judgement:
Civil Appeal No. 1490 of 1984.
From the Judgment and Order dated 16.2.1984 of the Madras High Court in O.S.A. No. 217 of 1982.
section Chellaswamy, N.H. Hingorani, Mrs. Kapila Hingorani, Mrs. Rekha Pandey and D. Sadasivan for the Appellants.
F.S. Nariman, M.K. Rao, P.N. Ramalingam and A.T.M. Sampath for the Respondent.
122 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The long and grasping hand of a Multi National Company, the Monsanto Company of St. Lous, Missouri, United States of America, has reached out to prevent alleged infringement of two of their patents (Numbers 104120 and 125381) by the defendant, an Indian Private Limited Company.
Though the suit, as initially laid, was with reference to two patents, the suit was ultimately confined to one patent only (Number 125381), the period for which the other patent (104120) was valid having expired during the pendency of the suit.
The suit was decreed by the trial court, but was dismissed by the appellate court.
The appeal which is now before us has been filed pursuant to a certificate granted by the appellate bench of the High Court on the ground that substantial questions of law of great public importance were involved.
The questions, however, were not specified in the certificate.
As we see it, we are unable to find any substantial questions of law of great importance.
We are afraid both the lower courts misdirected themselves and missed the real substance of the dispute and found themselves chasing the mirage of legal questions which did not strictly arise.
We may first refer to a few preliminary facts.
Weeds, as is well known, are a menace to food crops, particularly crops like rice which belong to the grass variety.
Research has been going on for years to discover a weed killer which has no toxic effect on rice, that is to say, a Herbicide which will destroy the weeds but allow rice to survive without any deleterious effect.
For long the research was futile.
But in 1966 67 came a break through.
A Scientist Dr. John Olin discovered CP53619 with the formula '2 Chlore 2 ',6 ' Diethyl N (Butoxy Methyl) Acetanilide ' which satisfied the requirement of a weed killer which had no toxic effect on rice.
The annual report of the International Rice Research Institute for 1968 state, "Weed control in rice was an important part of the Agronomy program.
The first agronomic evidence of the efficacy of granular trichloroethyl styrene for the selective control of annual grasses in transplanted rice was obtained at the Institute.
Another new accession, CP53619, gave excellent weed control in transplanted flooded and non flooded, upland rice.
" It was further stated "CP53619 at 2 and 4 k.g./ha a.i.
appeard at least twice among the 20 best treatments" and "the most outstanding new pre emergence herbicide was 2 chloro 2 ', 6 ' diethyl N (butoxymethyl) acetanilide (CP 53619).
" The 123 annual report of the International Rice Research Institute for 1969 shows that the herbicide CP 53619 came to acquire the name of Butachlor.
It is now necessary to refer in some detail to the averments in the plaint, as the decision of the case, in the view that we are taking, turns very much on what the plaintiffs themselves had to say about their case.
The first plaintiff is the Monsanto Company and the second plaintiff is a subsidiary of the first plaintiff registered as a Company in India.
It was stated in the plaint that the first plaintiff was the patentee of inventions entitled "PHYTOTOXIC COMPOSITIONS" and "GRASS SELECTIVE HERBICIDE COMPOSITIONS", duly patented under patent number 104120 dated March 1, 1966 and 125381 dated February 20, 1970.
The claims and the particulars relating to the inventions were stated to be contained in the specifications of the two patents annexed to the plaint as annexure I and II.
After stating so much the plaintiffs said, and this is very important, "THE ACTIVE INGREDIENT MENTIONED IN THE CLAIM IS CALLED "BUTACHLOR".
It suggested, without expressly saying it that the Plaintiffs ' patents covered Butachlor also which in fact it did not, as we shall presently see.
It was next stated that the first plaintiff had permitted the second plaintiff to work the patents from 1971 onwards under an agreement dated September 3, 1980.
The second plaintiff had been manufacturing and marketing formulations according to the Patents Numbers 104120 and 125381 and 'a specimen tin containing formulations produced by the second plaintiff according to the said two patents and sold in the market by the second plaintiff ' was produced along with the plaint as M.O.I. It came to the notice of the plaintiffs, it was averred, that the defendant was attempting to market a formulation of Butachlor covered by the said patents.
They, therefore, wrote to the defendant drawing their attention to the existence of the patents in their favour.
Some correspondence ensued.
In the second week of May, 1981, the second plaintiff found that the defendant was marketing formulation of Butachlor covered by the patents of the first plaintiff.
Sample tins of "Butachlor 50" manufactured by the defendant were purchased by the plaintiffs and were produced along with the plaint as M.O.s 3 and 4.
The legend on the tins was as follows : "Delchor 50 Composition (Butachlor 50%E.C.) Butachlor 50% W/W Herbicide Solvents and Emulsifiers 50% W/W" 124 According to the plaintiffs, the legend on the tins containing the substance manufactured by the defendants showed that what was sold by the defendants was nothing but a reproduction of the first plaintiff 's patented formulations.
The formulations of the defendant were sent to Shri Ram Institute for analysis and they were said to contain the chemical "Butachlor Chemical formula for which is 2 Chloro 2 ' 6 ' Diethyl N (Butoxymethyl) Acatanilide.
" On these averments, the plaintiffs alleged that the defendant had infringed their Patents Numbers 104120 and 125381 by selling formulations covered by them.
The plaintiffs used for an injunction to restrain the defendant from infringing their Patents Numbers 104120 and 125371 by the manufacture or sale of the infringing formulations as contained in this marked as M.O.Nos. 2 and 3.
The Plaintiffs also asked for an account etc.
Annexed to the plaint were the two specifications relating to Patent Numbers 104120 and 125381.
In the specification relating to "Phytotoxic Composition" (Specification No. 104120), it was claimed : "We Claim : 1.
A phytotoxic composition comprising as an active ingredient a compound of the formula shown in Figure 1 of the accompanying drawings, wherein R1 and R2 are alkyl of alkoxy having from 1 to 10 carbon atoms, R3 is halogen, alkyl or alkoxy having from 1 to 10 carbon atoms, n is an integer from 0 to 3, A is oxygen or sulfur, X is chlorine, bromine or iodine, and Z,Z1 and Z2 are hydrogen, alkyl, alkoxy,alkenyl or alkynyl having from 1 to 18 carbon atoms, aryl having from 6 to 24 carbon atoms, heterocyclyl having a miximum of 24 carbon atoms and from 1 to 3 hetero atoms, or two of Z groups are combined to form a bivalent alkylene radical having from 1 to 6 carbon atoms in admixture with an adjuvant such as herein described, the active ingredient in the said composition being present in an amount of at least 0.1 per cent by weight.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 ' tertbuty 1 2 chloro N (2 prophynyloxy methyl) 6 'methyl acetanilide.
125 3.
A phytotexic composition as claimed in Claim 1, wherein the active ingredient is 2 ' tertbutyl 2 chlore N (2 prophynyloxy methyl) 6 ' methyl acetani lide.
A phytotexic composition as claimed in Claim 1, wherein the active ingredient is 2 ' tertbutyl 2 chlore N(allyloxymethyl) 6 ' methylacet anilide.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 tertbutyl 2 brome N methexy methyl 6 ' methylacetanilide. 6.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 ' tertbutyl 2 broome N (2 prophynylexymethyl) 6 methylacetani lide.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 chloro 2 ', 6 disthyl N (methoxymethyl) acetanilide.
A phytotoxic composition as claimed in Claim 1 wherein the active ingredient is 2 ' tertbutyl 2 bromo N (allyloxymethyl) 6 ' methylacetanilide. 9.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 ' tertbutyl 2 choloro N (2 methoxyethoxymethyl) 6 ' methylacetan ilide.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 ' tertbutyl 2 bromo N (2 methoxyethoxymethyl) 6 methylace tanilide.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 bromoe 2 ' terbutyl N (2,3 dihydroxypropoxyomethyl) 6 methylacetanilide.
A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 chloro 2 ', 6 dimethyl N (isoproposymethyl) acetanilide. 13.
A phytotoxic composition substantially as herein before described.
" 126 In the specification relating to Grass selective Herbicide Compositions (Specification No. 125381), it was claimed: "We claim: 1.
A herbicidal composition in the form of an emulsion, suspension or dispersion, comprising as active ingredient a compound selected from the group.
a) 2 ',6 ' diethyl N butoxymethyl alpha chloroaceta nilide, and b) 2 ', 6 ' diethyl N (2 butoxyethyl) alpha chloro acetanilide, or a mixture of (a) and (b) in admixture with one or more diluents or carriers and surface active agents in which an emulsion is obtained by dissolving the active ingredient in an organic solvent and thereafter dispereing the solution in another liquid medium in the presence of an emulsifying agent such as herein described.
A composition as claimed in claim 1, which further comprises one or more compounds selected from the following conventional pesticides, fertilizers, and extenders such as herein described.
