judgement:
Appeal No. 105 of 1953.
Appeal by Special Leave granted by this Court 's Order dated the 24th September, 1951 from the Judgment and Decree dated the 2nd day of September, 1949 of the High Court of Judicature at Bombay in Appeal No. 274 of 1948 from Original Decree arising out of the Decree dated the 30th day of July, 1946 of the Court of Civil Judge, Senior Division at Hubli in Special Suit No. 56 of 1944.
K. R. Bengeri and Sardar Bahadur for the appellant.
section B. Jathar and I. N. Shroff for respondents Nos. 3, 4 and 5.
December 10.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.
This appeal raises a question of importance "whether a widow can exercise a power of adoption conferred on her or possessed by her at any time during her life irrespective of any devolution of property or changes in the family or other circumstances and even after a grandson has come on the scene but has subsequently died without leaving a widow or a son".
The situation in which this question arises can properly be appreciated by reference to the following genealogy: 1137 Dyamappa I I I Kalasappa I I Krishtarao Radhabai=Gangabai (deft.2) (Deft.1) (Senior widow) (Junior window) | Gurunath | (Appellsnt adopted | by Gsngsbai on | | 18 11 53) | | | Dattatraya (son) (died 1913) | | =Sundarabai (died after | | her husband in 1913) Kamalabai Yamunabai (Resp.1) (Resp.2) | | | | | | | Kalasappa Jagannath (predeceased (died 1914) Dattatraya) Girimaji | Hanamanta | | | | | | Malhar Ganesh (Resp.3) (Resp.5) Venkatesh Hanamant (Resp.4) (Resp.6) 1138 Gurunath, the plaintiff, claims that he was adopted in 1943 by Gangabai, widow of Krishtarao.
Krishtarao died in 1890, leaving him surviving two widows Radhabai and Gangabai and a son Dattatraya.
Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath.
Sundarabai died shortly after Dattatraya while Jagannath died in the year 1914.
After an interval of about 30 years since his death, it is alleged that Gangabai who survived both her son, and grandson adopted the plaintiff, and thus raised the problem which we are called upon to solve.
On the 15th of March, 1944 the appellant instituted the suit out of which this appeal arises in forma pauperis on the allegation that he was the adopted son of Krishtarao and adopted to him by Gangabai, his junior widow, and as such was entitled to the possession of his adoptive father 's properties comprised in the suit.
He also claimed a declaration regarding the amount of compensation money payable to the plaintiff 's family for the land acquired by Hubli Municipality.
The defendants who are the sons and grandsons of the first cousin of Krishtarao disputed the plaintiff 's adoption on the ground that Gangabai 's power to adopt was extinguished when Dattatraya died in 1913, leaving behind him a widow Sundarabai and a son Jagannath who could continue the family line.
Gangabai in her written statement supported the plaintiff 's claim and asserted that the senior widow Radhabai had given consent to her adopting the plain tiff.
The trial judge upheld the defendants ' contention and dismissed the plaintiff 's suit.
The factum of the plaintiff 's adoption was however upheld, and it was further held that Radhabai did not give her consent to the adoption.
On appeal this decision was affirmed by the High Court and it was held that Gangabai 's power to adopt came to an end at the time when her son died leaving a son and a widow to continue the family line.
No finding was given on the question whether Radhabai had given her consent to the adop tion.
That perhaps would have been the simplest way to end the dispute.
Against the decision of the High 1139 Court this appeal in forma pauperis is now before us by special leave.
The only question canvassed in the appeal is in respect to the validity of the plaintiff 's adoption.
It was contended that Hindu Shastric Law itself sets no limit to the exercise of the widow 's power of adoption once she has acquired that power or is possessed of it, and that being so, the power can be exercised by her during her life time when necessity arises for the exercise of it for the purpose of continuing the line of her husband.
On the other hand, it was argued that though Hindu Shastric Law itself sets no limit to the exercise of the power, yet it has long been judicially recognised that the power is not an unlimited and absolute one, and that it comes to an end when another heir has come on the scene and he has passed on to another the duty of continuing the line.
The question at what point of time the widow 's duty of continuing the line of the husband comes to an end has been the subject matter of a number of decisions of Indian High Courts and of the Privy Council and the point for our consideration is whether the limits laid down in these decisions have been arbitrarily fixed and are not based on sound principles and should be reviewed by us.
A brief reference to the different decisions of the Privy Council is necessary for a proper appreciation of the state of law on this subject at the present moment.
The two leading cases on this point are the decisions of the Privy Council arising out of the adoption made by Shrimati Chundrabullee and decided in 1876 and 1878.
The judgment in the first of these cases, i.e. in Bhoobun Moyee vs Ram Kishore(1) was delivered by Lord Kingsdown.
What happened there was that one Gour Kishore died leaving a son Bhowanee and a widow, Chundrabullee, to whom he gave authority to adopt in the event of his son 's death.
Bhowanee married and died at the age of 24 without issue, but leaving him surviving his widow Bhoobun (1) (1965] 10 M.I.A. 279. 146 1140 Moyee.
Chundrabullee then adopted Ram Kishore.
Ram Kishore brought a suit against Bhoobun Moyee for the recovery of the estate.
The Privy Council held that the claim of Ram Kishore failed on the ground that even if he had been in existence at the death of Bhowanee he could not displace the widow of the latter.
It was further held "that at the time when Chundrabullee professed to exercise her power of adoption, the power was incapable of execution on the ground that Bhowanee had married and left a widow as his heir".
The following quotation from the judgment of Lord Kingsdown may be cited as indicating the reasons for the decisions: "In this case, Bhowanee Kishore had lived to an age which enabled him to perform and it is to be presumed that he had performed all the religious services which a son could perform for a father.
He had succeeded to the ancestral property as heir; he bad full power of disposition over it; he might have alienated it; he might have adopted a son to succeed to it if he had no male issue of his body.
He could have defeated every intention which his father entertained with respect to the property.
On the death of Bhowanee Kishore, his wife succeeded as heir to him and would have equally succeeded in that character in exclusion of his brothers, if he had any.
She took a vested estate, as his widow, in the whole of his property.
It would be singular if a brother of Bhowanee Kishore, made such by adoption, could take from his widow the whole of his property, when a natural born brother could have taken no part.
If Ram Kishore is to take any of the ancestral property, he must take all he takes by substitution for the natural born son, and not jointly with him. .
The question is whether the estate of his son being unlimited, and that son having married and left a widow his heir, and that heir having acquired a vested estate in her husband 's property as widow, a new heir can be substituted by adoption who is to defeat that estate, and take as an adopted son what a legitimate son of Gour Kishore would not have taken.
1141 This seems contrary to all reason and to all the principles of Hindoo law, as far as we can collect them. .
If Bhowanee Kishore had died unmarried, his mother, Chundrabullee Debia, would have been his heir, and the question of adoption would have stood on quite different grounds.
By exercising the power of adoption, she would have divested no estate but her own, and this would have brought the case within the ordinary rule; but no case has been produced, no decision has been cited from the Text books, and no principle has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated,.
and divested".
In the result the suit of Ram Kishore was dismissed.
After the deaths of Bhoobun Moyee and Chundrabullee, Ram Kishore got possession of the property under a deed of relinquishment executed in 1869 in his favour by Chundrabullee, who herself had entered into possession of the property as mother and next heir of Bhowanee Kishore after the death of Bboobun Moyee in 1867.
If Ram Kishore 's adoption was good he was undoubtedly the next heir to the property.
A distant collateral however claimed the estate on the ground that his adoption was invalid.
The Privy Council then held that "upon the vesting of the estate in the widow of Bhowanee, the power of adoption of Chudrabullee was at an end and incapable of execution" and that Ram Kishore had therefore no title.
This was the decision in Padma Coomari vs Court of Wards(1) wherein a second effort to maintain the validity of his adoption by Chundrabullee was made but without success.
The High Court in its judgment in Padma Coomari 's case(1) remarked that the decision in Bhoobun Moyee vs Ram Kishore(2) did not decide that Chundrabullee could not adopt on the extinction of the issue either of natural born son or of the first to be adopted son, and that if Chundrabullee had on the death of Bhoobun Moyee made the adoption and so divested her own estate,, there would be (1) [1881] L.R. 8 I.A, 229.
