judgement:
l Appeal Nos.
2135 of 1966.
Appeal from the judgment and order dated January 27, 1965 of the Rajasthan High Court in D. D. Election Appeal No. 93 of 1963.
R. K. Garg, D. P. Singh and section C Agarwal, for the appellant.
B.D. Sharma and L. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal 'on a certificate granted by the Rajasthan High Court and arises in the following circumstances.
There was an election to the Rajasthan Legislative Assembly from the Beawar constituency at the general election in 1962.
A number of persons stood for election, two of whom were the appellant and the respondent.
The appellant secured the highest number of votes while the respondent came second.
The appellant was declared successful at the election and this led to an election petition by the respondent.
A number of grounds were taken in the election petition for invalidating the election of the appellant; but in the present appeal we are concerned with one ground and shall refer to that only.
That ground was that the appellant had commited a corrupt practice as defined in section 123(4) of the Representation of the People Act, No. 3 of 1951, (hereinafter referred to as the Act).
The case of the respondent was that the appellant had published a statement of fact in relation to the respondent 's personal character or conduct and that statement of fact was false, and the appellant either believed it to be false or did not believe it to be true.
The statement was reasonably calculated to prejudice the prospects of the respondent 's election.
In consequence, the respondent prayed that the election of the appellant be set aside.
It is unnecessary to refer to the reply of the appellant to the above contention, for learned counsel for the appellant does not dispute the findings of fact arrived at by the High Court.
It will therefore be enough to refer to these findings with respect to the corrupt practice alleged by the respondent.
The High Court found that the appellant was responsible for the publication of a poem entitled Mang raha hoon de bhai vote : (I am an applicant and request your vote).
This poem was composed by one Avinash Chander of Beawar.
It was not disputed before the High Court that the poem in question was aimed at the respondent and he was the target of the attack made therein.
The High Court also found that the poem in question was read at an election meeting on February 21, 1962 at which the appellant himself was presiding.
Avinash Chander had recited this poem at that meeting.
It was also found 129 that the booklet containing the poem was printed at the instance of one Chand Mohammad, who was polling and counting agent of the appellant and who had also paid the author (Avinash Chander) something for it.
The appellant had seen the booklet containing this poem sometime before the meeting of February 21, 1962 and had read it.
Further the High Court held that the booklet containing the poem was printed with the knowledge and approval of the election agent of the appellant.
Finally, the High Court held that the poem was recited at the meeting of February 21, 1962 by Avinash Chander and the appellant was presiding at that meeting and Kalyan Singh, his election agent, was also present in it, and thus there was sufficient publication within the meaning of section 123(4) of the Act, for which the appellant was responsible.
The Tribunal had held that the appellant was responsible for the publication of the booklet containing this poem and it contained statements of fact which the appellant either believed to be false or did not believe to be true.
These statements of fact were held to be in relation to the personal character or conduct of the respondent and were reasonably calculated to prejudice the prospects of the respondent 's election.
In consequence the Tribunal had held the appellant guilty of the corrupt practice within the meaning of section 123(4) and allowed the election petition.
The appellant then went in appeal to the High Court and three main points were urged on his behalf there.
In the first place, it was contended that there was no statement of fact at all in the poem in question.
Secondly, it was contended that even if there was any statement of fact in the poem it should have been proved that Avinash Chander who had recited it either believed it to be false or did not believe it to be true and that no attempt was made to prove this.
Lastly, it was contended that the onus to prove that corrupt practice had been committed lay on the respondent and that had not been discharged.
The High Court rejected all the three contentions and held that there was one statement of fact in the poem in question.
That statement was either believed to be false or was not believed to be true by the appellant.
The High Court also held that the belief of Avinash Chander was immaterial and the respondent had discharged the onus that lay on him.
In the result the appeal was dismissed.
The appellant then applied for and obtained a certificate from the High Court, and that is how the matter has come before us.
The same three points which were raised before the High Court have also been raised before us in the appeal.
The first question that we shall consider is whether there was a statement of fact at all in the poem in question.
The contention on behalf of the appellant is that there was no statement of fact with respect to the character or conduct of the respondent in the poem and that it merely expressed opinions which did not come within the ambit of section 123(4 130 Now there is no doubt that the poem was aimed at the respondent which is made clear by the second stanza which starts with the words "Pakka Pandit Sharma Hoon": (I am pucca Pandit Sharma).
It is not in dispute that the respondent was the only Sharma who contested the election.
Considering the heading of the poem to which we have already referred it is obvious that the respondent was depicted therein as requesting for votes.
In the sixth stanza, the respondent is made to say: sab choron ka sartaj: (I am the greatest of all thieves); and it is this phrase which the High Court has held to be a statement of fact.
We are of opinion that this passage states as a fact that the respondent is the greatest of all thieves, though in the poem the statement is put as if it was coming from the mouth of the respondent.
The question is whether a statement to the effect that one of the candidates standing for election is the greatest of all thieves is a statement of fact or is a mere expression of opinion about the candidate.
It is not in dispute that if it is a statement of fact it is clearly in respect of the personal character or conduct of the candidate concerned.
It seems to us that if a candidate is called the greatest 0 all thieves, the person saying so is making a statement of fact.
The statement that a person is a thief or the greatest of all thieves cannot in our view be a mere opinion, and we agree with the High Court that when the respondent was called the greatest of all thieves a statement of fact was being made as to his personal character or conduct.
