judgement:
N: Criminal Appeal No. 108 of 1971.
Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968.
D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant.
D. P. Unival and o. P. Rana for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The four appellants Daryao Singh, aged 46 years.
Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut.
The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants.
Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person.
589 The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged.
As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas.
Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) .
It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him.
Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence.
It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute.
Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment.
They had been released on parole after five years ' imprisonment On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt.
Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party.
When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary.
These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed.
give occupants of the buggi, and, after that, Smt.
Jahani, who soon joined them, were injured.
Two of them, Mukhtara and Raghubir, died very soon after the attack.
It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis.
A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi.
The following injuries are shown to have been sustained by the victims of the attack: 1. MUKHTARA: "1.
Vertical abrasion, 1 1/2 in.
x 1/2 in.
On the head, 4 in.
above the middle of the left eye brow 2.
Transverse abrasion, 1 3/4 in.x3/4 in.
On the head, 5 in.
above the right eye brow.
Round swelling" 2 in.x2 in.
On the right side of the head, 1/2 in.
above the ear, there was a depressed fracture 2 in.x2 in.
underneath on the bone.
Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in.
behind the middle of the right car.
Brain matter was coming out of the wound.
590 5.
Transverse incised wound 1 1/4in.x 1/2 in.
x bone deep on the A head 3 in.
behind the upper part of the right car.
The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute.
Round blue mark 2 in.x2 in.
On the right shoulder portion.
There was swelling all over the head.
There was no reference of injuries Nos. 1 and 6 in the inquest report .
RAGHUBIRA 1.
Transverse abrasion 1/4 in.x1/2.
On the left ankle inner side.
Vertical punctured wound in.x1/3 in.x1/4 in.
On the back side, of the elbow, margins, clean cut.
smooth and wall defined and angles were acute.
Transverse lacerated wound on the head, 1 1/2 in.
x 2 in.
bone deep on the right side 3 in above the car.
Round wound on the head 4 1/2 in.
above the middle of the right eye brow with margins clean cut".
ASA 1.
Punctured wound 1/2 in.x1/4 in.x1/4 in.
On the left side of the chest with abrasions on the margins, 64 in.
below the axile.
Abrasion 1/2 in.x1/4 in.
On the left shoulder.
Abrasion 1/2 in.x1/4 in.
oblique, on the right side of the chest extending towards right shoulder from epigastrium.
Abrasion 1/4 in.x1/8 in.
On the inner side of the left hand I in.
above the wrist.
Abrasion 1/4in.x1/6 in.
On the right arm back side 3 in.
above the elbow.
Contusion 3/4 in.x1/2 in.
On the right side 3 in.
below the edge of the iliac crest.
Incised wound 1/2 in.x1/10 in.
x skin deep 1/2 in.
below the left eye.
" 4. SMT.
JAHANI: 1.
Lacerated wound 1 1/3 in.
x 1/2 in.
bone deep from front to backward 3 1/2 in.
above the left ear.
Contusion 4 1/4 in.x1 in.
On the left scapular region.
2 1/2 in.
below the shoulder.
Contusion 1 1/2 in.x1/4 in.
parallel to the earth extending from the upper and inner end of injury No. 2.
These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh).
I had prepared the injury report exhibit Ka 16 at the time of examination.
It bears my signature and is correct." 591 5.
ASGHAR: 1.
Contusion 2 in.x1/4 in.x1/4 in.
going from front to back 31 in.
above the nose.
Punctured wound 1 in.x ' in.x 4 in.
On the left hand, outer side 2 in.
below the elbow.
BIJAI SINGH: 1.
Contused wound 1/2 in.x1/2 in.
x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in.
x1/2 in.
in the inner part of the nail.
Contusion 2 1/4 in.x3/4 in.
extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in.
x1/4 .
On the palmer side.
Abrasion 1/2 in.x1/4 in.
On the back and anterior side of right hand, 3 1/2 in.
above the wrist.
" Injuries were found on the side of the accused on 3 appellants only.
They were as follows: (1) OM PAL: 1.
Lacerated wound 1/2 in.x4/10 in.x2/10 in.
on the inner side of left forearm 3 1/2 in.
above the left wrist.
Lacerated wound 2/10 in.x2/10 in.x6/10 in.
On the inner side of left forearm.
Abrasion 3/10 in.
X21 10 in.
On the upper r side of left forearm, 3 1/2 in.
above the left wrist.
" 2. DARYAO: "1.
Abrasion in.x3/10 in on the left shoulder in front side.
Wound with scab 4/10 in.x2/10 in.
On the left are outer side, 6 in.
below left shoulder".
BIRBAL: 1.
Lacerated wound 2 in.x3/10 in.
bone deep on the front , side of head.
Abrased contusion 1 in.x2/10 in.
On the left side of head, 3 in.
above the left ear.
Contusion 1/2 in.x4/10 in.
On the right side of head, 2 in.
above the right ear.
Abrasion 1/4 in.x1/4 in.
On the index finger of the right hand upper side on the middle phalux.
Abrasion 1/4 in.x1/4 in.
On the upper side at the root of the middle finger of right hand.
Abrasion 1/2 in.x1/10 in.
On the inner side of the lower portion of left fore arm, 3 in.
above the wrist.
Abrasion 3/10 in.x1/10 in.
On the inner side of left wrist.
592 8.
Lacerated wound 3/10 in.x1/10 in.x3/10 in.
an the A right at a distance of 31 in.
from side of thigh, anterior iliac spine".
It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate 's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago.
The defense case seemed quite absurd.
It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution.
Their defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence.
The accused had even filed a First Information Report on these lines.
They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason.
The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence.
If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there.
The prosecution evidence suffered from some quite obvious infirmities.
Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them.
Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured.
This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted.
It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims.
However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation.