(2) [1865] 10 M.I.A. 279, 1142 nothing in the judgment of the Privy Council and nothing in the law to prevent her doing that which her husband authorised her to do, and which would certainly be for his spiritual benefit, and for that of his ancestors and even of Bhowanee Kishore.
The learned Judges of the High Court proceeded then to observe as follows: "With all respect, therefore, we imagine that Lord Kingsdown must have said by inadvertence, in reference to the idea of adopting a son to the great grandfather of the last taker, that at that time 'all the spiritual purposes of a son, according to the largest construction of them, would have been satisfied '; and again, Bhowanee Kishore had lived to an age which enabled him to perform, and it is to be presumed that he had performed, all the religious services which a son could perform for a father.
There is really no time at which the performance of these services is finally completed, or at which the necessity for them comes to an end".
To this Sir Richard Couch, who delivered the judgment of the Privy Council, gave a very emphatic answer in these terms: "The substitution of a new heir for the widow was no doubt the question to be decided, and such.
substitution might have been disallowed, the adoption being held valid for all other purposes, which is the view that the lower Courts have taken of the judgment, but their Lordships do not think that this was intended.
They consider the decision to be that, upon the vesting of the estate in the widow of Bhowanee, the power of adoption was at an end, and incapable of execution.
And if the question had come before them without any previous decision upon it, they would have been of that opinion.
The adoption intended by the deed of permission was for the succession to the zemindary and other property, as well as the performance of religious services; and the vesting of the estate in the widow, if not in Bhowanee himself, as the son and heir of his father, was a proper limit to the exercise of the power".
The question of limitations upon the power of the 1143 widow to adopt thus stated in the Chundrabulle series of decisions was again affirmed by the Judicial Committee in Thayammal and Kuttiswami Aiyan vs Venkatarama Aiyan(1) decided in 1887 and in Tarachurn vs Suresh Chunder(2) decided in 1889.
In the year 1902 this question came up for consideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao(3).
There a grandmother succeeded to her grandson who died unmarried andit was held that her power to make an adoption hadcome to an end and that the adoption was invalid.
Chandavarkar, J., who delivered the judgment of the Full Bench, enunciated the principle in these words: "Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived".
This principle was approved and applied by the Judicial Committee in Madana Mohana vs Purushothama Deo(4) in these words: "Their Lordships are in agreement with the principle laid down in the judgment of the Full Court of Bombay as delivered by the learned judge, and they are of opinion that, on the facts of the present case, the principle must be taken as applying so as to have brought the authority to adopt conferred on Adikonda 's widow to an end when Brojo, the son she originally adopted, died after attaining full legal capacity to continue the line either by the birth of a natural born son or by the adoption to him of a son by his own widow".
The next and the most important decision of the Judicial Committee in regard to this matter was given in the year 1933 in Amarendra Mansingh vs Sanatan(5) where there was a departure from or at least a reorientation of the old doctrine, and stress was laid on the spiritual rather than on the temporal aspect (1) (1887] L.R. 14 I.A. 67.
(3) Bom.
(2) [1889] L.R. 16 I.A. 166.
(4) [1918] L.R. 45 I.A. 150.
(5) [1933] L R. 60 I.A. 242.
1144 of adoption, linking it up with the vesting and divesting of the estate.
There a Hindu governed by the Benaras school was survived by an infant son and a widow, to whom he had given authority to adopt in the event of the son dying.
The son succeeded to his father 's impartible zamindari but died unmarried at the age of 20 years and 6 months.
By a custom of the family which excluded females from inheritance the estate did not go to his mother but became vested in a distant collateral.
A week after the son 's death she made an adoption.
It was held that the adoption was valid and it divested the estate vested by inheritance in the collateral.
All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board.
At page 248 of the report it is said as follows: "In their Lordships ' opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites.
And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father 's duty has been performed and the means provided by him for its fulfilment spent: the "debt" be owed is discharged, and it is upon the new generation that the duty is now cast and the burden of the "debt" is now laid.
It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration. . that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.
Having regard to this well established doctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man, The Hindu law itself sets no limit 1145 to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in continuance of the line is now well recognised.
Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property.
But that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned".
In another part of the judgment their Lordships observed as follows: "It being clear upon the decisions above referred to that the interposition of a grandson, or the son 's widow, brings the mother 's power of adoption to an end, but that the mere birth of a son does not do so, and that this is not based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son 's widow, the mother 's power is gone.
But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son 's lifetime will revive".
The learned counsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and contended that if the power of the widow which remained suspended during the lifetime of the son could revive on the son dying sonless and unmarried, logically the power must also revive when the son and his widow and the grandson and his widow all died out.
Reliance was also placed on the passage already cited in which 1146 their Lordships laid emphasis on the proposition that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it and it was contended that the grounds on which an outside limit was laid on the exercise of the widow 's power in the Chundrabullee series of decisions no longer survived, in view of the ratio in Amarendra 's decision and that it having been held that the power of adoption did not depend on and was not linked with the devolution of property or with the question of vesting or divesting of property and could be exercised whenever necessity for continuing the line arose, it should be held that when the son and his widow were dead and the grandson to whom he handed the torch for continuing the line also died, the power of Gangabai to make the adoption revived and thus the adoption was valid.
This argument, in our opinion, is not well founded as it is based on an incorrect apprehension of the true basis of the rule enunciated in this judgment, the rule being that "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to the grandson or to the son 's widow, the mother 's power is gone".
In the words of Chandavarkar, J. affirmed by the Judicial Committee in Madana Mohana vs Purushothama Deo(1) "the power having once been extinguished it cannot afterwards be revived".
In other words the true rule is this: "When a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands over that torch to another, the mother can no longer take it".
The contention of the learned counsel therefore that even if the second generation dies without taking steps to continue the line the grandmother still (1) [1918] L R. 45 I.A. 156.
1147 retains her authority and is still under a duty to continue the line cannot be sustained.
The three propositions that the Privy Council laid down in Amarendra 's case therefore cannot now be questioned.
These propositions may be summed up in these terms: (1) That the interposition of a grandson, or the son 's widow, competent to continue the line by adoption brings the mother 's power of adoption to an end; (2) that the power to adopt does not depend upon any question of vesting or divesting of property; and (3) that a mother 's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence.
The rule enunciated in Amarendra 's case was subsequently applied in Vijaysingji vs Shivsangji(1) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widow 's power to adopt in Anant Bhikappa Patil vs Shankar Ramchandra Patil(2).
One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango vs Narayan Devji Kango(3), but that apart no doubt was cast in this decision on the above rule.
The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the son 's widow competent to adopt" has become a part of Hindu Law.
though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments.
It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to bold that the reasons stated in support of the rule are not consistent with these principles.
During the arguments no substantial grounds have (1) [1935] L.R 62 I.A. 161.
(2) [1943] L.R. 70 I.A. 232.
(3) ; 147 1148 been suggested for holding that the rule is either in equitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption.
In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widow 's power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson.
Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law.
For the reasons given above, we are unable to depart from the rule that a widow 's power to make an adoption comes to an end by the interposition of a grandson or the son 's widow competent to continue the line by adoption.
The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendra 's case had no application to the situation that has arisen in the present case and that on the death of the grandson the widow 's power to adopt which was in abeyance during his life revived.
Reference in this connection was made to the decision of the Nagpur High Court in Bapuji vs Gangaram(1).
There a Hindu died leaving a widow and his son and the son died leaving a widow only who re married.
It was held that the power of the mother revived on the re marriage of the son 's widow.
Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendra 's case as appears from the following quotation from that judgment: "If the observation quoted from Amarendra Mansingh vs Sanatan Singh(2) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the (1) (1941) I.L.R. Nagpur 178.
(2) Pat.
642, 658.
1149 words "and can never be revived" quoted from Ramkrishna vs Shamrao(1).
Strictly the above is the true meaning of their Lordships ' words.
