judgement:
minal Appeal No. 190 of 1962.
Appeal by special leave from the judgment and order dated September 27, 1962 of the Punjab High Court in Criminal Revision No. 1172 of 1962.
Nanak Chand, for the appellant.
Gopal Singh, R.N. Sachthey and R.H. Dhebar, for the respondent.
April 10, 1964.
The Judgment of Subba Rao and Das Gupta JJ. was delivered by Subba Rao J. Raghubar Dayal, J. delivered a dissenting Opinion.
678 SUBBA RAO, J.
This appeal by special leave raises the question of jurisdiction of an appellate court to exercise its power under s.6 of the (Act, No. 20 of 1958), hereinafter called the Act, in respect of an accused who was convicted by the trial court before the Act The facts are not now in dispute.
The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years.
He was sent up for trial before the Magistrate, First Class, Palwal.
The said Magistrate, on May 31, 1962, convicted him under sections 451 and 354 of the Indian Penal Code and sentenced him to six months ' rigorous imprisonment under each count and directed that the sentences should run concurrently.
He further imposed a fine of Rs. 200/ on the appellant under section 451 of the Indian Penal Code and ordered that, in default of payment of fine, he should undergo rigorous imprisonment for two months.
The appellant was 16 years old at the time of his conviction.
The Act was extended to Gurgaon District on September 1, 1962 and, therefore, at the time the appellant was convicted by the Magistrate, the Magistrate had no power or duty to make any order under the Act.
The appellant preferred an appeal against his conviction and sentences to the Additional Sessions Judge, Gurgaon, who by his judgment dated September 22, 1962, dismissed the appeal.
Though by the time the Additional Sessions Judge disposed of the appeal the said Act had come into force, neither the appellant relied upon the provisions of the Act nor did the learned Additional Sessions Judge exercised his power there under.
The revision filed in the High Court by the Appellant was dismissed on September 27, 1962.
The revision petition was dismissed in limine, but no ground was taken in the revision petition that the Additional Sessions Judge should have acted under s.6 of the Act.
After the revision petition was disposed of, it appears that the appellant filed Criminal Miscellaneous Petition No. 793 of 1962 requesting the High Court to exercise its jurisdiction under section 1 of the Act and to pass orders under sections 3, 4 or 6 thereof.
The said application was also dismissed.
Unfortunately the said application is not on the record and we are not in a position to know the exact scope of the relief asked for in the application and the reasons for which it was dismissed.
The appellant filed a petition in the High Court under article 134(1) (c) of the Constitution for a certificate of fitness to appeal to this Court.
One of the grounds for seeking such a certificate was that the High Court should have acted under section 11 of the Act and passed orders under sections 3, 4 or 6 thereof.
That petition having been dismissed, the appellant has preferred the present appeal to this Court by obtaining special leave.
679 Learned counsel for the appellant contends that, having regard to the admitted facts in the case, the High Court should have acted under section 11 of the Act and released the appellant on probation of good conduct instead of sending him to prison.
On the other hand, learned counsel for the State argues that the Act is not retrospective in operation and, therefore, it will not apply to the appellant, as he was convicted before it came into force in Gurgaon District.
Further he contends that neither section II of the Act nor s.6 thereof, on the basis of the express phraseology used therein, can be invoked in the circumstances of the present case.
In any view, he says that the appellant, not having raised this plea till after the revision petition was dis posed of by the High Court, is precluded by his default to raise this contention at this very late stage.
The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.
It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him.
Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence.
While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that.
having regard to the circumstances of the case, including the nature of the offence and the character of the offenders.
it is not desirable to deal with them under ss, 3 and 4 of the Act.
With this short background we shall now read the relevant provisions of the Act.
Section 6.(1) When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him tinder section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
680 (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub section (1) the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.
Section 11.
(1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision.
(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court.
(3) In any case where any person under twenty one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under section 3 or section 4, and passed against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding any thing contained in the Code or any other law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.
(4) The first question is whether the High Court, acting under section II of the Act, can exercise the power conferred on a court under s.6 of the Act.
It is said that the jurisdiction of the High Court under section 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the trial court had, and in the present case the trial court could not have made any order under s.6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon District.
On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation.
In support of this contention a number of decisions bearing on the question of retroactivity of a 681 statute in the context of vested rights have been cited.
Every law that takes away or impairs a vested right is retrospective.
Every ex post facto law is necessarily retrospective.
Under article St 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition.
If a particular law makes a provision to that effect, though retrospective in operation, it will be valid.
The question whether such a, law is retrospective and if so, to what extent depends, upon the interpretation of a particular statute, having regard to the well settled rules of construction. "Maxwell On Interpretation of Statutes", 11th edition, at pp.
274 275, summarizes the relevant rule of construction thus: "The tendency of modern decision, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction.
All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, than formerly.
It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences.
The effect of the rule of strict construction might almost be summed up in the remark that, were an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.
But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.
" Let us now proceed to consider the question raised in the present case.
This is not a case where an act, which was not an offence before the Act, is made an offence under the Act; nor 682 is this a case where under the Act a punishment higher than that obtaining for an offence before the Act is imposed.
This is an instance where neither the ingredients of the offence nor the limits of the sentence are disturbed, but a provision is made to help the reformation of an accused through the agency of the court.
Even so the statute affects an offence committed before it was extended to the area in question.
It is, therefore, a post facto law and has retrospective operation.
In considering the scope of such a provision we must adopt the rule of beneficial construction as enunciated by the modern trend of judicial opinion without doing violence to the provisions of the relevant section.
Section 11(3) of the Act, on the basis of which the learned counsel for the State advances most of his arguments, has no relevance to the present appeal: the said subsection applies only to a case where no appeal lies or is preferred against the order of a court declining to deal with an accused under s.3 or s.4 of the Act, and in the instant case an appeal lay to the Sessions Judge and indeed an appeal was preferred from the order of the Magistrate.
The provision that directly applies to the present case is section 1 1 (1) of the Act, where under an order under the Act may be made any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.
The sub section ex facie does not circumscribe the jurisdiction of an appellate court to make an order under the Act only in a case where the trial court could have made that order.
The phraseology used therein is wide enough to enable the appellate court or the High Court, when the case comes before it, to make such an order.
It was purposely made comprehensive, as the Act was made to im plement a social reform.
As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender, there is no reason why the Legislature should have prohibited the exercise of such a power, even if the case was pending against the accused at one stage or other in the hierarchy of tribunals.
If the provisions of section 6(1) of the Act were read along with section 11, we would reach the same result.
When section 11 (1) says that an appellate court or a revisional court can make an order under the Act, it means that it can make an order also under s.6(1) of the Act.
If so, "court" in s.6(1) will include an appellate court as well as a revisional court.
If an appellate court or a revisional court finds a person guilty, under that section it shall not sentence him to imprisonment unless the conditions laid down in that section are satisfied.
Can it be said that the expression "the court by which the person is found guilty" does not include the appellate or revisional court? When an appellate court or a revisional court confirms a conviction made by a trial court or sets aside an acquittal made by it and convicts the accused, in either case it 683 finds the accused guilty, for without finding the accused guilty it cannot either confirm the conviction or set aside the order of acquittal and convict him.
If the contention advanced by learned counsel for the State, namely, that the Act will apply only to convictions made by the trial court after the Act came into force, be accepted, it would lead to several anomalies; it would mean that the Act would apply to a conviction made by a trial court after the Act came into force, but would not apply to an accused, though his appeal was pending after the Act came into force; it would apply to the accused if the appellate court set aside the conviction and sent back the case to the trial court for fresh disposal, but would not, if the appellate court itself convicted him.
On the other hand if the expression "found guilty" was given the natural meaning, it would take in the finding of guilty made by any court in a pending criminal proceeding in the hierarchy of tribunals after the Act came into force.
This view gets support from the judgment of this Court in Ramji Missar vs State of Bihar(1).
The facts of that case relevant to the present case were as follows: The Assistant Sessions Judge, Arrah, convicted one Basist under section 307 and section 326 of the Indian Penal Code.
As the offences under the said sections were punishable with imprisonment for life, the provisions of the , were not applicable to Basist and, therefore, the Assistant Sessions Judge sentenced him to undergo rigorous imprisonment for 6 years under section 307 of the Indian Penal Code and for 4 years rigorous imprisonment under section 326 of the said Code and ordered the sentences to run concurrently.
