judgement:
Appeal No. 158 of 1967.
Appeal by special leave from the judgment and order dated August 5, 1966 of the Rajasthan High Court.
in section P. Civil Regular Second Appeal No. 222 of 1964.
section T. Desai, P. C. Bhartari, J. B. Dadachanji and Pukhraj Singh, for the appellant.
S.V. Gupte, K. K. Jain and H. K. Puri, for respondents Nos. 1 to 9.
That Judgment of the Court was delivered by P.Jaganmohan, Reddy, J. This Appeal by Special Leave of this Court is against the Judgment of a Single Judge of the Rajas 838 than High Court affirming the Judgment and decree of the, District Court with certain variations.
Respondents 1 to 9 filed a suit against the Appellants and Respondents 10 and 11 and two others for a declaration that they have been carrying on and are entitled to carry on Darshan, Prakshal and Poojan etc.
of the idol of Adeshwarji, the first Tirthankar in the Temple named after him at Paroli without interference according to the tenets observed by the Digambri Sect of the Jain religion. ' The said Temple of Shri Adeshwarji is said to have been in existence for 200 years while, the Respondents aver that the inscriptions on it bear Vikram Samvat 1510 (1454 AD).
The Plaintiffs further alleged that the Temple was constructed and the idol, was consecrated according to and by the followers of the tenets of the Digamber sect; that the Plaintiffs and the other followers of the Digamber Sect have been performing Darshan, Prakshal and Poojan of the said idol according to their tenets every since the Temple was founded; that on the 23rd of December 1949 the Defendants attempted to convert the said idol into the idol of Swetambri Sect by putting Chakshus (artificial eyes ) thereon, but were prevented from doing so by a strong opposition of the followers of the Digamber Sect; that thereafter some temporary arrangements were made between the followers of the two Sects who agreed to maintain the status quo until a decision of the Civil Court on the rival claims of the parties was given; that in disregard of the temporary settlement and without getting the rights in the Temple adjudicated upon by the Civil Court, the Defendants made arrangements to put Dhwajadand and Kalash on the said Temple according to their tenets,, and that they also further learnt that the Defendants were intending to enclose the said idol by putting up doors and locks with the.
object of interfering with and obstructing the free exercise by the Digamberies of their unfettered rights to perform Poojan, Prakshal and worship of the said ideal according to their tenets.
On these allegations it was prayed that the Defendants be restrained by a permanent injunction from (i) erecting the Dhwajadand, and putting up Kalash; (ii) enclosing the idols by putting up doors and locks; or in any manner altering the nature and shape and appearance of the idols installed in the said Temple; or directly or indirectly doing any act or thing which may have the effect of wounding the religious susceptibilities and sentiments of the followers of the Digamberi Jain Sect; and (iii) from interfering with the free and unfettered rights of the Plaintiffs of performing Darshan.
Prakshal and Poojan and other rites according to the tenets of Digamber Jain Sect.
839 The Defendants did not deny that they,intended to put the Netras ' but said that they did so because the Netras which the idol had even before the said date having been damaged and fallen out, new Netras were put up.
They further claimed that since its existence the Temple of Adeshwarji has been in the possession of the Defendants who have been in exclusive management of the Temple and its property; that the Plaintiffs never used to do Poojan or Prakshal in the Temple nor had they any Tight thereto, and that when in 1949 there was a dispute between the parties a temporary arrangement was made but the Defendants did not admit any right of Plaintiffs to Poojan.
It, was further averred that the said idol and the Temple is in all respects Jain Swetambri Sect, that it has been so used and described in all the historic records from time to time and that the Civil Court had no jurisdiction to decide the religious rights of the parties nor is it a dispute of a civil nature.
On these pleadings issues were framed on 3 12 55 but subse quently after the evidence in the case was recorded and having regard thereto fresh issues were framed in substitution of the former ones on 4 6 57 but thereafter no evidence was led by either party.
The controversy between the parties as is evident from these issues was, as to which Sect of the Jains the main idol of Adeshwarji belongs, which Sect has constructed the upper portion of the idol referred to and the nearby portion of the temple; under what tenets have the followers of the Sects, Digamber and Swetamber, performed Darshan, Prakshal and Poojan of the idol of the temple referred to and can any Sect change those previous tenets , whether the Notras (artificial eyes) of the idol, Bhujband and Dhwajadand over the temple existed before and if not, can they be placed and inserted now; and whether the Temple is in possession and under the management of the Defendants alone from the time it came into existence.
The Civil Judge of Bhilwara decreed the suit of the Plain tiffs, against which the Defendants appealed.
The District Judge, however, allowed the appeal and dismissed the suit on the ground that in his opinion no question of any right to property or office was involved in the suit ' and consequently the plaintiffs suit was dismissed with costs.
On an appeal from this Judgment the High Court allowed the Appeal holding that inasmuch as the allegations in the plaint relate to an assertion of a right of worship and an interference with that right, a dispute of civil nature arises which is, clearly cognizable by a Civil Court.
In this view the case was, remanded to the District Judge for determining the appeal on merits.
Leave to Appeal was also refused.
840 After remand the District Judge confirmed the Judgment and decree of the Trial Court with certain variations.
Against this Judgment the Appellants filed an appeal to the High Court and the Respondents filed cross objections.
The High Court affirmed the Judgment of the District Judge except for that part of the decree directing the Appellants to keep open the doors of the Temple between 8.30 and 9.30 each morning to enable the Respondents to worship without interference, which, however, was modified to enable Respondents to worship at the Temple between 6 a.m. to 9 a.m. every morning, during which time the Temple was not to be locked.
It further directed that if the Swetambaries wanted also to worship during this period without disturbing the Digamberies they had the liberty to do so.
The learned Advocate for the Appellants Shri section T. Desai urged several contention before us namely; (i) the High Court was in error in not deciding the ownership of the Temple or of the idol; (ii) that it should have held that a presumption of ownership would arise having regard to the concurrent findings that the Swetamberies were in management and possession of the Temple; (iii) that the reliefs claimed make it clear that the dispute is not of a civil nature for in any view of the matter the Courts were in error that placing of the Dhwajadand and Kalash on the Temple changes the nature of the temple; (iv) that the High Court should not have accepted the cross appeal fixing 3 hours time for the worship of the Digamberies Sect; (v) that the Judgment of the Trial Court is wholly vitiated because the Trial Judge not having accepted the evidence based his findings on his own inspection.
Before as deal with these contentions, it is necessary to detail the findings of the Courts below The Trial Court while decreeing the Plaintiff 's suit held that though it was not proved as to who built the Temple of Adeshwarji initially, both Digamberies and Swetamberies worshipped in the said Temple; that the management and the possession of the Temple was with the Defendants Swetamberies for a long time, that the Swetamberies were not entitled to put artificial eyes or to put Dhwajadand or Kalash on the Temple; and that the Defendants were trying to interfere with the rights of the Plaintiffs ' and were making alterations to transform the character of the Temple.
In this view the Trial Judge gave a declaration in favour of the Plaintiffs against Defendants in their personal capacity as well as representatives of the Jain Swetamberies Sect that the Plaintiffs or the followers of the Digamberi Sect have been performing Prakshal, Poojan and Darshan and are also entitled to do so in future.
He also issued a permanent injunction against the Defendants in their personal capacity as well as representatives 841 of the Jain Swetamberi Sect restraining them from changing the shape and appearance of the idol by putting Netras (artificial eyes), Armlets, and Mukat, from erecting Dhwajadand and putting Kalash on the Temple and putting locks on the shutters of the Temple.
The Appellants were further directed not to restrain the followers of the Jain Digamber Sect from performing Darshan, Poojan and Prakshal according to their tenets.
After the remand Appellants urged before the District Judge the following contentions : (1)That the Temple belongs to Swetamber Sect and the Plaintiffs are entitled to have Darshan only of the idol, otherwise they have got no right to worship it according to their tenets; (2) That the idol being Swetamberi, the Defendants are entitledto put artificial eyes in the idol, Dhwajadand and Kalash on them Temple; (3) That the Defendants having been managing the Temple for the last so many years, their management cannot be interfered with it for the betterment of the idol, it is kept under lock, it cannot be said to wound the sentiments and religious feelings of the Plaintiffs.
The District Judge held on the first contention that though the Temple is admittedly an old one there is not an iota of evidence as to who constructed the Temple originally; that the Appellants have been in management and possession of the Temple, which fact was not really challenged by the Respondents, though this by itself does not imply that the Temple is a Swetamberi Temple.
It was also contended that the Respondents had no right to worship the idol but can only have Darshan.
This contention was also rejected on a review of the evidence led by both parties, and also, by relying on Exh. 1 which embodied a compromise between the two Sects under which the right of the Respondents to worship the idol was specifically admitted.
On the second point urged before him the District Judge held that the Appellants case that there were eyes already in the idol, but as they got damaged they wanted to replace them is not substantiated by the evidence led on behalf of the Appellants themselves.
It also held that an attempt was made by, the Swetamberies in 1949 to install the eyes in the idol and that as most of the Appellant 's witnesses admitted that though Dhwajadand was offered on certain occasions which were retained by the Oswals (Swetamberies) there was no Dhwajadand and Kalash on the temple itself.