That amounts to nothing more than this: that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C.
That leaves at large what happens when the "interposition" is ended.
Logic says that as the death of the son removes his "inter position" whereupon C 's power revives so the death of D removes her interposition and so C 's power revives".
In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendra 's case.
The reason for the rule in Amarendra 's case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son 's widow, the mother 's power is gone".
If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds.
We are therefore clearly of opinion that the ratio of the decision in Bapuji vs Gangaram(2) was erroneous.
The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer vs Harihar Bakhsh Singh(3).
The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council.
As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to.
The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case.
(1) Bom.
(2) (3) Luck.
1. 1150 For the reasons given above, this appeal fails and is dismissed, but in the circumstances of the case we will make no order as to costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
It is well settled according to Hindu Law that a widow 's power to adopt comes to an end by the interposition of a grandson or the son 's widow competent to continue the line by adoption.
The mother 's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence.
The power to adopt does not depend upon any question of vesting or divesting of property.
The decision of the Judicial Committee of the Privy Council in Anant Bhikappa Patil vs Shankar Ramchandra Patil (L.R. 70 I.A. 232) is not sound in so far as it relates to the properties inherited from collaterals prior to adoption.
In respect of such properties the adopted son can lay no claim on the ground of relation back.
Shrinivas Krishnarao Kango vs Narayan Devji Kango ([1955] 1 S.C.R. 1), followed.
Amarendra Mansing vs Sanatan ([1933] L. R. 60 I. A. 242), explained.
Anant Bhikappa Patil vs Shankar Ramchandra `Patil ([1943] L.R. 70 I.A. 232), not relied on in part.
Bhoobun Moyee vs Ram Kishore ([1865] 10 M.I.A. 279); Pudma Coomari vs Court of Wards ([1881] L.R. 8 I.A. 229); Thayammal and Kuttisami Aiyan vs Venkatarama Aiyan ([1887] L.R. 14 I.A. 67); Tarachurn vs Suresh Chunder ([1889] L.R. 16 I.A. 166); Ramkrishna 1136 Ramchandra vs Shamrao ([1902] I.L.R. ; Madana Mohana vs Purushothama Deo ([1918] L.R. 45 I.A. 156); Vijaysingji vs Shivsangji ([1935] L.R. 62 I.A. 161); Bapuji v Gangaram ([1941] I.L.R. Nagpur 178); and Prem Jagat Kuer vs Harihar Bakhsh Singh ([1945] I.L.R. 21 Lucknow 1), referred to.


judgement:
l Appeals Nos.
2180 to 2182 of 1968.
Appeals by Special Leave from the judgment and order dated October 6, 1967 of the Andhra Pradesh High Court in Writ Petitions Nos.
1456 of 1965, 376 and 2006 of 1966.
M. C. Chagla, P. Ramachandra Rao and B. R. Agarwala, for the appellants (in all the appeals).
P. Ram Reddy and A. V. V. Nair, for the respondents (in all the appeals).
The Judgment of the Court was delivered by Mitter, J.
These appeals are directed against the imposition of taxes under the Andhra Pradesh Motor Vehicles Taxation Act (V of 1963).
The appellant in the first two appeals is the Automotive Manufacturers (P.) Ltd., a dealer, among other automobile equipment, of motor chassis, motor vehicles etc.
received by it from manufacturers outside the State of Andhra Pradesh.
The first appeal arises out of a writ petition against the levy in respect of motor chassis delivered to it by Ashok Leyland Ltd. of Madras.
These chassis are said to be driven by transport contractors of the manufacturers themselves under temporary, certificates of registration under the Motor Vehicles Act and delivered to the appellant at Secunderabad.
The second appeal by the same appellant arises out of a writ petition challenging the levy on jeeps, jeep truck chassis, jeep station wagons of the manufacture of Mahindra & Mahindra Ltd. of Bombay, besides pick up vans, scooters etc.
from Bajaj Auto Ltd. of Poona.
The scooters are carried to Secunderabad in lorries.
The appellants in Civil Appeal No. 2182 of 1968 are Ashok Leyland Ltd. Madras who transport motor chassis by road from their factory at Encore to dealers in various parts of India, State Transport Undertakings etc.
According to their writ petition, these chassis have to traverse long distances in the State of Andhra Pradesh every month destined for delivery not only in the said State but also beyond the same.
These chassis are driven from Ennore to their respective destinations in the several States under temporary certificates of registration obtained from the 595 Madras State on payment of requisite tax in that behalf, such certificates of registration under section 28 of the Motor Vehicles Act being effective throughout India.
The appellants ' case is that the levy is illegal and unconstitutional.
The grounds urged in the writ petitions filed in the High Court inter alia are as follows : 1.
S.3 of the Act only authorises a levy of tax on a motor vehicles "used or kept for use in a public place in the State".
There can be no user or keeping for use: of the chassis of a motor vehicle as a motor vehicle unless a body is attached to it. 'In the, case of vehicles other than chassis such user or keeping for use in 'a public place can only take place when they are put to the required user or kept for use by the customers for whom the vehicles are transported in the manner contemplated by the Motor Vehicles Act.
2. section 9 of the Act exempts from payment of tax chassis of a motor vehicle "driven to another place in order that a body may be attached to it".
As the chassis are invariably driven to their respective destinations in order that bodies may be attached to them, they come directly under the notification of exemption issued by the State Government.
As the chassis or the vehicles are covered by temporary certificates of registration taken out by the manufacturers entitling transportation throughout the territory of India, the impugned levy operates as an impediment to the free trade and commerce of the petitioners in violation of article 301 of the Constitution.
The High Court turned down all the contentions.
Hence the appeals.
Before this Court Mr. Chagla for the appellants limited his first and second contentions to the cases of chassis only.
His first contention was that section 3 of the Act was not applicable to the appellants.
Sub section
(1) of that section, runs as follows : "The Government may, by notification from time to time direct that a tax shall be levied on every motor vehicle used or kept for use, in a public place in the State.
" Under sub section
(2) of section 3 the notification issued under sub section (1) is to specify the class of motor vehicles on which, the rates for the periods at which and the date from which the tax shall be levied.
A motor vehicle has not been defined in this Act but under section 2(j) of the Act it is to have, the same meaning as is assigned to it in the Motor Vehicles Act.
Under section 2(18) of the last mentioned Act, "a motor vehicle means any mechanically propelled vehicle adapt 596 ed for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises.
" The argument of learned counsel was that a chassis as such could neither be used nor kept for use in a public place, before a body was fitted to it and so long as the said step was not taken, the question of levy of tax under the Act would not arise.
We were referred to the different meanings of the word "use" in the Oxford Dictionary some of which are as follows : "To make use of as a means or instrument; To employ for a profitable end;" In our view, it is not necessary for a chassis to have a body attached to it before it can be used within the meaning of the Act inasmuch as it can be used by the man who drives it and such use of it on public roads would be enough to attract the levy.
Ordinary chassis have bodies attached to them for commercially profitable use but even without a body a chassis can be used and is actually used when it is taken over public roads.
The second submission was that the appellants qualified for exemption under the Government notification under section 9 of the Act.
Section 9 inter alia provides : "(1) The Government may, by notification (a) grant an exemption, make a reduction in the rate or order other modification not involving an enhancement in the rate, of tax payable (i) by any person or class of persons; or (ii) in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area; xx xx XX.
" The notification issued ran as follows: " In exercise of the powers conferred by sub section (1) of section 9 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 (Andhra Pradesh Act 5 of 1963), the Governor of Andhra Pradesh hereby grants exemption of the tax payable in respect of motor vehicles specified in column (1) of the Table below subject to the conditions, if any, specified in column (2) thereof '.
597 Item (4) of the table reads : "Any chassis of a motor vehicle" the condition for exemption being : "When driven to any place in order that a body may be attached to it.
" It was argued that as the use of a chassis would be meaningless unless a body is attached to it and all chassis, as a matter of fact, have to have bodies attached to them, the driving of the chassis on the road without a body ' would qualify for exemption under, the above notification.
We find ourselves unable to accept this view.