But the High Court on appeal found Basist guilty of an offence under s.324 of the Indian Penal Code.
It was contended that the High Court could not make an order under s.6(1) of the , on the ground that section 11 of the Act did not confer such a power on the High Court.
Dealing with this argument, this Court observed: "It is however possible that the words in section 11(1) "pass an order under the Act" are not to be construed so strictly and literally, but to be understood to mean "to exercise the powers or jurisdiction conferred by the Act." This wide interpretation might perhaps be justified by the scope and object of this section.
Section 11 is to apply "notwithstanding anything in the Code or any other law" to all courts empowered to sentence offenders to imprisonment.
To read a beneficial provision of this universal type in a restricted sense, so as to confine the power of these courts to the exercise of the [1963] Supp. 2 S.C.R. 745, 755.
684 powers under sections 3 and 4 alone would not, in our opinion, be in accord with sound principles of statutory interpretation.
We are therefore inclined to hold that the Courts mentioned in section II be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under sections 3 and 4 and the consequential provisions but also under s.6.
" When it was contended that the word "may" in section 11 of the Act empowers the appellate court or the High Court to exercise the power at its option and the words "any order under the Act" empower it to make an order without reference to the standards laid down in the Act, this Court rejected both the contentions.
It held that the expression "may" has compulsory force and that the power conferred on the ap pellate court was of the same nature and characteristic and subject to the same criteria and limitations as those ,conferred on courts under sections 3 and 4 of the Act.
This decision lays down three propositions, namely, (i) an appel late court or a revisional court can make an order under s.6(1) of the Act in exercise of its power under s.11(1) thereof; (ii) it can make such an order for the first time even though the trial court could not have made such an order, having regard to the finding given by it; and (iii) in making such an order it is subject to the conditions laid down in sections 3, 4 and 6 of the Act.
The only distinguishing feature between the present case and the said decision is that in the present case the trial court did not make the order as the Act was not extended to the area within its jurisdiction and in the said decision the trial court did not make the order as it could not, on its finding that the accused was guilty of an offence Dunishable with imprison ment for life.
But what is important is that this Court held that the High Court for the first time could make such an order under section 11 of the Act, as such a power was expressly conferred on it by section 11 of the Act.
We, therefore, hold that the appellate court in appeal or the High Court in revision can, in exercise of the power conferred under section 11 of the Act, make an order under section 6(1) thereof, as the appellate court and the High Court, agreeing with the Magistrate, found the accused guilty of the offences for which he was charged.
The next question is whether this Court can exercise the same power under section 11(1) of the Act.
This Court in disposing of an appeal against an order of the High Court would be deciding what the High Court should have held in the revision before it.
This Court 's power would also be confined to the scope of the power exercisable by the High Court.
This Court, therefore, can either make an order under s.6(1) of the Act or 685 ,direct the High Court to do so.
But whether this Court directly makes an order under s.6(1) or directs the High Court to do :so, it is bound to comply with the provisions of s.6 of the Act.
A court cannot impose a sentence of imprisonment on a person under 21 years of age found guilty of having committed ,an offence punishable with imprisonment (but not with imprisonment for life) unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under s.3 or s.4 of the Act.
For The purpose of satisfying itself in regard to the said action, under sub section
(2) of section 6 of the Act the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.
After con sidering the said material the court shall satisfy itself whether it is desirable to deal with the offender under section 3 or section 4 of the Act.
If it is not satisfied that the offender should be dealt with under either of the said two sections, it can pass the sentence of imprisonment on the offender after recording the reasons for doing so.
It is suggested that the expression "if any" in sub section
(2) of s.6 indicates that it is open to the court to call for a report or not; but the word "shall" makes it a mandatory condition and the expression "if any" can in the context only cover a case where notwithstanding such requisition the Probation Officer for one reason or other, has not submitted a report.
Briefly stated the calling for a report from the Probation Officer is a condition precedent for the exercise of the power under s.6(1) of the Act by the Court.
We think that in the circumstances of the case the best course is to remand the matter to the High Court to make an order after complying with section 6(1) of the Act.
lastly it is contended that we should not at this very late stage of the proceeding, and especially in view of the observations of the Additional Sessions Judge in sentencing the accused, interfere with the order of the High Court.
Ordinarily this Court would be reluctant to allow a party to raise a point for the first time before it.
But in this case both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act.
It is true that the accused did not bring the provisions of the Act to the notice of the court till after the revision was disposed of.
But that does not absolve the court from discharging its duty under the Act.
The observations made by the Additional Sessions Judge in sentencing the accused were made de hors the provisions of the Act.
these observations it cannot be held that the learned Additional Sessions Judge had satisfied himself of the conditions laid down in s.6(1) of the Act.
That apart, as we have pointed out, he could not have legally satisfied himself of the matters mentioned in s.6(1) of the Act without complying with the conditions laid down therein.
We are satisfied that, as the Act was recently extended to Gurgaon District, its existence had escaped the attention of the Additional Sessions Judge as well.
as of the High Court and, therefore, it is a fit case for our interference under article 136 of the Constitution.
We set aside the order of the High Court and direct it to make an order under s.6 of the Act, or, if it so desires, to remand it to the Sessions Court for doing so.
We should also make it clear that we do not intend to question the correctness of the finding of the courts in regard to the guilt of the accused; indeed, the learned counsel for the appellant did not question the said finding.
that when a person has been found guilty for the first time of an offence to which the provisions of sections 3 and 4 of the (Act No. XX of 1958), hereinafter called the Act, could apply, and such finding, be it of the trial Court or of the appellate Court, is arrived at before the application of the Act, the Court of appeal or revision cannot take action under section 11 (1) of the Act when the case comes, before it in appeal or revision.
In this case, the trial Court had convicted the appellant prior to the application of the Act in that area and could not take into consideration the provisions of that Act in the passing of the sentences on convicting the appellant.
The appellant was convicted by the trial Court on May 31, 1962, prior to the application of the Act to that area,.
The Act was applied on September 1, 1962, by a Government Notification, when the appellant 's appeal was pending in the Court of the Sessions Judge.
The appeal was dismissed on September 22, 1962.
The appellant did not draw the attention of the Court to the provisions of the Act.
The Court did not consider them.
The appellant went in revision to the High Court.
The revision was dismissed on September 27, 1962.
The High Court also did not refer to the provisions of the Act.
On September 28, 1962 the appellant filed a petition praying that under sections 3, 4 and 6 of the Act the petitioner be released or that he be dealt with under section 562(2) of the Code of Criminal Procedure, hereinafter, called the Code.
That application was rejected.
Neither this petition nor the order of ' rejection was mentioned in the petition for special leave to appeal.
Reference to these is found in the petition filed in the High Court for leave to appeal to this Court under article 134(1)(c) of the Constitution dated October 3, 1962, printed at 687 p. 25 of the appeal record and in the grounds of appeal accompanying it.
The petition for special leave filed in this Court sought leave to appeal against the order and judgement dated September 27, 1962 in the main revision case and not against the order rejecting the petition, Criminal Miscellaneous, No. 793 of 1962.
It was not a correct statement in paragraph 9 of the special leave petition, to the effect that the petitioner filed an application under article 134(1)(c) of the Constitution for grant of certificate of fitness for leave to appeal to this Court, but it was refused on October 19, 1962.
The ground, as recorded, prima facie showed that such an application was for leave to appeal against the order in the Criminal Revision, No. 1172 of 1962.
In these circumstances, the special leave granted is liable to be revoked.
The appellate court sees that the order of the court below ,on the material on record is correct or not and has to pass a correct order on that material.
If the trial Court could not have taken action under the provisions of the Act which was riot in force at the time it found the accused guilty, the appellate Court could not have taken action under those provisions unless the Act specifically provided for those provisions to be applicable to cases which had been decided earlier, prior to its application.
There is no such express provision in the Act and I do not find any necessary implication from the provisions of the Act in that regard.
It is true that appellate Courts have allowed parties to take advantage of a law enacted during the pendency of the case, but this is done when parties can litigate further in view of the changed law and is done to save multiplicity of proceedings.
Such a ground is not available in the present case.