A composition as claimed in claim 2, wherein mineral extenders such as natural clays, phyro phyllites and vermiculite having a perticle size of 2000 to 149 microns, preferably of 1410 to 250 microns, are used.
A herbicidal composition in the form of an emulsion, suspension or dispersion substantially as hereinbefore described.
" We do not propose to set out in detail the contents of the written statement.
It is sufficient to state that the Defendant claimed as he was entitled to do under section 107 of the , that the patents were liable to be revoked under section 64(1) (a),(b),(d),(e),(f),(g),(h),(i),(j),(k),(l) and (m) of the .
The defendant also made counter claim seeking revocation of the patents.
127 A close scrutiny of the plaint and a reference to the evidence of the witnesses for the plaintiff atonce exposes the hollowness of the suit.
We must begin with the statement in the plaint that "THE ACTIVE INGREDIENT MENTIONED IN THE CLAIM IS CALLED 'BUTACHLOR '" which suggests that Butachlor was covered by the Plaintiffs ' patents and the circumstance now admitted that no one, neither the plaintiff nor any one else, has a patent for Butachlor.
The admission was expressly made by PW 2, the power of attorney holder of the first plaintiff and Director of the second plaintiff company.
The learned counsel for the plaintiffs also admitted the same before us.
PW 1, Dr. Dixon, Chemist of the first plaintiff company, after explaining the use of an emulsifying agent, in answer to a direct question, whether his company claimed any patent or special knowledge for the use of any particular solvent or particular emulsifying agent, in the formulation in their patent, had to admit that they had no such patent or special knowledge.
He further admitted that the use of solvent and emulsifying agent on the active ingredient was one of the well known methods used in the pesticide industry to prepare a marketable product.
He also expressed his inability to say what diluents or emulsifying agents the defendant used in their process.
PW 2 admitted that Butachlor was a common name and that the Weed Science Society of America had allotted the common name.
He stated that "Machete" was the brand name under which their company manufactured Butachlor.
He also stated that there could be a number of concerns all over the world manufacturing Butachlor, but he was not aware of them.
He admitted that they did not claim a patent for Butachlor.
He stated that though his company did not claim a patent for Butachlor, they claimed a patent for the process of making a Butachlor emulsifiable concentrate to be used as a Herbicide composition for rice.
Pursued further in cross examination, he was forced to admit that they used kerosene as a solvent for Butachlor and an emulsifier manufactured by a local Indian company as an emulsifying agent.
He then proceeded to state that he claimed secrecy with regard to the manufacture of their formulation.
When he asked further whether the secrecy claimed was with regard to the solvent or with regard to the stabilizer, he answered in the negative.
He finally admitted that his secret was confined to the active ingredient Butachlor about which as we know there is no secret.
PW 3, Robert Galson Depenning the patent agent of the first plaintiff under a power of attorney from the first plaintiff, stated that it was he that had verified the plaint and that it 128 was on his instructions that the plaint was drafted.
He stated that according to him, by selling his formulations the defendant had infringed Patents Numbers 104120 and 125381, though he was unable to explain which part of his claim in Patent Number 104120 was infringed as he was not a Chemist.
He stated that he said so and was able to say so in consultation with the Managing Director of the second plaintiff company.
He stated that it was explained to him by PW 2 that both the Patents Numbers 104120 and 125381 were infringed.
He also admitted that it was he that had signed the specification of 104120 and while he was not sure whether he had signed the specification Number 125381, he saw that it had been signed by Depenning and Depenning.
We, therefore, see that Butachlor which was the common name for CP 53619 was discovered, even prior to 1968 as a Herbicide possessing the property of nontoxic effect on rice.
The formula for the Herbicide was published in the report of the International Rice Research Institute for the year 1968 and its common name Butachlor was also mentioned in the report of the International Rice Research Institute for the year 1969.
No one patented the invention Butachlor and it was the property of the population of the world.
Before Butachlor or for that matter any Herbicide could be used for killing weeds, it had to be converted into an emulsion by dissolving it in a suitable solvent and by mixing the solution with an emulsifying agent.
Emulsification is a well known process and is no one 's discovery.
In the face of the now undisputable fact that there is no patent for or any secrecy attached to Butachlor, the solvent or the emulsifying agent and the further fact that the process of emulsification is no new discovery, the present suit based on the secrecy claimed in respect of the active agent Butachlor and the claim for the process of emulsification must necessarily fail.
Under sec.
61(1)(d), a patent may be revoked on the ground that the subject of any claim of the complete specification is not an invention within the meaning of the Act.
Under sec.
64(e), a patent may be revoked if the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the date of the claim, etc.
Under sec.
64(1)(f), a patent may be revoked if the invention so far as claimed in any claim of the complete specification is obvious or does not involve any inventive step having regard to what was publicly known or publicly used in India or what was published in India before the priority 129 date of the claim (the words "or elsewhere" are omitted by us as the patents in the present case were granted under the Indian Patents and , i.e., before the ).
"Invention has been defined by secc.
2(j) as follows: " Invention" means any new and useful (i) art, process, method or manner of manufacture; (ii) machine, apparatus or other article; (iii) substance produced by manufacture, and includes any new and useful improvement of any of them, and an alleged invention.
" It is clear from the facts narrated by us that the Herbicide CP 53619 (Butachlor) was publicly known before Patent Number 125381 was granted.
Its formula and use had already been made known to the public by the report of the International Rice Research Institute for the year 1968.
No one claimed any patent or any other exclusive right in Butachlor.
To satisfy the requirement of being publicly known as used in clauses (e) and (f) of sec.
64(1), it is not necessary that it should be widely used to the knowledge of the consumer public.
It is sufficient if it is known to the persons who are engaged in the pursuit of knowledge of the patented product or process either as men of sciene or men of commerce or consumers.
The section of the public who, as men of science or men of commerce, were interested in knowing about Herbicides which would destroy weeds but not rice, must have been aware of the discovery of Butachlor.
There was no secret about the active agent Butachlor as claimed by the plaintiffs since there was no patent for Butachlor, as admitted by the plaintiffs.
Emulsification was the well known and common process by which any Herbicide could be used.
Neither Butachlor nor the process of Emulsification was capable of being claimed by the plaintiff as their exclusive property.
The solvent and the emulsifier were not secrets and they were admittedly not secrets and they were ordinary market products.
From the beginning to the end, there was no secret and there was no invention by the palintiffs.
The ingredients, the active ingredient, the solvent and the emulsifier, were known; the process was known, the product was known and the use was known.
The plaintiffs were merely camouflaging a substance whose 130 discovery was known through out the world and trying to enfold it in their specification relating to Patent Number 125381.
The patent is, therefore, liable to be revoked.
We do not think that it is necessary for us to go into the various questions of law so carefully and meticulously argued by Mr. Chellaswamy.
The questions were no doubt interesting and arose for the first time.
But we desire to keep our interest purely academic and within bounds.
So we do not pronounce upon those questions.
The appeal is dismissed with costs.
M.L.A. Appeal dismissed.

summary:
The plaintiff appellant instituted a suit against the respondent on the ground that its inventions entitled "Phytotoxic Compositions" and "Grass Selective Herbicide Compositions" duly patented containing the active ingredient "Butachlor" was infringed by the defendant respondent marketing "Delchor 50" a formulation of "Butachlor" which was alleged to be covered by the plaintiff 's Patent No. 125381.
In the written statement, the defendant respondent claimed that the patents were liable to be revoked under s.64(1)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) of the .
The suit was decreed by the trial Court, but was dismissed by the appellate court.
Dismissing the appeal, ^ HELD : 1(i) Under section 61(1)(d), a patent may be revoked on the ground that the subject of any claim of the complete specification is not an invention within the meaning of the Act.
Under sec.
64(e), a patent may be revoked if the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the date of the claim, etc.
Under sec.
64(1)(f), a patent may be revoked if the invention so far as claimed in any claim of the complete specification is obvious or does not involve any inventive step having regard to what was publicly known or publicly used in India or what was published in India before the priority date of the claim.
[128 G H; 129 A] 121 1(ii) To satisfy the requirement of being publicly known as used in clauses (e) and (f) of sec.
64(1), it is not necessary, that it should be widely used to the knowledge of the consumer public.
It is sufficient if it is known to the persons who are engaged in the pursuit of the knowledge of the patented product or process either as men of science or men of commerce or consumers.
[129 D E] 2.
Butachlor which was the common name for CP 53619 was discovered, even prior to 1968 as a Herbicide possessing the property of non toxic effect on rice.
The formula for the Herbicide was published in the report of the International Rice Research Institute for the year 1968 and its common name Butachlor was also mentioned in the report of the International Rice Research Institute for the year 1969.
No one patented the invention Butachlor and it was the property of the population of the world.
Before Butachlor or for that matter any Herbicide could be used for killing weeds, it had to be converted into an emulsion by dissolving it in a suitable solvent and by mixing the solution with an emulsifying agent.