Item (4) in the table of the above notification limits the exemption from the tax to the journey of the chassis for the express purpose of a body being attached to it.
The Automotive Manufacturers being dealers can and do probably deal with or dispose of the chassis as such.
There is no allegation in any of the two writ petitions tiled by these appellants that the chassis were coming from Madras or Bombay for the purpose of having bodies attached to them at the workshop of the appellant.
In so far as Ashok Leyland Ltd. is concerned, it is their positive case that the chassis were being driven through the State of Andhra Pradesh either for delivery there or in other States of India.
They were certainly being driven along the roads of Andhra Pradesh for disposal at the joumey 's end and it would be for the purchaser at the destination to have a body fixed to the chassis according to Ms own need and on the specification given by him.
Merely because bodies were going to be attached by the ultimate purchasers, it cannot be said that the running of the chassis on the roads of Andhra Pradesh would attract exemption under item (4) of the notification.
The last point urged by counsel was that inasmuch as registration of a vehicle in any State under section 28 of the Motor Vehicles Act is to be effective throughout India any tax by a State on motor vehicles be they merely chassis or otherwise would run counter to article 301 of the Constitution according to which trade, commerce and intercourse throughout the territory of India is to be free subject to the other provisions of Part XIII.
Under article 304(b) how ever it is open to the Legislative of a State to impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest.
This again is subject to the proviso that no Bill or amendment for the purpose of the said cl.
(b) is to be introduced in the State Legislature without the previous sanction of the President.
Learned counsel wanted to urge that the impost was not saved by article 304(b) inter alia, on the ground that there was no previous sanction of the President in respect of the Bill as envisaged by article 304(b).
We did not allow counsel to press this point inasmuch as it had 598 not been urged in the writ petition and we hereby make it clear that we are not examining the merits of the contention urged by counsel in this regard and it will be open to his clients, if so advised, to urge it in any future proceedings they may choose to take.
These appeals were originally heard by a Bench of five Judges including section C. Roy, J. who expired a few days back.
The above judgment was concurred in by our late colleague.
We however gave a further hearing to the parties at which nothing was addressed to us to make us change our opinion already formed.
In the result, the appeals fail and are dismissed with costs.
One set of costs including hearing fee.
K. B. N. Appeals dismissed.

summary:
Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act (5 of 1963) authorised levy of tax on motor vehicles "used or kept in use in a public place in the State".
Item 4 in the table of the notification issued under section 9 of the Act exempted from the tax "any chassis of motor vehicle when driven to any Place in order that a body may be attached it.
" The Automotive Manufacturers (P) Ltd. in the State of Andhra Pradesh, were dealers, among other things, in chassis received by it from manufacturers outside the State.
The chassis were driven by transport contractors of the manufacturers themselves under temporary certificate of registration under the Motor Vehicles Act and delivered to the appellant in the State of Andhra Pradesh.
The Ashok Leyland Ltd. transported motor chassis by road from their factory in Madras to dealers in various parts of India.
These chassis were driven through the State of Andhra Pradesh either for delivery there or in other States of India.
The Automotive Manufacturers and the Ashok Leyland challenged the imposition of tax under the Act.
The High Court dismissed the petitions.
In appeals to this Court it was contended that (i) section 3 of the Act was not appli cable, because, there could be no user or keeping for use of the chassis of a motor vehicle as a motor vehicle unless a body was attached to it; (ii) as the chassis were invariably driven to their respective destination, in order that bodies may be attached to them, they came directly under the notification of exemption issued by the State Government; and (iii) the impugned levy operated as an impediment to free trade and commerce in violation of article 301 of the Constitution.
Dismissing the appeals.
HELD : (i) It is not necessary for a chassis to have a body attached to it before it ran be used within the meaning of the Act, inasmuch as, it can be used by the man who drives it and such use of it on public roads would be enough to attract the levy.
[596 D] (ii) Item 4 in the table of the notification limits the exemption from the tax to the journey of the chassis for the express purpose of body being attached to it.
The Automotive Manufacturers, being dealers, could and probably did deal with or dispose of the chassis as such.
Further, it was not the case of the appellant that the chassis were coming from outside the State for the purpose of having bodies attached to them at the workshop of the appellant.
So far as Ashok Leyland was concerned the chassis were being driven along the roads of Andhra Pradesh for disposal at the journey 's end and it would be for the purchaser at the destination to have a body fixed to 594 the chassis according to his own need and on the specification given by him.
, Merely because bodies were going to be attached by the ultimate purchasers it could not be said that the running of the chassis on the roads of Andhra Pradesh would attract exemption under item (4) of the notification.
[597 C E] [The contention that there was no previous sanction of the President in respect of the bill as envisaged by article 304 (b) was not allowed to be raised inasmuch as it was not urged in writ petitions.
Therefore, the Court did not examine the merits of the contentions urged in this regard.


judgement:
iminal Appeal No. 41 of 1969, Appeal from the judgment and order dated September 6, 1967, of the Allahabad High Court in Criminal Reference No. 265 of 1965.
O. P. Rana, for the appellant.
Nur ud din Ahmed and P. N. Bhardwaj, for the respondent.
The Judgment of the Court was delivered by P.Jaganmohan Reddy, J.
This Appeal is by Certificate against the order of the High Court of Allahabad quashing the charge framed by the Additional City Magistrate, Kanpur against the accused Respondent for offenses under Sections 78 and 79 of the 43 of 1958 (hereinafter referred to as 'the Act ').
Respondent 1 to Respondent 4 are the partners of the firm M/s. Pannalal Durga Prasad of Nayaganj, Kanpur which is a firm of bullion merchants who have also been minting gold coins with a trade mark said to be similar to the one which is the registered trade mark of M/s. Habib Bank Ltd., Bombay and which was in force on the day when the alleged offence is said to have been committed.
On 24th October 1962 the Inspector of Trade Marks on behalf of the Director of Industries wrote a letter to the Additional City Magistrate I, Kanpur that M/s. Habib Bank Ltd., Bombay which is one of the foremost refiners of gold has been producing coins and pieces of gold of various shapes and sizes for sale commonly known as under a distinct trade mark, the most striking feature of which has always been a device of a lion holding a sword with his forearm against the back ground of a rising sun.
This device of lion is with the word 'Habib Bank Ltd. ' above it and 'Shuddha Sonu ' below it in Gujarati script with a dotted circle along the border on the face of the device of a coin and a wreath 'along the border on the other face with the words 'Habib Bank Ltd., contained in the upper half and 'Pure Gold ' in the lower half of the space within it in English script with the description of weight and quality.
This trade mark it was stated had acquired distinctiveness in respect of old coins and pieces produced by 574 them on account of long and extensive use, that the people in that part of the country particularly the people in the rural areas have always had a great fancy for the gold pieces and coins of Habib Bank Ltd., on account of their fineness for use in preparing ornaments as also as the safest investment of their savings by purchasing and retaining these coins and pieces, and consequently such gold coins continued to be highly popular among the people in the rural areas as well in the bullion trade, and are distinguished on account of the above noted features and trade mark.
It was alleged that M/s. Pannalal Durga Prasad, Kanpur are producing similar coins and pieces of gold and to them they apply a trade mark which is deceptively similar to the above registered trade mark of M/s. Habib Bank Ltd., the only difference between the two was that instead of Habib Bank Ltd., in Gujarati script on one face and English script on the other face, the words 'Habib quality ' are used and the words 'pure gold ' in English script is preceded by the letters P & D.
It was averred that this trade mark adopted by M/s. Panna Lal Durga Prasad is bound to deceive not only the buyers who are ignorant of English and Gujarati scripts, but even unwary purchasers from urban areas are likely to be deceived.
Though by a registered letter the Trade Mark office had drawn the attention of the firm regarding the use of the mark by them and had requested them to indicate the period for which they had been using it and whether the mark had been registered as a trade mark in their name, they had not chosen to reply even though they received the letter.
It was further stated that a goldsmith Shri Pyarelal in Nayaganj market is also falsely applying the registered trade mark of M/s. Habib Bank Ltd., and has in his possession dies and other instruments for being used for falsifying the trade mark.