Ordinarily, it takes a few years for a case decided by a Magistrate who tries it in the first instance, and the passing of the final order by the High Court in revision.
Ordinarily, an appeal lies to the Sessions Judge from the order of the Magistrate and a revision against the Sessions Judge 's order to the High Court.
The two proceedings before the Sessions Judge and the High Court do take time.
The Act is an all India Act and there would be a very large number of persons convicted by trial Courts prior to the enforcement of the Act.
It is too much to suppose that the legislature intended that all the orders of the Magistrates in such cases of conviction against persons under 21 years of age automatically become illegal and liable to correction by the Courts of appeal and revision.
Not only would they be liable to be set aside, the setting aside of the Magistrates ' orders about sentences would not have ended the matters but would have led to further proceedings to be taken by the Magistrates or the appellate Courts for the purpose of coming to a conclusion whether action can be taken in accordance with the provisions of sections 3, 4 and 6 of the Act.
All those numerous cases would have to be reopened and I cannot believe that the legislature would have intended such a result and would not have expressed itself very clearly if it had really intended so.
Section 3 of the Act empowers the Court to release certain offenders after admonition and section 4 empowers the Court to release certain offenders on probation of good conduct.
The Court which is to take action under these sections is the Court by which the person is found guilty of the offences in the respective sections and in circumstances specified in the respective sections.
Such orders are made instead of sentencing the person found guilty to any punishment which could be awarded to him.
It is clear that action under these sections can be taken by the Court which finds a person guilty of the offence for the first time.
A person may be found guilty of the respective offence by the trial Court or by appellate Court if it alters his conviction for an offence which did not fall under either of those sections to one which falls under any of them, or by the High Court if it finds the accused person guilty on appeal against acquittal.
It is in these circumstances that it can be said that the trial Court or the appellate Court or the High Court has found an accused guilty.
A Court of revision cannot convert a finding of acquittal into a finding of conviction and therefore no such case can arise in which a Court of revision for the first time finds an accused guilty of an offence to which the provisions of sections 3 and 4 of the Act apply.
When an appellate Court confirms the conviction of a person it is not the Court which finds him guilty but is the, Court which confirms the finding of the trial Court about the person being guilty on forming an opinion that the order of the trial Court is correct.
If the expression 'the Court by which the person is found guilty ' was to include the appellate Court confirming the conviction of a person for the offence which fell under any of the two sections, it would not have been necessary to clothe the appellate Court with a power to take action under these sections, as sub section
(1) of section 11 does.
This subsection reads: "Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in re vision.
" It is clear from the language of this sub section that the Court which is empowered to order under the Act in the first instance is the Court which is empowered to try and sentence the offender to imprisonment, i.e., the original trial 689 Court.
It is given the power to take action under the Act.
Orders under the Act can also be made by the High Court or any other Court when the case comes before it on appeal or in revision.
The question is as to in which case the High Court or any other Court, can exercise its power.
It can exercise it, when the case in which the trial Court could have exercised the power comes before it.
This is to be deduced from the use of the word 'also ' and from the occasion when the High Court or any other Court can make such an order, it being when the case comes before it on appeal or in revision.
It must, therefore, be the case in which the trial Court could take a certain action in which the High Court or any other Court could also take action only when it came before it on appeal or in revision.
I do not consider it reasonable to construe the language of sub section (1) to mean that the High Court or any other Court could take action in all cases of appeal or revision before it irrespective of the fact whether the trial Court could have made an order tinder the Act in those cases or not.
The scheme of section 11 seems to support this view sub section (1) mentions the Courts which can make orders under the Act.
Sub section (2) provides an appeal where an order under section 3 or section 4 is made by any Court in trying an offender.
This means that when a Court trying an offender convicts him and takes action under section 3 or section 4, an appeal in that case will lie.
Of course no question of the appellate Court taking action under section 3 or section 4 arises in such appeals because action has already been taken by the trial Court and the appellate Court would only look to the correctness of the conviction and in case it finds action under section 3 or section 4 to be unjustified, may even set aside that order and pass suitable sentence as provided in sub section
Sub section (2) makes provision for an appeal and sub section
(4) makes provision for the appellate Court to consider the propriety of any order made under sections 3 or 4 of the Act.
These provisions in sub section
(2) and sub section
(4) exhaust the cases in which orders under sections 3 or 4 could be made by the High Court or any other Court.
While sections 3 and 4 confer a discretionary power in the Court to make an order under those sections in certain cir cumstances, sub section
(1) of section 6 makes it incumbent on the Court finding a person under 21 years of age guilty of offences punishable with imprisonment not to sentence such person convicted of such an offence to imprisonment unless it is satisfied, having regard to the facts mentioned in the sub section that it would not be desirable to deal with him under section 3 or section 4 and in that case it has to record its reasons for sentencing him to imprisonment.
Sub section (2) makes it incumbent on the Court to get a report from the Probation Officer and consider it in order to satisfy itself whether it would not be desirable to deal under section 3 or section 4.
These provisions of section 6 restrict 690 the discretion of the trial Court for taking action under section 3 and section 4 in regard to persons under 21 years of age and constricted of all offences except offences punishable with imprisonment for life.
A Court can, however, sentence such a person to imprisonment only after considering various matters and finally satisfying itself that it would not be desirable to make an order under section 3 or section 4 in regard to that person.
A case to which the provisions of section 6 apply is dealt with by sub section
(3) of section II which provides that when a Court has declined to deal with the person under section 3 or section 4 and has passed a sentence of imprisonment and when no appeal lies or none has been preferred from that order, the Court to which appeals ordinarily lie from the sentence of the Court may, suo motu or on an application made to it by the convicted person or the Probation Officer, call for and examine the record of the case and pass such order thereon as it thinks fit.
Of course, if the order is appealable, the appellate Court can consider the matter in view of the power conferred under sub section
(1), which enables the appellate Court when the case comes before it to make any order under the Act.
Action under sub section
(3), it is clear, can be taken by the appellate Court only in cases in which the trial Court has declined to take action under section 3 or section 4, that is to say, the trial Court, at the time of conviction and sentencing a person, had the power to make an order under section 3 or section 4 and had felt satisfied that such an order was not desirable.
If it has no such power at the time and has passed a non appealable order, or when the convicted person does not appeal, action cannot be taken under sub section
(3) because it cannot be said with any propriety that the trial Court had declined to take action under section 3 or section 4.
This is a strong indication of the fact that powers conferred on the High Court or any Court of appeal or revision under section II are to be exercised in the cases coming before them in which the trial Court itself could have made an order under the Act.
Reference may also be made to an incidental matter.
An order of admonition under section 3 puts an end of the case it being the final order against the convicted person, subject of course to the orders of the appellate Court in case the convicted person appeals against his conviction.
This cannot be said with respect to an order under section 4, an order which would direct that the convicted person be released on his entering into a bond to appear and receive sentence when called upon during such period, not exceeding 3 years, as the Court may direct and in the meantime to keep the peace and be of good behaviour.
The passing of the sentence provided for the offence is put off and the convicted person stands the risk of a proper sentence being passed against him in future in 691 certain circumstances.
Section 9 provides in case of the convict 's failure to observe the conditions of the bond that he and his sureties be summoned to Court which may remand the accused to custody or grant him bail and, if satisfied that he had failed to observe any of the conditions of the bond, forthwith to sentence him for the original offence and where the failure is for the first time to impose upon him a penalty not exceeding Rs. 50/ without prejudice to the continuance in force of the bond.
In case a convicted person has not been able to observe the conditions of the bond, he, in a way, stands to suffer larger punishment than what he would have got in the first instance in case in addition to the sentence which would be passed upon him he had already, for a certain period, observed the conditions of the bond and had also, in view of the provisions of section 5, paid compensation to the victim of the offence and costs of the proceedings which are recovered as fine.
The Code does not provide for the payment of costs and provides for the payment of compensation when ordered out of the fine imposed on an accused; vide sections 545 and 546A of the Code.
This Court considered certain provisions of the Act in Ramji Missar vs State of Bihar(1) and held that the crucial date for the application of the aforesaid sections viz., sections 3, 4 and 6 of the Act to, the case of an accused whose conviction by the trial Court of offences to which those sections do not apply, was altered by the appellate Court to an offence to which the provisions of those sections applied, would be the (late of the decision of the trial Court in view of the terms of the section on grounds of logic as well as on the theory that the order passed by an appellate Court was the correct order which the trial Court should have passed.