On the third point it was held that the Appellants, who were in management and possession of the Temple for the last so many 842 years, have a right to lock the main Temple, to prevent it from being defiled, which does.
not in any way interfere with the right of worship of the Respondents or any other person on their behalf.
This being so ' the Trial Courts decree excepting for restraining the Appellants to lock the Temple was affirmed subject to the further,direction as already noticed keeping the Temple open for worship of the Respondents and the Digambaries Sect between 8.30 and 9.30 a.m.
When the appeal and cross objections were pending before the High Court the Appellants filed an application under Order 41, Rule 27 of the Civil Procedure Code for recording the evidence of Shri Satya Prakash Srivastava, Director of Archaeology and Museum, Rajasthan to establish the denominational identity of.
the idol in the Temple.
It was stated in that, application that since he District Judge had remarked that the parties had not produced sufficient evidence and it was not possible to come to any conclusions regarding the nature of the idol as to whether it is Swetamberi or Digamberi, the petitioner had moved the Direc tor of Archeology who after a thorough examination came to the conclusion that the idol was Swetamberi.
In view of this Report it was prayed that the said Director be called in evidence and be examined.
In the alternative it was prayed that the case be remanded to the Trial Court for allowing the parties to lead additional evidence so that effective adjudication can be made.
The High Court however, did not feel the need for any additional evidence as the case could be disposed of on the material on record.
In this view it dismissed the application.
Even before us the learned Advocate for the Appellant tried to persuade us to look into that Report and urged that the evidence of the Director was necessary and ought to have been allowed to be adduced.
In view of the concurrent findings of all the Courts on certain material aspects of the case to which we shall presently refer, it is possible to determine the controversy between the parties, as such we agree with the High Court that no additional evidence is required at this stage, though the parties could have led better evidence in the initial stages itself.
It was further contended on behalf of the Appellants that the Respondents suit was not maintainable because it did not involve a dispute of a Civil nature.
Respondents ' learned Advocate though he first indicated that he would raise a preliminary objection to this contention being urged because when the High Court set aside the Judgment of the District Judge and remanded the case to be decided on merits holding that the suit was maintainable as it raised a dispute of a civil nature, the Appellants ought to have appealed to the Supreme Court.
The learned Advocate for the Appellants however contends that the remand order of the 843 High Court did not finally dispose of the rights of the parties as such it is open to him to urge in this appeal that the suit was not maintainable on the ground that it does not raise any dispute of a civil nature.
Though the preliminary objection was not subsequently pressed even on the merits, the learned Advocate for the Appellant is unable to satisfy us that the suit is not of a civil nature.
From the pleadings and the controversy between the parties it is clear that the issue is not one which is confined merely to rites and rituals but one which effects the rights of worship namely whether the Swetamberies by placing Chakshus, Dhwajadand and Kalash according to their tenets or by locking the temple could preclude the Digamberies from worshipping in accordance with their tenets.
It is admitted that the Digamberies will not worship the idol which is not Nirakar ' or which has Chakshus.
If the Digamberies have a right to worship at the temple the attempt of the Swetamberies to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple.
These findings clearly establish that the Appellants interfered with the rights of Digamberies to worship with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code.
This position is well established.
If authority was needed we may refer only to two cases.
The Privy Council in Sir Seth Hukam Chand & Ors.
vs Maharaj Bahadur Singh & Ors.(1), had to deal with the practices observed by Digamberies and Swetamberies on the Parasnath Hill which is considered to be sacred by.
both the Sects but in respect of which the Digamberies objected to the continuous employment of human beings on the Hill and against building thereon of Dwellings necessarily involving according to their tenets of a sacrilegious pollution and desecration of the sacred hill, while the Swetamberies had no such belief.
Sir John Wallace delivering the opinion of the Board observed :"These are matters for the Jain themselves and the Civil Courts are only concerned with them in so far as they are relevant to questions of civil right such as an alleged interference with the Plaintiffs rights to worship on the hill, and in that case the issue must be not whether the acts complained of are in accordance with orthodoxy or with previous practice, but whether they do in fact interfere with the plaintiff 's rights of worship".
Again this Court in Nar Hari Sastri and Others vs Shri Badrinath Temple Committee (2 ) was concerned with the rights of the Deoprayagi Pandas to enter the Badrinath Temple alongwith their Yajmans or clients, which it was claimed the Pawal or the Trustee denied and threaten to obstruct the said Deoprayagi (1) (2) ; 844 Pandas from entering the precincts of the Temple along with their Yajmans or from assisting the pilgrims in the matter of Darshans etc.
inside the Temple.
The Defendant however, asserted that it was neither necessary nor desirable that the plaintiffs should be allowed to accompany their Yajmans or clients into the Temple, as he had himself made adequate arrangements for the Darshan and worship of the pilgrims and that as the sole Trustee and manager of the Temple he had the right to regulate entry into the Temple so the over crowding might be avoided and order maintained inside it.
Mukerjea J, (as he then was) speaking for the Court dealt with this contention in the following passage "The true position therefore is that the Plaintiffs ' right of entering the temple along with their Yajmans is not a precarious or permissive right depending for its existence upon the arbitrary discretion of the Temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the Temple Committee may impose in good faith for maintenance of order and decorum within the Temple and for ensuring proper performance of customary worship.
In our opinion, the Plaintiffs are entitled to a declaration in this form.
" It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier dispute which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed.
In our view the contention of the learned Advocate for the Appellant to the maintainability of the suit is not well founded.
One other objection which the learned Advocate for the Appellants urged at the outset is that the findings of the Trial Judge are vitiated because he did not rely on the evidence on record but decided to which Sect the idol in dispute belongs, only on what he found on his inspection of the idol and the Temple which cannot be evidence in the case, without his being subjected to cross examination.
It is further contended that even if what has been stated in the Judgment is what the Trial Judge had observed in his inspection there is nothing to show that he had drawn up inspection notes and made them part of the record as required under the law.
The contention that the Trial Judge had given his findings mainly on the observations made during his inspection in the first place is based on insufficient appreciation of what was really observed when dealing with the question as to 845 which Sect the idol in dispute belongs.
It was observed in the Judgment that most of the witnesses produced were non Jains and therefore, their evidence does not carry much weight to establish to which Sect the idol belongs.
After stating that the remaining witnesses of the parties have given statements in favour of their party the Trial Judge said that these statements also cannot be much relied upon.
The decision of his case is based mostly on the site inspection and the evidence on record.
Even while giving the findings the Trial Judge remarked that the evidence led by the Plaintiff appears to be correct.
These observations themselves show that the evidence on record was an element in the formulation of the Trial Courts Judgment buttered by the observations of the learned Judge during the site inspection.
There is therefore, no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection.
It is also evident from a narrative given in the Judgment of what was noticed during the inspection that the Judge had inspected the site on two occasions once on 24 3 1956 and again a year and two months thereafter on 23 5 1957.
The details given by him could not have been given if he had not made some inspection notes.
It would also appear that at the time of the inspection Council for the Plaintiffs and Defendants were present because when giving a description of the idol of Neminathji in the Swetemberi Jain Temple when it was noticed that some portion of the idol under the waist and naval is raised and is like a line, the Council for the Plaintiffs pointed out to him that mark denoted the wearing of a loin cloth while the Counsel for the Defendants said it was the mark of an Artist.
Again in respect of the observation that on the back side and at the lower portion of the navel some portion is raised, the Counsel for the Plaintiffs had pointed out to the loin cloth, while the Counsel for the Defendants said that it has been engraved by an Artist without any sense.
We are satisfied that the description given by the learned Judge of the idols in the Adeshvarji Temple and the Temple of the Swetambaries were observations made during an inspection at which both the Plaintiffs ' and Defendants ' Advocates were present and that there must have been notes also in respect of the inspection made on both the occasions.
The Appellants had at no time made a grievance either to the District Judge or to the High Court or even before this Court except during the stage of arguments that there were no inspection notes nor that the inspection was made by the Judge behind the back of the parties.
if these objections had been raised earlier the Respondents would have had an opportunity of showing that there were inspection notes.
The Judgment in our view is not based solely on the result of personal inspection made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the Trial Judge.
We must, 846 therefore, reject the contention of the learned Advocate for the Appellants that the finding in respect of the idol is vitiated.
In this view it is not necessary to deal with any of the decisions referred to before us.
It was contended by Shri Desai that unless the ownership of the Temple is established or that the idol belongs to the Digamberies no injunction can be given nor the Plaintiffs permitted to worship.
It is argued that in the plaint the Respondents wavered that the idol is a Digamberi idol and if they have failed to prove it then their right to worship fails.
At any rate the argument proceeds that the High Court was in error in not deciding the ownership of the Temple or of the idol.
We have earlier indicated the plaint averments in which there is no mention of the ownership of the Temple or of the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the idol when it is averred that the idol was constructed and consecrated according to and by the followers of the Digamberi Sect and that the Plaintiffs and the other followers of the Digamberi sect have been performing Darshan, Prakshal and Poojan of the said deity in the said Temple for a considerable number of years past and really ever since the Temple was founded.