On these allegations the Magistrate was requested to take necessary action under the law against those mentioned in the letter in respect of offenses under Sections 78 and 79 of the Act, by directing the Police to investigate the case.
On receipt of this letter on the same day namely 24 10 1962 the Magistrate directed the Police to register a case and investigate.
The Sub Inspector of Police thereupon prepared a search Memo in as much as there was no sufficient time to get the warrant of search issued and also because of the possibility of the removal of goods and effected a search of the premises.
The Inspector went to the Silver and Gold factory of Panna Lal Durga Prasad and found that Ram Nath Son of Durga Prasad one of the Respondents was present there.
He made an inspection of the factory in his presence and seized the dies for the manufacture of coins and gold 575 bars found near the place of goldsmith Munna son of Lakhpat.
The Inspector further in the presence of the witnesses caused a gold coin of one tola and another of half tola to be manufactured by way of specimen out of the gold bar found at the place.
These coins were duly seized and preserved, after obtaining the seal of Ram Nath.
It is unnecessary to give, all the, details of the recoveries because that is not relevant for the purposes of this case.
A police report was accordingly made to the Magistrate who adopted the procedure under Sec.
251 A by examining each of the Respondents after which he framed charges against them.
Thereafter he examined Wadia, P.W. 1, a Senior Attorney Clerk of Habib Bank Ltd., Bombay on 1 5 64.
On 29 5 64 before other witnesses could be examined the Respondents filed an application stating that from the evidence of Wadia, P.W. 1, Habib Bank had stopped dealing in gold and does not now manufacture gold coins, that it had also destroyed the dies And since 1954 this trade mark of Habib Bank has become ineffective and is thrown open to the public, as such it was prayed that the case be stayed and the complainant directed to seek remedy ill the civil court so that the accused persons may not be unnecessarily harassed.
The Magistrate rejected this contention because it appeared from the evidence that the registration of the trade mark of Habib Bank was current upto 1967 and that since the Respondents have been charged under Sections 78 and 79 of ' the Act the contention of the accused that in view of Sec.
46 of the said Act where a trade mark is abandoned for more than years, the Respondents cannot be said to have committed an offence, is not tenable.
By a well considered order the Magistrate dismissed the application and directed the production of the entire evidence on the next date, without fail.
Against this a revision was filed before the Sessions Judge of Kanpur.
The Sessions Judge made a reference to the High Court recommending the quashing of the charge on the ground that "The principle of abandonment is given legal recognition in Sec.
46 Trade & Merchandise Marks Act which provides that a registered trade mark may be taken off the register if it was not used for continuous period of five years or longer.
" The High Court held that on the statement of Wadia it is clearly established that Habib Bank Ltd., had stopped dealing in gold and coins since 1954 and there could therefore be no question of the Respondents corn mitting any offence under Sections 78 and 79 of the Act.
On this reference the High Court by its Judgment dated 6 9 67 thought that Sec.
46 had no application inasmuch as, that Section provided that unless the registration had been rectified the propriety rights of the Bank could not be said to have ended only because the trade mark had not been used for a period of more than 5 years.
It observed that there may be cases where the non 576 user of the trade mark may have been occasioned on account of special reasons and such non user was explainable; that clause (iii) of Sec.
47 makes it clear that it is open to the owner to contest the application for rectification of the register, by the plea, that the non user of the trade mark was due to special circumstances in the trade and not due to any intention on his part to abandon or not to use the trade mark in relation to the goods to which the application relates.
Accordingly the learned Judge expressed the view that the proceedings are not vitiated on the ground that the trade mark in question has ceased +to be the property of M/s. Habib Bank Ltd. It appears that a contention was urged before the High Court that since Habib Bank Ltd., was declared to be a foreign Bank in the year 1960 by the Reserve Bank of India as it had become a citizen of Pakistan, it was not a citizen under the Constitution of India and therefore had no proprietory rights in this Country.
The High Court said that this submission of the Respondent 's Advocate had some force as the question raised was a substantial question of law involving the interpretation of the Articles of the Constitution, that could properly be decided in a civil action rather than by a Magistrate in a Criminal case.
For this proposition reliance was placed on a decision of that Court in Karan Singh vs Mohan Lal(1), which following a Full Bench decision of the Calcutta High Court in Ashutosh Das vs Keshav Chandra Ghosh(2) held that a controversy between the parties relating to a complicated question of abandonment of the user and relating to the express or implied consent of the registered holder of the trade mark are questions which should be decided in a civil court rather than by a Criminal Court.
It was also held by the High Court that Since the complaint in the particular case had not been made by a Proprietor of the trade mark, the prosecution of the accused on the complaint of the Trade Marks Inspector and a subsequent investigation by the Police were not tenable under Sections 78 and 79 of the Act in view of the provisions of Sec. 28 of that Act.
An objection seems to have, been taken before the learned Judge that the High Court was not competent to quash the proceedings pending before the Trial Magistrate in that case because no revision petition had been filed against the order of the Magistrate by which the charge was framed against him but it was only after one of the witnesses had been examined that a Revision had been filed which is not competent.
The High Court rejected this contention and held that it had power to exercise revisional powers under Sec.
561 A and accordingly accepted the reference made by the Sessions Judge and quashed the proceedings against the accused for offences under Sections 78 & 79 of the Act.
(1) (2) A.T.R. 577 It appears to us that the High Court had misdirected itself in considering that the submissions which found favour with it, were relevant for the purpose of deciding whether the proceedings for prosecution for offences under Sections 78 and 79 of the Act were not valid either because, the Habib Bank Ltd., being a foreign Bank was not a citizen and as such had no rights or that the prosecution cannot be initiated by the Inspector of Trade Marks or that the, question of the abandonment of trade mark amounted to an express or implied consent was a matter for civil court and cannot be made the subject of a criminal prosecution.
Sections 78 and 79 are contained in Chapter X of the Act.
Section 78 provides that any person who falsifies any trade mark, falsely applies to goods any trade mark; or makes, disposes of, or has in his possession any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying a trade mark, applies any false trade description to goods etc.
shall unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both, while Section 79 makes a person liable to similar punishment if he sells goods or exposes them falsely or for having them in his possession for sale or for any purpose of trade or manufacture any goods or things to which any false trade description is applied.
Trade mark has been defined in Sec. 2 (1) (v) to mean (i) in relation to Chapter X (other than Section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and (ii) in relation to the other provisions of this Act,a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person and includes a certification trade mark registered as such under the provisions of Chapter VIII.
" It is apparent from this definition that for the purposes of Chapter X of the Act which deals with criminal offenses, a trade mark includes a registered as well as unregistered trade mark.
An offence under Sections 78 or 79 therefore relate to a trade mark whether it is registered or unregistered.
The contention that the 578 registered trade mark of the Habib Bank Ltd., has been abandoned since the said Bank had discontinued its use from 1954 will not absolve the respondents from Criminal liability because even if it was abandoned it can only furnish a ground for a person to make an application under sec.
46 to have the trade mark removed from the registers.
It does not however entitle him to use a trade mark whether it is current or has been removed from the register, or has been abandoned or even if it has never been initially regis tered but has acquired the currency of a trade mark.
The offenses under Sections 78 and 79 consists in the deception and application of a trade mark which is in use and which signifies a particular type of goods containing that mark.
There is, therefore, no validity in the contention that the infringement of the trade mark of Habib Bank Ltd., merely gives rise to a civil action, in respect of which no prosecution will lie.
The provisions contained in Chapter IV in which is contained Sec.
28 relate to the effect of registration and have no bearing on the question before us.
It was neatly urged that the Trade Marks Inspector had no right to make a complaint under Sections 78 and 79 and therefore the prosecution was invalid.
This contention also in our view is misconceived.
A perusal of sub section
(2) of Sec. 89 would show that no Court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of the 1st Class shall try an offence under this Act; while sub section
(1) provides that no Court shall take cognizance of an offence under Sec.
or Sec. 83 except on complaint in writing made by the Registrar or any officer authorised by him in writing.