This tends to support the view I have expressed above.
It may be mentioned that in that case the trial Court could make an order under section 4 of the Act at the time it convicted one Basist, who was then under 21 years of age, if it had convicted him of the offence to which the provisions of section 4 applied.
The High Court altered the conviction to such an offence but held that it was not competent to pass an order under section 6 of the Act.
This Court held that it could.
In the instant case, the trial Court could not take any action in accordance with the provisions of the Act for the simple reason that the Act was not in force on the day it convicted the appellant.
I am, therefore of opinion that the point for determination before us.
that is, whether the appellate Court can make an order under the Act in cases in which the trial Court on the date of conviction could not have made an order under the Act did not arise for decision in that case.
This question, (1) [1963] Supp. 2 S.C.R. 745.
692 is very different from the question whether an appellate Court can make an order under the Act when it alters the conviction of an appellant to an offence with respect to which an order under the Act could have been made by the trial Court as arose in Ramji 's Case(1).
I am therefore of opinion that the High Court could not have made an order under the Act in this case and that therefore this appeal should fail.
I would accordingly dismiss it.
ORDER In accordance with the opinion of the majority, we set aside the order of the High Court and direct it to make an order under section 6 of the , or, if it so desires, to remand it to the Sessions Court for doing so.
Appeal allowed.
(1) [1963] Supp. 2 S.C.R. 745.

summary:
The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years.
By an order dated May 31, 1962, he was convicted by magistrate and sentenced to rigorous imprisonment.
He was also ordered to pay fine.
At the time of his conviction, he was 16 years old.
The was extended to Gurgaon on September 1, 1962 and hence at the time of his conviction the magistrate had no power or duty to make any order under the Act.
The appeal of the appellant was dismissed by the Additional Sessions Judge, Gurgaon by his order dated Sep tember 22, 1962.
His revision petition was also dismissed by the High Court on September 27, 1962.
No ground was taken either before the Additional Sessions Judge or High Court that the provisions of the should be applied in the case.
After the dismissal of the revision petition, appellant filed a criminal miscellaneous petition requesting the High Court to exercise its powers under section 11 of the Act and pass orders under sections 3, 4 or 6 of the Act.
The application was also dismissed by High Court.
The appellant filed a petition in the High Court for the grant of a certificate of fitness to appeal to this Court and one of the grounds taken was that High Court should have acted under section 11 of the Act and passed orders under sections 3, 4 or 6 of the Act.
The certificate having been refused by High Court, the appellant came to this Court by special leave.
Accepting the appeal, Held (Per Subba Rao and Das Gupta, JJ.): The order of the High Court be set aside and High Court be directed to make an order under section 6 or if it so desires, remand the case to the Sessions Court for doing so.
It is true that ordinarily, this court is reluctant to allow a party to raise a point for the first time before it, but in this case, both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act.
It is true that the appellant did not bring the provisions of the Act to the notice of the Court till after the disposal of the revision petition, but that does not absolve the court from discharging its duty under the Act.
The appellate court in appeal or the High Court on revision can, in exercise of the powers conferred under section 11 of the Act, make an order under section 6(1).
The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.
It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him.
The Act distinguishes offenders below 21 years of age and those 677 above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence.
While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under sections 3 and 4 of the Act.
An order under section 1 1 (1) of the Act can be made by any court empowered to try and sentence the offender to imprisonment and also by High Court or any other court when case comes before it on appeal or in revision.
The sub section ex facie does not circumscribe the jurisdiction of an appellate court to make an order under the Act only in a case where the trial court could have made that order.
The phraseology used therein is wide enough to enable the appellate court or High Court, when the case come before, it, to make such an order.
It was purposely made comprehensive as the Act was made to implement a social reform.
As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender, there is no reason why the legislature should have prohibited the exercise of such a power even if the case was pending against the accused at one stage or other in the hierarchy of tribunals.
The term "court" in section 6(1) includes an appellate court as well as revisional court.
Per Raghubar Dayal, J. (dissenting) When a person has been found guilty for the first time of an offence to which the provisions of sections 3 and 4 of the could apply, and such finding, be it of the trial court or of the appellate court, is arrived at before the application of the Act, the court of appeal or revision cannot take action under section 11(1) of the Act when the case comes before it in appeal or revision.
It is true that appellate courts have allowed parties to take advantage of a law enacted during the pendency of the case, but this is done when parties can litigate further in view of the changed law and is done to save multiplicity of proceedings.
Such a ground is not available in the present case.
Ramji Missar vs State of Bihar, [1963] Supp.
2 S.C.R. 745, referred to.


judgement:
Appeal No. 611 of 1962.
Appeal by special leave from the judgment and decree dated February 11, 1959.
of the Patna High Court in Appeal from Original Decree No. 525 of 1951.
Bishan Narain.
D. R. Prem.
B. R. G. K. Achar and R. N. Sachthey, for the appellant.
A. V. Viswanatha Sastri and K. K. Sinha, for respondents Nos. 1 to 5.
The Judgment of the Court was delivered by Raghubar Dayal J.
Bilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs. 13,448 from the defendant for 831 compensation on account of loss and damage suffered by the plaintiffs owing to non delivery of II bales of cloth which had been consigned on October 20, 194 8 by M/s Ram Kishan Das Sagarmal of Bombay to the plaintiffs under the description of M/s Banshidhar Ganpat Rai.
It was alleged in para 1 of the plaint that the plaintiffs carried on business in cloth and other articles in the name and style of M/s Bansidhar Ganpat Rai which was their joint family trading firm governed by the Mitakshara School of Hindu Law of which joint family the plaintiffs were the kartas and representatives and that they sued as such.
This statement in para 1 of the plaint was not admitted in the written statement.
The trial Court decreed the suit on August 29, 1951.
The decree, inter alia, said : "It is ordered that the suit be decreed with costs defendants do pay to the plaintiffs the sum of Rs. 13,448 with interest thereon." The Union of India appealed to the High Court of Patna and prayed for the setting aside of the decree and for the dismissal of the suit with costs.
The plaintiffs respondents were served with notice of the appeal.
Subsequently Bilas Rai Bohra died on July 24, 1957.
On September 5, 1958, the Union of India presented an application for substitution under 0. 22, r. 4 read with 0. 22, r. 1 1, C.P.C. for setting aside the abatement and condonation of delay.
It was stated in the application that the applicant 's advocate came to know of the death of Bilas Rai Bohra, plaintiff No. 1, on May 14, 1958 when the case was on the daily list with a note to that effect, that he promptly communicated the fact to the railway authorities but due to the mistake of the Attacher, proper steps for substitution could not be taken in time.
It was further stated that after a good deal of enquiry and efforts for three days the date of the death of Bilas Rai Bohra and the names and addresses of his heirs and legal representatives could be ascertained.
A prayer was made for substituting the heirs of Bilas Rai Bohra, they being his sons, a widow and a daughter.
Their names were mentioned in the application.
This application was opposed on behalf of the heirs of Bilas Rai Bohra.
It was mentioned therein that on September 27, 1957, an application for substitution of the heirs of Bilas Rai Bohra was made in another appeal in which the Union of India was a respondent and that therefore the Union of India and its Advocate were aware of the death of Bilas Rai Bohra and of the names of his heirs.
832 On December 1, 1958, the High Court dismissed the applica tion for the setting aside of the abatement of the appeal against Bilas Rai Bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant, the Union of India, as its counsel had information about the death of Bilas Rai Bohra at least on May 16, 1958.
The High Court did not feel satisfied on the facts of the case that any ground had been made out for setting aside the abatement of the appeal.
It may be mentioned here that it was not urged in the High Court that there had been no abatement of the appeal against the heirs and legal representatives of Bilas Rai Bohra.
It could not have been urged when the Union of India itself had applied for the setting aside of the abatement and the substitution of the heirs and legal representatives of Bilas Rai Bohra.
The appeal of the Union of India against the surviving respondent, viz., Sree Ram Bohra, came up for hearing on February II, 1959, when a preliminary objection was raised on behalf of the respondent to the effect that the appeal had abated entirely as it had abated against the heirs of plaintiff respondent No. 1.