It is however urged on behalf of the appellant that there are no details as to the time when the respondent committed thefts or the place where he committed them, and therefore a mere bald statement that the respondent was a thief or the greatest of all thieves could be an expression of opinion only and not a statement of fact.
We are unable to accept this.
Section 123(4) in our opinion does not require that when a statement of fact is made as to the personal character or conduct of a candidate details which one generally finds (for example) in a charge in a criminal case, must also be there and that in the absence of such details a statement to the effect that a person is (for example) a thief or murderer is a mere expression of opinion.
To say that a person is a thief or murderer is a statement of fact and the mere absence of details as to time and place would not turn a statement of fact of this nature into a mere expression of opinion.
Learned counsel for the appellant relies on a number of cases in support of his contention that such a bald statement without particulars could not be a statement of fact.
The first case to which reference may be made is Ellis vs National Union of Conservative and Constitutional Association.(1) It has not been possible for us to get the report of this case.
But in Parker 's Election Agent and 1. 109, Law Times Journal 493; & Times Newspaper, October 3rd, 1900:44 Sol.
Journ.
131 Returning Officer, 6th Edition, p. 91, it has been mentioned.
There it is stated that "a statement which imputed that the candidate was a traitor, and was one of certain persons who were in correspondence with the enemy shortly before the South African war broke out in 1899" was not held to be a statement of fact and did not come within the mischief of the relevant provision of English law relating to elections.
But in Rogers on Elections, Vol. 11, 20th Edition, p. 368, the same case is referred and the facts given there seem to be different.
It is stated there that a poster was published stating that Radical members of the House of Commons were in correspondence with the enemy, and this statement was held not to come within the ambit of the law on the ground that it did not state that the plaintiff was in correspondence with the Boers.
As the report is not available it is very difficult to judge what exactly was decided in that case.
If the facts are as given in Rogers, it seems that there was no statement of fact with respect to the candidate in that case and all that was said was that Radical members of the House of Commons were in correspondence with the Boers, and the candidate happened to be one of the Radical members.
If that is so, it was not clearly a statement of fact with respect to the candidate in particular and that case would not be of any assistance to the appellant.
The next case to which reference may be made is A. section Radha krishna Ayyar vs Emperor.(1) It was held there that for the purpose of section 171 G of the Indian Penal Code, something must be stated as a fact and not as a general imputation or as a matter of opinion.
In that case, a candidate was prosecuted under section 500 of the Indian Penal Code, and he took the plea that he should have been prosecuted under section 171 G of the Indian Penal Code and that this could not be done without the sanction of government, which was not obtained.
In that case a defamatory document was published with respect to the candidate.
That document contained only one or two statements of fact, but the bulk of it consisted of mere general expression, and it was held that a prosecution under section 500 of the Indian Penal Code was not barred.
But one of the statements which was held not to be a statement of fact was this, namely, they are misappropriating government money by committing forgeries.
Now it must be remembered that the question there was whether prosecution under section 171 G would lie and the High Court was of the view that it would not and gave its reasons thus: "When it is alleged that a man does many kinds of harm to the poor, that he misappropriates government money, that he commits forgery and so forth, how would it be possible, in the absence of particulars, to prove prima facie that the allegations are false?" Consequently, the High Court held that the offending document on the whole was one to which section 171 G could not be applied.
We (1) A.I.R. 1932 Mad.
132 are of opinion that the view taken by the High Court, at any rate, with respect to 'the allegation that the candidate in question was misappropriating government money was not a statement of fact is not correct.
The next case to which reference may be made is Narayana swamy Naichker and Others vs D. Devaraja Mudaliar & Others.(1) There also the question was whether a person should be prosecuted under section 500 and not under section 171 G of the Indian Penal Code.
This case does not seem to support the appellant, for it was held there that the statement that the candidate had committed fraud in respect of money in the fund office and was removed by the general body or by the department, was a statement of fact.
The next case to which reference may be made is Hajee Moham mad Kadir Sheriff vs Rahimatullah Sahib.(2) In that case also the question was whether the prosecution should have been under section 500 or under section 171 G of the Indian Penal Code.
The statement there was that the candidate was a leper, and the High Court held that this was not a case which fell within section 171 G but no reasons were given for the view.
It seems to us that this case does not help the appellant for the allegation that a person is a leper cannot be said to relate to personal character or conduct of the candidate; it only mentions a physical defect.
The last case to which reference may be made is V. P. Shan mugam and Another vs Thangavelu.(3) That also dealt with section 171 G of the Indian Penal Code.
In that case, a printed notice was published containing a series of rhetorical questions viz. whether it was true or not that the candidate used to receive money and withdraw from contest in elections.
The exact words used are not to be found in the report and the High Court seems to have held that as no particulars were mentioned it would not be a statement of fact.
It seems to us however that if an allegation is made that a candidate had withdrawn from context at previous elections after taking money that would be a statement of fact and the view taken by the High Court is not correct.
The question whether a particular statement with respect to a candidate at an election is a statement of fact or is a mere expression of opinion would depend on the facts of each case and will have to be judged in the circumstances in which the statement was made and in the context of the writing in which it appears, in case it is part of a writing.
But it is not in our opinion correct to say that a statement with respect to a candidate can never be a statement of fact, unless it is accompanied by particulars as to time, place and date which one finds (for example) in a charge sheet in a crimi (1) A.I.R. [1936] Madras 360.