Merely because sub section
(1) of Sec. 89 refers to manner of taking cognizance in respect of offence under the Section specified therein, it does not preclude cognizance of other offenses specified in Chapter X from being taken under the procedure prescribed by the Criminal Procedure Code.
It is apparent that offenses under Sections 78 and 79 are punishable with imprisonment of two years or with three years if they fall under the respective provisos to the said Sections.
In cases where an offence is punishable with imprisonment of one year and upwards but less than 3 years, under Chapter XXIII of Schedule 11 it is non cognizable and is a summons case, triable as already stated under Sec.
89(2) by the Sessions Judge, Presidency Magistrate or a Magistrate of the 1st Class.
In such cases under Sec. 155 of the Criminal Procedure Code when an information is given to an officer incharge of the Police Station of the commission of a non cognizable offence, he has to enter the substance of the information in a book to be kept for the purpose and refer 'the informant to the Magistrate but he cannot under sub section
(2) investigate such a case without the order of a Magistrate.
On receiving such an order any Police officer may exercise the same powers in respect of the investigation (except the power to arrest 579 without warrant) as an Officer in charge of police station may exercise in a cognizable case.
On receipt of a report from the, Police in compliance with such orders, the Magistrate may it the report discloses the commission of an offence try the accused by the procedure prescribed under Sec.
251 A of the Criminal Procedure Code.
This being the legal position in this case the Magistrate in our view has followed the correct procedure.
The information in respect of the commission of an offence under Sections 78 and 79 of the Act was brought to the notice of the Magistrate by a letter from the Trade Marks Inspector, The Magistrate directed the police to register a case and investigate it.
The Police accordingly complied with it and made a report thereon.
On receipt of the report the Magistrate satisfied himself that the respondents had received the, documents referred to in Sec. 173.
After a consideration of those documents he examined the accused and after giving an opportunity to both the prosecution and the accused framed a charge on being satisfied that there was a prima facie case.
The procedure followed therefore is unexceptionable.
The question whether the Habib Bank Ltd., being a foreign Bank is not a citizen and whether it has any right in the trade mark is therefore irrelevant and does not affect the validity of the proceedings or of the charges framed against the accused.
We accordingly allow the appeal, set aside the Judgment of the High Court and direct the Magistrate to proceed with the case in accordance with law.
V.P.S. Appeal allowed.

summary:
The Inspector of trade marks wrote a letter to the Magistrate and requested him to take necessary action under law against the respondents on the allegations that the respondents were producing coins and pieces of gold and were applying to them a trade mark which was deceptively similar to the registered trade mark of a bank, and which was in force when the respondents produced the coins.
The Magistrate directed the police to register a case under the , and investigate it.
On receipt of the police report the Magistrate followed the procedure prescribed by section 251A of the Criminal Procedure Code, and framed charges under sections 78 and 79 of the Act on being satisfied that there was a prima facie case.
After one of the prosecution witnesses was examined the respondents raised the question that the evidence disclosed that the bank had discontinued the use of the trade mark and a question of abandonment which could be more suitably dealt with by the civil court, had arisen.
The High Court on reference by the Sessions Court held that : (1) the prosecution could not be initiated by the Inspector of Trade Marks in view of section 28 of the Act, (2) whether the question of the abandonment of the trade mark amounted to an express or implied consent for use by the respondent was a matter for the civil court and not for a criminal prosecution and (3) the prosecution for offenses under sections 78 and 79 was not valid because the Bank was declared to be a foreign bank by the Reserve Bank of India in 1960 and hence had no rights as a citizen of India.
Allowing the appeal to this Court, HELD : (1) Merely because section 89(1) of the refers to the manner of taking cognizance in respect of certain offenses specified therein, it does not preclude the cognizance of other offenses specified in Chapter X of the from being taken under the procedure prescribed by the Criminal Procedure Code.
The offenses with which the respondents were charged are punishable with imprisonment of two years and hence, being non cognizable, the procedure followed, in the present case, by the Magistrate, is unexceptionable.
Section 28 of the Act which is in Chapter IV relating to the effect of registration has no hearing on the question [578 C H; 579 A D] (2) An offence under sections 78 and 79 relates to a trade mark whether it is registered or unregistered.
The application of a trade mark signifies a particular type of goods and involves deception.
Therefore, the fact that the Bank discontinued the use of the trade mark would not absolve the respondents, from criminal liability.
Even if the trade mark was abandoned by the Bank it could only furnish a ground for a person to make 573 an application under section 46 of the to have the trade mark removed from the register of trade marks, but it does not entitle anyone to use the trade mark.
[577 A; 578 A C] (3) The question whether the Bank, being a foreign bank, is not a citizen and had no Tight in the trade mark is, therefore, irrelevant and does not affect the validity of the proceedings against the accused.
[577 A B]


judgement:
iminal Appeal No. 12 of 1969.
Appeal by special leave from the judgment and order dated June 25, 1968 of the Kerala High Court in Criminal M.P. Nos.
175, 177 and 179 of 1968.
A. Sreedharan Nambyar, for the appellant.
Lily Thomas, for respondent No. 2.
A. G. Pudissery, for respondent No. 3.
The Judgment of the Court was delivered by P. Jaganmohan Reddy, J.
Respondent 1 and Respondent 2 were committed on 15th June 1965 by the Second Class Magistrate, Cannanore to stand trial before the Assistant Sessions Judge, Tellichery, the former for offences under Sections 467, 478 and 420 read with Section 109 of the Indian Penal Code while the latter under Sections 467 read with 109, 471 and 420.
While the case was pending before the Assistant Sessions Judge, the Public Prosecutor of Tellicherry filed a Memo on 30 11 67 under Sec.
494 of the Criminal Procedure Code for permission to withdraw from the prosecution which permission was accorded by the Assistant Sessions Judge on 2 12 67.
The Appellant who was the Managing Partner of Shree Narayana Transport Company, Calicut filed a Criminal Miscellaneous Petition on 19 2 68 in the High Court of Kerala against the order of the Assistant Sessions Judge according permission to the Public Prosecutor for withdrawing from the prosecution.
The High Court held that the Public Prosecutor was justified when he applied for the withdrawal of the case and accordingly dismissed the petition against which this appeal comes up before us by Special Leave.
The 1st Respondent was the Agent of Shree Narayana Transport Company of one of its Branches namely at Baliapattom and in that capacity it was one of his duties to accept goods from the Public for transporting them by lorry service of the Company and issue Way Bills.
These Way Bills contained an undertaking that in the event of any of the Banks discounting them and if goods are 601 lost or damaged during transport,, the Transport Company will be responsible to the Bank.
It is alleged that the 1st Respondent issued nine Way Bills on different dates in favour of the 2nd Respondent, as if the goods were received but in fact no such goods were accepted for transport nor were any such goods dispatched.
These Way Bills_ were duly discounted by the second Respondent the consigner who drew about Rs. 84,000 against, them from his Bank .
This fraud was detected on a check made by the General Manager of Shree Narayana Transport Co., Kozhikode and it appears that the 1st accused (1st Respondent) executed an agreement in favour of the Transport Company undertaking to make good the loss suffered by it, after which he was suspended on 10 4 63.
On the same day a complaint was filed before Baliapattom Police and a case was accordingly registered against both Accused 1 and Accused 2.
After _investigation the Sub Inspector of Police, Baliapattom filed a charge sheet.
The Magistrate on the materials disclosed in the report under Sec.
173 committed the accused to stand trial before the Assistant Sessions Court on 15 6 65 against which a Revision was filed in the High Court of Kerala on 9 7 65.
It was contended before the High Court that the committal was illegal as no evidence had been adduced in the case, as such it would be premature at that stage to say whether any and if so, what offence could be disclosed The High Court dismissed this Revision Petition on 20 10 66 holding that the procedure adopted in the committal proceedings instituted on a Police report is prescribed in Sec.
207 A of the Criminal Procedure Code under which the Magistrate had the power to commit even without recording the evidences of witnesses.
The High Court drew support for this conclusion from a decision of this Court in Ramanarayan Mor & Anr., vs State of Maharashtra (1) where it was held that though normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, the Legislature had under the amended code in Sec.