It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony.
That may explain how each consistently stated that all the accused persons were attacking 593 his or her party although he or she could not specify which accused attacked which victim.
From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected.
Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons.
It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked.
It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number.
Even if these five victims were sitting in the buggi they were not all empty handed.
Some of them had lathis which they plied in self defence.
The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi.
Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six.
Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six.
It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis.
these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five.
The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives.
Three of the accused persons as already indicated, had received injuries.
On their own version, these injuries were sustained in the same occurrence.
If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt? The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants.
The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared.
This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted.
594 It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually.
guilty.
But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption.
The effect of findings on questions of fact depends upon the nature of those findings.
If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number.
On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number.
Such a case is one of doubt only as to identity of some participants and not as to be total number of participants.
It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one.
But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five.
We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court.
We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt.
Justice has not only to be done, but, as have been often said, must manifestly appear to be done.
Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre planning.
Some Of the assailants had sharp edged weapons.
They were obviously lying in wait for the buggi to arrive.
They surrounded and attacked the occupants shouting that the occupants will be killed.
We do not think that more convincing evidence of a pre concert was necessary.
Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case.
The principle of vicarious liability does not depend upon the necessity to convict a required number of persons.
It depends upon proof of facts, beyond reasonable 595 doubt which makes such principle applicable.
(See: Yehwant & Anr.
vs State of Maharashtra;(1) and Sukh Ram vs State of U.P.)(2).
The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case.
We have to examine the elect of findings given in each case on this totality.
It is rarely exactly identical with that in another case.
Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated.
In Yeshwant 's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under.
This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye witness." Distinguishing Krishna Govind Patil vs State of Maharashtra (3) this Court said in Yeshwant 's case (supra) (at p. 302): "We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal.
Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & vs State of Punjab (4) Bharwad Mepa Dana & Anr.
vs State of Bombay;(5) Kartar Singh vs State of Punjab;(6) Mohan Singh vs State of Punjab;(7) Ram Bilas Singh & Ors.
vs State of Bihar(8) In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil 's case (supra) was also quoted.
In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons.
A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303.
(2) [1974) 2 S.C.R. p. 518.
(3) ; (4) ; (5) ; (6) ; (7) [1962] Suppl (3) S.C.R. 848.
(8) 596 The identity of some of the participants.
It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt.
Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case.
Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly.
The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years.
This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case.
This Section reads as follows: "29.
Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing.
(2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school.
" This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry.
Such action, if considered expedient, could only be to send the appellant to an approved school.
We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses.
He was bound, with the background of hostility between two sides and 597 the events mentioned above, to have been misled by the bad example of his elders.
No previous participation in such a case and no previous conviction was shewn against him.
We, therefore, think that appropriate action under Section 29 of the Children 's Act could have been taken in his case if the question had been raised in time.
We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly.
All that we can do now, in the circumstances of Om Pal 's case, is to recommend the remission of the remaining period of om Pal 's sentence to the authorities concerned.
Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal.

summary:
The 4 appellants were tried along with 14 others for the offence of rioting in the course of which 2 murders were committed at 6 30 a.m on 7 1967.
The prosecution revealed a long standing enmity between the tyo groups; one to which the appellants belonged and the other to which the deceased belonged.
The defence case was that people belonging to the group of the deceased killed the deceased and that thereafter they attacked the 3 injured appellants.
At the trial however, the defence witnesses stated that the 3 witnesses who were injured(l a(tempted to save the deceased and were therefore injured.
The prosecution evidence suffered from some quite obvious infirmitied.
Each of the 4 injured eye witnesses while naming each of the IX accused persons as participants in the occurrence and specifying their weapons without any contradiction had failed to assign any particular part of any of them.
Each injured eye witness said that all 18 accused persons were assaulting the injured.
I his was hardly consistent with the medical evidence.
The Trial Court acquitted 11 accused giving them the benefit of doubt and convicted 7 including the 4 appellants under section 302 read with section 149.
The High Court gave the benefit of doubt to all the accused except the 4 appellants.
The High Court came to the conclusion that the 4 appellants had taken part in The attack in view of the admission of the 4 accused about their participating in the occurrence corroborated by the injuries on the bodies of 3 of them.
On appeal by Special leave it was contended by the appellants that since 14 out of 18 accused persons were actually acquitted the Court must presume that total number of assailants was less than 5 and that they.
therefore cannot be convicted under section t 49 ^ HELD: 1.
It is true that the acquittal of an accused person does raise in the eye of law, a presumption that he is innocent even if he was actually guilty.
but it is only the acquitted accused person and not the convicted accused person who can as a rule get the benefit of such a presumption.
The effect of findings on questions of fact depends upon the nature of those findings 1 only five known persons are alleged to have participated in an attack; and the counts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less than 5 in number.
On the other.
hand if the court holds that the assailant were actually 5 in number but there could be a doubt as to the identity of 2 of the alleged assailants and therefore acquits 2 of them the others will not get the benefit of douht.
so long as there is a firm finding based on good evidence and sound reasoning that the participants were 5 or more in number.
Such a ease is one of doubt only as to identity of some participants and not as to total number of participants.
[594A C] 2.
It is true that there are some unfirmities in the prosecution evidence However the impression of rustic witnesses sought to he conveyed through their statements cannot be interpreted as though they were made in carefully drawn up documents calling for a literal interpretation.
[592 H] 588 3.
The number and location of injuries on both sides also indicate an attack by a group of persons which must have surrounded the party of the deceased persons travelling in the Buggi.
Even is 2 persons are engaged in stopping the Buggi and there are 2 on each side of the Buggi then the number would be 6.
Again, even if one person Is assumed to be the assailant of each of the victims in a simultaneous attack upon them the number of such assailants alone would come to at least 6.
The deceased had injuries with sharp edged weapons and lathis.