Emulsification is a well known process and is no one 's discovery.
Neither Butachlor nor the process of Emulsification was capable of being claimed by the plaintiffs as their exclusive property.
[128 C E] In the instant case, the solvent and the emulsifier were admittedly not secrets and they were ordinary market products.
From the beginning to the end, there was no secret and there was no invention by the plaintiffs.
The ingredients, the active ingredients the solvent and the emulsifier, were known; the process was known, the product was known and the use was known.
The plaintiffs were merely camouflaging a substance whose discovery was known throughout the world and trying to enfold it in their specification relating to Patent Number 125381.
The patent is, therefore, liable to be revoked.
[129 F G; 130 A]


judgement:
tition No. 1756 of 1981 etc.
Under Article 32 of the Constitution of India.
G.L. Sanghi, V.M. Tarkunde, B.P. Maheshwari, B.P. Singh, A.K. Panda, Mrs. Uma Jain, M.A. Firoz, Dr. B.S. Chuahan, J.R. Das, M.C. Dhingra, Ambrish Kumar, R.B.B. Ray, V.B. Joshi, B. Parthasarthi and C.S.S. Rao for the appearing Petitioners.
e R.N. Keshwani for the Respondent Nos.
3 to 10.
M.K. Banerjee, Additional Solicitor General, D.P. Mahapatra and K.K. Mehta for the Respondent.
In the year 1979 they underwent a one year period of internship at the Medical Colleges from which they had graduated.
The petitioners allege that thereafter, having passed the pertinent examination for recruitment to the Resident House Staff, they completed the one year term of appointment either in the Wilmington Hospital, New Delhi, or in the Post Graduate Institute of Medical Sciences, Chandigarh.
Upon the conclusion of their term on the Resident House Staff by the end of the year 1980, the petitioners contend that they became entitled to admission to a Post Graduate course at a Medical College in Orissa.
The duration of that course, according to the petitioners, is two years.
The grievance of the petitioners is that the Medical Colleges in the State of Orissa have new put into force a different scheme, under which it has become necessary for candidates seeking admission to a Post Graduate course to appear at an examination for such admission after completing the Resident House Staff appointment.
The petitioners urge that they are not obliged to appear at any such examination and are entitled as of right to admission in the Post Graduate course.
It appears that until the academic session 1978 79 the Post Graduate course was envisaged as a course of three years duration, which period included an appointment for one year on the Resident House Staff.
Admission to the three year course was made through 813 an Entrance Examination, and after completing the Resident House Staff appointment there was no further examination for admission to the Post Graduate course.
The scheme was changed with effect from the session 1978 79, purportedly to give effect to the recommendation of the Indian Medical Council that the Resident House Staff course should be delinked from the Post Graduate course.
Accordingly, two separate Prospectuses were envisaged, one for the Resident House Staff course and the other for the Post Graduate course.
A competitive examination was held for recruitment to the Resident House Staff, and all candidates who had passed the final M.B.B.S. examination and had completed their Compulsory Rotating Internship and had obtained full registration were eligible to appear at that competitive examination.
There was a separate entrance examination for admission to the Post Graduate Course.
A candidate appearing thereat should have passed the final M.B.B.S. examination, satisfactorily completed the internship, acquired full registration and in addition should have completed the Resident House Staff term in a subject during one year.
It appears that in some subjects, where there was a dearth of candidates and the posts in the colleges were not being filled in, it was convenient to prescribe only one examination, the entrance examination for recruitment to the Resident House Staff, and in those subjects the second entrance examination specifically intended for the post Graduate course was not prescribed.
The students in those subjects, on completing the one years Resident House Staff appointment, were automatically admitted to the Post Graduate course.
These changes evidently caused considerable dismay among those medical graduates who had already taken the M.B.B.S. degree from a Medical College in Orissa and had embarked on a course of conduct, consistent with the terms of the original scheme, which would suffice to secure them admission to a Post Graduate course in the Medical colleges of Orissa.
The petitioners say that under the original scheme they were entitled to take the entrance examination for recruitment to the Resident House Staff at any recognised institution in the country, even though it lay outside the State of Orissa, and on completing that course they were entitled without more to admission to a Post Graduate Medical Course in a Medical College in Orissa.
There were also students who had taken the examination for recruitment to the Resident House Staff in a Medical College in Orissa and had successfully completed that course, and they objected to the 814 requirement envisaged by the new scheme that they should appear for a separate entrance examination for admission to a Post Graduate course in the Medical Colleges of the State.
This discontent among the Medical Graduate body led to litigation in the High Court of Orissa.
Eight medical graduates, who had taken the M. B. B. section degree at a Medical College in Orissa, had completed the period of internship and thereafter had also completed a period of one year on the Resident House Staff in Medical Colleges in Orissa, filed a writ petition, Dr. Sidhartha Das & Others vs State of Orissa, challenging the validity of the requirement in the Prospectus for the year 1978 79 requiring candidates for admission to a Post Graduate course in certain subjects to appear at an entrance examination for that purpose.
On March 5, 1981, the High Court allowed the writ petition and directed the respondents to permit those petitioners to enter upon the relevant Post Graduate course without any further entrance examination.
In compliance with the judgment and order of the High Court all tho eight petitioners were admitted to the Post Graduate course desired by them.
A number of other writ petitions were filed in the High Court by medical graduates but they were opposed on the ground that those petitioners had been admitted to Resident House Staff appointments under the Prospectus for the year 1978 79 and, therefore, they were obliged to appear for the second selection examination.
It was pointed out that they formed a different class from the medical graduates who had succeeded in the earlier writ petition and were, therefore, not entitled to the benefit of the decision concluding that case.
The High Court declined to enter into the merits of the controversy because it was found that even if relief was granted there were no seats available for accommodating those petitioners.
The hearing in the present cases was marked by much learned argument on the part of counsel for the petitioners and the Additional Solicitor General of India appearing for the State of Orissa.
The respondent Universities, the Behrampur University, the Sambalpur University and the Utkal University had been served with notice but did not enter appearance.
During the hearing it became evident that a proper solution of the controversy lay not in 815 an adjudication on the merits of the points raised thereby but in formulating a scheme designed and defined by the equitable realities of the situation.
In appreciation of this perspective, learned counsel suggested several alternatives.
After carefully weighing them, we propose to dispose of the cases before us in the following terms.
The petitioners in these cases can be classified into four groups.
Groups A consists of Writ Petitions Nos 2756, 2829, 3782 and 4489 of 1981 etc.
The medical graduates in all these cases consist of petitioners who either pursuant to the relief granted by the High Court or in compliance with interim orders made by this Court were granted admission to a Post Graduate Medical course and have since completed that course, and after having appeared in the examination for the academic year 1981 82 they have been declared successful.
It is consistent with reason and justice that they should not be disturbed and should be allowed the benefit of their success at the examination.
Accordingly, we direct that while the admission of the medical graduates made in compliance with the order dated March 5, 1981 of the High Court is affirmed the interim orders made by this Court in other cases directing the provisional admission of the petitioners therein should now be translated into a final order disposing of the writ petitions and giving final legal status to their admission.
Group B consists of Writ Petitions Nos.
2692, 3863, and 7031 of 1981 and 2237 of 1982.
This group consists of medical graduates who were granted provisional admission to a Post Graduate course by the Medical Colleges in Orissa in compliance with the interim orders of this Court made on different dates.
We are informed that the petitioners have completed the Post Graduate course and in the circumstances we are not inclined to disturb their admission.
We direct that the provisional admission of those petitioners should be regarded as an admission of final validity entitling them to its consequential benefits.
Group consists of Writ Petitions Nos.
4356, 4357 58, 5013, 5014 16, 5037 38, 5039 40, 5103 04, 5109 10, 5460 64, 5457 59, 5483 84 of 1982 etc.
They are cases in which this Court directed 816 the provisional admission of the petitioners, but the petitioners could not be admitted because of the non availability of seats.
Indeed, an application has been filed by the respondents for recalling the order directing provisional admission.
Group consist of Writ Petitions Nos.
5505, 5629, 5630 34 5635 36, 5692 93, 6492, 6803, 8029, 9348, 9349, and Transfer Petition No. 195 of 1982 etc.
They are cases where no order for provisional admission of the petitioners has been made by this Court.
In regard to groups and there was considerable debate between learned counsel for the parties on whether any relief was admissible in favour of the petitioners comprising these two groups and, if at all, what should be the nature and content of such relief.
It is admitted, however, by the learned Additional Solicitor General that the scheme respecting admission to the Post Graduate Medical courses has been modified again and the present position, enunciated in the Prospectus for the year 1982 83, is that medical graduates who have appeared and been selected at the examination for recruitment to the Resident House Staff are entitled automatically, on successfully completing that term of appointment, to admission to a Post Graduate courses and no entrance examination specifically for such admission is now contemplated.