207 A prescribed a special procedure for commitment of the accused.
The record under the said provision consists of the oral evidence recorded under sub & (4) of Sec. 173, and it would be difficult to regard only those documents which are duly proved or which are admissible without proof as "evidence ' within the meaning of Cl.
(6) and not the rest.
On this view it was observed that there was no legal impediment in the Magistrate using the case diary for the purpose of deciding whether there was a case for committal and accordingly dismissed the Revision Petition.
After this Revision was disposed of the Assistant Sessions Judge to whom the case stood committed ordered the splitting up the charges into 8 cases against which the second respondent filed a Revision in the High Court under Sec.
561 A Criminal Procedure Code where it (1) 602 was contended that .
It the 8 charges should have been consolidated into one case as otherwise there would be 8 distinct offences leading to multiplicity of trials.
The High Court by its Judgment dated 30 10 67, following a decision of this Court in Ranachhodlal V. State of Madhya Pradesh(1), said that the order of the Magistrate splitting up the charge into 8 cases was proper and while it does not call for any interference, it left it open for the prosecution as provided under Sec.
240 'Criminal Procedure Code to withdraw the other charges if one of the trials should end in a conviction.
After this petition was dismissed the Respondents seem to have moved the State Government to withdraw the prosecution and accordingly, as would appear from the Memo.
filed by the Public Prosecutor on 30 11 67, the Government passed an order G.O. Rt.
No. 1589/67 Home (B) dated 22 11 67 directing the withdrawal of the case with the sanction of the Court, in the interest of public policy as also because there was no likelihood of the case being pursued to a successful issue.
It was stated in the Memo.
filed by the Public Prosecutor that the alleged offences charged against the accused arose out of a contract agreed to between the accused and the defacing complainant viz., the General Manager, Shree Narayana Transport; that the subject matter of the case had been decided by the Subordinate Judge 's Court, Calicut in a Civil suit; that the case was registered as early as 1963 and the trial has not yet begun; that the witnesses from far off places such as Bombay and Calcutta are cited and the securing of their evidence would involve heavy expenses for the State and that the case is one of Civil nature.
It is contended before us that under Sec.
494 Criminal Procedure Code it is the Public Prosecutor and the Public Prosecutor alone who should make up his mind to withdraw from the prosecution without any reference to the State Government, that it was the State Government which directed the Public Prosecutor to seek permission as such the Public Prosecutor has not adverted his mind nor did he exercise his independent judgment in deciding whether the case is one in which permission of the Court to withdraw from the prosecution ought to have been asked for.
In any case it is submitted on the grounds disclosed in the Memo filed by the Public Prosecutor that no permission ought to have been given as even prior to the filing of the said Memo.
the High Court had said that there was a prima facie case for the trial to go on and therefore the present order directing the Public Prosecutor to withdraw from the prosecution is manifestly contrary to the views earlier expressed by it.
The Appellants Advocate later during the course of the argu ment conceded that there is no force in the first of his contentions (1) [1965](2) S.C.R. 283.
603 namely that the Public Prosecutor cannot either be asked by the State Govt., to consider the filing of a petition under Sec.
494 nor would it be proper for him if he was of the opinion that the prosecution ought not to proceed to get the consent of the Government to the filing of a petition under that Section for obtaining permission of the Court to withdraw from the prosecution.
, Sec. 494 which empowers the Public Prosecutor with the consent of the Court to withdraw from the prosecution is as follows: "Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences".
The power contained in the Section gives a general executive direction to withdraw from the prosecution subject to the consent of the Court which may be determined on many possible grounds and is therefore wide and uncontrolled by any other provision in the Code nor is it in pari materia with Sec. 333 which enables the Advocate General at any stage in a Trial by the High Court and before the return of the verdict to inform the Court if he thinks fit on behalf of the Government that he will not further prosecute the Defendant upon the charge and on such information being given the case against the accused comes to an end.
This power of entering a noble prosecution under Sec.
333 Criminal Procedure Code is not dependent upon any permission of the Court.
A reading of Sec.
494 would show that it is the Public Prosecutor who is incharge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried.
This permission can be sought by him at any stage either during the enquiry or after committal or even before the Judgment is pronounced.
The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission.
Though the Section is in general terms and does not circumscribe the powers 604 of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.
Nonetheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest.
A large number of cases have, been referred to but it is unnecessary to consider them, except for a few as typifying the approach in cases where permission to withdraw from the prosecution was sought on grounds extraneous to and not germane to the maintenance and enforcement of the law and which permission though given by the Trial Court was quashed by the High Court.
A Special Bench of the Calcutta High Court in Devendra Kumar Roy vs Syed Yar Bakht Chaudhury & Ors.
(1), was considering the validity of the permission granted by the Magistrate to the Government Pleader to withdraw from the prosecution in a case where the accused were charged with offences under Sec tions 193, 467, 477, 109 and 120 A of the Penal Code.
The prosecution had been started and after some evidence had been recorded, the record of the case was called for by the Government which having kept it for six months returned it to the Government Pleader who filed a petition for withdrawal from the prosecution under Sec.
494 Criminal Procedure Code on certain grounds which were not substantial namely that the original complainant had withdrawn from the prosecution; that on an independent examination of the records of the Provincial Government considered that the evidence was insufficient to warrant further proceeding with the case; and that the Provincial Government would not in view of the uncertainty of a successful 'prosecution be justified in incurring heavy expenses.
in the fees, the travelling allowances of the handwriting expert and in lawyers ' expenses.
The Magistrate though considering that these grounds are not sufficient for not committing the accused persons but on the other hand was of the view that there was ample substantial evidence to show that serious offences were actually committed, (1) AIR 1939 Calcutta 220.
605 nonetheless granted permission to the Government Pleader to withdraw from the prosecution.
It was held by the High Court that the consent of the Trying Magistrate for the discharge had not been properly given and therefore quashed the proceedings.
It also appeared that some of the accused in the case were related to one of the Minister 's as found proved by the High Court and the action of the Government in calling for the record of the case from the Magistrate while it was still proceeding and retaining it for six months was quite illegal and utterly improper.
A Full Bench of the Patna High Court in The King vs Parmanand & Ors.(1) also hold that there was no justification whatever for the view that the Prime Minister or any other Minister or executive officer has the power to usurp the functions of the Court or to take the case out of the sensing of the Magistrate before whom it is pending for trial and that where the Trying Magistrate makes no attempt to exercise his discretion at.
all and permits the withdrawal of the prosecution merely in consequence of the order of the Government the High Court will interfere.
At the same time it was observed that the High Court would be reluctant to direct the prosecution of persons against whom Government does not desire to proceed, unless there is evidence which requires judicial consideration.
The permission granted by the Magistrate in that case was held to be wrong, so also was the action of the Government in a case which is subjudice irrespective of the question whether the prosecution is likely to end in conviction as interfering with the even and ordinary course of justice, by usurping the function of the Court and taking it out of its seisin.
In a recent case the Full Bench of the Kerala High Court in Deputy Accountant General (Admn.) Office of Accountant General, Kerala Trivandrum vs State of Kerala and Ors.(2), was considering the application for withdrawal filed by the Public Prosecutor under the directions of the Government to withdraw from the prosecution against the strikers for offences under Sections 4 & 5 of the Essential Services Maintenance Ordinance, 1968, and other laws such as the Penal Code and Telegraph Act mentioning as a ground the withdrawal order of the State Government which stated, that consistent with.the Policy of the Government in relation to mass agitation and strike it has been decided to withdraw with the leave of the Court, the cases registered in connection with the Central Government Employees strike on the 19th September, 1968 except those involving serious per sonal violence or destruction of property.
It was held that the policy set out therein being a policy opposed to the law could not be taken into consideration.
Apart from the order being in (1) AIR 1949 Patna 222.
(2) AIR 1970 Kerala 153.
606 disregard of the duty and the responsibility of the State Government to enforce the law, the Full Bench said there could be no question of the executive policy in a region covered by the law.
In that view it quashed the permission granted by the Trial Court.