(2) A.I.R. 1940, Madras 230.
(3) A.I.R. 1958, Madras 240. 133 nal case.
Whether in a particular setting a bald statement without particulars would be a mere expression of opinion or would amount to a statement of fact would depend upon the circumstances of each case and the court will have to consider the setting in which the statement was made and the entire writing in the context of which it appears and the nature of the statement itself before it comes to the conclusion that it is a statement of fact or an expression of opinion.
Where particulars are given it may not be difficult to come to the conclusion that the statement is a statement of fact; but even a bald statement without particulars may be a statement of fact and not a mere expression of opinion.
It seems to us that mere absence of particulars would not necessarily mean that a statement without particulars is always an expression of opinion.
Take a case where a candidate is said to be a murderer.
The mere fact that the name of the victim or the date when the murder took place or the place where it happened is not mentioned, would not detract from the statement being a statement of fact.
At the same time a similar bald statement that a candidate is a murderer in the context in which it appears if it is in writing may not be a statement of fact and may be a mere matter of opinion, as, for, example, where it is said that a candidate is a murderer of all decencies in life.
The question whether a bald statement amounts to a statement of fact or a mere expression of opinion would depend on the facts and circum stances of each case and also on the setting in which the statement appears whether it is in writing or oral.
In the present case, taking the poem as a whole there can be no doubt that when the respondent was called the greatest of all thieves there was a clear statement of fact that he was a thief or the greatest of all thieves and not a mere expression of opinion.
This is the impression that one gets from reading the poem as a whole, and we agree with the High Court that in the setting in which the statement was made in the poem and in the circumstances in which it came to be made, there is no question of the statement being a matter of opinion; it was undoubtedly a statement of fact.
We may in this connection refer to Inder Lal vs Lai singh,(1) where this Court held that an allegation to the effect that a candidate was purchaser of the opponents of the Congress by means of money, ,without any particulars as to who was purchased and when, was taken as a statement of fact relating to the personal conduct or character of the candidate.
It is true that in that case the question was whether the statement was with respect to personal conduct or character of the candidate and there was no dispute that it was a statement of fact.
Even so we are of opinion that that case shows that particulars are not necessary before a bald statement with respect to personal character or conduct of the candidate can be said (1) [1962] Supp. 3 S.C.R. 114.
134 to be a statement of fact.
As we have said already, presence of particulars will make it easier to come to the conclusion that it is a statement of fact; but the absence thereof does not necessarily mean that it is always an opinion and can never be a statement of fact.
It will all depend, as we have said already, on the facts and circumstances of each case.
Then it is said that the Madras Hi Court had already taken a certain view as to the meaning of the words "statement of fact" under the election law as it was before the Act, and as the words in section 123(4) of the Act are more or less similar to the earlier law it should be taken that the legislature had approved of the view taken by the Madras High Court which seems to suggest that particulars are necessary before a statement can be said to be a statement of fact.
Reliance in this connection is placed on the following observations of Viscount Buckmaster in Barras vs Aberdeen Steam Trawling and Fishing Co. Ltd.(1) "It has long been a well established principle, to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously, been assigned to it.
" We are of opinion that this principle does not apply in the present.
We are here concerned with the meaning of the words "statement of fact".
This is not a phrase of doubtful meaning and merely because one High Court took one view it does not follow that when the Act was passed in 1951 the legislature intended that no statement can be a statement of fact unless particulars were mentioned therein.
We therefore agree with the High Court that the statement that the respondent was the greatest of all thieves is a statement of fact in the facts and circumstances of this case and in the context in which the words appear in the poem.
This takes us to the next point, namely, that it should have been proved that Avinash Chander who recited the poem at the meeting believed the statement to be false or did not believe it to be true and that on this point Avinash Chander was not even questioned though he appeared as a witness.
The High Court has held that the belief of Avinash Chander is immaterial, and that it is the belief of the appellant that matters.
We are of opinion that this view of the High Court is correct section 123(4) runs thus (1) ; , 411.
135 "(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
The sub section requires; (i) publication of any statement of fact by a candidate, (ii) that fact is false, (iii) the candidate believes it to be false or does not believe it to be true, (iv) the statement is in, relation to the personal character or conduct of another candidate; and (v) the said statement is one being reasonably calculated to prejudice the prospects of the other candidate 's election : (see Sheopat Singh vs Ram Pratap.(1).
This case thus lays down that the person with whose belief the provision is concerned is ordinarily the candidate who, if we may say so, is responsible for the, publication.
The responsibility of the candidate for the publication arises if he publishes the thing himself.
He is equally responsible for the publication if it is published by his agent.
Thirdly he is also responsible where the thing is published by any other person but with the consent of the candidate or his election agent.
In all three cases the responsibility is of the candidate and it is ordinarily the candidate 's belief that matters for this purpose.
If the candidate either believes the statement to be false or does not believe it to be true he would be responsible under section 123(4).
In the present case the poem was not actually read by the appellant, but it was read in his presence at a meeting at which he was presiding by Avinash Chander.
In these circumstances the High Court was right in coming to the conclusion that the recitation of the poem by Avinash Chander at the meeting amounted to the publication of the false statement of fact contained in it by another person with the consent of the candidate, and in this case, even of his election agent who was also present at the meeting.
But the responsibility for such publication in the circumstances of this case is of the candidate and it is the candidate 's belief that matters and not the belief of the person who actually read it with the consent of the candidate.