We direct, in the circumstances that those petitioners who have successfully completed the term of one year as Resident House Staff in the Medical Colleges of Orissa will be entitled, without having to appear at any further entrance examination, to admission to the relevant Post Graduate course.
There are other petitioners in these groups who have completed the term as Resident House Staff but have done so in approved medical institutions in India other than the Medical Colleges in Orissa, and some may have done so after successfully appearing at an entrance test prescribed for admitting them to those appointments.
It is contended that they are not entitled to join a Post Graduate course in the Medical Colleges of Orissa without first appearing successfully at the entrance test prescribed for appointment to the Resident House Staff in those Medical Colleges.
We have considered the several alternatives placed before us by the parties, and it seems that having regard to the considerable constraints imposed by the guidelines framed by the Indian Medical Council, to which our attention has been drawn, and the limited number of seats permitted accordingly, the only feasible solution must be that which we formulate now.
We direct that the petitioners falling in Group C 817 and Group should be permitted to appear at the entrance examination prescribed for appointment to the Resident House Staff, and that if they are successful in the said entrance examination they will be entitled to admission to the relevant Post Graduate course for the next following session without being obliged to work on the Resident House Staff in the Medical Colleges in Orissa.
They may, of course, offer themselves, without being obliged to do so, for Resident House Staff appointment before admission to the Post Graduate course, if there are vacancies occasioned by the exigencies of medical administration.
At the same time, we make it clear that the arrangement entitling these petitioners to admission to a Post Graduate course without having to fill a Resident House Staff appointment will obtain only if they appear for the entrance examination for appointment as Resident House Staff in the same subject in which they claim to have already served as Resident House Staff earlier.
If, however and it will be open to them to do so they appear at the entrance examination in a different subject, and are successful therein, they shall be obliged to serve for the stipulated term in a Resident House Staff appointment in relation to that subject before being entitled, on the completion of that term, to admission in the corresponding Post Graduate course.
The writ petitions are disposed of accordingly.
There is no order as to costs.

dataset_name: IN-Abs

summary:
Until the academic session 1978 79, the Post Graduate Medical course in the State of Orissa was envisaged as a course of three years duration which period included an appointment for one year on the Resident House Staff.
Admission to the three year course was made through an Entrance Examination, and after completing the Resident House Staff appointment, there was no further examination for admission to the Post Graduate course.
The scheme was changed with effect from the session 1978 79 and the Resident House Staff course was delinked from the Post Graduate course.
Accordingly, separate competitive examinations were prescribed for recruitment to the Resident House Staff and the Post Graduate course.
A candidate appearing in the entrance examination for Post Graduate course should have passed the final M.B.B.S. examination, satisfactorily completed the internship, acquired full registration and in addition should have completed the Resident House Staff term in a subject during one year.
The petitioner/medical graduates from the State of Orissa filed writ petitions in Supreme Court challenging the new scheme, under which it became necessary for the candidates seeking provisional admission to a Post Graduate course to appear again at an examination for such admission after completing the Resident House Staff appointment.
They contended that under the original scheme they were entitled to take the Entrance Examination for recruitment to the Resident House Staff at any recognised institution in the country, even though it lay outside the State of Orissa and on completing that course they were entitled without more to admission to a Post Graduate Medical course in a Medical College in Orissa.
Some of the petitioners had already taken the examination for recruitment to the Resident House Staff in a Medical College in Orissa and successfully completed that course and they also objected to the requirement envisaged by the new scheme.
Disposing of the Writ Petitions, the Court, 811 ^ HELD: 1.
It is consistent with reason and justice that those petitioners before the Supreme Court who were either pursuant to the relief granted by the A High Court or in compliance with interim order made by the Supreme Court, granted admission to a Post Graduate Medical course and have since completed that course and after having appeared in the examination for the academic year 1981 82 been declared successful, should not be disturbed and should be allowed the benefit of the success at the examination.
Therefore, these admissions are affirmed.
[815 D E] 2.
The provisional admission of some of the petitioners to a Post Graduate course by tho Medical Colleges in Orissa in compliance with the interim orders of this Court made on different dates, should be regarded as an admission of final validity entitling them to its consequential benefits, since they have completed the Post Graduate Course.
[815 F G] 3.
There are writ petitions in which this Court directed the provisional admission of the petitioners but they could not be admitted because of the non availablity of seats and in some of the writ petitions no order for provisional admission of the petitioners has been made by the Supreme Court.
They are disposed of as follows: Since the scheme respecting admission to the Post Graduate Medical course has been modified again and the present position, enunciated in the prospectus for the year 1982 83 is that medical graduates who have appeared and been selected at the examination for recruitment to the Resident House Staff are entitled automatically, on successfully completing that term of appointment, to admission to the Post Graduate course, and no Entrance Examination specifically for such examination is now contemplated, this Court directs that those petitioners who have successfully completed the term of one year as Resident House Staff in the medical Colleges of Orissa will be entitled without having to appear at any further Entrance Examination to admission to the relevant Post Graduate course.
However, those petitioners who have completed the term as Resident House Staff in approved Medical institutions in India other than the Medical Colleges in Orissa should be permitted to appear at the Entrance Examination prescribed for appointment to the Resident House Staff, and that if they are successful in the said Entrance Examination, they will be entitled to admission to the relevant Post Graduate course for the next following session without being obliged to work on the Resident House Staff in the Medical Colleges in Orissa.
This arrangement entitling these petitioners to admission to a Post Graduate course without having to fill a Resident House Staff appointment will obtain only if they appear for the entrance examination for appointment as Resident House Staff in the same subject in which they claim to have already served as Resident House Staff earlier.
If, however and it will be open to them to do so they appear at the entrance examination in a different subject, and are successful therein they shall be obliged to serve for the stipulated term in a Resident House Staff appointment in relation to that subject before being entitled, of the completion of that term, to admission in the corresponding Post Graduate course.
[816A; 819 C E; 817 A D] 812


judgement:
Appeal No. 850 of 1974.
From the Judgment and Order dated 24.9.1973 of the Punjab and Haryana High Court in Income Tax Reference No. 21 of 1972.
S.T. Desai, M/s. J.B. Dadachanji, Harish Salve, P.K. Ram and Mrs. A.K. Verma for the appellant.
V.S. Desai, Gauri Shankar and Miss A. Subhashini for the respondent.
The Judgment of the Court was delivered by TULZAPUKAR, J.
This appeal raises the question of granting registration to the appellant firm (the assessee) under section 26 A of the Income Tax Act, 1922 for the Assessment Year 1961 62.
The taxing authorities, the Tribunal and the High Court have refused registration sought by the appellant firm and hence this appeal.
Prior to the Assessment Year 1961 62 the appellant firm was a partnership concern consisting of two partners, Shri Pal Singh and Shri Sadhu Singh, each having 50% share in the profits and losses of the firm and it was being granted registration.
It appears that the two partners met with an accident on 19.10.1958 in which Shri Pal Singh suffered a serious head injury and lost his memory for quite some time while Shri Sadhu Singh suffered an injury to the spinal cord which rendered him invalid for quite a long time and the case put forward was that as the business was on extensive scale and the two partners were physically handicapped (they recovered during the meantime) they entered into a fresh Deed of Partnership on 1.4.1960 by virtue of which Pal Singh and Sadhu 168 Singh of the one part and Sarvashri Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh of the second part became partners with the following share ratio in the profits and losses, namely, Pal Singh and Sadhu Singh the original two partners retained 25% share each while Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh were given 12 1/2% share each.
Admittedly two of the new incoming partners, namely Surjit Singh and Gulzar Singh were relate to Pal Singh being his son and brother respectively who were obviously accommodated within the 50% share originally owned by Shri Pal Singh while the other two incoming partners Hari Singh and Harbans Singh were related to Shri Sadhu Singh both being his brothers who were accommodated within the 50% share originally owned by Sadhu Singh.
Moreover, prior to April 1, 1960 Hari Singh and Harbans Singh were already working as employees in the original firm.
At this stage it will be convenient to indicate some of the salient clauses of the Partnership Deed entered into between the parties on 1.4.1960.
Under cl. 1 the partnership was declared to be one at will determinable by one month 's notice in writing and under cl. 3 the parties of the second part (i.e. the four new incoming partners) were not required to contribute any capital but the original two partners were to do so in equal shares.
Clause 4 provided that Shri Hari Singh and Shri Harbans Singh shall continue to draw their salaries or other remuneration from the firm as was being drawn by them along with any increment as agreed to by the parties of the first part (the original two partners) from time to time.
Clause 5 was significant as it provided that the four new incoming partners "shall not interfere in the management or the affairs or the accounts of the partnership business." Under clause 7 it was provided that none of the four new incoming partners shall sell, mortgage, hypothecate, gift or will away or alienate in any way whatsoever his share to any third person and that in case of need they shall alienate their shares in favour of the parties of the first part (the two original partners) only and not even to any one amongst them.