It is therefore clear that each one was attacked by more than one person.
These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than 5.
[593 C E] 4.
Even if the number of assailants could have been less than 5 (which can the facts stated was really not possible) we think that the fact that the attacking party was clearly shown to have waited for the Buggi to reach near the field of Daryao in the early hours shows pre planning.
Some of the assailants had sharp edged weapons.
They were obviously lying in wait for the Buggi to arrive.
A more convincing evidence of a pre concert was not necessary.
Therefor if necessary.
we would not have hesitated to apply section 31 of I.P.C. also to this case.
The principle of vicarious liability does not depend upon the necessity to convict the required number of persons but it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable.
[594 F H 595 A] Yeshwant & Anr.
vs State of Maharashtra [1973] 1 S.C.R. 291 It 302 303 at and Sukh Ram vs State of U.P. ; distinguished.
5.The age of appellant Om Pal at the time of trial was IS years.
Section 29 of the U.P. Children Act 1951 was applicable to the case.
This question was not raised either before the Trial Court or before the High Court.
Although Om Pal accused was said to be armed with a lathi no specific part was assigned to him by the prosecution witnesses He must have been misled by the bad example of his elders.
No previous participation in such a case and no previous conviction was shown against him.
The appropriate ac(ion under section 29 of the Children Act could have been taken in his case is the question had been raised in time.
The Court recommended the remission of the remaining period of Om Pal to the authorities concerned.
[548D H. 599A C]


judgement:
N: Criminal Appeal No. 129 of 1971 .
Appeal by Special Leave from the Judgment and order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969.
R B. Datar and Rajen Yash Paul, for the Appellant.
M. N Shroff, for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The appellant and one Mohd. Yusuf Gulam Mohd. were charged for an offence under section 379 read with s 34 of the Indian Penal Code for snatching two sarees from one Govind whilst he was carrying them from the show of his master to that of a washer and dyer.
The learned Presidency Magistrate, who tried the case, accepted the prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd. guilty of the offence under section 379 read with section 34 and 664 Sentenced each of their to suffer rigorous imprisonment for six months.
It does not appear from the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life, the attention of the learned presidency Magistrate was invited to the provisions of section 6 of the Probation of offenders Act, 1958.
The appellant preferred an appeal against the order of conviction and sentence to the High Court of p Bombay but the appeal was unsuccessful.
The High Court took the same view of the evidence as the learned Presidency Magistrate and confirmed the conviction of the appellant under section 379 read with section 34.
So far as the question of sentence was concerned, a submission was made on behalf of the appellant that since he was a young boy of about seventeen years and three months and this was his first offence, leniency should be shown tow him.
But the High Court r observed that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since the date of the offence to deserve the mercy of the Court and it did not, therefore, see any reason to interfere with the sentence of imprisonment passed against the appellant.
It appears that once again the provisions of section 6 of the Probation of offenders Act, 1958 were not specifically brought to the notice of the High Court and the sentence of imprisonment was maintained by the High Court without applying its mind to those provisions.
Hence the appellant preferred a petition for special leave to this Court and on that petition, this Court granted special leave limited to the question "whether the provisions of the Probation of offenders Act should have been applied in the case".
We are concerned in this appeal with section 6 of the Probation of offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act.
Subsection (1) of section 6, on a plain grammatical reading of its language, provides that when any person under twenty one years 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 impose any sentence of 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 665 him under section 3 or section 4.
This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the state of trial court but also at the stage "High court or any other Court when the case comes before it on appeal or in revision. '.
Vide section 11, sub section
(1) of the Act.
It is, therefore, obvious that even though the point relating to the applicability of section 6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society.
Here, we find that whatever date be taken as the relevant date for determining the applicability of section 6 whether the date of the offence or the date of the judgment of the learned Presidency Magistrate or the date of the judgment of the High Court the appellant was below twenty one years age.
The offence of which he is found guilty is an offence under section 379 read with section 34 and it is clearly an offence punishable with imprisonment but not with imprisonment for life.
The conditions requisite for the applicability of section 6 are, therefore, plainly satisfied and under section 6, Sub section
(1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the Court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the appellant, it would not be desirable to deal with him under section 3 or section 4.
It is true that sub section
(2) of section 6 requires that for the purpose of satisfying itself whether it would not be desirable to deal with the appellant under section 3 or section 4, the Court is required to call for a report from the Probation officer and consider the report, if any, but we do not think it necessary in the present case to call for any report from the Probation officer nor to remand the case to the learned Presidency Magistrate for passing an appropriate order after calling for a report from the Probation officer and considering it.
We have on record the antecedent history giving the background of the appellant.
The appellant was at one time a well known child film actor and he actually won several awards for acting in films.
It appears that at some subsequent stage he fell in bad company and took to evil ways The offence which he is convicted is, no doubt, an offence as theft which cannot be lightly ignored, but it is comparatively of a minor characters in that only two sarees were snatched away from the hands of Govind, perhaps under the stress of economic necessity.
Moreover, this is a false offence of the appellant.
We are, therefore, not at all satisfied 12 L925SupCI/75 666 that it would not be desirable to deal with the appellant under section 3 or section 4 and consequently, the sentence of imprisonment passed on the appellant must be set aside.
We accordingly set aside the sentence of imprisonment passed on the appellant and direct that he be released on his entering into a bond wit one surety in the sum of Rs. 500/ to appear in the Court of the Presidency Magistrate to receive sentence, whenever called upon to do so within a period of six months and during that period to keep the peace and be of good behaviour.
The learned Presidency Magistrate is directed to take the necessary bond from the appellant and the necessary surety bond from a surety to his satisfaction.