What would be the position in a case where the candidate had no knowledge at all of the publication before it was made need not be considered for that is not so here.
It is not disputed in this case that the statement that the respondent was the greatest of all thieves, was false.
It is, also not seriously challenged that the appellant did not believe it to be true ' The contention that Avinash Chander 's belief should have been proved must therefore fail.
(1) ; 136 Then we come to the question of onus.
In this connection reliance is placed on Dr. Jagjit Singh vs Giani Kartar Singh(1).
In that case it was held that the onus to prove the essential ingredients prescribed by sub section
(4) of section 123 of the Act is on him who alleges publication of false statements of fact.
The election petitioner has to prove that the impugned statement has been published by the candidate or his agent, or if by any other person, with the consent of the candidate or his election agent.
He has further to show that the impugned statement of fact is false and that the candidate either believed that statement to be false or did not believe it to be true.
It has further to be proved inter alia that the statement was in relation to the personal character or conduct of the complaining candidate.
Finally, it has to be shown that the publication was reasonably calculated to prejudice the prospects of the complaining candidate 's election.
But though the onus is on the election petitioner to show all these things, the main things that the election petitioner has to prove are that such a publication was made of a statement of fact and that that statement is false and is with respect to the personal character or conduct of the election petitioner.
The burden of proving that the candidate publishing the statement believed it to be false or did not believe it to be true though on the complaining candidate is very light and would be discharged by the complaining candidate swearing to that effect.
Thereafter it would be for the candidate publishing the statement to prove otherwise.
The question whether the statement was reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made would generally be a matter of inference.
So the main onus on an election petitioner under section 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate ,or his election agent and also to show that that statement was false and related to his personal character or conduct.
Once that is proved and the complaining candidate has sworn as above indicated, the burden shifts to the candidate making the false statement of fact to show what his belief was.
The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case.
In the present case the main onus that lay on the respondent has been discharged.
He has proved that there was a publication ,of the nature envisaged under section 123(4) of the Act.
He has also proved that the statement of fact was made with respect to him.
He has further proved that that statement was false and related to his personal character or conduct.
There can be no doubt that a statement of this nature calling one candidate a thief or the greatest of all thieves is reasonably calculated to prejudice the prospects of (1) A.I.R. 1966 S.C. 773 137 this election.
He further swore that the statement was false to the knowledge of the appellant and the latter did not believe it to be true.
It was then for the appellant to show what his belief was.
The burden having thus shifted we are of opinion that it was for the appellant to show either that the statement was true or that he believed it to be true.
This the appellant has failed to do.
The High Court therefore rightly held that the respondent had discharged the burden which lay on him.
The appeal therefore fails and is hereby dismissed with costs.
G.C. Appeal dismissed.

summary:
The appellant was the winning candidate In an election to the Rajasthan Legislative Assembly.
The respondent who was one of the unsuccessful candidates filed an ' election petition and alleged therein that the appellant was guilty of corrupt practice within the meaning of a. 123(4) of the Representation of the People Act, 1951.
The corrupt practice alleged was that at a meeting presided over by the appellant a poem was read out which represented the respondent to be the greatest of all thieves '.
The Election Tribunal as well as the High Court gave their findings against the 'appellant who came to this Court with certificate.
It was contended on behalf of the appellant that : (i) the statement in question was not a statement of fact but only of opinion, (ii) No attempt had been made to prove that the person who recited the poem containing the statement believed it to be false or did not believe that it was true, (iii) the onus to prove that corrupt practice had been committed lay on the respondent and that had not been discharged.
HELD (i) The mere absence of details as to time and place would not turn a statement of fact into a mere expression of opinion.
[130 F G] In the present case taking the poem as a whole there could be no doubt that when the respondent was called the greatest of all thieves there was a clear statement of fact about his personal character and conduct.
[133 E F] (ii) The appellant presided and his election agent was present at the meeting at which the poem in question was read.
The responsibility for the publication in the circumstances of the case was that of the appellant and it was the appellant 's belief that mattered and not the belief of the person who read it with the consent of the appellant.
[135 E G] (iii) The onus on an election petitioner under section 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct.
This onus is very light and can be discharged by the complaining candidate swearing to that effect.
Once that is done the burden shifts to the candidate, making the false statement of fact to show what his belief was.
[136E F] It was for the appellant to show either that the statement was true or that he believed it to be true.
The appellant had failed to do so.
The High Court therefore rightly held that the respondent had discharged the burden which lay on him.
[137 A B] Case law considered.


judgement:
iminal Appeal No. 67 of 1951.
Appeal by special leave from the Judgment and Order, dated 26th June, 1950, of the High Court of Judicature at Bombay (Dixit and Chainani JJ.) in Criminal Appeal No. 784 of 1949.
N. C. Chatterjee (H. J. Umrigar and section P. Varma, with him) for the appellant.
M. C. Setalvad, Attorney General for India (Porus A. Mehta, with him) for the respondent.
March 11.
The Judgment of the Court was delivered by GULAM HASAN J.
This appeal is brought by special leave from the judgment and order of the High Court of Judicature at Bombay (Dixit and Chainani JJ.), dated June 26, 1950, whereby the High Court allowed the appeal of the State of Bombay, setting aside the order of acquittal of the appellant passed by the Sessions Judge of Kaira, dated May 7, 1949, and restoring the order of conviction and sentence of the appellant passed by the Sub Divisional Magistrate, Nadiad Prant, dated December 31, 1948.