It was contended for the Union of India that the two plaintiffs, viz., Bilas Rai Bohra, deceased, and Sree Ram Bohra, had filed the suit as kartas of the joint family which was the owner of the firm of M/s Bansidhar Ganpat Rai and that after the death of one of the kartas the other plaintiff who was also described in the plaintiff 's suit as karta was competent to represent the family and so there could be no question of abatement of the entire appeal.
Again, it was not contended that the appeal against the heirs of Bilas Rai Bohra had not abated.
The High Court upheld the preliminary objection and held that the appeal had become incompetent and was liable to be dismissed.
It was of opinion that even if it be taken that both th plaintiffs had filed the suit in their capacity as kartas of the same joint family, the joint family had gained by virtue of the appeal having abated against the heirs of Bilas Rai Bohra as the decree passed in favour of the joint family through the representation of Bilas Rai Bohra could not be set aside and in case the appeal was permitted to proceed against the joint family in the presence of the other karta Sree Ram Bohra, there might be occasion for the coming into existence of two inconsistent decrees.
The High Court, accordingly, dismissed the appeal.
It was against 83 3 this order that the Union of India obtained the certificate from the High Court under article 133 and then filed this appeal.
The sole point for decision in the appeal then is whether the appeal of the Union of India before the High Court against the respondent Sree Ram Bohra, respondent No. 2, was competent after it had abated against respondent No. 1, Bilas Rai Bohra, on account of his heirs and legal representatives being not brought on the record.
It has not been disputed for the appellant that in case it is held that the appeal had abated against the heirs and legal representatives of Bilas Rai Bohra, it became incompetent against the surviving respondent alone.
The suit was filed by both the plaintiffs.
Both were respondents in the appeal.
The decree was a joint one, without any specification regarding the shares of each of the decree holders.
The appeal must, therefore, become incompetent if it has abated against one of the respondents.
What is really urged for the appellant is that there could be no abatement of the appeal on the death of Sree Ram Bohra and the omission to bring on record his heirs and representatives, as the real plaintiff was the joint family which owned the firm Bansidhar Ganpat Rai, the consignee of the bales which were not delivered and as the suit had been brought by the two named plaintiffs as the kartas of the joint family.
It is said that on the death of one of the kartas, the other karta continued to represent the joint family, the real plaintiff respondent, and that therefore there could not be any abatement of the appeal.
We do not consider the contention sound.
We have not been referred to any text of Hindu Law or any decided case in support of the proposition that a joint Hindu family can have more than one karta.
The very idea of there being two kartas of a joint Hindu family does not appear, prima facie, consistent with the concept of a karta.
Their describing themselves as kartas of the joint Hindu family owning the firm and their suing as such cannot make them kartas of the joint Hindu family if the Hindu Law does not contemplate the existence of two kartas.
In paragraph 236 of Mulla 's Hindu Law, XII Edition, is said "Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family.
The manager of a joint family is called karta.
834 The father is in all cases naturally, and in the case of minor sons necessarily, the manager of the joint family property " The existence of two kartas cannot lead to the smooth management of the property of the joint Hindu family and the other affairs of the family in view of the powers which the karta of a joint Hindu family possesses under the Hindu Law, powers which are not restricted to only such powers which ordinarily the manager of property of certain persons who confer authority on him to manage the property possesses.
The karta of the joint Hindu family is certainly the manager of the family property but undoubtedly possesses powers which the ordinary manager does not possess.
The karta cannot therefore be just equated with the manager of property.
Reference was made to the case reported as Bhagwan Dayal vs Mst.
Reoti Devi(1).
It was stated at p. 482 : "The legal position may be stated thus : Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion.
It is a corporate body or a family unit.
The law also recognizes a branch of the family as a subordinate corporate body.
The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law.
Ordinarily the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property.
subject to the limitations laid down by the said law, for or on behalf of the family.
" The fact that any other member or members other than the manager of the joint Hindu family, carry on business etc., on behalf of the family, does not mean that such members who act for the family do so as kartas of the family.
In the absence of any text of Hindu law or of any previous decision that a joint Hindu family can have two kartas we are not prepared to express any definite opinion on the question whether there can be two kartas of a joint Hindu family and, if there can be two kartas, what would be the effect of the death of one of them on the maintainability of a suit brought by both of them.
(1) ; 835 Two persons may look after the affairs of a joint Hindu family on the basis of the members of the joint Hindu family clothing them with authority to represent the family.
They would be two persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them by the members of the joint Hindu family.
Their authority to act for the family is not derived under any principle of Hindu law, but is based on the members of the joint Hindu family conferring certain authority on them.
It cannot, therefore, be said that when two such representatives of a joint Hindu family sue and obtain a decree in their favour for the benefit of the joint Hindu family, and an appeal is filed against both of them as respondents representing the joint Hindu family, the other representative would continue to represent the joint family on the death of one of the representatives.
He could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly.
In the absence of any knowledge about the terms of authority of the two representatives, it is not possible to urge successfully that on the death of one of the representatives, the other representative still continued to represent the joint Hindu family.
On the death of one of the representatives, the karta of the family, in accordance with the principles of Hindu law, will automatically be the person entitled to represent the joint Hindu family till such time that the family again decides to confer the authority on specified members of the joint Hindu family to represent it.
There is no material on the record to indicate the terms and scope of the authority conferred on the two plaintiffs by the joint Hindu family.
We, therefore, consider the matter in appeal on the basis that the suit was brought by two persons as plaintiffs.
They can at best be taken to represent the joint Hindu family which owned that firm Bansidhar Ganpat Rai.
Any one of them cannot represent the joint family after the death of the other till his authority to represent the family is confirmed by the members of the family.
There is no allegation or proof about such confirmation or fresh vesting of authority in the second plaintiff, viz., Sree Ram Bohra.
For the purpose of the suit, there were two plaintiffs and on the death of one of them it was necessary for the opposite party to implead his heirs and legal representatives within time.
It failed to do so and therefore the appeal against those heirs and representatives of Bilas Rai Bohra was rightly held to have abated.
The result of such abatement makes this appeal against the other respondent incompetent as the decree against both the respon 836 dents viz., Bilas Rai Bohra and Sree Ram Bohra was a joint decree.
There was nothing in the decree to indicate for whose benefit it was passed or in what proportions the two decree holders were to get the decretal amount.
The appeal against Sree Ram Bohra was therefore incompetent.
This view is supported by the decision of this Court in The State of Punjab vs Nathu Ram(1).
It was held there that when the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated.
We are, therefore, of opinion that the High Court was right in holding that the appeal against Sree Ram Bohra alone became incompetent.
It has been further argued for the appellant that the High Court should have allowed the appellant 's application for setting aside the abatement.
The High Court exercised its discretion judiciously, after taking into consideration the facts urged in support of the prayer that the abatement of the appeal be set aside.
We do not find any reason to consider that the discretion was not properly exercised.
We, therefore, do not consider this a fit case to interfere with the discretion exercised by the High Court in this regard.
We, therefore, dismiss the appeal with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent and B filed a suit and obtained a decree for a certain sum against the appellant.
The appellant appealed to the High Court and subsequently B died.
The High Court dismissed an application setting aside the abatement of the appeal against B and for substitution as it was of opinion that there had been gross negligence on the part of the appellant.
when the appeal came up for hearing a preliminary objection was raised by the respondent that the appeal had abated entirely which was upheld by the High Court.
On appeal by certificate, the appellants contended that there could be no abatement of the appeal as the had been brought by the respondent and B as the Kartas of the joint family and on the death of one of the Karta, the other Karta continued to represent the joint family, the real plaintiff respondent.
HELD: The appeal against the respondent was incompetent.
When two representatives of a joint Hindu family sued and obtained a decree in their favour for the benefit of the joint Hindu family, and an appeal was filed against both of them as respondents representing the joint Hindu family, the other representative would not continue to represent the joint family on the death of one of the representatives.
[835 B D] Any one of them could not represent the joint family after the death of the other till his authority to represent the family was confirmed by the members of the family.
[835 F G] The State of Punjab vs Nathu Ram, ; , relied on.


judgement:
Appeal No. 272 of 1963.
Appeal from the judgment and decree dated February 7, 1958 of the Madras High Court in Appeal Suit No. 318 of 1954.