There is therefore, force in the contention of Shri Gupte, learned Advocate for the Respondents that having regard to the concurrent findings of the Courts below that the idol was Nirakar ' (naked) that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies.
It was also held as had already been noticed that though it is not possible to say when the Temple was constructed and the idol consecrated it was an ancient Temple and that both the Digamberies and the Swetamberies worship the idol.
It is not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat( the Swetamberies would worship a Digamberi idol without these and hence the right to worship a Digamberi idol by both the sects is possible and indeed has been so held by all the Courts.
Even the Defendants ' witnesses substantiate these findings.
We would refer to only two of these witnesses.
Shri Suwa Lal D.W. 4 even though he says that the Temple belonged to the Oswals in which he and his father has been performing Sewa for the last 30 or 35 years on behalf of the Oswals (Swetamberies) admitted that since he attained the age of discretion and upto the time of giving evidence he had never seen Adinathji wearing clothes, never saw the idol with eyes and had never seen Dhwajadand or Kalash on the Temple and does not know whether the idol belongs to Oswals or Saravagis (Digamberies).
D.W. 3 Shri Pokhar a barber of Oswals also supports this witness.
That the Digamberies had a right to worship is also borne out by exhibit 1 dated 847 23 12 49 which was a compromise entered into between Swetam beries and Digamberies at the time when the Swetamberies attempted to put Chakshus in the idol.
No doubt this was an interim arrangement till the decision of a Civil Court adjudicating the respective rights, but there was never any question of either Sect not having the right to worship the idol.
The dispute had arisen only as to whether Swetamberies can fix Chakshus in the idol.
1 states as follows: "We Panchas give this award that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol.
This new thing should not continue.
These eyes should be removed.
Digamberies have a right to perform Poojan so they can mark saffron Tiki ' and have Darshan and come back.
Digambries will not performs Prakshal, Poojan.
Swetamberies will continue incurring expenses as usual.
The idol shall remain backed (Nirakar)".
The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court.
Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshiping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple.
In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Sec.
110 of the Evidence Act does not arise nor is it relevant.
It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownerships of the Temple is in the idol and therefore, the question, of presumption under Sec. 110 does not arise.
It is again contended by Shri Desai that the moment it is held that it is not possible to, come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets.
This contention, however, in our view ignores the rights of the Digamberies to worship in accordance with their tenets.
If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would denomination change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by erecting their Dhwajadand or Kalash over the Temple.
848 Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours.
In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open.
In view of the acute controversy between these 2 sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper.
In this view the appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.

summary:
Respondents 1 to 9 filed a suit against the Appellants and some of the other respondents for a declaration that they hid been carrying on, and were entitled to the worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to the tenets observed by the Digambri Sect of the Jain religion.
They further alleged : that the temple was constructed and the idol consecrated according to and by the followers of their sect; that in December, 1949, the defendants had attempted to convert the said idol into the idol of the Swetambri Sect by putting Chakshus (artificial eyes) thereon, but were prevented due to strong opposition of the followers of Digambri Sect.
It was claimed that although a temporary settlement was reached between the two sects while the rights in the temple were to be adjudicated upon by a Civil Court, the defendants had made arrangements to alter the temple according to their tenets and that they were intending to enclose the idol by doors and locks with the object of interfering with the free exercise of a Digambris ' right to worship the idol.
It was therefore prayed that the defendants be restrained by a permanent injunction from altering the nature and shape and appearance of the idol in any manner or from doing any act which would interfere with the right of worship of the followers of the Digambri Sect.
The defendants denied that the Digambri Sect had any right of worship of the idol or had ever exercised such a right and contended that the idol and the temple is in all respects a temple of the Jain Swetambri Sect.
The Trial Court decreed the suit and the District Judge in appeal as well as the High Court confirmed the decree.
The High Court also fixed three hours a day when the Digambris may use the temple for worship In appeal to this Court, it was contended inter alia on behalf of the appellant that the reliefs claimed made it clear that the dispute was not of a civil nature; and that the judgment of the Trial Court was wholly vitiated because the Trial Judge not having accepted the evidence produced before him, based his findings on his own inspection.
It was also contended that unless the ownership of the temple, was established or that the idol belonged to the Digambri Sect, no injunction could be given nor could the respondents be permitted to worship there; in the plaint the respondents had averred that the idol is a Digambri idol and as they had failed to prove this, their right to worship also failed.
HELD:Dismissing the appeal, (i)From the pleadings and the controversy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship.
If the Digambries have a right to worship at the temple, the attempt of the Swetam 837 belies to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple, with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code.
This position is well established.
[843 B] Sir Seth Hakam Chand & Ors.
vs Maharaj Bahadur Singh & Ors., 60 I.A. 313 and Nar Hari Sastri and Ors.
vs Shri Badrinath Temple Committee; , , referred to.
(ii)While, giving his findings the Trial Judge remarked that the evidence led by the Plaintiffs appeared to be correct.
These observations themselves show that the evidence on record was an element in the formulation of the Trial Court 's judgment buttressed by the observations of the learned Judge during the site inspection.
it was clear that the description given by the learned Judge of the idols in the Adeshwarji Temple and the Temple of the Swetemberies were observations made during an inspection at which both the Plaintiffs and Defendants Advocates were present and that there must have been notes also in respect of the inspection made on both the occasions.
There was therefore no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection.
[844 G 845 C] (iii)The concurrent findings of the Courts below that the idol was Nirker ' (naked), that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies.
It was also clear that it was an ancient temple and that both the Digamberies and the Swetamberies worship the idol.
It was not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetamberies would worship a Digamberi idol without these and hence the right to worship a Digamberi idol by both the sects is possible and it has been rightly so held by all the courts.
[846 E] Once the right of worship of Digamberies was established they would be entitled to the injunction sought for by them against the Appellants from preventing them from worshiping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple.
The directions of the High Court extending the time for worship by Digamberi Sect from one hour to three hours was not unreasonable.
[848 A B]


judgement:
iminal Appeal No. 76 of 1968.
Appeal by special leave from the judgment and order dated February 8, 1968 of the Mysore High Court in Criminal Appeal No. 215 of 1966.
V.M. Tarkunde, R. Jethamalani, N. H. Hingorani and K. Hingorani, for the appellant.
section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Dua, J.
This appeal by special leave is directed against the judgment and order of the Mysore High Court on appeal setting aside in part the order of the appellant 's acquittal by a Second Class Magistrate and convicting him under r. 126P(2) of the Defence of India Rules as amended in 1963 hereafter called the Rules and sentencing him to rigorous imprisonment for six months.
The order of the trial court acquitting him of the offence under section 135 of the Customs Act was upheld.
The appellant alighted from a service plane at H.A.L. Aero drome, Bangalore on November 16, 1963 at about 12.45 in the afternoon.
E. R. Fariman, Inspector, C.I.D. had prior incriminating information about the arrival of a person whose description seemed to tally with that of the appellant.
The Inspector and has staff who were on the look out waited for the appellant to take his baggage from the baggage counter.
As soon as the appellant took delivery of a plastic bag and a hold all the Inspector asked the appellant to accompany him to the Security Room.
On being questioned the appellant gave his name as Tara Chand though he admitted that he had travelled under the name of J. D. Shaw.
In the Security Room in the presence of Panchwatdars the plastic bag and the hold all were opened and examined.
From a pillow taken out of the hold all were found two tape bags containing 16 pieces of gold with foreign markings.
These tape bags had been put into the pillow which was then stitched.
The appellant was then produced by the Inspector before his D. section P. along with the articles seized from him.
After obtaining sanction from the Collector under section 137(1) of the 910 Customs Act and under r. 126Q of the Rules Shri Rasool, Superintendent of Central Excise (P.W. 3) filed the complaint.
The learned Magistrate trying the appellant found the.
gold pieces to be of foreign origin.
He, however, did not find any evidence establishing them to be smuggled with the result that the appellant was acquitted of the offence under section 135 of the Customs Act.
The learned Magistrate did not draw any presumption against the appellant because the seizure of the gold pieces was not by the Customs authorities but by the police who thereafter handed over the gold pieces to the office of the Collector of Central Excise and Customs.
While considering the case against the appellant under r. 126P(2) of the Rules, the learned Magistrate observed that according to the relevant notification issued by the Government of India on November 5, 1963 in modification of the earlier one issued under r. 126J read with r. 126X of the Rules, it is either the Assistant Collector of Central Excise or the Collector of Central Excise who can institute prosecution.
These officers are not authorised to delegate the power to institute prosecution.
According to the learned Magistrate the Collector of Excise had, therefore, no power to delegate the right to institute prosecutions with which healone had been clothed.
Exhibit P/5 was in the circumstancesconsidered to be ineffective.
On this reasoning the complainthaving not been filed by the officer competently authorised the appellant was acquitted.
On appeal by the Superintendent of Central Excise and Customs (the complainant in the case) the High Court disagreed with the view taken by the learned Magistrate.
It may be pointed out that the appeal by the complainant was confined only to the acquittal under r. 126P(2) of the Rules and the appellant 's acquittal under section 135 of the Customs Act was not questioned, it being conceded that there was no evidence on the record to bring the appellant 's case under section 135 of the Customs Act.