The appellant, Suleman Issa, who is an inhabitant of Natal in South Africa left Durban in August, 1947, by car for India to pay a visit to his native place Sarsa in District Kaira where his sister was living with her husband Alimahmad Issak.
He was accompanied by, 978 Daud Hassam another brother in law and both travelled to Mombasa by car.
From Mombasa they took a boat on August 30, and reached Colombo on September 1 1.
They flew from Colombo to Madras on September 14, but shipped the car by a steamer.
They stayed in Madras until the steamer arrived on September 20.
The car was delivered to the appellant on October 1, after he had paid Rs. 2,700 as custom duty and a cash deposit of Rs. 10,000 by way of security as the appellant intended to take the car back to Durban on his return.
The party motored to Nardana on October 7, passing through Bangalore, Poona, Nasik and Dhulia.
From there they travelled by train and reached Sarsa on October 8.
The car was booked in an open truck from Nardana to Anand where it was taken delivery of and then driven to Sarsa.
One Ratansing Kalusing Raol, Senior Police Inspector of Nadiad town, having noticed the car bearing no Indian number passing in the town instructed policemen to keep a watch.
The appellants ordered to appear before the Sub Inspector on October 12.
On being questioned he stated that his family was the original inhabitant of Jamnagar State but for the last 60 years they were doing the business of contractors for purchasing and selling land in Durban.
His brother Daud Issa was, however, serving in Bombay.
He gave details of the journey performed by him and his companion and produced passports, as also the receipts for paying custom duty and the deposit.
On October 15, Head Constable Ajit Singh, informed Raol that some unknown person had come to the shop of Umarbhai jeweller with a large quantity of gold.
Accordingly the police visited the shop of the jeweller and his brother (also a jeweller) and came to know that gold had been given to him by the appellant to be melted.
This gold along with some other gold kept at another place was seized by the police.
The police also took possession of the car.
The entire quantity of gold seized was 27731 tolas the value of which is roughly estimated at Rs. 3 lakhs.
Proceedings under action 20 of the Indian Telegraph Act were instituted 979 against the appellant and others on the assumption that the wireless set in the car was a transmitter but they were dropped when it was found otherwise.
The car was thoroughly examined but nothing incriminating was found.
The appellant was also detained under the Public Securities Act but was released.
Ultimately on January 2, 1948, he along with others was prosecuted on the complaint of Raol for an offence under section 61 E of the Bombay District Police Act (IV of 1890) read with section 109 of the Indian Penal Code.
Section 61E says: " Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Magistrate, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees.
" He was convicted by the Magistrate and sentenced to a fine of Rs. 100 and the gold was directed to be confiscated under section 517 of the Code of Criminal Procedure.
The other accused who were charged with abetment were acquitted,.
The Magistrate took the view that there wag no direct evidence to show that the accused had committed theft or had obtained property fraudulently but there were in his opinion circumstances which led to the reasonable belief that the gold in question was either stolen or was fraudulently obtained.
The Sessions Judge held that although the possession of the gold was highly suspicious, nevertheless it did not constitute sufficient ground for a reasonable belief that the property was either stolen or was fraudulently obtained.
He accordingly set aside the conviction and sentence and ordered the gold to be restored to the appellant.
The High Court in appeal by the State did not accept the prosecution story that the gold was brought into India by the appellant in his motor car, but held agreeing with the Magistrate that from the circumstances there was reason to believe that he was in possession of gold which was either stolen property or property 980 fraudulently obtained.
The High Court did not accept the explanation of the appellant that his father had brought the gold to Sarsa from time to time when he visited his native place.
As regards the order of confiscation under section 517, the High Court held that it was not necessary that the property confiscated must be the property in relation to which an offence appears to have been committed but it was enough if ,the property is produced before the court.
In this view the acquittal was set aside and the order of the Magistrate was restored.
Mr. Chatterjee on behalf of the appellant stated at the outset that he was not prepared to concede that the appellant 's conviction was right but he proceeded on the assumption that even if it was so, section 517 had no application to the case and the court had no jurisdiction to pass the order of confiscation of the gold.
He also urged that 'in any, view of the matter the order of confiscation was not a proper order in the circumstances of this case.
Section 517(1) reads thus: When an inquiry or a trial in any criminal court is concluded, the court may make such order as it thinks fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise) of any property or document produced before it or in its custody or regarding which any offence appears to.
have been committed, or which has been used for the commission of any offence.
" The section on a plain reading shows that upon the conclusion of an inquiry or trial the court is empowered to make an order for disposal of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of an offence.
The section also shows that the power of the court extends to destruction, confiscation or delivery to any 981 person claiming to be entitled to possession of such property.
Mr. Chatterjee contended that the gold after it was seized by the Police was sent to the Treasury and was never produced before the court.
We do not think that the evidence on this point is clear and definite.
This point does not appear to have been raised before the courts below.
The High Court justified the order on the ground that the property was produced before the court and held that it was not necessary to find before passing the order that " any offence appears to have been committed " in respect of it.
It is clear to us that the property was not one regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
Now the power of the court no doubt extends to confiscation of property in the custody of the court but it is not every case in which the court must necessarily pass an order of confiscation irrespective of the circumstances of the case.
It is possible to conceive of cases where the subject matter of the offence may be property which under the law relating to that offence is liable to be confiscated as a punishment on conviction.