A. V. Viswanatha Sastri and Naunit Lal, for the appellant.
A. Ranqanatham Chetty, A. Vedavalli and A V. Rangam, for the respondent.
The Judgment of the Court was delivered by Subba Rao, J.
Sri Vaidyanathaswami Temple at Vaitheeswa Sirkali Taluk, Thanjavur District, Madras State, is an 936 ancient and famous Siva temple.
It owns a large extent of immovable property and it is said that its annual income is more than Rs. 2 lakhs.
In 1842 the British Government, which was then administering the temple, handed over its management to the Pandarasannadhi of Dharmapuram Adhinam.
Since then the said Pandarasannadhi has been managing the same through one of his selected disciples, a Kattalai Thambiran.
In the year 1919, the High Court of Madras framed a scheme for the administration of the said temple in A.S. No. 181 of 1917.
The said scheme provided, among others, that the administration of the temple should be in the hands of the Kattalai Thambiran appointed by the Pandarasannadhi, and that he should be assisted by a treasurer, a shroff and an auctioneer who was to be appointed once in 3 years by the Court.
The Madras Legislature passed Act 11 of 1927 providing for the good administration of temples and their endowments.
The Religious Endowments Board functioning under the said Act, presumably because the administration of the temple in question was satisfactory, did not take any steps to have the scheme framed by the High Court in 1919 modified under the said Act.
That Act was substituted by The Madras Hindu Religious and Charitable Endowments Act, 1951 (Act No. XIX of 1951), hereinafter called the Act.
On June 16, 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition in the Court of the Subordinate Judge, Mayuram, under section 62(3a) of the Act for modifying the scheme framed by the High Court.
In the petition the Commissioner, after alleging various acts of commission and omission by the Trustee and his subordinates in the management of the temple and pointing out the defects in the earlier scheme, averred that the full income of the Devasthanam had not been secured and safeguarded and that was attributable mainly to the defective machinery set up under the scheme for the administration of the temple.
The most important of the modifications suggested to the scheme was that an Executive Officer should be appointed in the place of the Kattalai Thambiran and the Treasurer, conferring large powers on him for the day to day administration of the temple.
The Pandarasannadhi filed a counter affidavit denying all the allegations made against the management of the temple and asserting that he had functioned in terms of the scheme and had piloted the temple through difficult times successfully.
The learned Subordinate Judge, after considering the entire material placed before him, came to the conclusion that the petitioner had not substantiated any of the allegations made against the Trustee and that no case bad been made out for amending the scheme and for the appoint 937 ment of an Executive Officer.
In the result he dismissed the petition.
The State of Madras, represented by the Commissioner of Hindu Religious and Charitable Endowments, Madras, preferred an appeal against the said order to the High Court of Madras.
The said appeal came up before a Division Bench of the High Court.
In the High Court the learned Government pleader appearing for the State did not question the correctness of the finding given by the learned Subordinate Judge that there was no proof of mismanagement of any kind by the Pandarasannadhi or the Kattalai Thambiran.
The learned Counsel for the Pandarasannadhi had no objection for making formal amendments to the scheme, which became necessary due to lapse of time and due to the passing of the Act.
After hearing the parties, the High Court modified the scheme introducing the controversial provision, viz., the appointment of an Executive Officer.
In the result, the order of the Subordinate Judge was set aside and the scheme made by the High Court in 1919 was modified.
This appeal has been filed, on a certificate issued by the High Court, against the said decree of the High Court.
Mr. A. V. Viswanatha Sastry, learned counsel for the appellant, contends that the High Court, having agreed with the Subordinate Judge that the Commissioner had failed to establish any of the charges levelled by him against the Trustee, erred in modifying the scheme framed by the High Court in the year 1919 introducing drastic changes therein, such as putting the management of the temple under an Executive Officer who could be appointed and removed only by the Hindu Religious and Charitable Endowments Board and also making a provision for the appointment of additional Trustees in future.
He has no objection to that part of the scheme introducing formal changes in the earlier scheme so as to bring it in conformity with the provisions of the Act.
The arguments of Mr. A. Ranganadham Chetty, learned counsel for the State, may be stated thus : Under the Act a scheme for the administration of a temple may be framed or an earlier scheme may be amended not only when there is mismanagement by the Trustee but also for providing for a better administration of the temple; in the present case, though there is no mismanagement by the Trustee, the extensive immovable properties the temple owns, the existence of large arrears of rents, settlement of disputes that may arise between the tenants and the Trustee under the new tenancy laws and such others call for the appointment of a trained Executive Officer by the Commissioner in the best interests of the 938 Temple.
That apart, as under the Act the Commissioner is empowered to frame a scheme if he has reason to believe that in the interests of the proper administration of a religious institution a scheme should be settled for the same, his opinion must be given almost a decisive weight by a Court in the matter of amending a scheme.
To appreciate the contentions of the parties it will be convenient at the outset to notice briefly the scheme of the Act.
The Act was passed to provide for the proper administration and governance of Hindu Religious and Charitable Endowments and institutions in the State of Madras.
It provides for the appointment of 4 classes of authorities, namely, Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees.
The Commissioner is the highest authority in the hierarchy.
Subject to the provisions of the Act, the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner and for the purpose of such control he can pass any orders which he may deem necessary to ensure that such endowments are properly administered and that their incomes are duly appropriated for the purposes for which they were founded or exist.
Specific duties have been allotted to the other authorities subject to the overall control of the Commissioner.
There are many effective provisions in the Act to ensure proper administration of temples.
Trustees have to keep registers for all institutions for the scrutiny of the appropriate authority.
They have to furnish accounts and the accounts have to be audited in the manner prescribed in the Act.
The Trustees cannot alienate immovable properties or lease the same beyond 5 years without the sanction of the appropriate authority.
They have to obey all lawful orders of the appropriate authorities.
The service conditions of the office holders are duly protected.
The scales of expenditure have been standardized and a provision is made fixing the fees for archana and the apportionment of the same.
The Trustees have to prepare budgets and get their accounts audited.
There are provisions even for ordering surcharge against Trustees.
All the temples, whether governed by schemes or not, are subject to the said provisions of the Act.
Thus, there is a fair amount of financial and administrative control over the Trustees.
The general provisions of the Act may be sufficient in the case of temples which are properly administered; but there may be a temple without any scheme of administration or even if it has one, it may require to be improved to achieve better results.
Section 58 enables a Deputy Commissioner to settle a scheme for an institution 939 if he has reason to believe that in the interests of better administration thereof a scheme should be settled for it.
His order framing a scheme is subject to appeal to the Commissioner.
Under section 62 of the Act a party aggrieved by the order can file a suit in a Court questioning the correctness of the same and against the order of that Court an appeal lies to the High Court.
Under section 103 (d) of the Act, "all schemes settled or modified by a Court of law under the said Act (The Madras Hindu Religious Endowments Act, 1926) or under section 92 of the Code of Civil Procedure, 1908, shall be deemed to have been settled or modified by the Court under this Act and shall have effect accordingly." Under section 62 (3) of the Act, any scheme modified by a Court under section 62 (2) of the Act or any scheme framed or any scheme deemed under section 103 (d) to have been settled or modified by a Court can at any time be modified or cancelled by a Court on an application made to it by the Commissioner or a Trustee or any person having interest.
Any party aggrieved by any order of the Court under cl.
(a) of section 62(3) may within 90 days of the order appeal to the High Court.
The effect of these provisions is that though the Deputy Commissioner settles a scheme at the first instance, an aggrieved party can finally go to a civil Court to have the scheme modified.
So too, a scheme framed by a Court under section 92 of the Code of Civil Procedure can be modified on an application made to a Court by the Commissioner, Trustee or any person having interest.
Before the Act, there was a conflict whether the scheme framed by a Court under section 92 of the Code of Civil Procedure could be modified on an application made by an aggrieved party and that conflict is resolved under the Act by an express provision that it can be so done.
Where a temple is so badly mismanaged that the administration cannot be improved by the exercise of ordinary powers under the Act or by framing a scheme, the Commissioner is given the power to notify such a temple and put it under the direct control of an Executive Officer directly responsible to him.
This is in the nature of supersession of the ordinary administration of a temple.
It is, therefore, clear that under the Act the administration of all temples is subject to the exercise of the powers conferred upon the authorities thereunder.