In the State of Bihar vs Ram Narash Pandey(1), it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
It appears to us that the wide and general powers which are conferred under Sec.
494 on the Public Prosecutor to withdraw from the prosecution though they are subject to the permission of the Court have to be exercised by him in relation to the facts and circumstances of that case in furtherance of, rather than as a hindrance to the object of the law and justified on the material in the case which substantiate the grounds alleged, not necessarily from those gathered by the judicial method but on other materials which may not be strictly on legal or admissible evidence.
The Court also while considering the request to grant permission under the said Section should not do so as a necessary formality the grant of it for the mere asking.
It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain.
What then are the circumstances in which the permission has been sought in this case and the considerations that weighed with the Courts in granting that permission.
The Public Prosecutor as we have seen thought that the matter was of a civil nature, that the subject matter of the case before the Magistrate had been decided in a Civil suit, that witnesses are from far off places and their evidence will incur huge expenses for the State; that the case was registered as early as 1963 and the trial has not yet begun.
It is clear that prima facie none of these grounds or even the cumulative effect of all these grounds would justify the withdrawal from the prosecution.
It may be that the acts of the Respondent may make them both liable under the Civil law as well as under the Criminal law but it does not justify either the seeking of the permission to withdraw from the prosecution or granting of it unless the matter before the Criminal Court is of a purely civil nature.
The accused in this case have been (1) 607 charged with offences of cheating, of the forgery of valuable securities with the intention that the documents forged shall be used for the purpose of cheating, and/or also for using them as genuine which they know or have reason to believe to be forged documents.
The case of the Respondents was that all this was done with the knowledge of the complainant with a view to further the practice prevailing to popularise the transport business.
It appears that after the complaint was filed and the police took cognizance of the offence and investigated it but before the charge sheet was filed the Public Prosecutor seems to have expressed the view on 8 6 63 that a successful prosecution may not be possible under Sec. 467 and 420 because the matter for which the Respondents were sought to be charged related to a practice which seems to have prevailed in that Transport Company and in other Companies as well and in the light of that practice mens rea may not be established but this opinion did not prevail as he ' was directed to file the charge sheet and accordingly the case proceeded.
A perusal of the committal order will make this conclusion of ours clear.
Before the Magistrate, the learned Advocate had contended that there was a normal practice that the Company used to issue way bills without obtaining the goods from the party for the sake of popularising the Company and that in the circumstances Respondent 1 while issuing the way bill had no intention to cause damage or to cheat.
The Magistrate negatived this contention and said that he was not able to believe that the Company will resort to these practices for the sake of such popularity and that it was the way bills that were issued in Accused 2 's name and it was Accused 2 who obtained the money from the Bank.
Therefore, there was prima facie evidence to show that goods were not produced at the time of issuing way bills by Respondent 1 to Respondent 2 and that Respondent 2 was well aware of it when he drew the money on the way bills from the Bank for the goods he had never produced for booking.
Knowing that these receipts were forged one Respondent 2 had got them discounted.
It also appears from the committal order that the prosecution had produced a letter alleged to have been written by Respondent 2 to Respondent 1 requesting him to issue the way oil mills, a reading of which the Magistrate said shows that it was a letter written with the intention of obtaining them.
In this view he thought that there was a prima facie case against the accused and accordingly he framed the charges.
The High Court ignoring the view taken by it in its previous two Revisions referred to earlier that there was prima facia case and that there was no illegality in the prosecution, thought that the Public Prosecutor was right when he applied to the Court for 608 sanction to withdraw the prosecution on the ground that it might not result in a conviction to which it further added that there was a long delay of five years and that the witnesses were not in the locality and have to be brought to Court from different places.
Though it thought that this latter reason may not justify the abandonment of the prosecution but nevertheless it is said that in view of the practice prevailing in this Transport Company as well as in other Transport Companies the chances of successful prosecution were remote.
It further thought that the question of expenses would also become relevant.
We think that these grounds are flimsy and do not justify the granting of permission to withdraw from the prosecution.
In the first place there is nothing to indicate what that practice was, how it was resorted to and what elements were definition to constitute the offences for which the Respondents were entitled to be charged and in the second place nothing had happened since the committal order except that the several revisions filed by Respondent 1 and Res pondent 2 had delayed the trial which delay by itself cannot be made a ground for according permission.
On the other consideration which weighed with the High Court that a prosecution would involve a huge expenditure there is no material to show what amount would be involved if the case was prosecuted nor how many witnesses would be required to be called from Calcutta and Bombay.
On the other hand the case appears to be mostly hinged on the issue of the Way Bills to Respondent 2 bay Respondent 1 without receipt of goods from Respondent 2 which the Respondents say was due to the practice followed by the complainant to popularise its transport business.
The execution of the Way Bills by Respondent 1, their issue by him without receipt of the goods and the obtaining of money by the second Respondent from the Bank by discounting them with it are some of the elements and except perhaps for the non receipt of the goods by the people to whom they were alleged to have been booked, are all dependent on local witnesses.
In any case the expenditure involved is not the sole criterion for granting permission.
In the view we have taken this appeal is allowed, the permission granted by the Trial Court and confirmed by the High Court in Revision is set aside and we direct that the trial do proceed in accordance with law.
V.P.S. Appeal allowed.

summary:
The respondents were committed to trial before the Sessions Court for offences of forgery, cheating, etc.
They challenged the committal order but the High Court held that there was a prima facie case.
Thereafter, the trial judge split up the charges and this was again questioned but the High Court held that there was no illegality.
The Public Prosecutor then applied under section 494, Cr.
P.C., under instructions from the Government, for permission to withdraw from the prosecution, on the grounds, that the transaction relating to the offence arose out of a contract and was of a civil nature, that there had been enormous delay in proceeding with the trial, and that the securing the evidence of witnesses would involve heavy expense for the State as the witnesses were in far off places. 'Material judge gave the permission and the order was confirmed by the High Court.
Allowing the appeal to this Court, HELD : (1) Section 494 of the Code is not in pari materia with section 333 under which the Advocate General may enter a nolle prosequi at any stage of a trial.
It only gives power to the Public Prosecutor to withdraw from the prosecution subject to the consent of the Court.
Though the section is in general terms and does not circumscribe the powers of the Public Prosecutor the essential consideration which is implicit in the grant of the power is that it should be exercised in the interests of justice which may be, either that it may not be possible to produce sufficient evidence to sustain the charge, or that subsequent information before the prosecuting agency falsifies the prosecution evidence, or other similar circumstances depending on the facts and circumstances of each case.
The power is subject to the permission of the Court and it is the duty of the Court to see that the permission is not sought on grounds extraneous to the interests of justice or that offences against the State do not go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders directs a Public Prosecutor to withdraw from the Prosecution and the Public Prosecutor merely does so at its behest.
The court, while considering the request to grant permission, should not do so as a formality for the mere a .king.
it may grant permission only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that the permission was not sought covertly with an ulterior purpose unconnected with the vindication of the law.
[603 E H; 604 A D; 606 E] State of Bihar vs Ram Naresh Pandey, , followed.
Devendra Kumar Roy vs Syed Yar Bakht Chaudhury & Ors.
A.I.R. 1939 Cul. 220, The King vs Parmanand & Ors., A.I.R. 1949 Pat. 222 and Dy.
Accountant General (Admn.) Office of Accountant General, Kerala Trivandrum vs State of Kerala & Ors., , referred to.
(2) In the present case none of the grounds alleged or even their cumulative effect would justify, the withdrawal from the prosecution.
[906 G] 600 (a) It may be that the acts of the respondents may make them both liable under the civil as well as the criminal laws.
But that does not justify either the seeking of the permission to withdraw from the prosecution or the granting of it unless the matter before the criminal court is of a purely civil nature.
The committal order and the judgments of the High Court at the prior two stages show that there was a prima facie case against the accused with respect to the charges framed against them.
[906 G H; 907 G H] (b) Neither the ground of delay nor the question of expenditure involved by themselves, could be a proper ground for granting permission to the Public Prosecutor for withdrawing from the case [608 B C, F G]