It was further provided that in case of a dispute among the partners regarding any of the clauses of the deed the decision of the partners of the first part (two original partners) shall be final and conclusive and binding and shall not be called into question in any court of law.
169 For the Assessment Year 1961 62 (the relevant accounting year in respect whereof ended on March 31, 1961) an application duly signed by all the partners seeking registration of the firm under sec.
26 A on the strength of the aforesaid Deed of Partnership was made on 15th September, 1960 and the original Partnership Deed was annexed thereto.
The four new incoming partners were examined by the I.T.O. and their statements were recorded which, the I.T.O. felt, clearly suggested that they were not real partners but dummies brought in to avoid the higher tax incidence.
After considering the several clauses contained in the partnership deed, the statement of the four new incoming partners and the surrounding circumstances including the fact that profits had not been shown to have been distributed in the books and no entries made in the year of account, the I.T.O. rejected the application principally on two grounds: (a) that in law no valid partnership had been created inasmuch as the element of mutual agency was lacking and (b) factually no genuine firm has come into existence inasmuch as the four new incoming partners were y dummies.
Registration was also refused on two other grounds, namely, there was a breach of the terms of the Partnership Deed in that, even in the absence of a provision in that ; behalf, salary and remuneration were credited in the personal r accounts of the two original partners Pal Singh and Sadhu Singh and there was non compliance of income tax rules.
In appeal preferred by the assessee the Appellate Assistant Commissioner after discussing the several issues at great length confirmed the I.T.O. 's order refusing registration.
In the further appeal preferred by the assessee to the Tribunal the view of the A.A.C. was confirmed by the Tribunal but in doing so the Tribunal expressed the view that four new incoming partners were benamidars of Shri Pal Singh and Shri Sadhu Singh.
At the instance of the assessee the following three questions were referred to the High Court for its opinion.
(1) Whether on the facts and in the circumstances of the case and on a true construction of the instrument of partnership dated 1st April 1960 a valid partnership came into existance? (2) Whether on the facts and in the circumstances of the case the assessee is entitled to registration under section 26 A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922? and 170 (3) Whether on the facts and in the circumstances of the case and in view of the fact that the parties of the second part have been found to be benamidars of the parties of the first part the assessee firm is entitled to the grant of regis tration? The High Court felt that the first question referred to it by the Tribunal did not bring into focus the real issue that arose between the parties and therefore the same was required to be recast or reframed and it reframed the question thus: Whether on the facts and in the circumstances of the case, and on true construction of the instrument of partnership dated 1st April, 1960 there is a genuine partnership, and whether the finding that there is no genuine partnership is based on evidence?" After considering the entire material on the record as also the rival contentions urged before it by counsel on the either side the High Court answered the first question in favour of the department and against the assessee, that is to say, it held that no genuine partnership had come into existence and that the finding of the lower authorities in that behalf was based on ample material on record.
The second question was also answered in the negative in favour of the department and against the assessee.
As regards the third question it was answered in favour of the assessee and it was held that the mere fact that the four new incoming partners were found to be benamidars of the two original partners could not be a proper ground for refusing registration.
However, in view of its answers to the first two questions particularly the first question as reframed refusal of registration was upheld by the High Court.
This refusal to grant registration for the assessment year 1961 62 has been challenged by the appellant firm (assessee) in this appeal and counsel for the assessee raised three or four contentions in that behalf.
On the aspect of the firm 's validity in law counsel contended that the view taken by the taxing authorities as well as the Tribunal that no valid partnership in law had come into existence for lack of mutual agency has proceeded on a misconstruction of section 4 of the Partnership Act as also clause 5 of the Partnership Deed in question; according to him so far as the element of mutual agency is concerned all that is required to constitute a valid firm under section 4 is that the business must be carried on by all 171 or any of them acting for all and therefore, if the control and management of the business of the firm was left by agreement between the parties in the hands of even one partner to be exercised by him on behalf of the others the legal requirement could be said to have been satisfied and clause 5 of the Partnership Deed in question vests such control and management with two partners (the two original partners) who would be acting on behalf of all and the mere exclusion of the four new incoming partners from such control and management cannot affect the validity of the firm and in this behalf counsel relied on a decision of this Court in K.D. Kamath and Co. vs C.I.T. Mysore, 82 I.T.R. 680.
In other words counsel urged that if clause 5 of the Deed is properly read it could not be said that there was any lack of the element of mutual agency.
On the aspect whether a genuine firm had come into existence or not counsel urged that the Tribunal had not recorded any clear finding but had merely proceeded on the basis that no valid firm in law had come into existence but the High Court went out of its way to deal with the question of genuineness of the appellant firm by recasting or reframing the first question referred to it, and recorded an adverse finding thereon which should not have been done by the High Court.
Counsel further pointed out that the Tribunal had erroneously taken the view that because four new incoming partners were benamidars registration could not be granted and he urged that the High Court, having reversed that view, ought to have held that the assessee was entitled to registration under section 26 A of the 1922 Act; and in this regard counsel pointed out that the position under the 1961 Act is different in view of the Explanation that has been inserted in section 185 of that Act but in the absence of any similar provision in the 1922 Act the position was well settled that a firm could not be denied registration merely because some of its partners were benamidars of others and in that behalf reliance was placed on a decision of this Court in C.I.T. Gujarat vs A.Abdual Rahir and Co. 55 I.T.R. 651.
Counsel further urged that undue emphasis was laid on the fact that profits of the previous year ending March 31, 1961 had not been divided or distributed among all the partners by making requisite entries in the books in the year of account and registration was wrongly refused on this basis, though profit and loss account and balance sheet worked out on loose sheets of papers (which were unsigned) had been submitted before the authorities; according to counsel it is not necessary that the requisite entries pertaining to such division or distribution of profits 172 (or losses, if any) should be made in the books in the selfsame year of account and statement prepared by way of profit and loss account and balance sheet for working out such distribution among the partners should have been regarded as sufficient evidence of actual division of profits and in this behalf counsel relied upon a decision of the Orissa High Court in Rao & Sons vs C.I.T. Bihar and Orissa, Further counsel pointed out that such division or distribution had been by making the relevant entries in the assessee 's books on the first day of the following year and books pertaining to the following year containing such entries were produced before us at the hearing.
In substance counsel 's contentions were that the refusal to grant registration to the extent that it was based on the ground that no valid partnership in law had come into existence was clearly unsustainable, that there was no evidence to justify the finding on the genuineness of the appellant firm and that the High Court having held that registration could not be refused merely on the ground that some of the partners were benamidars registration ought to have been granted to the assessee.
On the other hand counsel for the revenue supported the refusal of registration by contneding that even if a valid partnership in law could be said to have been brought into existence by executing the Deed in question it was open to the taxing authority to refuse registration on the ground that factually no genuine firm had come into existence inasmuch as the two grounds were quite distinct from each other and therefore assuming that some fault could be found with the finding of the lower authorities on the question of validity of the appellant firm in law the refusal to grant registration should not be interfered with as the adverse finding on the genuineness of the appellant firm, for which there was ample evidence on record, was sufficient to justify the order.
As regards the reframing of the first question counsel urged that it is well settled that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to being out the real issue between the parties and since in this case the question No. 1 as formulated by the Tribunal presumed or assumed the factual existence of the appellant firm (which were very much disputed before the taxing authorities) the High Court reframed it so as to bring into focus the real issue between the parties namely, whether a genuine firm had been constituted or not.
Further counsel for the revenue pointed out that the High Court had rightly observed that the Tribunal had, though in a circuitous 173 manner, taken the view that the appellant firm had not genuinely come into existence.
Counsel agreed that under the 1922 Act no provision similar to the Explanation to sec.
185 of the 1961 Act obtained and further fairly conceded that the fact that some members were benamidars of others in a firm could be no bar to the grant of registration as held in Abdul Rahim & Co. case (supra) but contended that the said aspect was not decisive of the matter and pointed out, as held that very decision, that notwithstanding the said fact the firm must be found to be otherwise genuine and therefore if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration could be refused.
On the point of actual division or distribution of profits counsel urged that the lower authorities were justified in not relying on loose sheets indicating the working of such distribution especially when the sheets were unsigned and hence unauthentic and the assessee cannot be allowed to fill the lacuna by producing books for the following year in the fifth Court.
On the aspect of the genuineness of the firm requisite for the grant of registration counsel relied upon two old decisions in Haji Ghulam Rasul Khuda Baksh vs C.I.T. Punjab, and Bafi Zabdul Gafoor and others vs C.I.T.C.P. & U.P., 7 I.T.R. 625 which have been subsequently followed in P.A. Raju Chettiar and Brothers vs C.I.T. Madras, and Hiranand Ramsukh vs C.I.T. Hyderabad, Counsel for the revenue therefore, pressed for the dismissal of the appeal.