The Deputy Commissioner can settle a scheme for the proper administration of a temple.
If the administration of a temple is very bad, it can be superseded and the temple notified for a prescribed period.
From the scheme of the said provisions we do not see any justification for the argument of the learned counsel for the State that the Court shall accept without scrutiny the view of the Deputy Commissioner that the scheme requires modification in the manner suggested by 940 him and that the formal imprimaturs by the Court is all that is contemplated thereunder.
While we appreciate the argument that a Court shall have due regard to the views of the Commissioner or the Deputy Commissioner, as the case may be, who is in close touch with the administration of temples, we cannot persuade ourselves to hold that the Court is relieved of its duty of ascertaining the necessity for framing a scheme or to find out the propriety or advisability of the various clauses of a scheme.
In framing a scheme, the Deputy Commissioner and, in a suit or application for amendment of a scheme, the Court will mould the relief under section 58(2) of the Act having regard to the circumstances of each case.
Section 58 (2) of the Act reads : "A scheme settled under sub section (1) for a temple or for a specific endowment other than one attached to a math may contain provision for (a) removing any existing trustee, whether hereditary or non hereditary; (b) appointing a new trustee or trustees in the place of or in addition to any existing trustee or trustees; (c) defining the powers and duties of the trustee or trustees; (d) appointing, or directing the appointment of, a paid executive officer who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer The Deputy Commissioner, the Commissioner or the Court, as the case may be, is not bound, in framing a scheme, to appoint an Executive Officer in every case; but a case will have to be made out for appointing him : that depends upon the facts established in each case.
With this background let us look at the scheme framed by the High Court.
The scheme is made a part of the judgment of the High Court.
The clauses of the scheme read thus : 1.
The temple of Sri Vaithianathaswami at Vaitheeswarankoil, Shiyali Taluk, and the shrines and minor temples attached thereto, and charities and endowments thereof, together comprise the "Velur Devasthanam", 941 and it shall be governed by the provisions of Act XIX of 1951 and the rules made thereunder.
The properties, movables and immovables, belonging to be Devasthanam and that may hereafter be acquired by the Devasthanam shall vest in the deity of Sri Vaithianathaswami.
The administration of the Devasthanam and its properties shall vest in the Pandarasannadhi at the Dharmapuram Adhinam for the time being, who shall be the "trustee" of the Devasthanam.
On the application of the Commissioner, the Court shall have the power to add two additional trustees if at some future time it is found that it is necessary to do so in the interest of the Devasthanam on account of the mismanagement by the Pandarasannadhi, the Trustee.
All the affairs of the Devasthanam, such as the receipt of income, incurring of expenditure, management of the property, the performance of the worship and the festivals of the temple, bringing and defending suits on behalf of the Devasthanam, shall be conducted by the Executive Officer under the supervision of the trustee, the mamool religious functions of the Kattalai Thambiran being reserved.
The Trustee shall in April every year prepare a budget of the income and expenditure and such budget will be governed by the provisions of Madras Act XIX of 1951.
The Trustee shall be given a discretion to spend any amount not exceeding Rs. 2,000/ (Rupees two thousand) every year in addition to the budgeted expenditure.
(a) The Trustee shall from out of the five names sent to him by the Commissioner choose one of them for appointment as the Executive Officer of the Devasthanam and such person shall be appointed by the Commissioner as Executive Officer and shall be in manage ment of the Devasthanam and its properties in the day to day administration including the maintenance of accounts, keeping of records, making collections and ' disbursements, and shall have the control of the temple servants.
942 (b) The Executive Officer shall be a first class Executive Officer, and shall be paid such salary and employed on such terms as the Commissioner may from time to time prescribe and his powers and duties shall be regulated by Madras Act XIX of 1951 and the rules framed thereunder.
The Pandarasannadhi shall select from among the Thambirans of the Dharmapuram Adhinam a Kattalai Thambiran competent to do the religious functions of the Trustee.
The Pandarasannadhi will be responsible for all acts of the Kattalai Thambiran as a master for the acts of the servant.
The Kattalai Thambiran shall attend to the performance in proper manner and in proper times of the daily pujas and worship and of the monthly and yearly festivals of the Devasthanam under the supervision and direction of the Executive Officer.
(a) The matam building belonging to the Devasthanam in Vaitheeswarankoil shall be set apart for the residence of Kattalai Thambiran, and a sum of Rs. 501 a month shall be paid to him for his maintenance and personal expenses.
He will also be entitled to the enjoyment of one veli of maniam land, as in the pre scheme days.
(b) The present treasurer and shroff will continue in office on the present scale of pay, and they shall work under the directions of the Executive Officer and shall do such work as is assigned to them.
The future trea surer and shroff will be appointed by the Commissioner.
The old scale of salary of the treasurer is reduced to the present scale of Rs. 100 5 125.
The Executive Officer shall, with the permission of the Commissioner, sell in public auction the jewels and ornaments gold and silver coins not in circulation and other metallic objects in the hundials except current coins and any other offerings.
The Trustee shall place one or more hundials, as occasions might require, for the deposit of voluntary and compulsory offerings by the worshipers.
Each hundial shall be of copper brass or any other materials, and shall have metalic covering with an aperture.
Each of such hundials shall be under double lock and 943 sealed by the Trustee and the Executive Officer.
One set of keys shall be with the Executive Officer and other set with the Trustee.
The hundials shall be opened every day or at such intervals as the Trustee may direct in the presence of the Executive Officer and the Kattalai Thambiran and the worshippers of the temple and the collections shall be kept by the Executive Officer.
In the matter of accounts, preparing abstracts, and receipts and disbursement of the Devasthanam as also of preparation, publication and audit of accounts, the Executive Officer and the Trustee shall observe the procedure prescribed in Madras Act XIX of 1951 and the rules made thereunder.
The accounts of the Devasthanam shall be open to inspection by any person having interest, on his giving one day 's previous notice to the Executive Officer and paying a fee of Rs. 51 for each day or part of a day in advance of such inspection.
The person so inspecting may bring to the notice of the Commissioner any irregularity and the Commissioner may pass such orders as he may think necessary.
All the records of the Devasthanam shall be kept in proper order in the premises of the Devasthanam provided for the purpose in Vaitheeswarankoil, and an accurate list of all records should be maintained.
There shall be a record keeper who shall be in charge of all the records and he shall not allow any record to be taken out without the written authority of the Executive Officer and without getting proper vouchers.
Power is reserved to the Trustee to apply to the Commissioner for permission to use the surplus funds on such religious and charitable and other purposes as may tend to promote the cause of the institution such as an Agama Patasala or Thevara Patasala or Adhyayana Patasala/or such other purposes as are prescribed by the Act.
The Trustee shall have the discretion to make jewels, vahanams, etc., or to do thiruppani work for the Devasthanam out of the surplus income of each year after obtaining the sanction of the Commissioner and in accordance with the provisions of Act XIX of 1951, and the rules made thereunder.
The Trustee shall have 944 a discretion to spend Rs. 2,000/ annually over and above the sanctioned amount if necessary and if funds are available.
The Trustee may with the sanction of the Commissioner invest the surplus funds of the Devasthanam in such manner as is prescribed under Madras Act XIX of 1951 and the rules made thereunder.
There shall be no money dealing or transactions between the Devasthanam Trustee and the Adhinam or any of the Kattalai charities or trusts managed by the Pandarasannadhi of Dharmapuram or any person under his orders.
Save as expressly provided herein, the administration of the temple shall be governed by the provisions of the Madras Act XIX of 1951 and the rules made thereunder.
It will be seen from the aforesaid provisions of the scheme that it introduces an Executive Officer to be appointed by the Commissioner and removable by him; his salary is fixed by the Commissioner and his powers and duties are regulated by the Act and the rules framed thereunder.
In substance, he is a servant of the Commissioner and is under his control.
He is to be in charge of the entire administration of the temple.
Nothing can be done in the temple without his permission.
It is true that he functions under the supervision of the Trustee; but there is an essential dis tinction between supervision and management.
If the Executive Officer disobeys him the Pandarasannadbi cannot do anything, except perhaps to complain to the Commissioner.
Such a drastic provision may be necessary in a case where the temple is mismanaged or if there are other circumstances which compel such an appointment.