The High Court relying on exhibit P/5 and the two notifications issued by the Government of India came to the conclusion that the Collector was lawfully empowered to authorise the Superintendent of Central Excise to prosecute the appellant.
That Court also arrived at the conclusion that the,appellant, who was not a dealer or refiner, having a licence, was found in possession of gold, of which no declaration had been made under the law and, therefore, he was guilty of an offence punishable under r. 126P(2) of the Rules.
The appeal was accordingly allowed and the appellant convicted and sentenced to rigorous imprisonment for six months.
911 In this Court Shri Tarkunde assailed the legality of the view taken by the High Court.
According to him the trial court had rightly held the prosecution not to have been instituted by a duly authorised person.
Let us see if the scheme of the relevant statutory provisions supports the learned counsel.
Part XII A of the Rules deals with Gold Control and it con tains rules 126A to 126Z.
This part was inserted in the Defence of India Rules in January 1963.
Rule 126Q provides : "(1) No prosecution for any offence punishable under this Part shall be instituted against any person except by, or with the consent of, the Administrator or any person authorised by the Administrator in this behalf.
(2) Nothing in rule 154 shall apply to any contravention of any provision of this Part or any order made thereunder.
" The word "Administrator" was substituted for the word "Board" in September 1963.
We are informed that no Administrator as defined in r. 126A(a) was appointed by the Central Government under power conferred on it by r. 126J(1).
Under r. 126X the Central Government is empowered to perform all or any of the functions of the Administrator and also by notification to exercise all or any of the powers conferred on the Administrator by Part XII A if considered necessary or expedient in the public interest to do so.
The Administrator who is to take suitable measures : (a) to discourage the use and consumption of gold, (b) to bring about conditions tending to reduce the demand for gold and, (c) to advise the Central Government on all matters relating to gold, is enjoined by r. 126J(3) to discharge his functions subject to the general control and directions of the Central Government.
Sub rules 4 and 5 of r. 126J provide : "(4) The Administrator may by general or special order authorise such person as he thinks fit to exercise all or any of the powers exercisable by him under this Part and different persons may be authorised to exercise different powers Provided that no officer below the rank of Collector of Customs or Central Excise or Collector of a district shall be authorised to hear appeals under sub rule (3) of rule 126 M. (5) Subject to any general or special direction given or condition attached by the Administrator any 912 person authorised by the Administrator to exercise any powers may exercise these powers in the same manner and with the same effect as if they had been coffered on that person directly by this Part and not by way of authorization.
" We may bear in mind the effect of sub rule (5) on the scheme.
Rule 126H(2) (d) dealing with restrictions on possession and sale of gold by persons other than licensed holders lays down "(2) Save as otherwise provided in this Part, (d) no person other than a dealer licensed under this Part shall buy or otherwise acquire or agree to buy or otherwise acquire, gold, not being ornament, except, (i) by succession, intestate or testamentary, or (ii)in accordance with a permit granted by the Administrator or in accordance with such authorisation as the Administrator may, by general or special order make in this behalf : Provided that a refiner may buy or accept gold from a dealer licensed under this Part;" Turning now to the two notifications on the construction of which the fate of this case depends, we find that on January 10, 1963 the Central Government issued a notification in exercise of the powers coffered on it by r. 126X read with r. 126J(4) authorising certain officers of the Central Excise Department to exercise any or all of the powers of the Gold Board in relation to certain matters specified therein.
At sl.
No. 10 of the Table contained in the notification officers not inferior in rank to the Assistant Collector were authorised to exercise powers and functions in relation to the matter of "according of sanctions for the prosecution of offences" with reference to r. 126Q.
We have reproduced the exact words of the entry in col.
(4) of the Table.
This notification was amended in certain respects on November 5, 1963.
At sl.
No. 10 of the amended Table officers not inferior in rank to the Assistant Collector of Central Excise Department were authorised to exercise the powers and functions in relation to the matter of "institution.
of prosecution for any offence punishable under Part XII A of the Defence of India 913 Rules" with reference to r. 1260.
Here again we have reprocessed the exact words used.
According to Shri Tarkunde these notifications did not em power the Assistant Collector to authorise the Superintendent of Central Excise and Customs to institute the present proceedings.
The Assistant Collector, said the counsel, was authorised only himself to institute them and he could not lawfully accord consent for the institution of prosecution as he purported to do under ET.
We are unable to accept this submission.
The actual wording of the relevant entries in all the columns of serial No. 10 in the Table of the later notification may here be reproduced.
Assistant Collector of the Central Excise Department.
126Q Institution of prosecution for any offence punishable under Part XIIA of the Defence of India Rules, 1962".
This has to be read along with the opening part of the earlier notification dated January 10, 1963 Which remains the principal notification and was amended only in certain particulars on November 5, 1963.
According to the opening part of the principal notification the officers not inferior in rank to the officer specified in col. 2 of its Table were authorised to exercise any or all of the powers of the Gold Board in relation to the matters specified in the corresponding entries in cols.
3 and 4.
In place of "Gold Board" we have to read the word "Administrator" and since no Administrator was ever appointed, the powers and functions entrusted to him were at the relevant time being exercised by the Central Government.
We may point out that it was apparently by oversight that the word "Administrator" was not substituted for the expression "Gold Board" in the noti fication though in September 1963 such substitution had been effected by appropriate amendment in the relevant rules.
This was not controverted at the Bar and indeed no point was sought to be made on this ground.
It would thus be seen that in determining the scope and extent of the powers of the officers authorised in the Table of the Notification to exercise the powers and functions of the Administrator, actually exercised by the Central Government (there being no Administrator appointed under the rules), we have to see the nature of the power and function mentioned in col. 4 and examine it by ' reference to the rule mentioned in col. 3 in the light of the expression "in relation to the matters specified" in the notification which, in our opinion, to some extent widens the scope of the powers and functions de legated by the notification.
16 L694 SupCI/71 914 Under r. 126Q as read in the light of the entries at serial No. 10 of the notification prosecution for an offence punishable under Part XII A can, in our opinion, be instituted by or with the consent of an officer not inferior in rank to the Assistant Collector of the Central Excise Department.
In exhibit P/5 dated September 4, 1964 Shri V. Parthasarathy, Collector of Central Excise accorded his sanction to the prosecution of the appellant as required under r. 1260 of the Defence of India Rules.
He did so in exercise of the powers conferred on him by the two notifications mentioned above.
The offence for which the consent was given was described in this document as under "WHEREAS Shri Tarachand s/o Deviraj (Devi chand) Room No. 4, Mistry Bungalow, Duncan Road, Bombay 4was found to have acquired gold not being ornamentexcept by succession, intestate, or testamentary or in accordancewith the permit granted, either by the Administrator or by the Deputy Secretary in the office of the Gold Control Administrator, Bombay, duly authorised in this behalf by the Government of India vide their notification No. F. 1/8/63 GC dated 20 10 1963, 16 pieces of gold of 10 tolas each bearing markings as to its origin and purity contrary to the pro visions of rule 126H(d) of the Defence of India Amendment Rules.
WHEREAS any person having in his possession or in his control any quantity of gold or buy or otherwise acquires or accepts gold in contravention of any provisions of Part XII A of the Defence of India Rules renders himself liable for punishment under Rule 126P(2).
And on careful study of the material placed before me and satisfying myself that the said Shri Tarachand is liable to action under rule 126P(2) of the Defence of India Amendment Rules, 1963 for reasons mentioned above, I. V. Parthasarathy, Collector of Central Excise, Mysore Collectorate, Bangalore, in exercise of the powers conferred on me by the Government of India in their Notification F. No. 25/1/63 GCR dated 5 11 63 issued under Rule 126J read with Rule 126 X of the Defence of India Amendment Rules do hereby accord consent for the institution of prosecution of the said Shri Tarachand as required under Rule 126 Q of the Defence of India Amendment Rules, 1963.
" 915 This authority, in our opinion, quite clearly falls within the notification read as a whole and the High Court was right in so construing it.
The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the apperant 's prosecution by some other person or authority has not impressed us.
The attempt by the appellant 's learned counsel in this connection to equate these notification with powers of attorney does not carry the matter any further.
The plain reading of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect.
It quite clearly authorises the Collector to exercise power and function in relation to the matter of institution of prosecution for any offence punishable under Part XII A of the Rules referred to in r. 126Q.
Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems to us that after the responsible officers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case further steps in the matter of actual prosecution including the drafting and presentation of the complaint can be lawfully carried out by others: That this is the real object and purpose of the notifications Is clearly brought out on plain reading of their language.
To hold otherwise, as desired by 5hri Tarkunde, would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of effectuating, their real purpose.
We are thus in agreement with the view taken by the High Court.
The counsel next submitted that the charge levelled against the appellant was different from the one for which he has been convicted.
In any event the charge framed, according to the counsel, was vague and it has caused him prejudice in his defence.
Here again, we are unable to agree.
In the complaint all the relevant facts were stated quite clearly and it was emphasised that the appellant had been found in possession of 16 pieces of gold with foreign markings ingeniously concealed inside long tabular pouches, in turn hidden inside a pillow case.