On a consideration of the entire material on record and on giving our anxious thought to the rival submissions made by counsel on either side we are of the opinion that in the ultimate analysis the real controversy in the appeal centres round the question whether or not factually a genuine firm had come into existence for the Assessment Year 1961 62 as a result of the execution of the instrument of partnership on April 1, 1960 and whether for recording a negative finding thereon against the assessee as done by the lower authorities there was evidence on the record? This being the real issue which was not reflected in the first question formulated by the Tribunal the High Court in our view was justified in reframing that question.
It is true that the taxing authorities and the Tribunal did go into the question of the appellant firm 's validity in law but it cannot be disputed that the concept of a firm being valid in law is distinct from its factual genuineness and for the purpose of granting registration both the aspects are relevant and must be present and one without 174 the other will be insufficient.
In other words, even if a firm brought into existence by executing an instrument of partnership deed is shown to possess ail the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that no genuine firm has been constituted.
Moreover, some of the provisions contained in such instrument may not militate against the firm 's validity in law but these can be a pointer against its factual genuineness.
The instant case is clearly a case of that type.
For instance, Clause 5 of the Partnership Deed in question which vests the control and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management or the affairs of the accounts of the partnership business may not show lack of the element of mutual agency but surely has a vital bearing on the factual genuineness of the firm and read along with other provisions like Clauses 3, 6, 7 and 8 would go a long way to show that the four new incoming partners were not real partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose services as such were continued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of.
In addition to these aspects the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof as we shall indicate presently.
For instance, Hari Singh in his statement has stated that he was not aware of the profits of the firm in any of the three accounting years 1960 61, 1961 62 and 1962 63; he asserted that for the relevant year 1960 61 the profit and loss account and balance sheet were prepared in the books and he had inspected these statements which assertions are obviously false because admittedly no such profit and loss account nor balance sheet was drawn up in the books.
When asked as to whether Pal Singh and Sadhu Singh had consulted the incoming partners before the Deed was written out and executed he has emphatically given a negative answer and has added that they (original partners) called all four of them and asked them to sign the Deed which they did.
Harbans Singh 175 in his statement admitted that he used to do the work of painting but could not say how many factories the firm was running nor did he remember the factory in which he used to do his work; he further asserted that no witnesses were called when the Deed was signed which is obviously a false assertion.
Surjit Singh who passed his Intermediate Arts in September 1960, B.A. in 1963 and LL.B. in 1965 has shown utter ignorance of even the share ratio in the profit and loss of the new incoming partners; he stated that he had two annas share in the profits but no share in the losses; when questioned as to how he knew that losses were not to be shared by him he stated that when he was a student of law he was taught that losses should never be shared; he admitted that he had never read the deed which clearly shows that he mechanically signed the document without even attempting to know what he was signing; he was also ignorant of the fact whether he had withdrawn his share of profit in the first year of the partnership, i.e. 1960 61.
Gulzar Singh stated that he was called from the village and was asked to sign the document which he did without bothering to know its contents; in fact he admitted that he knew nothing about the matter.
These answers given by the four new incoming partners clearly go to show that they were not real partners but mere dummies and the Deed appears to have been executed merely as a cloak to secure registration and thereby reduce the tax incidence.
Counsel for the assesee made much of the fact that profit and loss account and balance sheet prepared on loose sheets of paper had been submitted before the ITO and according to him these were wrongly rejected on the ground that requisite entries in regard to division or distribution of profits had not been made in the books in the self same year of account, which counsel urged, was not necessary.
It must, however, be mentioned that the profit and loss account statement so prepared on a loose sheet did not contain any distribution of profits and or allocation thereof to each one of the new partners but such distribution or allocation was indicated on a loose paper on which the balance sheet was prepared but even that loose sheet was an unsigned piece of paper and therefore, being unauthentic was rightly rejected by the taxing authority.
An attempt was made by counsel during the hearing of the appeal to produce before us the books of account pertaining to the following year in which on the opening day entries showing distribution of the earlier years 's profit had been made.
But the late production of such books has deprived 176 the taxing authorities an opportunity to make their comments thereon.
Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts.
In this context it will not be out of place to mention that from their statements it appears clear that none has made any withdrawal towards his share of profit in any of the three years, 1960 61, 1961 62, 1962 63 and even after the partnership had alleged to have been dissolved after 31.3.1963 and at least one of them Hari Singh stated that a sum of Rs.73,600 became due to him as his share of profits till dissolution and in spite of demand nothing had been paid to him till his statement was recorded in November 1965.
Only two of them drew their remuneration as the employees.
Considering their economic position it is difficult to appreciate that they would have needed no withdrawal from their share of profits in any year till the alleged dissolution.
This aspect throws considerable doubt on the point whether or not entries were intended to be acted upon.
Having regard to the aforesaid discussion it is clear that there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal could record an adverse finding on the genuineness of the firm against the assessee and registration in our view was rightly refused.
We might observe that there was nothing wrong on the part of the High Court to have confirmed the refusal of registration to the appellant firm even after holding that the fact that some members were benamidars of others was no bar to the grant of registration.
In A. Abdul Rahim and Co. 's case (supra) on which counsel for the assessee relied, the Tribunal had held that one of the partners who had been inducted into the erstwhile partnership was a benamidar of one of the three original partners but had otherwise held that the partnership was genuine and valid and therefore, this Court took the view that the mere fact that one member was a benamidar of another as no bar to the grant of registration and directed registration but the ratio would be inapplicable to a case where the firm is otherwise held to be not a genuine one.
In the result the appeal fails and is dismissed with costs.
A.P.J. Appeal dismissed.

summary:
Prior to the Assessment Year 1961 62 the appellant f1rm was a partnership concern consisting of two partners, each having 50% share in the profits and losses of the firm and it was granted registration.
Both the partners met with an accident on 19.10.1958 in which they suffered serious injuries and became invalid.
On 1.4.1960 a fresh Deed of Partnership was executed by virtue of which the two original partners retained 25% share each while the four new incoming partners were given 12.1/2% share each.
Prior to April 1,1960 two of the new incoming partners were already working as employees in the original firm.
The fresh Partnership Deed, inter alia, provided that the partnership was at will determinable by one month 's notice in writing.
For the Assessment Year 1961 62 an application duly signed by all the partners seeking registration of the firm under section 26A of the Income Tax Act 1922 on the strength of the fresh Partnership Deed was made on 15th September 1960 annexing therewith the original Partnership Deed.
The four new incoming partners were examined by the Income Tax Officer and their statements were recorded, which, the ITO felt, clearly suggested that they were not real partners but dummies brought in to avoid the higher tax incidence.
After considering the Partnership Deed, the statement of the four new incoming partners and the fact that profits had not been shown to have been distributed in the books and no entries made in the year of account, the ITO rejected the application and refused registration.
The view taken by the Income Tax Officer was confirmed by the Appellate Assistant Commissioner and by the Tribunal.
165 The Tribunal, however, was of the view that four new incoming partners were benmidars of the two original partners.
On Reference made to the High Court, the High Court felt that the first question referred to it did not bring into focus the real issue and, therefore, recast the same.
The High Court upholding the refusal of registration held: (1) that no genuine partnership had come into existence and that the finding of the lower authorities in that behalf was based on ample material on record; (2) that the assessee is not entitled to the registration under s.26A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922; and (3) that the mere fact that the four new incoming partners were found to be benamidars of the two original partners could not be a proper ground for refusing registration.
In the appeal to this Court on behalf of the appellant it was contended: (i) that refusal to grant registration to the extent that it was based on the ground that no valid partnership in law had come into existence was unsustainable; (ii) that there was no evidence to justify the finding on the genuineness of the appellant firm, and (iii) that the High Court having held that registration could not be refused merely on the ground that some of the partners were benamidars, registration ought to have been granted.
On behalf of the Revenue it was contended: (1) that even if a valid partnership in law came into existence by executing the Deed registration could be refused on the ground that factually no genuine firm had come into existence; (2) that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to bring out a real issue between the parties; (3) that the High Court had rightly affirmed the view of the Tribunal that the appellant firm had not genuinely come into existence; (4) that though under the 1922 Act no provision similar to the Explanation to Sec.185 of 1961 Act obtained and the fact that some members were benamidars of others in a firm could be no bar to the grant of registration, if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration could be refused; and (5) that so far as the actual division or distribution of profits, the lower authorities were justified in not relying on loose sheets indicating the working of the firm and the assessee cannot be allowed to fill the lacuna by producing books for the following year.
Dismissing the Appeal, 166 ^ HELD: 1.The concept of a firm being valid in law is distinct from the factual genuineness and for the purpose of granting registration both aspects are relevant and must be present and one without the other will be insufficient.
[l73 G] 2.
Even if a firm brought into existence by executing an instrument of partnership deed is shown to possess all the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that no genuine firm has been constituted.
Moreover, some of the provisions contained in such instrument may not militate against the firm 's validity in law but these can be a pointer against its factual genuineness.