But there is concurrent finding of fact in this case that the Commissioner has failed to establish any of the charges levelled by him against the Trustee.
It is not, therefore, possible to hold that any case has been made out for the appointment of an Executive Officer who practically displaces the Trustee.
Mr. A. Ranganadham Chetty says that the appointment of the Executive Officer is necessary in view of the great things which have to be done in the temple, like sale of 3,000 acres of land to the tenants under the new legislation at agreed prices, checking cash collections, including the hundial collections, doing away with the ad hoc auctioneers appointed by the Commissioner 945 from time to time, and for auctioning leases, and all kinds of properties like jewellery, lands, etc.
We have no material before us to find out what is the complicated and difficult action the Trustee has to take in the matter of selling 3,000 acres of land to the tenants under the new legislation at agreed prices.
If there is any such difficulty, the Commissioner has ample powers under the Act to issue orders or at any rate advice the Trustee in the matter of disposal of such lands.
Other difficulties are not such as to necessitate the appointment of an Executive Officer practically displacing the Trustee.
Further it appears from the record that the present Kattalai Thambiran is a legally qualified person and he can ordinarily be expected to look after these things with appropriate expert advice.
We do not think any case has been made out for the appointment of the Executive Officer.
The next objection raised by Mr. Viswanatha Sastry relates to cl.
(4) of the scheme, which reads "On the application of the Commissioner, the Court shall have the power to add two additional trustees if at some future time it is found that it is necessary to do so in the interest of the Devasthanam on account of the mismanagement by the Pandarasannadhi, the Trustee.
" Clause 4 of the scheme only confers a power and it does not direct the appointment of additional trustees in presenti or even in future.
Indeed, section 39 of the Act was amended in 1954 whereunder such a power is conferred even on the Commissioner.
We do not think the appellant is in any way prejudiced by the said clause.
Therefore, it may stand.
As we are deleting the clause appointing the Executive Officer, there will be, consequential amendments in the various clauses of the scheme framed by the High Court.
It is brought to our notice that in 1959 the Madras Hindu Religious and Charitable Endowments Act (Act XXII of 1959) was passed by the Madras Legislature.
Under section 45 thereof, the Commissioner is given a plenary power to appoint an Executive Officer to any temple and, therefore, it is argued, this Court shall not interfere with the clause of the scheme providing for the appointment of an Executive Officer to the temple in question.
The said Act was passed subsequent to the filing of the suit.
We are deciding this appeal on the basis of the circumstances obtaining in the year 1951 when the suit was filed.
It may be 946 that under the new Act the Commissioner has higher powers than he had under the 1951 Act and subsequent events may call for the exercise of those powers.
Our judgment will not preclude the Commissioner to take any action under the new Act as the circumstances demand.
With these observations we shall proceed to modify the scheme framed by the High Court.
In the scheme framed by the High Court, clauses 1, 2, 3, 4, 6, 10(a), 16, 17, 18, 19 and 20 will be retained; clause 7 will be deleted; and the other clause will be amended as under Clause 5.
The words "the Executive Officer under the supervision of ' will be omitted.
Clause 8.
The word "religious" will be omitted.
Clause 9.
The words "under the supervision and direction of the Executive Officer" will be omitted.
Clause 10(b) shall read : The treasurer and shroff will continue in office on the present scale of pay, and they shall work.
under the directions of the Trustees.
Clause 11.
The words "Executive Officer" shall be replaced by the word "Trustee".
Clause 12 shall read : The Trustee shall place one or more hundials, as occasions might require, for the deposit of voluntary and compulsory offerings by the worshippers.
Each hundial shall be of copper brass or any other materials, and shall have metallic covering with an aperture.
Each of such hundials shall be under double lock and sealed by the Trustee or his nominee and the Kattalai Thambiran.
One set of keys shall be with the Kattalai Thambiran and the other set with the Trustee or his nominee.
The hundials shall be opened every day or at such intervals as the Trustee may direct in the presence of the Kattalai Thambiran and the worshippers of the temple and the collections shall be kept by the Trustee.
Clause 13.
The words "Executive Officer" will be substituted by the words "Kattalai Thambiran".
947 Clause 14.
The words "Executive Officer" will be substituted by the words "Kattalai Thambiran".
Clause 15.
The words "Executive Officer" will be substituted by the words "Kattalai Thambiran".
In the result, the decree of the High Court is modified as.
aforesaid.
The parties will their respective costs throughout.
Decree modified.
LASup.
Cl./65 2500 24 12 65 GIPF.

summary:
By virtue of a scheme framed by the Madras High Court in 1919, the administration of a temple was placed in the hands of the Kattali Thambiran to be appointed by the appellant in his capacity as the trustee.
In June 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition under section 62(3)(a) of the Madras Hindu Religious and Charitable Endowments Act, 1951, (Act No. XIX of 1951( in the court of the Sub Judge, for the modification of the 1919 scheme.
The petition contained various allegations of mismanagement and of the full income of the temple not having been secured and safeguarded; this was stated to be attributable mainly to defective machinery set up under the 1919 scheme and it was suggested that an executive officer should be appointed to undertake the administration of the temple.
The Subordinate Judge found that the petitioner had not substantiated any of the allegations made against the trustees and no case had been made out for amending the 1919 scheme so as to provide for the appointment of an Executive Officer.
In appeal, although the respondent State did not question the finding of the lower court that there was no proof of mismanagement, the High Court modified the scheme by introducing the suggested provision for the appointment of an Executive Officer and by providing for the appointment of additional trustees, if necessary.
It was contended on behalf of the appellant that the High Court, having agreed with the Subordinate Judge that the Commissioner had failed to establish any of the charges levelled by him against the Trustee, erred in modifying the 1919 scheme as above.
On the other hand, it was urged by the State that under the Act a scheme for administration of a temple could be framed or an earlier scheme amended not only when there was mismanagement by the Trustee, but also so as to provide for a better administration of the temple.
Furthermore the Commissioner was empowered to frame a scheme if he considered this desirable for the proper administration of a religious institution and his opinion in this regard must be given decisive weight by the court when amending a scheme.
In the present case, in view of the fact that the temple owned extensive immovable properties, some of which were required to be sold, and there were many other complicated problems connected with the administration of the temple requiring attention, it was necessary to appoint a trained Executive Officer in the best interest of the temple 935 HELD: (i) A consideration of the scheme of the Act showed there was no justification for the contention that a court should accept without scrutiny the view of the Deputy Commissioner that the scheme required modification in the manner suggested by him and that the formal imprimaturs of the court was all that was contemplated by the Act.
While a court should have due regard to the views of the Commissioner who is in close touch with the administration of temples, it could not be held that the court was relieved of its duty of ascertaining the necessity for framing a scheme or to consider the propriety or advisability of the various clauses of a scheme.
In framing a scheme the Deputy Commissioner and in a suit or application for amendment of a scheme the Court, will mould the relief under section 58(2) having regard to the circumstances of each case.
[939 H 940 A C] (ii) The Deputy Commissioner, the Commissioner, or the Court, as the case may be, is not bound, in framing a scheme, to appoint an executive officer in every case; a case must be made out for such appointment.
[940 G] (iii) In the present case the proposed executive officer would have the entire administration of the temple with hardly any power left to the trustee.
Such a drastic provision might be necessary where the temple was mismanaged or there were other compelling circumstances requiring such an appointment.
But in view of the concurrent finding of fact that the Commissioner had failed to establish and of the charges against the trustee, it could not be held that a case had been made out for the appointment of an Executive Officer to practically displace the trustee.
Furthermore, there was no material before the court to ascertain the complicated nature of the problems of administration requiring the attention of an executive officer, and in any event the Commissioner bad ample powers under the Act to issue orders or give appropriate advice to the trustee.
[944 E G; 945 A B] (iv) The proposed provision in the scheme only conferred a power to appoint additional trustees and did not direct their appointment in present or even in future; such a power was also available to the Commissioner under section 39 and the appellant was not therefore in any way prejudiced by this provision.
[945 E F] (v) Although the Commissioner was given wider powers in respect of the appointment of an Executive Officer under the Madras Act XXII of 1959, as the suit in the present case was filed in 1951 i.e. before the coming into force of that Act, the appeal had to be decided on the basis of circumstances prevailing in 1951.
[945 H]