Assuming therefore that the court had jurisdiction to pass an order regarding the disposal of the gold, it seems to us that the order of confiscation was not an appropriate order in the circumstances of this case.
Section 517 contains a general provision for disposal of the property in the circumstances mentioned in the latter part of the section.
Section 61E by itself does not empower the court to impose the penalty of confiscation and the sentence of imprisonment and fine authorized by the section is a nominal sentence for the obvious reason that the section proceeds upon the mere belief that the property in possession of the person is stolen property or property fraudulently obtained possession of which is not satisfactorily accounted for.
It is an offence under the local Police Act and not under an Act which contains any substantive provision such as the Sea Customs Act imposing the penalty of confiscation.
Confiscation is not the only mode of disposal under section 517 and is singularly 127 982 inappropriate in a case where the accused is prosecuted for an offence punishable with a maximum sentence of 3 months and a fine of Es.
It was certainly open to the court to order the property to be delivered to the person claiming to be entitled to its possession.
Here the gold was found from the possession of the appellant, and the court was not called upon to consider any rival claims about its possession.
Admittedly ,there was no evidence to prove that it was stolen, or that it was fraudulently obtained and all that was found was that there was reason to believe that it was stolen or fraudulently obtained and that the appellant failed to account for its possession to the satisfaction of the court.
The High Court thought that the gold was smuggled from Africa into India but assuming this to be so, its confiscation under section 517 upon the existence of a mere belief required to sustain a conviction under section 61 E was palpably harsh and unreasonable.
We hold, therefore, that the order of confiscation of gold cannot be supported.
We accordingly set aside the order of confiscation and direct that the, gold seized from the appellant 's possession shall be restored to him.
Appeal allowed.

dataset_name: IN-Abs

summary:
Under section 517 of the Code of Criminal Procedure the court is empowered on the conclusion of an enquiry or trial to make an 977 order for the disposal of any property or document produced before it or in its custody or regarding which an offence appears to have been committed or which had been used for the commission of any offence.
The power of the court extends to the confiscation of the property in the custody of the court but it is not in every case in which the court must necessarily pass an order of confiscation irrespective of the circumstances of the case.
Held, that the confiscation of gold worth about 3 lakhs of rupees was singularly inappropriate in a case like the present where the prosecution story that the gold in question was smuggled into India from Africa was not accepted by the court and the accused was convicted for an offence under a. 61 E of the Bombay District Police Act, 1890, which provides a maximum sentence of three months and a fine of Rs. 100 and which does not contain any substantial provision such as the Sea Customs Act imposing the penalty of confiscation.


judgement:
Appeal No. 2313 of 1966.
Appeal by special leave from the judgment and order dated October 13, 1966 of the Andhra Pradesh High Court in Writ Petition No. 853 of 1966.
M.C. Setalvad. D. Narasaraju, Anwar Ullah Pasha R. V. Pillai and M. M. Kashatriya, for the appellant.
Niren De, Addl.
Solicitor General, P. Ram Reddy, section Ramachandra Reddy and T. V.R. Tatachari, for the respondents.
The Judgment of the Court was delivered by Vaidyalingam, J.
This appeal, by special leave, granted by this Court, is directed against the order dated October, 13, 1966, passed by the Andhra Pradesh High Court, dismissing Writ Petition No 853 of 1966, filed by the appellant, under article 226 of the Constitution.
The appellant filed the said writ petition under the following circumstances.
The appellant was the Vice Chancellor of the Osmania University, having been appointed, as such, by order dated April 30.
1964, passed by the Governor of Andhra Pradesh, in 216 his capacity as Chancellor of the said University.
The appointment of the appellant, under the said order, as Vice Chancellor, there is no controversy, was for a term of five years from the date of taking charge; and the appointment itself was made under sub section
(1) of section 12 of the Osmania University Act, 1959 (Andhra Pradesh Act No. IX of 1959).
There is, again, no controversy that the appellant took charge as Vice Chancellor, in terms of the said order, on April 30, 1964 and, as such, he became entitled to hold office for the full period of five years, which will expire at the ,end of April 1969.
The Osmania University was established in 1918 and the ad ministration of the University was then governed by a Charter of His Exalted Highness, the Nizam of Hyderabad, promulgated in 1947.
With effect from November 1, 1956, the State of Hyderabad ceased to exist, and the Telengana region of that State became part of Andhra Pradesh.
In 1959, the Andhra Pradesh Legislature passed the Osmania University Act, 1959, earlier referred to.
That Act itself was one to amend and consolidate the law relating to the Osmania University.
It is only necessary to note at this stage, that under section 12(1) of the said Act, it was provided that the Vice Chancellor shall be appointed by the Chancellor from a panel of not less than three persons selected by a Committee, as constituted under sub section
(2); but, if the Chancellor does not approve any of the persons so selected, he may call for a fresh panel from the Committee.
Section 13, again, provided for the term of office, salary and allowances etc.
, of the Vice Chancellor.
Under sub section
(1), the term of office of the Vice Chancellor was fixed for a term of five years and there was also a further provision to the effect that he shall be eligible for reappointment.
By section 51 of the said Act, the Osmania University Revised Charter, of 1947 was repealed; but, nevertheless, it was provided that the person holding office immediately before the commencement of the Act as Vice Chancellor, was to be the Vice Chancellor on such ,commencement of the Act, and was to continue to hold the said office, in circumstances mentioned therein.