The appellant will continue on bail till such time as these directions are carried out, after which the bail bond will stand canceled.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
On the question whether the provisions of the Probation of offenders Act 1958 should have been applied in this case, Allowing the appeal, ^ HELD: (1) Even though the point relating to the applicability of s.6 was not raised before the Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them is responsible and useful members of society.
[665 B C] (2) Section 6 lays down an injunction not to impose a sentence of imprisonment on a reason who is under 21 years of ' age and is found guilty of having committed an offence punishable with imprisonment other the that for if unless it is satisfied that it would not be desirable to deal with him under section 3 or section 4. 'This inhibition on the power of the court to impose a sentence of imprisonment applies not only at the state of trial but also at the stage of "High, Court or any other court when the case comes before it in appeal or revision" section 11 (i) [664 H] In the instant case the appellant was below 21 years of age.
The appellant was at one time a well known child film actor and won several awards for acting in films.
Subsequently he fell in bad company and took to evil ways.
The offence of theft of two Sarees, though it could not be lightly ignored.
was of minor.
character and this was the first offence of the appellant.
It Count be said that it would not be desirable to deal with the appellant under section 3 or section 4 of the Act.
[665 G H]


judgement:
Civil Appeal No. 1827 of 1969.
Appeal by Special Leave from the Judgment and order dated the 28th November, 1968 of the Orissa High Court in O.J.C. No. 152 of 1964.
F.S. Nariman, A. G. Meneses, Sharad Manohar and J. B. Dada chanji, for the Appellant.
S.T. Desai and M. N. Shroff ' and R. N. Sachthey for Respondents 1 and 5.
Santosh Chatterjee and G. section Chatterjee for Respondent No. 4.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The question of bonus for 16,000 workmen for the years 1958 59 and 1959 60 is still being fought out on preliminary points and this is the second time the matter has come to this Court.
The earlier decision is reported in ; Gammon vs Industrial Tribunal, Bhubaneshwar, Orissa & Ors.(1).
In August 1957 the Hindustan Steel Ltd., the 4th respondent in the appeal, hereinafter called the company, and the appellant, a partnership of a West German company and an Indian company, hereinafter called the contractor, entered into a contract for execution of the foundation and civil engineering work of the Hot and Cold Rolling Mills at Rourkela including the purification and other civil engineering work of the Hot and with the water supply to the Rolling Mills.
The contract was a cost contract with a target sum plus fixed overheads and fee, that is, the company was to pay to the contractor all costs of construction and in addition pay fixed overhead or the head office general expenses of the (1) ; 670 contractor plus a fixed fee.
The target sum for the work was Rs 66,294,000.
The overheads were D.M. 2,800,000/ plus Rs 2,120,000/ and the fee of Rs. 6,200,000/ .
The work was to be carried out as detailed in the drawings, bills of quantities, specifications and other written orders issued or to be issued by the company.
All payments in respect of wages and salaries and connected payments made two persons engaged upon the work as may be approved by the company, comprising wages of all operatives as well as all other payments connected with wages were to be paid by the company.
Any increase beyond the initial rates specified in Enclosure III to the contract was to be subject to the approval of the company and such approval was to be taken in respect of categories and not individuals.
Emoluments of site supervisory staff as well as all other payments connected therewith were also to be paid by the company.
Payments made to statutory schemes in connection with sickness or accident or provident fund or pension or other like schemes to the above categories, payments of overtime and additional remuneration for Sunday, holiday or night work etc., and payments for leave and traveling cost were all to be made by the company.
It was also provided that the count of any other expenditure was to be admitted only on satisfactory proof being given by the contractor that such expenditure was necessary in connection with the preparation and execution of the work.
The company was to open an imprest account of Rs. 30,00,000/ and the contractor was to draw on the account to cover his day to day requirements for the work.
The imprest was to be increased or decreased from time to time depending on the amount required by the contractor to do the work.
The contractor was to submit fortnightly cash account covering the expenditure incurred from the imprest account and the company was to recoup the amounts covered by such account within seven working days.
Once in three months the contractor was to be paid a part of the fixed amount of overheads pro rata to the target cost of work done during the preceding three months.
Once in six months he was to be paid three fourths of the fee proportionate to the target cost of the work done in the preceding.
half year.
Enclosure Ill also set out the rate of wages for unskilled labourers, khalasi, mason, fitter or carpenter.
If the contractor completed the work prior to the 30th September, 1960 he was to be paid, exclusive of such sums as may be due to, or from, him a bonus equivalent to Rs. 2,00,000/ for every complete month by which the actual completion of the work precedes the 30th September, 1960.
The terms of the contract have been set out at some length as they have a relevance to the question of bonus payable to the workers because the question now agitated before this Court is that the Industrial Tribunal should be asked to decide who is to Pay the bonus, if bonus is payable to the workmen, the contractor or the company.
It would be noticed from the provisions of the contract set out above that all payments to labour were to be made by the company.
The contract contemplates payment of traveling allowance, payment in respect of sickness, accident, provident fund, pension, overtime, additional remuneration for Sunday, holiday or right work etc.
It has even mentioned the rate of wages and is thus fairly comprehensive.
There is, of course, no mention about bonus.
Now if the contractor 671 has to pay a higher rate of wages than that found in Enclosure III because of the conditions in the labour market naturally the contractor cannot be expected to pay it from out of his funds or the payments he was to receive in pursuance of the contract.
This being a contract in which the company is to pay for labour as well as for materials any increase in the cost of those items cannot be borne by the contractor, who was to be paid only a fixed sum towards its remuneration.
As the question of bonus is not mentioned in the contract the question arises as to who is to pay the bonus in case bonus is found payable to the workmen.
We express no opinion on that point.
But it appears to us that the company is adopting an ostrich like policy in trying to avoid being made a party to the reference before the Industrial Tribunal.
if it should ultimately be held that bonus is payable and the company is liable to pay it, it should do its best even from this stage to fight the question of liability to pay bonus as well as the quantum.