He was stated to be guilty inter alia of offences punishable under r. 126P(2).
The second charge framed by the court was as follows : "That you on or about the 16th November, 1963 at about 12.45 hours at H.A.L. Aerodrome, Bangalore, alighted from the plane No. 105 which arrived from Bomay and when you and your articles were searched, 17 L694 Sup CI/71 916 you were found in possession of 16 pieces of gold each bearing markings, as to its foreign origin and purity weighing 10 tolas each, having illegally imported into India in contravention of prohibition imposed by the Ministry of Finance Notification No. 1211 F1/48 dated 25th August, 1948, and without permit issued by the Gold Control Authorities as required under Rule 126H(d) under the Defence of India Amendment Rules, 1963 and thereby committed an offence under Rule 126P(2) r/w 1261(10) of the Defence of India Amendment Rules, 1963 relating to Gold Control and within my cognizance.
" The appellant never complained that this charge was vague or outside the complaint.
Indeed in his statement in court the appellant has admitted all the relevant facts alleged by the prosecution.
The facts alleged and proved clearly bring the appellant 's case within the mischief of rr.
126H(2) (d) and 126P(2).
Rule 126H(2) (d) has already been reproduced earlier.
Under r. 126P(2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII A is punishable with imprisonment for a term of not less than six months and not more than two years and also with fine.
All the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any ques tion of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wde.
This argument is accordingly repelled.
Lastly the counsel contended that the sentence imposed was two severe.
The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice.
We have already noticed that under r. 126P(2) (ii) the minimum period of imprisonment prescribed is six months.
According to the appellant the law has since been amended and under the Gold (Control Act 18 of 1965 which has repealed Part XII of the Rules there is no minimum sentence of imprisonments prescribed.
In our opinion this case must be governed by the law as in force Prior to the enforcement of the .
Our attention has not been drawn to any provision of law nor to any principle or precedent which would attract the provisions of the of 1965 to this case in regard to the question of sentence.
This appeal accordingly fails and is dismissed.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
The Appellant was searched on alighting from a plane at the H.A.L. Aerodrome, Bangalore, on November 16, 1963 and a quantity of Gold was found on and seized from him.
After obtaining sanction from the Collector under section 137(1) of the Customs Act and under Rule 126 Q of Defence of India Rules, 1962, the Superintendent of Central Excise filed a complaint against the Appellant.
The Trial Court did not find any evidence establishing that the Gold had been smuggled and the Appellant was therefore acquitted of the offence under section 135 of the Customs Act.
As regards the case against the Appellant under Rule 126 P(2) the Trial Court held that according to the Notification issued by the Government of India on November 5, 1963 in modification of the Notification dated January 10, 1963 issued under Rule 126 J read with Rule 126 X, either the Assistant Collector of Central Excise or the Collector of Central Excise could institute the prosecution; these officers were not authorised to delegate powers to institute prosecution.
The Court, therefore, acquitted the Appellant on the view that the complaint was not filed by an Officer competently authorised.
The High Court in appeal disagreed with this view holding that the Collector was lawfully empowered to authorise the Superintendent of Central Excise to prosecute the appellant.
The Court convicted the appellant and sentenced him to rigorous imprisonment for six months.
Dismissing an appeal to this Court, HELD : The plain reading of the relevant entries in the Notification of January 10, 1963 as amended by the Notification of November 5, 1963 clearly shows that it authorises the Collector to exercise the power and function in relation to the institution of prosecution for any offence punishable under Part XII A of the Rules referred to in r. 126Q.
Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems clear that after the responsible officers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case, further steps in the mitt& of actual prosecution including the drafting and presentation of the complaint could be lawfully carried out by others.
To hold otherwise would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of effectuating, their real purpose.
[915 C F] There was no force in the contention that the charge levelled against the appellant was vague or in any way different from the one for which 909 he was convicted.
In fact the appellant had admitted all the relevant facts alleged by the prosecution.
The facts alleged and proved clearly brought the appellant 's case within the mischief of rule 126H(2)(d) and 126 P(2).
Although under the new Gold (Control) Act 18 of 1965, which had repealed Part XII A of the Rules, there is no minimum sentence of imprisonment prescribed, the present case must be governed by the law in force at the time and therefore the minimum sentence of 6, months under rule 126 P(2) (ii) must apply.
[916 D, G]


judgement:
Appeal No.2402 of 1966.
1 2 L694SupCI/71 850 Appeal by special leave from the judgment and order dated May 4, 1966 of the Patna High Court in Misc.
Judicial Case No. 284 of 1962.
A. K. Sen and U. P. Singh, for the appellants.
N. A. Palkhivala, section B. Mehta, B. Datta, for the respondent.
Hegde, J. This is an appeal by special leave.
It arises from the judgment of the High Court of Patna in a Reference under section 25(3) of the Bihar Sales Tax Act, 1947.
That reference was called for by the High Court at the instance of the assessee company (the respondent herein.
The questions referred for the opinion of the High Court by the Board of Revenue were : "(1) With regard to the sales which took place in the period from 1st of April, 1955 to the 6th September 1955, whether the assessee is entitled, upon the facts found by the Board of Revenue with regard to these categories of sales, to exemption from liability under the Bihar Sales Tax Act because of the provision of Article 286(1) (a) of the Constitution as it stood at the relevant date read with the explanation to that article.
(2) With regard to the sales which took place in the period from 7th September, 1955, to 31st March, 1956 whether the assessee is entitled, upon the facts found by the Board of Revenue with regard to these categories of sales, to exemption from liability under the Bihar Sales tax Act on the ground that the sales took place in the course of inter State trade or commerce under article 286(2) of the Constitution as it stood at the relevant period.
" The High Court answered the first question in the negative and against the assessee.
It answered the second question in the affirmative and in favour of the assessee.
The assessee has not come up in appeal.
This appeal has been brought by the State of Bihar contesting the correctness of the opinion given by the High Court on the second of the two questions referred to earlier.
The assessee is, a Public Limited Co., incorporated under the Indian Companies Act, 1913.
It carries on business of manufacturing and selling inter alia trucks and bus chassis and spare parts thereof to their appointed dealers, State Transport Organizations and individual buyers throughout India.
The registered office of 851 the assessee is at Bombay but its factory where manufacturing proCess. is being carried on is at Jamshedpur in Bihar.
The assessee has appointed several dealers all over India for the sale of its trucks, bus chassis and spare parts.
Those dealers are appointed under agreements entered into between the in and the assessee.
The turnover in dispute relates to the sales made by the assessee to its dealers of trucks, bus chassis and spare parts for being sold in the territories assigned to them under the dealership agreements.
The agreements between the assessee and its dealers appear to be similar.
Under the agreements, each dealer is assigned a territory .in, which alone he can sell the trucks, bus chassis and other spare parts purchased by him from the assessee company.
He is forbidden from selling anyone of those articles to any purchaser outside his territory.
As per the agreements, dealers will have to place their indents, pay the price of the goods to be purchased and obtain delivery orders from the Bombay office of the assessee.
In pursuance of those delivery orders, trucks, bus chassis and other spare parts were delivered in Bihar to be taken over to the territories assigned to them.
Under the contracts of sale, the dealers, were required to remove the trucks, bus chassis and the spare parts, delivered to them.
in the State of Bihar to place outside Bihar.
These are facts found by the Board of Revenue and affirmed by the High Court.
On the basis of these facts, we have whether the sales with which we are concerned in this appeal are sales that took place in the course of inter State trade and commerce as contemplated by article 286(2) of the Constitution as it stood at, the relevant time.
In other words the question for decision is, whether the sales in question were sales for the purpose of inter State trade or commerce or whether they were sales in the course of inter State trade or commerce.
As seen earlier, the High Court has held that, those sales took place in the course of interState trade or commerce.
The expression "in the course of" appearing in article 286(1)(b) came up for consideration in State of Travancore Cochin and Ors.
vs The Bombay Co. Ltd. (1) Therein in this Court held that whether else may or may not fall within article 1286(1)(b) of the Constitution,.
sales and purchases which themselves occasion the export or import of the goods as the case may be out of or into, the territory of India come within the exemption.
In that case this Court further observed that a sale by export involves, a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.
Such a sale cannot be dissociated from,the export without which it cannot be effectuated and the sale and the resultant export form parts of a single transaction.
Of these two integrated activities which to (1) ; 852 gather constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other.
Even in cases where the property in the goods passed to the foreign buyers and the sales were thus completed, within the State before the goods commenced their journey from the State, the sales must be regarded as having taken place in the course of the export and therefore exempt under article 286(1)(b).
The same exposition of the law is true of cl.
(2) of article 286 as it stood prior to its amendment on September 11, 1956.
The next decision in which article 286(1)(a), 1(b) and (2) came to be considered by this Court is State of Travancore Cochin and Ors.
vs Shanmugha Vilas Cashew Nut Factory and Ors.
(1) Therein this Court observed that the word "course ' etymologically denoties movement from one point to another and the expression "in the course of" in article 286(1)(b) not only implies a period of time during which the movement is in progress but postulates also a connected relation.
Consequently, a sale in the course of export out of the country should be understood in the context of article 286(1) (b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country, but also as part of or connected with such activities.