[173 G H; 174 A] 3.
Clause 5 of the Partnership Deed in the instant case, vests the control and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management of the affairs or the accounts of the partnership business, may not show lack of the element of mutual agency but has a vital bearing on the factual genuineness of the firm and read along with Clauses 3,6,7 and 8 would go to show that the four new incoming partners were no real partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose service as such were continued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of.
In addition, the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof.
[174 A D] 4.
In the instant case, the profit and loss account statement prepared on loose sheet did not contain any distribution of profits and or allocation thereof to each one of the new partners.
[175 E] 5.
Production of account books in this Court has deprived the taxing authorities an opportunity to make their comments thereon.
Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation 167 of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts.
This aspect throws considerable doubt on the point whether or not entries were intended to be acted upon.
[175 G H; 176 B] 6.
In the instant case, there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal could record an adverse finding on the genuineness of the firm against the assessee and registration was rightly refused.
[176 C]


judgement:
N: Criminal Appeal No. 234 of 1973.
From the Judgment and Order dated 4.8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971.
R.K. Garg, Gopal Singh and L.R. Singh for the Appellants.
K.G. Bhagat, A.V. Rangam, Umanath Singh, V.C. Nagaraj and R.B. Misra for the Respondent.
The Judgment of the Court was delivered by B.C. RAY, J.
This appeal on special leave is directed against the Judgment and Order of the High Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No. 23 of 1971 whereby the appeal was dismissed and the conviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused nos.
1, 2, 12, 13, 17, 18, 19 and 20 were confirmed.
The prosecution case is as follows: All the accused appellants are residents of various villages within Keevalur Police Station.
The first accused is the leader of the Left Communist Party are also of the Harijan Kisans of five neighbouring villages.
Accused nos.
17 and 18 are the leaders of the Left Communist Party at Keezha Venmani village.
There were serious differences between the Mirasdars and the Harijan labourers regarding the fixation of wages for harvest.
These troubles started in 1967 and the Kisans have been agitating for higher wages by taking processions and convening meetings.
There was a settlement in 1967 whereby the Mannargudi agreement was made between the parties providing for additional half measure of paddy to the Harijan labourers.
This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uniform wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was not paid, the labourers trespassed into the lands and illegally harvested paddy crops.
This created the trouble as the local Harijan labourers refused to work at a low wage and demanded higher wages.
There was the Paddy Producers Association having its offices in several villages.
P.W. 1 Gopal Krishna Naidu was the President of 204 Paddy Producers Association of Nagai Taluk and P.W. 19 Ramu Plllai was the President of the Association at Irukkai and he deceased Packiriswami Pillai was a member of the Association.
The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of paddy.
The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy.
On 25th December, 1968 Packiriswami Pillai, since deceased, alongwith other labourers of Irakkai came to harvest the paddy crops from the fields of the Mirasidar P.W. 15 at about 9 a.m.
It appears that on apprehending trouble P.W. 15 sent Exhibit P. 9 to the Inspector at Keevalur Police Station and Exhibit P. 8 to the Vallvalam Police Station requesting for sending some police men so that harvesting of crops might be done peacefully.
The harvesting of crops was over by 5.30 p.m. and each of the labourers were fed with Sambar Satham.
Each of them were paid 4 1/2 measures of paddy per kalam.
P.Ws. 25, 26 and one Rangayyan left immediately as they wanted to go to Thevur for seeing a picture.
The seventeen Irukkai people started for home sometime thereafter.
The Irukkai labourers reached the east west Harijan Street at about 7.30 p.m. P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramaniam, of the main road.
There was moon light and electric light.
There were bamboo clusters in the form of a hood on either side of the east west Harijan Street near the second electric lamp post from the west.
At the east west Harijan Street, P.Ws. 31, 32, 34 to 44 saw a crowd of 10 to 15 persons standing.
In that crowd PWs.
31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals.
Tile crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irukkai.
Immediately, A l Gopal cried out, "Do not leave Irukkai people, cut them, beat them." A crowd of about 50 persons being armed with aruvals, sticks etc.
came running towards the Irukkai people.
P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street.
Accused Nos. 1 and 2 and some others in the crowd also lifted him by hands, legs and clothes.
Then he was carried to some distance towards the east.
At that time Packiriswami Pillai cried out that he was being cut by Gopal (A 1) and they were leaving him behind and running.
P.Ws. 31, 32 and 34 to 37 saw the first accused cutting Packiriswamy Pillai with aruval on his neck and on his head.
P.Ws. 31, 32, 347 35, 36 and 37 205 ran towards the Caste Hindu Street and ultimately entered into the house of P.W. 47.
Another crowd of 50 60 persons armed with aruvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their houses.
On the same day at about 8.00 p.m. P.W. 79, Inspector of Police, Keevalur Police Station on getting information that some persons armed with lethal weapons were parading on the main road beyond Thevur and towards south, after requisitioning a vehicle (van) from Nagapattinam Police Station sent P.W. 72, the Head Constable with the van for road patrolling between Thevur and Killukudi.
P.W. 72 with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P. W. 47 as well as collecting the injured P.Ws. 54 and 55 in the van came to the Keevalur Police Station, where P.W. 79 (Inspector of Police) recorded the statement of P.W. 54 who was lying seriously injured in the van and registered the same as Crime No. 326 of 1968 of Keevalur Police Station.
He thereafter recorded the statements of P.W. 55 in the van and recorded the statements of other P.Ws.
34 to 37 in the Police Station.
Thereafter P.W. 79 at about 11.45 p.m. left for Keezha Venmani and reached at about 12.00 mid night.
He met P.W. 31 there.
P.W. 79 then went to Nadu street alongwith P.W. 31 and found the dead body of Packiriswami Pillai kept leaning against a Coconut tree with multiple injuries.
P. W. 79 recorded the statement of P. W. 31 and registered the same as Crime No. 328 of 1968.
The learned Sessions Judge after duly weighing the evidences of P.Ws.
found inter alia that there was electric light and also moon light at the time of the occurrence.
P.Ws. 31, 32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Plllai by Gopal (A l).
It was also held that the crying out by the deceased Packiriswami Pillai that Gopal (A 1) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A 1 Gopal at that moment.
Moreover, the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws.
at a close range and seeing the occurrence.
There was also overwhelming evidence as to the presence of A 1 in the crowd.
The learned Sessions Judge found accused No. 1 guilty of offence under section 302 I.P.C. and sentenced him to imprisonment for life.
He also found the accused No. 1 alongwith accused Nos. 2, 13, 17 and 18 guilty of murder under s.148 I.P.C. and sentenced each of them to undergo rigorous 206 imprisonment for two years.
Accused Nos. 1 and 2 were also held guilty of the offence under section 364 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years.
All these sentences will run concurrently.
Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e. accused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were convicted under various offences and they were sentenced to suffer rigorous imprisonment for various terms.
Against the aforesaid judgment and order of conviction, all the 8 accused persons failed Criminal Appeal No. 23 of 1971.
The appeal was dismissed and the conviction of all the accused appellants for various offences and sentences of imprisonment awarded against each of them were confirmed.
Mr. Garg, learned counsel, appearing only on behalf of the accused appellant No. 1 has submitted before this Court that he will argue in this appeal only on behalf of the accused appellant No. 1 Gopal and as regards accused appellant No. 2 he further submitted before us that the appellant No. 2 Ramayyan who was convicted under section 364 I. P. C. and sentenced to undergo rigorous imprisonment for five years may be granted exemption from undergoing the remaining term of the sentence.
It has been firstly contended by Mr. Garg, learned counsel, that the statement of P.W. 54 Packiriswamy Poraiyar (exhibit P 11) which was recorded by P.W. 79 and registered in Crime No. 326 of 1968 did not mention about the attack on deceased Packiriswami Pillai or any Irukkai people.
It has also been submitted that P.W. 72 (Head Constable) who collected the injured person P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur also did not tell about the attack on the deceased Packiriswami Pillai.
It has been, therefore, submitted that the statements of P.Ws.
34 to 37 were recorded not at the Police Station immediately after recording statement of P.W. 54 i.e. Exhibit P 11.
It has also been submitted that the accused Gopal (A 1) who is well known to the Mirasdars has been falsely implicated at the instance of P.W. 1, who as stated by P.W. 72 came to the place where P.W. 72 was bringing in the injured persons in the van i.e. P.Ws. 54, 55 and 34 to 37 for bring them to the Police Station.
This submission has no legs to stand upon.
It has been held by both the courts below that the evidences of P.Ws. 34 to 37 were recorded by the Inspector, Keevalur Police Station (P.W. 79) as soon as they were brought to the Police 207 Station at about 10.30 a.m.
All these witnesses have clearly stated in their depositions that they witnessed A 1 Inflict cutting injuries on the neck and head of Packiriswami Pillai after lifting him alongwith other accused and carrying him to the east of Harijan Street.