What is called a tripartite agreement seems to have been entered into between the workmen and the appellant in the presence of the Labour Commissioner on 12th June, 1960.
That was natural as the appellant it was that employed labour.
But that by itself does not decide the question who is to pay the bonus.
Under that agreement the appellant agreed to the payment of bonus in principle subject to the condition that they get the bonus from the company.
The quantum of bonus and exact date from which the bonus was payable was not, however, indicated.
It was also stated that when bonus was received by the management it shall notify the fact to the workers and that the union may raise this as a point of dispute when it would deem it appropriate On 15th June, 1960 the labour union appears to have written a letter to the Labour Commissioner of orissa raising a dispute for adjudication regarding bonus The union mentioned that they had also written a number of letters to the appellant as well as the company but either of them had decied the issue.
They, therefore, served a notice of strike.
The Labour Commissioner wrote to the Government on 17 10 60 about the dispute and mentioned that the appellant had agreed to pay bonus if the company paid it.
He also mentioned the fact that the appellant in reply to the letters from the workmen had stated that they had not come to any final decision in the matter.
On the ground that unless something was done there will be a strike causing complete dislocation of work of the company he suggested that the following issue may be considered for reference to the Industrial Tribunal: "Whether the workers of Hochtief Gammon are entitled to any bonus ? If so, what should be the quantum ?" He proceeded to say that if this question was finally decided it would also serve as a guiding principle for other contractors as similar demands for payment of bonus from workers were being received.
It would be noticed that though the appellant 's stand was that they would pay the bonus if it were given by the company the Labour Commissioner did not suggest that the question as to the party liable to pay the bonus, whether it was the appellant or the company, be referred for 672 adjudication.
His anxiety was that the work of the company should not A be dislocated.
He did not apply his mind to the question of the party liable to pay the bonus.
Naturally the Government also did not.
The Government therefore referred the following issue for adjudication: "Whether the workers of M/s. Hochtief Gammon.
Civil Engineers and Contractors, Rourkela are entitled to any bonus and if so, what should be the quantum?" On this a notice seems to have been served on the company and curiously enough the company said that the appellant did not complete the work as set out in the Memorandum of Agreement and hence no bonus was due to the contractors and that therefore they were not a necessary party.
This bonus, as the terms of the contract set out earlier would show.
has nothing to do with the bonus payable to the workmen.
The appellant in their written statement pointed out that under the terms of the contract the company had to bear all expenditure with reference to labour, all payments in respect of wages, salaries and other connected payments made to persons engaged in the works, that it was also responsible to make payments to statutory schemes in respect of all workmen and that they themselves were only paid a stated fee for professional services rendered to them and therefore no demand can be raised by the workmen who are engaged by the contractor against the contractor and such a demand is unsustainable in law.
They then gave reasons why the workmen were not entitled to any bonus from them.
It is not necessary to set out those reasons at length.
We have already referred to the stand of the company.
As would be apparent from the decision of this Court on the earlier occasion, which we shall set out later, the Tribunal could not have decided this question in view of the terms of reference made to it.
Thereafter the appellant filed.
an application under section 18(3) (b) of the Industrial Disputes Act praying that for a proper adjudication of the issue referred to the Tribunal it was necessary to bring on record the company as a party to the proceedings.
They pointed out that any amount payable to the labourers engaged by the contractors for what soever reason was a contract expenditure within the meaning of the term contract and payable by the company as it was entirely responsible for payment of all remuneration to the workmen and all expenditure incurred by reason of any demand put forward by the workmen in connection with the works, was debitable to the contract and payable by the company.
This application was rejected.
Thus the stand of the appellant as to the party liable to pay the bonus was never in doubt.
The appellant thereupon filed a petition before the High Court of orissa praying that the order of the Tribunal should be set aside.
that petition also having been dismissed an appeal was filed before this Court by special leave.
The relevant portion of the judgment of this Court is found at page 605, 1964(7) S.C.R.: "The next contention raised by Mr. Chatterjee is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant.
In other words, this contention is that 673 though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of orissa, it is necessary that the principal, viz., M/s. Hindustan Steel Ltd. Ought to be added as a party.
In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Union 's case that the workmen were employed by the appellant.
It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case, the terms of reference might have been suitably framed.
Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers.
Such a course has not been adopted in the present proceedings, and so, it would not possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under section 10(1)(d).
This dispute is a substantial dispute between the appellant and M/s Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so, we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under section 18(3)(b).
" lt would be noticed that before this Court what was admitted was that the appellant had employed the workmen but the question as to who was the employer in relation to those workman was the main question at issue.
That was why this Court pointed out that it would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed.
As that had not been done this Court pointed out that it would not be possible to hold that the question as to who was the employer as between the appellant and the company was a question incidental to the industrial dispute which had been referred under section 10(1)(d), as it was a substantial dispute between the appellant and the company.
Apparently taking the cue from the observations of this Court the appellant filed a writ petition out of which this appeal arises.
But before doing so the appellant had filed an application before the State Government asking them to modify the earlier reference to the Industrial Tribunal by adding the company as a party to the reference and an additional clause as under: "If bonus is payable, who is the employer and who is responsible for payment of the bonus to the workmen?" They pointed out in that application that the company was entirely responsiblele for payment of wages and connected payments and all 674 other remuneration of any kind to the workmen, that for enabling the appellant to make payments to the labourers engaged for such work on behalf of the company an imprest of Rs. 3,000,000/ was given to them out of which the payments were made, that the appellant got only a fee, that if any bonus becomes payable it was the person who pays wages that has to pay the bonus.
Thereafter they also asked for a personal hearing.
To this the reply of the Government was as follows: "With reference to their petition dated 20 5 64 on the above subject, the undersigned is directed to say that after due.