But a purchase of goods for the purpose of export is only an act preparatory :to their export and.
not an act done in the course of the export of ,the goods.
In The Bangal Immunity Company Ltd. vs The State of Bihar and Ors.
(2) Venkatarama Ayyar, J. observed that a sale could be a sale in the course of inter State trade only if two conditions concur : (1) a sale of goods and (2) a transport of those goods from one State to another under the contract of sale.
In Endupuri Narasimham and son vs The State of Orissa and Ors.
(3), this Court held that in order that a sale or purchase might be inter State, it is essential that there must be a transport of goods from one State to another under the contract of sale or purchase.
IA purchase made inside a State for sale outside the State cannot itself be, held to be in the course of inter State and the imposition of tax thereon is not repugnant to article 286(2) of the Constitution.
In Tata Iron and Steel Co. Ltd. vs section R. Sarkar and ors.
(4) this Court held that within cl.
(b) of section 3 of the , are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto and also covers sales in which movement of goods from one State to another is the result of a covenant or incident of the contract of sale and property in (1) ; (2) [1955] 2 S.C.R.603.
(3) ; (4) ; 853 the goods passes in either State.
Clause (b) of section 3 of the says : "That no law of a State shall impose or authorise the imposition of,.
a tax on the sale or purchase of goods where such sale or purchase takes place in the course of the import of goods into, or export of the goods out of,.
the territory of India.
" In The Cement Marketing Co. of India (private Ltd. and anr.
vs The State of Mysore and anr.(1), this Court held that where the goods were transported outside the State as required by the contract of sale, they are inter State sales and hence exempt from sales tax.
On the facts of that case it was held that the sales transactions themselves involved movement of goods across the border.
In Ben Gorm Nilgiri Plantations Co. Coonoor and ors.
vs Sales Tax Officer, Special Circle, Ernakulam and ors.(2) this Court had to consider what sales are sales in the course of export and what sales are for the purpose of export.
In the course of the judgment Shah, J. (one of us) observed : "A sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction.
In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be obligation to export,.
and there must be an actual export.
The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them.
, or even from the nature of the transaction which links the sale to export.
A transaction of sale which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export." In K. G. Khosla and Co. (P) Ltd. vs Deputy Commissioner of Commercial Taxes, Madras(3 ) this Court held that before a sale could be said to have occasioned the import, the movement of goods must have incidental to the contract or in pursuance of the conditions of the contract and there should be no possibility (1) 14, S.T.C. 175 (S.C.) (2) 117 S.T.C. 473.
(S.C.) (3) 854 the goods being diverted by the assessee for any other purpose.
meaning thereby that there should be no possibility of diversion according to law or contract and not in breach of them. ' In Tata Engineering and Locomotive Co. Ltd. vs The Asstt.
Commissioner of Commercial Taxes and anr.(1), this Court after referring to the earlier decisions observed : "It has been laid down that the sale in the course of export, predicated connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted without a breach of the contract or the compulsion arising from the nature of the transaction.
To occasion export there must exist such a bond between the contract of sale and the actual exportation that each link is inextricably connected with the one immediately preceding it.
The principle thus admits of no doubt.
according to the decisions of this Court, that the sales to be exigible to tax under the Act (Central Sales Tax Act, 1956) must be shown to have occasioned the movement of the goods or articles from one State to another.
The movement must be the result of a covenant or incident of the contract of sale.
" If we apply the principles enunciated by this Court in the decisions referred to above to the facts of this case, it is obvious that the sales with which we are concerned in this case are sales in the course of inter State trade.
The dealers were required to move the trucks, buses, chassis and other spare parts purchased by them from the State of Bihar to places outside Bihar.
They are so required by the terms of the contracts entered into by them with the assessee.
They would have committed breach of their contracts and incurred the penalty prescribed in their dealership agreements, if they had failed to abide by the term requiring them to move the goods outside the State of Bihar.
The decided cases establish that sales will be considered as sales in the course of export or import or sales in the course of inter State trade and commerce under the following circumstances: (1) When goods which are in export or import stream are sold; (2) When the contract of sale or law under which goods are sold require those goods to be exported or imported to a foreign country or from a foreign country as the case may be or are required to be transported to a State other (1) [1970] 1 S.C.C.622.
855 than the State in which the delivery of goods takes place and (3) Where as a necessary incident of the contract of sale goods sold are required to be exported or imported.
or transported out of the State in which the delivery of goods takes place.
But Mr. A. K. Sen, learned Counsel for the State of Bihar contended that this Court has taken a different view of the law in Coffee Board, Bangalore vs Joint Commercial Tax Officer, Madras and anr.(1).
According to him the ratio of that decision is that whenever goods are delivered in a State in pursuance of a contract of sale, the sale in question becomes exigible to tax in the State in which the goods are delivered unless they are taken out of the State for purposes of consumption and not resale, or the same is taken out of the State in pursuance of an already existing agreement to resell in the State to which it is taken.
The decision in Coffee Board case (supra) does not, in our opinion, afford any basis for these contentions.
We have earlier noticed that this Court in a series of decisions has pronounced in unambiguous terms that where under the terms of a contract of sale, the buyer is required to remove the goods from the State in which he purchased those goods to another State and when the goods are so moved, the sale in question must be considered as a sale in the course of inter State trade or commerce.
This is a well established position in law.
In the Coffee Board case this Court did not deviate from this position nor could it deviate as the earlier decisions were binding on it.
Fur ther in the course of his judgment, the learned Chief Justice who spoke for the Court referred with approval to the earlier decisions of this Court where distinction between the sales in the course of inter State trade or commerce and sales for the purpose of interState trade and commerce were explained.
On the basis of the facts in that case, his Lordship came to the conclusion that the export of the coffee in question was, not integrated with the sales with which the Court was concerned and that there was no direct bond between the export and the sales.
In the course of his judgment his Lordship observed : "Here there are two independent sales involved in the export programme.
The first is a sale between the Coffee Board as seller to the export promoter.
Men there is the sale by the export promoter to a foreign buyer.
Of the latter sale, the Coffee Board does not have any inkling when the first sale takes place.
The Coffee Board 's sale is not in any way related to the second sale.
Therefore, the first sale has no connec (1) 25 S.T.C. 528 (S.C.) 856 tion with the second sale which is in the course of export, that is to say, movement of goods between an exporter and an importer.
" This finding clearly brings out the distinction between the facts of the Coffee Board 's case (supra) and the facts of the cases wherein this Court held that the sales in question were sales in the course of export or import.
In the Coffee Board 's case this Court found that what was insisted on by the Coffee Board was that the coffee set apart for the purpose of the export must be exported; it was not incumbent for the purchasers at the auction to export that coffee themselves; they may do it themselves or they may sell it to somebody who may export it outside India.
On that basis, this Court came to the conclusion that the sales effected by the Coffee Board are not sales in the course of export; they are only sales for, the purpose of export.
The ratio of that decision does not bear on the facts before us.
Herein, under the terms of the contracts of sale, the purchasers were required to remove the goods from the State of Bihar to other States.
Hence the sales with which we are concerned in this case must be held to be sales in the course of inter State trade or commerce.
For the reasons mentioned above, we agree with the findings of the High Court.
In the result this appeal fails and the same is dismissed with costs.

summary:
The assessee, having its registered office in Bombay and its factory in Bihar, was carrying on the business of manufacturing and selling trucks, bus chassis and spare parts to their appointed dealers and others.
Agreements were entered into between the assessee and the appointed dealers, under which, each dealer was assigned a territory in which alone the dealer could shell.
The dealers had to place the indents, pay the price of goods to be purchased and obtain delivery orders from the Bombay office.
In pursuance of the delivery orders the trucks etc.
were delivered in Bihar to be taken to the territories assigned to them for sale there.
If the dealers failed to abide by the term requiring them to move the goods outside the State of Bihar they would have committed breach of their contracts, On the question whether the turnover relating to the sales made by the assessee to its dealers for sale by them in their respective territories outside the State of Bihar, during the period 7th September 1955 to 31st March 1956, was exempt from liability to pay sales tax under the Bihar Sales Tax Act, on the ground that the sales took place in the course of inter State trade or commerce, under article 286(2) as it, then stood, HELD : Where under the terms of a contract of sale, the buyer is required, as a necessary incident of the contracts to remove the goods from the State in which he purchased the goods to another State and when the goods are so removed, the sale must be considered as a sale in the course of inter State trade or commerce.
[854 G H; 858 A 13] State of Travancore Cochin vs The Bombay Co. Ltd. ; , State of Travancore Cochin vs Shanmugha Visal Cashew Nut Factory, ; , Bengal Immunity Co. Ltd. vs State of Bihar, , Endupuri Narasimham & Son vs State of Orissa, ; , Tata Iron & Steel Co. Ltd. vs section R. Sarkar, [1961] ] S.C.R. 379, The Cement Marketing Co. of India (P) Ltd. vs State of Mysore, 14 S.T.C. 175, Ben Gorm Nilgiri Plantations Co. vs Sales Tax, Officer, Special Circle, Ernakulam; , , K. G. Khosla & Co. (P) Ltd. vs Dy.