There is, again, no controversy that the appellant, who was already the Vice Chancellor of the Osmania University from 1957, was again appointed in 1959, as Vice Chancellor for a period of five years under this Act; and he was similarly appointed for a further term of five years, on April 30, 1964, as Vice Chancellor, as mentioned earlier.
During the middle of 1965, certain amendments were sought to be introduced in the Act by providing for removal of the Vice Chancellor, by the Chancellor, from office under certain circumstances.
There was also a proposal to reduce the term of office of the Vice Chancellor from 5 years to 3 years, from the date of his appointment, and for provisions being made 217 enabling the Government to give directions to the University relating to matters of policy to be followed by it.
The amendments sought to be introduced in the Act, appear to have come in for considerable criticism from several quarters, and these have been elaborately dealt with in the order, under attack.
According to the appellant, he was one of those who very strenuously opposed the proposed amendments on the ground that the autonomy of the University was sought to be interfered with by the Government.
According to the appellant, again, the various criticisms made by him and others, were taken note of by the Inter University Board, by the Education Minister of the Union and others.
It is the further case of the appellant that it was felt by the Government of Andhra Pradesh that he was responsible for the agitation that was being made, against the proposed amendments.
But, ultimately, the Andhra Pradesh Legislature passed the Osmania University (Amendment) Act, 1966 (Act 11 of 1966), amending the Osmania University Act of 1959 in certain particulars.
The said amendments are to the effect that the Vice Chancellor shall not be removed from office, except as provided for in section 12(2) of the amended Act.
The term of office was also fixed at 3 years under the amended section 13.
Another provision relating to the power of Government to give instructions to the University, was also introduced, as section 7A; but the appellant continued as Vice Chancellor.
The Osmania University Act, was again amended by the Osmania University (Second Amendment) Act, 1966 (Act XI of 1966).
Under this amendment, section 13A was enacted.
In brief, that section was to the effect that the person holding the office of the ViceChancellor, immediately before the commencement of the amending Act of 1966, was to hold office only until a new Vice Chancellor was appointed under sub section
(1) of section 12, and it also provided that such appointment shall be made within 90 days after such commencement.
There was a further provision that on the appointment of such new Vice Chancellor, and on his entering upon his office, the person holding the office of Vice Chancellor immediately before such appointment, shall cease to hold that office.
Section 7 A, which had been introduced by Act II of 1966, was deleted.
Section 33 A was enacted, making special provision as to the re constitution of the Senate, Syndicate, Academic Council and Finance Committee of the University.
The appellant filed Writ Petition No. 853 of 1966, in the High Court, praying for the issue of a writ or order declaring section 5 of the Osmania University (Second Amendment) Act.
1966, which introduced section 13A in the original Act, as unconstitutional and void.
In that writ petition, he challenged the validity of the new Section, section 13A on several grounds.
In brief, his plea was that by virtue 218 of his appointment as Vice Chancellor for 5 years on April 30, 1964, he had acquired a vested right to hold that office for the full term and that such a vested right could not be taken away, during the currency of the period, by any legislative enactment.
The legislature had no competence to enact the said provision inasmuch, as section 13A could not be treated as legislation in respect of University education.
The appellant had also pleaded that the provision virtually amounted to removal of the appellant from his office without giving him any opportunity to show cause against such removal.
According to the appellant, even assuming the Legislature was competent to enact the provision in question, nevertheless, section 13A is unconstitutional and void, inasmuch as it offends article 14 of the Constitution.
We do not think it necessary to advert, elaborately, to the various other grounds of attack levelled against the constitutional validity of the provision in question, which have, no doubt, been dealt with by the High Court, because, for the purpose of disposing of this appeal, in our opinion, it is enough to refer to the grounds of attack, taken by the appellant regarding the constitutionality of section 13A, based upon article 14 of the Constitution.
So far as this aspect is concerned, according to the appellant, section 9 of Act 11, of 1966 amended the Act of 1959 by incorporating new sub sections
(1) and (2) in section 12.
Under sub section
(1) of section 12, the ViceChancellor is to be appointed by the Chancellor.
Under sub section
(2), the Vice Chancellor shall not be removed from his office except by an order of the Chancellor passed on the ground of mis behaviour or incapacity; and it also provided for such an order being passed only after due enquiry by a person who Is or has been a Judge of a High Court or the Supreme Court, as may be appointed by the Chancellor, and the Vice Chancellor being given an opportunity of making his representation against the removal.
Therefore, in view of these provisions, the Vice Chancellor could not be removed by the Chancellor without any cause, without reason, without enquiry and without an opportunity being given to him to show cause against removal.
This provision applied to the appellant, who was in office, on the date of the passing of Act 11 of 1966, as well as Act XI of 1966.
Nevertheless, section 5 of Act XI of 1966 incorporated s.13A in the principal Act.
Under that section, not only has power been, conferred on the Chancellor, but also a duty imposed, so to say, on him, to remove the appellant, who was the Vice Chancellor, without any reason or justification or even giving an opportunity to him to show cause against such removal.
No enquiry, before ordering such removal, is contemplated under this section.
Further, while a Vice Chancellor, who is appointed after the passing of Act XI of 1966, cannot be removed from office, except in accordance with the provisions of sub section
(2) of section 12, the appellant, who was already in office, could be arbitrarily and 219 illegally removed under section 13A of the Act.