The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occured before his house and as such in Exhibit P 11 there was only the reference to the said incident.
It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him.
Moreover all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running towards the house of P.W. 47.
Therefore evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A 1 caused fatal cut injuries on the person of deceased Packiriswami Pillai.
P.W. 65 Dr. Madan Gopal, Assistant Surgeon, Government Hospital, Nagapattinam, who conducted post mortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut was sufficient in the ordinary course of nature to cause death.
The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured could have shouted out.
There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated.
Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injureis caused by A 1 on deceased Packiriswami Pillai.
He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami.
It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him.
The non mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws.
34 to 37 were recorded after recording of the statement of P.W. 31.
It has been tried to be submitted in this connection that the statements of these P.Ws. were recorded in plain sheet of paper instead of recording in diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were not recorded immediately after the recording of the statement of P.W. 54.
This submission was also set at naught by the courts below by holding that P.W. 79 recorded the statements of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55.
The mere recording of 208 statements in plain sheet instead of in diary form in these A circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws.
were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P 11).
It was submitted that had P.Ws. 31, 32 and 34 to 37 known about the attack on deceased Packiriswami Pillai and his being carried away, it was unlikely that they would not have informed P.W. 1, who came there as stated by P.W. 72 and P.W. 1 in that case would have taken further action in the matter with the help of P.W. 72.
This submission has also no merit.
It has been held by the court of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all.
The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that time.
In view of these evidences, the court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted.
it was also pointed out by the court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at that time either in Crime No. 326 or in Crime No. 328 of 1968.
It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case P.W. 72 made the above statement.
Therefore, this submission is not sustainable.
It was submitted by Mr. Garg that had P.Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur Police Station about the attack on Packiriswami Pillai, then that statement would have been recorded separately and a separate crime number would have been given to it as was done in recording statement of P.W. 31 and registering it in Crime No. 32 of 1968.
It was, therefore, suggested that P.Ws. 34 to 37 were examined by P.W. 79 only after recording statement of P.W. 31.
This submission was also urged before the Court of appeal below and it was held that it was not improbable that because at the time of the recording of statement of P.Ws.
34 to 37, P. W. 79 was not aware of the death of Packiriswamy Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him.
P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same transaction.
P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31.
It was 209 rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31.
It was rightly held by the Court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws.
34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case.
No motive has been suggested against P.W. 79.
It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A l and A 2 this Court should remit the remaining period of their sentence.
We are unable to accept this submission advanced by Mr. Garg.
Mention may be made in this connection to the observations of this Court in State of Maharastra vs Mayer Hans George, A.I.R. , which are as follows: "It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle.
" As we have already stated herein before that the accused 1 and 2 have been convicted by the courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt.
There was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in sections 302 and 364 of the Indian Penal Code.
Therefore, we are not inclined to interfere with the sentences passed by the Courts below.
It is pertinent to mention here the observations made by this Court in Pritam Singh vs The State, A.I.R. [1950] S.C. 169, which are as follows: "It will not grant special leave to appeal under Article 136 (1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only 210 those points can be urged at the final hearing of A the appeal which are fit to be urged at the preliminary stage when leave is asked for.
It is well established that this court does not by special leave convert itself into a court to review evidence of a third time.
Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice." This decision has been relied upon and followed in a subsequent decision of this Court in Sadhu Singh Harnan Singh vs State of Pepsu, A.I.R.
In the premise aforesaid, we do not find any infirmity for less any illegality or failure of justice which would impel us to interfere with the order of conviction and sentence concurrently arrived at by both the courts below.
We, therefore, dismiss the appeal and confirm the convicFPJ tion and sentences passed on accused Nos.
A l and A 2 as well as on other appellants.
M.L.A. Appeal dismissed.

summary:
The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of paddy.
The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy.
On 25th December, 1968 one Packiriswami Pillai, since deceased, alongwith 17 other labourers of Irakkai village was returning home at about 5.30 P.M. after harvesting of crops from the fields of P.W.15.
They reached the east west Harijan Street at about 7.30 P.M. mere was moon light and electric light.
There, P.Ws. 31,32,34 to 44 saw a crowd of 10 to 15 persons standing.
In that crowd P.Ws. 31,32,34 to 37 saw accused Nos.l and 2 armed with aruvals.
The crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irakkai.
Immediately, A l, Gopal cried out "Do not leave Irakkai people, cut them, beat them." P.Ws. 31,32,34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street.
They also saw accused Nos. 1 and 2 and some others in the crowd lifting the deceased by hands, legs and clothes.
Then he was carried to some distance towards the east.
At that time Packiriswami Pillai cried out that he was being cut by Gopal (A l) and they were leaving him behind ant running.
P.Ws. 31,32 and 34 to 37 saw the first accused cutting Packiriswami Pillai with aruval on his neck and on his head.
P.Ws. 31,32, 34,35,36 and 37 ran towards the Caste Hindu Street and ultimately entered into the house of P.W.47.
Another crowd of 50 60 persons armed with aruvals and sticks came from the 200 south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their house.
On getting information at about 8.00 P.M., P.W.72, the Head Constable, with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P.W.47 as well as collecting the injured P.W.54 and 55 in the van came to the Keevalur Police Station where P.W.79 (Inspector of Police) recorded the statement of P.W.54 and registered the same as Crime No. 326 of 1968.
He thereafter recorded the statements of P.W.55 and P.Ws.
34 to 37 in the Police Station.
At about 11.45 P.M. P.W.79 left for Keezha Vanmani and met P.W.31 there.
Then both of them went to Nadu Street and found the dead body of Packiriswami Pillai with multiple injuries.
P.W.79 recorded the statement of P.W.31 and registered the same as Crime No. 328 of 1968.
Out of 22 accused, the Sessions Judge acquitted 14 and convected 8, namely, accused Nos.1,2,12,13,17,18,19 and 20 under various offences and sentenced them to suffer rigorous imprisonment for various terms.
Te Sessions Judge found the aforesaid accused guilty of various offences on the grounds (1) that there was electric light and also moon light at the time of the occurrence and that P.Ws. 31,32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Pillai by Gopal (A l); (2) that the crying out by the deceased Packiriswami Pillai that Gopal (A l) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A l, Gopal at that moment; (3) that the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws.
at a close range and seeing the occurrence; and (4) that there was also overwhelming evidence as to the presence of A l in the crowd.
The appeal of all the 8 accused persons filed before the High Court was dismissed.
Dismissing the appeal to this Court, ^ HELD : 1.
m ere is no infirmity far less any illegality or failure of justice which would impel the Supreme Court to interfere with the order of conviction and sentence con currently arrived at by both the courts below.
[210 D] 2(i) P.Ws.
34 to 37 have clearly stated in their depositions that they witnessed A l inflict cutting injuries on the neck and heat of Packiriswami Pillai after lifting him along 201 with other accused and carrying him to the east of Harijan Street.
The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occurred before his house and, as such, in Exhibit P 11 there was only the reference to the said incident.
It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him.
Moreover, all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running forwards the house of P.W. 47.
Therefore, evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A l caused fatal cut injuries on the person of deceased Packiriswami Pillai.
[207 A C] 2(ii) P.W. 65, Assistant Surgeon, Government Hospital, who conducted postmortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut were sufficient in the ordinary course of nature to cause death.
The doctor has also stated in his evidence that after the infliction of injury No. 1 the injured could have shouted out.
There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated.
Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injuries caused by A 1 on deceased Packiriswami Pillai.
He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami.
It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him.
The non mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws.
34 to 37 were recorded after recording of the statement of P.W. 31.
[207 D F] 3(i) P.W. 79 recorded the statement of P.Ws.
34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55.
The mere recording of Statements in plain sheet instead of in diary form in these circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws.
were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P 11).
[207 H; 208 A] 3(ii) P.Ws. 31,32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all.
The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that 202 time.
In view of these evidence, the Court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted.
It was also pointed out by the Court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at about that time either in Crime No. 326 or in Crime No. 328 of 1968.
It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case, P.W. 72 made the above statement.
[208 C D] 4.
It was not improbable that because at the time of the recording of statement of P.Ws.
34 to 37, P.W. 79 was not aware of the death of Packiriswami Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him.
P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same trans action.
P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31.
It was rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate Crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31.
It was rightly held by the court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws.
34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case.
No motive has been suggested against P.W. 79.
[208 G H; 209 A B] 5.
The accused 1 and 2 have been convicted by the Courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt.
There was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in 88. 302 and 364 of the Indian Penal Code.
Therefore, the Court is not inclined to interfere with the sentences passed by the Courts below.
[209 E F] State of Maharastra vs Mayer Hans George, ; applied.
Pritam Singh vs The State, ; and Sadhu Singh Harnam Singh vs state of Pepsu) A.I.R. 1954 S.C. 271 referred to.