Commissioner of Commercial Taxes, Madras, 17 S.T.C. 473 and Tata Engineering & Locomotive Co. Ltd. vs Asstt.
Commissioner of Commercial Taxes & Anr. ; , applied.
Coffee Board, Bangalore vs Joint Commercial Tax Officer, Madras, 25 S.T.C. 528, explained.


judgement:
iminal Appeal No. 55 of 1970.
Appeal by special leave from the judgment and order dated September 26, 1969 of the Allahabad High Court in Criminal Appeal No. 1037 of 1969 and Referred No. 82 of 1969.
Yogeshwar Prasad, section K. Bagga and Sureshta Bagga, for the appellants.
O. P. Rana, for the respondent.
Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Judicature at AllAhabad confirming conviction of the two appellants by the Sessions Judge, Mainpuri, under section 302/34 of the Indian Panel Code.
Appellant Jadunath Singh was sentenced to death by the Sessions Judge and appellant Girand Singh was sentenced to undergo imprisonment for life.
In order to appreciate the points raised before us by the learned counsel for the appellants it is necessary to state a few facts.
It is alleged against the appellants that on February 26, 1968, at about 7.30 a.m., in furtherance of their common intention, they murdered one Ram Swarup Pandey by repeatedly stabbing him to death, when he was passing on the Grand Trunk road in the town of Bewar to catch a truck.
As many as 34 injuries were found on the deceased at the postmortem conducted on his body on the same day at about 3 p.m.
The prosecution case in brief is as follows : It is common ground that there was great enmity between the deceased and Laturi Ahir and his sons, the two appellants.
The deceased apprehended danger to his life from them, and on November 23, 1967, be sent an application to the Superintendent of Police, Mainpuri, ;alleging that Laturi and his son, Jadunath, Brahma, Panna Lal and Anokhey, et&. were terrorising the weaker and poorer sections of the village community and declaring openly that they would kill the deceased to silence his opposition for ever.
He prayed that an enquiry may be made and suitable action taken against them.
(On February 25, 1968 ( the deceased came to Bewar in the evening to meet the A.D.O. in connection with an enquiry on a complaint made against Munshi Lal Pradhan of the village.
He could not meet the A.D.O. as he was out of station.
He stayed during the 919 night with Prem Narain, P.W. 1, who happened to be a brother inlaw of his cousin Gulati Ram.
According to Prem Narain, both of them got up in the morning at 6.45 a.m. and since it was Shivratri that day the deceased did not take any food and they left for the bus stand at Bewar.
When they reached the bus stand at about 7.10 a.m. they found that the bus for Etah via Sultanganj had already left.
The next bus was due to go at 9.30 a.m. but, as the deceased thought that he could get a seat in some truck near the Prem Hotel and the Octroi barrier, they left the bus stand for the Octroi barrier.
When they reached the house of Kotwal Singh on the way, both the accused attacked the deceased with chhuri and knife, respectively; Jadunath had the chhuri and Girand Singh had the knife.
Both the deceased and Prem Narain were unarmed.
On hearing the, cries of the deceased Prem Narain asked the appellants why they were attacking the deceased.
Then Girand Singh, appellant, advanced towards him and gave a knife cut at his right wrist.
On the deceased falling down both accused persons attacked him with their respective weapons.
On his raising the alarm Mahesh Chandra and Dwarka Prasad who were coming along the same road came and they shouted at the appellants.
On hearing their shouts the accused ran away.
The deceased died on the spot.
The First Information Report was lodged at 8 a.m., the Police Station being only two furlongs from the scene of occurrence.
In the First Information Report, in the second column, under the heading "Name and residence of accused", it was stated as follows "1.
Jadu Nath Singh, father 's name not known and 2.
Girand Singh father 's name not known.
Ahirs by caste, residents of Garhia Kishunpur P.S. Bewar, Distt.
Mainpuri.
" The accused surrendered on March 12, 1968, and it appears that an application was filed by the advocate on their behalf that they be kept ba pardah as they might claim identification.
Another application was put in on March 25, 1968, in which it was stated that the witnesses other than Prem Narain were strangers and they applied that there should be an identification parade.
On April 19, 1968, the then Public Prosecutor submitted a report to the Additional District Magistrate as under "Accused Jadu Nath Singh and Girand Singh in case Cr. No. 24 under Section 302 I.P.C., P.S. Bewar, have applied for identification, vide application herewith attached.
It may be submitted that they are named in the F.I.R. and charge sheet against them has also been received.
The applications are moved to delay this case.
Submitted for n.a.
" 920 The Additional District Magistrate (Judicial) passed the following order on the application, on April 20, 1968 : "As charge sheet has already been received and the accused have been named by P.Ws., there appears to be no justification for ordering test identification.
Accused be informed accordingly.
The jail authorities be informed not to keep them ba parda.
" We have set out these facts in detail because, as will presently appear, one of the points raised by the learned counsel is that failure to put up the accused for identification either vitiated the trial or, in any case, rendered the evidence of, P.W. 2, Mahesh Chandra, and P.W. 3, Dwarka Prasad, useless.
We may here notice that portion of the evidence of Dr. N. K. Mital, who conducted the postmortem examination and on which one other point is sought to be founded.
He found that the stomach was empty and the small intestines were half full and the large intestines were also half full.
In cross examination he stated that since the stomach was empty, the deceased should have taken his last meal about 4 to 6 hours before the infliction of the injuries.
" He was asked: " 'The evidence is that the deceased took puris and vegetable at 8 p.m. on 25 2 68; and according to the case for the prosecution his murder took place at 7.30 a.m. on 26 2 68.
At the time of post mortem the stomach was found empty and both the small and large intestines were found half full.
Does it not indicate that in all likelihood the man was murdered between 3 and 4 a.m. ?" To this question Dr. Mital answered "No. It is not an indication of this fact.
After finishing his meal at about 8 or 8.30 p.m. on 25 2 68 the stomach could have got empty by 2 or 2.30 a.m.
The digested food material should have come in the small intestine by about 2 or 2.30 a.m. Complete digestion takes place in the small intestine.
And if he had answered the call of nature the preceding evening fully and completely, even then the small and large in testines might be half full and stomach empty if he had taken puries with vegetable at 8 p.m. on 25 2 68." ' The learned Sessions Judge believed the evidence of Prem Narain, corroborated as it was by the injuries sustained by him in the course of the occurrence at the hands of one of the assailants, namely, Girand Singh.
He also believed the evidence of Mahesh Chandra, P.W. 2, and Dwaraka Prasad, P.W. 3.
He relied on the fact that the appellants had absconded immediately after the crime and had only appeared before the Court as late as March 12, 921 1968, after proceedings under sections 87 and 88 of the Code of Criminal Procedure had been taken against them.
Regarding the claim of the appellants for identification the learned Sessions Judge observed that during the course of investigation both Mahesh Chandra and Dwarka Prasad had named the accused persons, and it would indeed have been surprising if the Additional District Magistrate (Judicial) had directed the accused to be paraded at a test identification parade in the jail.
He observed that the evidence indicated that the accused persons were not strangers even to Mahesh Chandra and Dwarka Prasad at the time of the occurrence.
Mahesh Chandra had stated in his evidence that he had known the accused persons for about 4 years and that they were living at village Garhiya lying at a distance of three furlongs from Bewar, and that Girand Singh was reading at the Amar Shaheed Inter College, Bewar.
Dwarka Prasad had stated that he had seen Girand visiting Bewar before that day.
He had also seen Jadu Nath Singh at Bewar but only once or twice before that.
For all these reasons the learned Sessions Judge held that the applications claiming identification were not bona fide and were intended to protract the proceedings, and accordingly he was unable to draw any adverse inference against the prosecution for the omission to parade the accused persons at a test identification parade in the jail.
The High Court believed the three eyewitnesses, Prem Narain, Mahesh Chandra and Dwarka Prasad.
The High Court held that "Mahesh and Dwarka Prasad are wholly independent witnesses having no affinity with the deceased and entertaining no animosity towards the appellants.
" The High Court observed that these ' witnesses had claimed to have known the appellants for the last six or seven years as they had been frequently visiting the town of Bewar, and the appellant, Girand Singh, was a student in a college at Bewar.
The learned counsel for the appellants raised two principal points before us (1) Since the accused were denied identification the trial was vitiated; (2) The medical evidence is in conflict with the prosecution case about the time of the assault.
The learned counsel further urged that the number and nature of injuries belie the prosecution story, and that the application by the deceased to the Superintendent of Police was nothing but a peshbandi.
He urged that the eye witnesses were not reliable and the courts below had missed the point that the appellants could not have anticipated that the deceased would be at this particular spot at that time.
922 The learned counsel relied on the following observations of the Lahore High Court in Sajjan Singh vs Emperor(1) "If an accused person is already well known to the witnesses, an identification parade would, of course, be only a waste of time.
If, however, the witnesses claim to have known the accused previously, while the accused himself denies this, it is difficult to see how the claim made by the witnesses can be used as a reason for re using to allow their claim to be put to the only practical test.
Even if the denial of the accused is false, no harm is done, and the value of the evidence given by the witnesses may be increased.