Consideration of the matter the Government do not find any materials on the basis of the petition to include Hindustan Steel Ltd., Rourkela as a party in the above case.
" It would be noticed that in the petition the appellant wanted not only that the company should be made a party but also that another issue must be referred to the Tribunal for adjudication.
They had given reasons as to why the company should be included as a party.
They had in their petition included the paragraph which we have extracted above from this Court 's judgment.
It is apparent from their reply that the Government had not applied their mind to the facts placed before them.
There was at least an arguable case on the point as to who was liable to pay the bonus and in that case the company would have been a necessary and appropriate party.
Even if the Government thought that the company was not a necessary party the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary or at least a proper party.
The attitude of the appellant had throughout been that their contract was a cost contract, that the company had to pay labour and while they have employed the workmen the employer was really the company.
That contention may or may not be upheld by the Tribunal.
Ultimately if the Tribunal should hold that the appellant is the party responsible for payment of bonus the question as between the company on the one hand and appellant on the other may have to be decided by arbitration as provided in the contract between them or otherwise.
It appears to us, therefore, that not only was this an appropriate question to be referred to the Industrial Tribunal for adjudication but even the company should be interested in getting itself impleaded as a party so as to put forward any contention which it may decide to put forward as regards the question whether bonus was payable and if so the quantum thereof, as also the question as to who would be liable to pay the bonus instead of adopting, as we have said earlier, an ostrich like policy.
The power of the Courts in relation to the orders of the appropriate Government in the matter of referring industrial disputes for adjudication is no longer in doubt.
In State of Bombay vs K.P. Krishnan & Ors.
(1) it was held: "It is common ground that a writ of mandamus would lie against the Government if the order passed by it under s.10 (1) is for instance contrary to the provisions of s.10(1) (a) to (d) in the matter of selecting the appropriate authority; (1) 675 it is also common ground that in refusing to make a reference under section 12(S) if Government does not record and communicate to the parties concerned its reasons therefore a writ of mandamus would lie.
Similarly it is not disputed that if a party can show that the refusal to refer a dispute has not bona fide or is based on a consideration of wholly irrelevant facts and circuit of mandamus would lie.
The order passed by the Government under section 12(5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny; in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government; nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the court can Issue, and would be justified in issuing, a writ of mandamus even in respect of such an administrative order.
" In Bombay Union of Journalists vs The State of Bombay(1) it was observed: "The breach of section 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provision contained in section 10(1) read with section 12(5) clearly shows that even where a breach of section 25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts the appropriate Government comes to the conclusion that it would he inexpedient to make the reference, it would be competent to it to refuse to make such a reference.
If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts malafide, that, of course, would be another matter: in such a case a party would be entitled to move the High Court for a writ of mandamus.
" The above are not the only powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, in this country as well as in England.
In England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non speaking order, that is, an order which on the face of it did not specify the reasons for the order.
Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant reasons or considerations.
Where there was a non speaking order they used to say that it was like the face of the Sphinx in the sense that it was inscrutable and therefore hold that they could not consider the question of the validity of the order.
Even in England the Courts have travelled very far since those days.
(1) ; , 34. 676 They on longer find the face of The Sphinx inscrutable.
Needless to say that Courts in India, which function under a written Constitution which confers fundamental rights on citizens, have exercised far greater; powers than those exercised by Courts in England, where there is no written Constitution and there are no fundamental rights.
Therefor the decisions of Courts in England as regards powers of the Courts 'surveillance ', as Lord Pearce calls it, or the control which the Judiciary have over the Executive, as Lord Upjohn put it, indicate at least the minimum limit to which Courts in this country would be prepared to go in considering the validity of orders of the; Government or its officers.
In that sense the decision of the House of Lords in Padfield vs Minister of Agriculture, Fisheries and Food(1) is a landmark in the history of the exercise by Courts of their power of surveillance.
That decision is well worth a close study but we will resist the temptation to quote more than is absolutely necessary.
That was a case where under the provisions of the Agricultural Marketing Act, 1958 the Minister had the power to appoint a committee to go into certain questions under.
section 19 of that Act but when requested to appoint a committee he refused.
In refusing to appoint the committee he had given elaborate reasons for his refusal.
It was admitted that the question of referring the complaints to a committee was a matter within the, Minister 's discretion.
It was also argued that he was not bound to give any reasons for refusing to refer a complaint to a committee and that if he gives no reason his refusal cannot be questioned and his giving reasons could not put him in a worse position.
It was held by the House of Lords that an order directing the Minister to consider the complaint according to law should be made.
It was also held that Parliament conferred a discretion on the Minister so that it could be used to promote the policy and objects of the Act which were to be determined by the construction of the Act and that was a matter of law for the court.
It was further held that though there might be reasons which would justify the Minister in refusing to refer a complaint, his discretion was not unlimited and, if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere.
The extracts given below of certain portions of the speeches of the learned Lords can be appreciated in that background.
Lord Reid: "The respondent contends that his only duty is to consider a complaint fairly and that he is given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he may think fit.
The appellant contents that it is his duty to refer every genuine and substantial complaint, or alternatively that his discretion is not unfettered and that in this case he failed to exercise his discretion according to law because his refusal was caused or influenced by his having misdirected himself in law or by his having taken into account extraneous or irrelevant considerations.
(1) ; 677 In my view, the appellants ' first contention goes too far.
There are a number of reasons which would justify the Minister in refusing to refer a complaint.
For example, he might consider it more suitable for arbitration, or he might consider that in an earlier case the committee of investigation had already rejected a substantially similar complaint, or he might think the complaint to be frivolous or vexatious.
So he must have at least some measure of discretion.
But is it unfettered? lt is implicit in the argument for the Minister that there are only two possible interpretations of this provision .
either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.
I do not think that is right.
