Court, HELD: 1.
From 1957 to 1980, it was always accepted that teachers who acquired the B.T. or B.Ed.
qualification would be entitled to the higher scale of pay as soon as they acquired the qualification irrespective of the dates when they were adjusted against the posts of Masters.
The adjust ment against the posts of Masters was relevant for the purpose of seniority in the post of Masters and for the further purpose of promotion from that post.
So far as the scale of pay was concerned irrespective of adjustment against the post of Masters, a teacher was always held entitled to the higher scale of pay from the date of the acquisition of the B.T. or B.Ed.
qualification.
[930E G] 2.
It is plain that the High Court has ignored all the events that took place between 1957 and 1980.
The principle that pay should be linked to qualification was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia 's case was argued in the High Court and this Court there was not the slightest whisper that the principle had been de parted from in the 1968 order.
In fact the 1968 order ex pressly stated that the Government had accepted the Kothari Commission 's report in regard to the scales of pay and the main feature of the report with regard to pay was the link ing of pay to qualification.
The High Court was not justi fied in departing from rule which had been well established and consistently acted upon, it was not open to the State Government to act upon the principle in some cases and depart from it in other cases.
[931E G; 932B] 3.
The 1968 order must be read in the light of the 1957 order and the report of the Kothari Commission which was accepted.
If so read there could be no doubt that the Gov ernment never intended to retract from the principle that teachers acquiring the B.T. or B.Ed.
qualification would be entitled to the higher grade with effect from the respective dates of their acquiring the qualification.
The 1979 order was indeed superfluous.
There was no need for any special sanction for the grant of 925 Master 's grade to unadjusted J.B.T. teachers, who had passed B.A., B.Ed.
That was already the position which obtained both as a result of 1957 and 1968 orders and the several judgments of the Court.
[931G H; 932A B] (The respondents directed to give the higher grade admissible to Masters to all the teachers who have acquired the B.T/B.Ed.
qualification with effect from the respective dates of their acquiring the qualification).
State of Punjab and another vs Kirpal Singh Bhatia & Ors., ; , referred to.