It is true that it is by no means uncommon for persons who have been absconding for a long time to.
claim an identification parade in the hope that their appearance may have changed suffi ciently for them to escape recognition.
Even so, this is not in itself a good ground for refusing to allow any sort of test to be carried out.
It may be that the witnesses may not be able to identify a person whom they knew by sight owing to some change of appearance or even to weakness of memory, but this is only one of the facts along with many others, such as the length of time that has elapsed, which will have to be taken into consideration in determining whether the witnesses are telling the truth or not.
" State of U.P. vs Jagnoo (2 ) refers to Sajjan Singh vs Emperor(1) with approval.
In re Sangiah(3) the decision of the Lahore High Court in Sajjan Singh vs Emperor (Supra) was dissented from Rajamannar, J., observed : "I am unable to find any provision in the Code which entitles an accused to demand that an identification parade should be held at or before the enquiry or the trial.
An identification parade belongs to the stage of investigation by the police.
The, question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial.
The actual evidence regarding identification is that which is given by the witness in Court.
The fact that a particular witness has been able to identify the accused at an identification trade is only a circumstance corroborative of the identification in Court.
If a witness has (1) A.I.R. 1945 Lab. 48, 50.
(2) A.I.R. 1968 All. 333, (3) A.T.R. , 923 not identified the accused at a parade or otherwise during the investigation the fact may be relied on by the accused, but I find nothing in the provisions of the Code which confers a right on the accused to demand that the investigation should be conducted in a particular way.
" In Perkash Chand Sogani vs The State of Rajasthan (1) (an unreported decision of this Court) in connection with the point regarding identification, it was observed : "Much is sought to be made out of the fact that no identification parade was held at the earliest opportunity in order to find out whether P.W. 7 Shiv Lal could have identified the appellant as the person who was at the wheel of the car and drove it and reliance is placed upon Awadh Singh & Others vs The Patna State(2) Provash Kumar Bose and Another vs The King(3) and also Phipson on the Law of Evidence, 9th Ed., p. 415 to justify the contention that in criminal cases it is not sufficient to identify the prisoner in the dock but the police should have held an identification parade at the earliest possible opportunity to show that the accused person had been connected with the crime.
It is also the defence case that Shiv Lal did not know the appellant.
But on a reading of the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight.
Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such.
These circumstances are quite enough to show that the absence of the identification parade would riot vitiate the evidence.
A person, who is well known by sight as the brother of Manak Chand, even before, the commission of the occurrence, need not be put before an identification parade in order to be marked out.
We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances." In Awadh Singh vs The State(2) it was held that "the accused person may or may not have legal right to claim for test identification and the holding of test identification may or may not be a rule of law, but it is a rule of prudence.
Test identification parade should be held especially when the accused persons definitely as (1) Criminal Appeal No. 92 of 1956, decided on January 15, 1957.
(2) A.I.R. 1954 Patna 483, (3) A.I.R. 1951 Cal.
475, 924 sert that they were unknown to the prosecution witnesses either by name or by face and they requested the authorities concerned to have the test identification parade held." In Provesh Kumar Bose vs The King(1), a Division Bench of the Calcutta High (Harries C.J., & Das Gupta, J.) held: "The fact that the witnesses have identified in Court the accused is of very little consequence in a prosecution under section 384, Penal Code, when none of the witnesses knew the accused from before. . the cor roborative evidence which one is entitled to expect in cases of this nature is the evidence of the witnesses having pointed the accused whom they identified in Court from the midst of other persons with whom they were mixed up at a test identification parade.
The evidence of their having identified such persons at a test identification parade has no substantive value, but is very important corroboration of their evidence in Court.
" In Kanta Prasad vs Delhi Administration ( 3 ) a point was made regarding non holding of test identification parade by the police and this Court observed : "As for the test identification parade, it is true that no test identification parade was held.
The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance.
It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court.
The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.
" It seems to us that, it has been clearly laid down by this Court in Perkash Chand Sogani vs The State of Rajasthan(3) that the absence of test identification in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification.
Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial (1) A.I.R. 1951 Cal.
(2) ; ,1221.
(3) G.A. No. 92 of 1956 decided on 15 1 1957.
925 hat the witnesses did not know the accused previously, the prosecution would run the risk of losing its case.
It seems to us that if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eyewitnesses did not know him previously.
It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist.
on an identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above the prosecution will, unless there is some other evidence, run the risk of losing the, case on this point.
In the present case, however, it is clear that P.W. Mahesh Chandra knew the accused persons for about four years and said : "I know the accused persons, Jadunath Singh and Girand Singh for about 4 years.
They live at village Garhiya lying at a distance of three furlongs from Bewar.
Girand Singh is reading at the Amar Shaheed Inter College, Bewar.
" No cross examination was directed on this point.
P.W. 3, Dwarika Prasad, stated "I had seen Girand visiting Bewar before that but I had seen Jadunath at Bewar only once or twice before that day.
Identifies both the accused persons in the dock.
Lays hand correctly on Jadunath; and also lays hands correctly on Girand in the, dock.
" In cross examination he stated "I had seen Jadunath accused at Bewar at the shop of one Chhakku once or twice before the occurrence.
I had seen him two or 2 1/2 years back.
" It seems to us that the reason given by the Public Prosecutor in the report and the reason given by the Additional District Magistrate (Judicial) in the order directing that identification requested for be not held were not valid.
The fact that a charge sheet had been received and the accused had been named by P.W.s was no justification for not having ordered the test identification.
But on the facts of this case it is clear that P.W. 2 at least knew the accused from before.
As regards P.W. 3, although he claims to have known the accused, it is clear that his knowledge of the accused was very scant and if it had not been for the evidence of P.W. 2 we would not have placed reliance on the 926 evidence of P.W. 3 in view of the fact that the police did not ask him to identify the appellant.
It is stated in Phipson on the Law of Evidence, 9th Ed., p. 415, as follows : "In criminal cases it is improper to identify the accused only when in the dock; the police should place him, before hand, with others, and ask the witness to pick him out.
Nor should the witness be guided in any way nor asked "Is that the man We consider that the same is the law in India, if the identity is in doubt.
Accordingly on the facts of this case we are of the opinion that the trial was not vitiated because the accused persons were denied identification.
Regarding the second point, we have already extracted the evidence of the doctor, and it is quite clear to us that the evidence is not in conflict with the prosecution case.
If the occurrence took place at about 7.30 a.m. and the deceased had not taken any food in the morning, his stomach would still be empty at 7.30 a.m.
If anything the medical evidence destroys the case of the defence that the murder took place at about 3 in the morning.
We are unable to think that the deceased would leave with Prem Narain at 3 a.m. to catch a bus which was supposed to leave at about 7 a.m.
This appeal is by special leave and this Court does not reappropriation the evidence.
The, other points raised by the learned counsel are of that nature, and at any rate there is no substance in those points.
The appeal accordingly fails and is dismissed.
G.C. Appeal dismissed.
L694SupCI/70 2500 29 4 72 GIPF.

summary:
The appellants were accused of an offence under, section 302 read with section 34 of the Indian Penal Code.
Apart from P who was injured in the incident there were, according to the prosecution, two other eye witnesses M and D who.
knew the appellants from before.
The names of the appellants were mentioned in the First Information Report but not their parentage.
The appellants, at the stage of inquiry, made an application to the Additional District Magistrate (Judicial) requesting that a test identification parade be held.
According to the appellants P knew them from before but not the other two alleged eye witnesses.
The Magistrate rejected the application on the ground that the charge sheet had, already been filed.
The same request made at the trial stage to the Sessions Judge was again rejected on the ground it was not bona fide.
The trial court, believing the eye witnesses, convicted the appellants.
The High Court upheld their conviction and did not accept their plea that the trial had been vitiated because they had been denied a test identification parade.
In appeal to this Court by special leave, HELD: As laid down by this Court in Perkash Chand Sogani 's case the absenceof test identification in all cases is not fatal, andif the accused person is well known by sight it would be waste of time to put him up for identification.
But if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eyewitnesses did not know him previously.
It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on an identification parade but if the accused ' does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, the prosecution will, unless there is some evidence,, run the risk of losing the case on this point.
[924 G 925 C] Perkash Chand Sogani vs State of Rajasthan, Cr.
92/1956 dt.
15 1 1957, applied.
Sajjan Singh vs Emperor, A.I.R. 1945 Laj. 48, State of U.P. vs Jagnoo, A.I.R. 1962 All.
333, In re Sangish, A.I.R. 1948 Mad. 113, Awadh Singh & Ors.
vs Patna State, A.I.R. 1954 Pat 483, Provash Kumar Bose vs The King, A.I.R. 1951 Cal.
475, Kanta Prasad vs Delhi Administration ; 1221, referred to.
In the present case it could be said about D that his knowledge of the accused was very scant.
The claim of the other witness M that he had known the accused for about four years was not challenged in crossexamination.
Therefore on the facts of the case the trial of the appellants.
918 Could not be held to be vitiated because of the denial of test identification although the reason given by the Magistrate for refusing it, namely, that the cbarge sheet had already been filed, was wrong.
[925 G 926 C]