It was argued that the Minister is not bound to give any reasons for refusing to refer a complaint to the committee, that if he gives no reasons his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position.
But I do not agree that a. decision cannot be questioned if no reasons are given." Lord Hadson: The reasons disclosed are not in my opinion good reasons for refusing to refer the complaint to the committee, that if he gives no reason his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position.
But I do not agree that a decision cannot be questioned if no reason are given.
Lord Hodson: "The reason disclosed are not, in my opinion, good reason for refusing to refer the complaint seeing that they leave out of account altogether the merits of the complaint itself.
The complaint is, as the Lord Chief Justice pointed out, made by person affected by the scheme and is not one for the consumer committee as opposed to the committee of investigation and it was eligible for reference to the latter.
It has never been suggested that the complaint was not a genuine one.
It is no objection to the exercise of the discretion to refer that wide issues will be raised and the interests of other regions and the regional price structure as a whole would be affected.
It is likely that the removal of a grievance will, in any event, have a wide effect and the Minister cannot lawfully say in advance that he will not refer the matter to the committee to ascertain the facts because, as he says in effect, although not in so many words, "l would not regard it as right to give effect to the report if it were favour able to the appellants." Lord Pearce: "I do not regard a Minister 's failure or refusal to give any reasons as a sufficient exclusion of the court 's survellance.
It was for the Minister to use his discretion to promote Parliament 's intention.
If the court had doubt as to whether the appellants ' complaint was frivolous or repetitive, or not genuine, or not substantial, or unsuitable for investigation or more apt for arbitration, it would not interfere.
But nothing which has been said in this case leads one 678 to doubt that it is a complaint of some substance which shoukl A properly be investigated by the independent committee with a view to pronouncing on the weight of the complaint and the public interest involved.
The fact that the complaint raises wide issues and affects other regions was not a good ground for denying it an investigation by the committee.
lt is a matter which makes it very suitable for the committee of investigation, with its duty to report on the public interest, and its capacity to hear representatives of all the regions." Lord Upjohn: "The Minister in exercising his powers and duties, conferred upon him by statute? can only be controlled by a prerogative writ which will only issue if he acts unlawfully.
Unlawful behaviour by the Minister may be stated with sufficient accuracy for the purposes of the present appeal (and here I adopt the clarification of Lord Parker C.J., ill the Divisional Court): (a) by an outright refusal to consider.
the relevant matter, or (b) by misdirecting himself in point of law, or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account a relevant consideration.
There is ample authority for these propositions which were not challenged in argument.
In practice they merge into one another and ultimately it becomes a question whether for one reason or another the Minister has acted unlawfully in the sense of misdirecting himself in law, that is, not merely in respect of some point of law but by failing to observe the other headings I have mentioned.
The Minister 's main duty is not to consider its suitability for investigation; he is putting the cart before the horse.
He might reach that conclusion after weighing all the facts but not until he has done so.
This introduces the idea, much pressed upon your Lordships in argument, that he had an "unfettered" discretion in this matter; it was argued, means that, provided the Minister considered the complaint bona fide, that was an end of the matter.
Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking consideration to the com plaints addressed to him; the question is whether the consideration given was sufficient in law.
My Lords, I believe that the introduction of the adjective "unfettered" and its reliance thereon as an answer to the appellants ' claim is one of the fundamental matters confounding the Minister 's attitude, bona fide though it be. even if the section did contain that adjective I doubt if it would make any difference in law to his powers.
But the use of that adjective, even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, 679 namely that in exercising their powers the latter must act law fully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives." ' . a decision of the Minister stands on quite a different basis; he is a public officer charged by Parliament with the discharge of a public discretion affecting Her Majesty 's subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly.
" That was a case where the Minister had given elaborate reasons and it was, therefore, possible for their Lordships of the House of Lords to consider the reasons given by the Minister in elaborate detail and show how he had misdirected himself.
They also pointed out that by merely keeping silent the Minister cannot avoid the Court considering the whole question.
The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle may be set out as follows: The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should They take into account wholly irrelevant or extraneous consideration.
They should not misdirect themselves on a point of law.
Only such a decision will be lawful.
The courts have power to see that the Executive acts lawfully.
It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration.
They cannot avoid scrutiny by courts by failing to give reasons.
It they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny.
Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.
Judged by these tests the order of the State Government is unsustainable.
Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant.
Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum.
In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus.
The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever.
In this contract the company had to pay for the material as well as labour.
The appellant 680 got paid only for its professional services.
There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman.
In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman.
This however need not be taken as our final view on this point.
But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not.
Furthermore, when the question of bonus in this case arose what is known as the Full Bench formula was holding the field in the matter of payment of bonus.
If the bonus were to be paid by the appellant it could hardly be brought within that formula.
As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either.
The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from the beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company.
We have set out the facts of this case at considerable length and considered the whole question.
We think that the Government 's order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior.
It has failed to realise that in effect the contractor employed labour for the company wh() was the real paymaster.
lt held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant.
Naturally the workmen were not interested who paid them as long as they were paid.
lt would bear repetition to say again that the.
Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also.
He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts.
It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellant 's application.
In the circumstances this appeal must be allowed and the Government of orissa must be directed to reconsider this matter and take a decision in the matter of reference in the light of the relevant facts.
There will be no order as to costs.
P.H.P. Appeal allowed.

summary:
In 1957, the Hindustan Steel Limited (Company) and the appellant (contractor) entered into a contract for execution of the foundation and civil engineering work of the hot and cold rolling mills at Rourkela.
The Company was to pay to the Contractor all costs of construction and in addition pay fixed overhead charges for the head office and general office of the contractor plus a fixed fee.
All payments in respect of wages and salaries and connected pay matter made to persons engaged upon the work as might be approved by the Company comprising wages of all operatives as well as all other payments connected with wages were to be paid by the Company.
Emoluments of Site Supervisory staff as well as all other payments connected therewith were also to be paid by the Company.
The payments made to statutory schemes, in connection with sickness, or accident, or Provident Fund, or Pension or other like schemes to the above categories, payments of overtime and additional remuneration for ' Sunday, holiday or night work etc., and payments for leave and traveling cost were all to be made by the Company.
In 1960, the Labour Union of workmen employed by the Contractor raised a dispute for adjudication about the bonus payable to the workmen for doing the aforesaid job. 'The stand of ' the contractor was that they would pay the bonus if it were given by the Company.
The Government referred the question whether the workers of the contractor were entitled to any bonus and if so what should be the quantum.
The question whether the Company or the Contractor was liable to pay the bonus was not referred.
A notice was served on the company and the Company contended that since the contractor did not complete the work according to the agreement, no bonus was due to the contractor and that the Company was not a necessary party to the reference.
The contractor in the written statement contended that under the terms of the Contract the Company had to bear all costs with reference to labour, all payments in respect of wages, salaries and other connected payments made to persons engaged in the works and that the contractors were paid a stated fee for professional services rendered by them and that therefore, the demand against the contractor was not sustainable in law.
the contractor made an application to the Tribunal that for the proper adjudication of the issues referred to the Tribunal it was necessary to bring on record the Company as a party to the proceedings.
The said application was rejected by the Tribunal.
The contractor thereupon filed a Writ Petition in the High Court of orissa against the said order of the Tribunal.
The High court dismissed the said writ Petition.
The contractor filed an appeal by Special Leave to this Court.
This Court in that appeal held: "That it would have been open to the State Government to ask the Tribunal to consider as to who was the employer of the workmen and in that case the terms of reference might have been suitably framed.
In the present case such a course has not been adopted.
The dispute between the Company and the contractor would be a substantial dispute and cannot be regarded as incidental to the industrial dispute which was referred The Company was therefore a necessary party.
" 668 The Contractor, thereafter, filed an application before the Slate Government asking, them to modify the earlier reference by adding whether the bonus was payable by the Company or the contractor and by adding the Company as a party to the reference.
It was pointed out in that application that it was the Company which would be liable to pay the bonus if at all it was payable.
The contractor also asked for a personal hearing.
The Government disposed of that application by observing "Government do not find any materials on the basis of the petition to include Hindustan Steel Limited, Rourkela, as a party in the above case. ' The Government did not apply its mind to the other prayer, namely, adding one more issue to the reference.
The Contractor filed a writ Petition against the said order of the State Government.
The High Court dismissed the Writ Petition Against the judgment of the High Court the appellants appealed to Court.
Allowing the appeal, ^ HELD: 1.
It is apparent from the Government 's reply that the Government did not apply its mind to the facts placed before them.
There was at least an arguable case on the point as to who was liable to pay the bonus and in that close the Company would have been a necessary and appropriate party.
Even if the Government thought that the company was not a necessary party.
the question as to who was liable to pay the bonus was a very relevant question and that made the Company a necessary or at least a proper party.
The attitude of the contractor throughout had been that their contract was a cost contract; that the Company had to pay labour and the Company was the real employer.
That contention may or.
may not be upheld by the Tribunal.
This was however, an appropriate question to be referred to the Tribunal [674 C F] 2.
The power of the courts in relation to the orders or ' the appropriate Government in the matter of referring industrial disputes for adjudication is no longer in doubt.
[674 G] State of Bombay vs K P Krishan & Ors.
[1961] (1) [S.C.R. 227] and Bombay Union of Journalists vs The State of Bombay [1964(6) S.C.R. 22@ 24].
followed.
The powers of the Court mentioned in the above two cases in relation to the orders of the Government under any statute are not the only powers of the courts.
In England, in earlier days, the courts usually refused to interfere where the Government or the concerned officer passed what was called a nonspeaking order.
Where a speaking order was passed the Courts proceeded to consider the reasons given to see whether the reasons given were relevant reasons or considerations.
Where there was a non speaking order they used to saw it was like the face of the sphnix in the sense that it was inscrutable and.
therefore, held that they could not consider the question of the validity of the order.
Even in England, the courts have traveled very fast since those say.
They no longer find the face of the sphinx incurable.
Needless to say that the courts in India which function under a written constitution which confers fundamental rights on citizens exercise, far greater powers than those exercised by the courts in England where there is no written constitution and there are no fundamental rights.
The decision of ' House of Lords in Padfield vs Minister of Agriculture.
Fisheries and Food ; , followed.
[675 F H, 676 A] 3.
The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter.
nor should they take into account wholly irrelevant or extraneous considerations 'they should not misdirect themselves on a point of law.
only such a decision will be lawful.
The Courts have power to see that the Executive acts lawfully.
It is no answer to the exercise of that power to say that the Executive acted 669 bone fide nor that they have bestowed painstaking consideration .
They cannot avoid scrutiny by courts by failing to give reason.
If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny.
Even if.
the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.
[679 D F] 4.
Judged by this test the order of the State Government is unsustainable.
The Government does not seem to have Noticed that the contract in question us not one of the and wherein a contractor undertakes to do a certain work for a certain sum.
In thus contract, the Company had to pay for the material as well as for labour.
the Contractor to a paid only for his professional services.
There was in any case no provision in the contract that the contractor was to incur any item of expenditure or make any payment in relation to the workmen.
The Government did not realise that the dispute concerned of merely two parties but three.
The Government order in the present case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords us unlawful behaviour.
The Government does not appear to have applied their mind to any of the considerations set out in the contractor 's application.[679 F H, 680 D&F] Allowing the appeal the Court directed the Government of Orissa to reconsider the matter and take a decision in the matter of reference in the light of the relevant facts.
[680 G]