There is no provi sion, again, similar to section 13A, applicable to a Vice Chancellor, appointed after the coming into force of the amending Act.
Therefore, according to the appellant, the provisions contained in section 13A are clearly directed only against him, as he was the person holding office, prior to the amending Act, and therefore it is a clear case of hostile discrimination.
Further, according to the appellant, persons appointed as Vice Chancellors, constitute a group and must be considered as persons similarly situated and they must be treated alike; whereas, by virtue of section 13A, a differentiation is made between the appellant, who was a Vice Chancellor on the date of the commencement of the Amending Act and other persons who are to be appointed as Vice Chancellors thereafter.
This differentiation, according to the appellant, is again without any basis; nor has such a classification, any reasonable relation to the main object of the legislation.
The appellant also relied on section 33A, introduced by section 6 of Act XI of 1966 relating to the reconstitution of the Senate, Syndicate, Academic Council and the Finance Committee and pleaded that whereas those academic bodies or authorities were allowed to continue without any time limit and to function until they were reconstituted, regarding the Vice Chancellor alone, a period of 90 days had been fixed, under the Amending Act, within which the Chancellor was bound to appoint another Vice Chancellor.
This, again, is a clear proof of discrimination against the appellant.
The respondents controverted the stand taken on behalf of the appellant.
Apart from supporting the competency of the Legislature to enact the measure, in question, they urge that article 14 of the Constitution has no application at all.
According to the respondents, inasmuch as the term of office of the Vice Chancellor had been reduced to three years, as per Act 11 of 1966, it was thought fit by the Legislature to provide for the termination of the office of the Vice Chancellor, who was holding that post, at the commencement of Act XI of 1966, as also for the appointment of a new Vice Chancellor.
It was, under those circumstances, that section 13A was incorporated in the Act of 1959, by section 5 of Act, XI of 1966.
They also referred to similar provisions, which were incorporated in the two enactments relating to the two other Universities in the State, viz., the Andhra University and Sri Venkateswara University.
The respondents further pleaded that Act 11 of 1966 placed the Vice Chancellor, who was already appointed and who was functioning prior to that Act, in the first category, as a class apart, from the Vice Chancellors who were to be subsequently appointed and who were to function, after the passing of the said Amending Act, in the second category, both in the matter of the mode of appointment, as well as the term of appointment.
The Vice Chancellor 220 viz., the appellant, who was in office, on the date of the passing of Act XI of 1966, according to the respondents, therefore fell into a class all by himself and, as such, came under a third category; and the legislature thought fit to take into account the special features relating to him and, therefore, made separate provisions regarding the termination of his office.
Therefore, a suitable provision was made, by enacting section 13A, in respect of the existing Vice Chancellor, who was treated as a class, by himself.
The respondents also claimed that the Legislature was entitled to treat the Vice Chancellor, who was then in office, as a class by himself and make suitable provisions with regard to the termination of his office, and therefore a legislation made for that purpose, and on that basis, was constitutionally valid.
The charge of hostility towards the appellant, or any attempt to effect discrimination, was stoutly denied by the respondents.
The respondents, there fore, urged that the classification of the appellant, as a separate class, was proper and such a classification had a reasonable nexus, with the object of the amending legislation.
The respondents further pleaded that the curtailment of the term of office of an existing Vice Chancellor, by a statute, enacted by a competent Legislature, does not amount to 'removal ' of the Vice Chancellor for sufficient and proved cause.
The respondents also ` urged that academic bodies or authorities like the Senate, Syndicate and the Academic Council are not similarly situated like the Vice Chancellor, either in the matter of appointment or constitution, or in exercising functions under the statute; and therefore, the appellant, according to them, was not 'entitled to place any reliance.
on section 33A, introduced by section 7 of Act XI of 1966.
For all these reasons, they urged that article 14 of the Constitution was not violated by the Legislature in enacting section 13A.
Before we refer to the findings recorded by the learned Judges of 'the High Court, this will be a convenient stage to refer to the material provisions of the statutes, concerned.
We have already mentioned that the appellant was functioning as the Vice Chancellor of the Osmania University, even from 1957, i.e., even before the Osmania University Act, 1959, was passed.
We have also indicated that the administration of the University was then governed by a Charter promulgated in 1947.
The Osmania University Act, 1959 (Act IX of 1959), (hereinafter called the Act), was passed in 1959 and published in the State Gazette on February 2, 1959.
Section 3 of the Act provided that the University, established by the Revised Charter promulgated by H.E.H. the Nizam of Hyderabad, on December 8, 1947, and functioning at Hyderabad immediately before the commencement of the Act, be reconstituted and declared to be a University by the name of 'Osmania University '.
The said section also provided that the University would be a 221 residential, teaching and affiliating University consisting of a Chancellor, a Pro Chancellor, a Vice Chancellor, a Senate, a Syndicate and an Academic Council.
Section 12(1) provided for the appointment of the Vice Chancellor, by the Chancellor, from a panel of not less than three persons selected by a committee, as constituted under sub section
(2) thereof But, if the Chancellor did not approve any of the persons so selected, he could call for a fresh panel from the committee.
Sub section (2) provided for the constitution of the committee.
Section 13 provided for the term of office salary, allowances etc.
, of the Vice Chancellor.
Under sub section
(1), the Vice Chancellor was to hold office for a term of 5 years and he was eligible for reappointment.
There was a proviso to the effect that the ViceChancellor shall continue to hold office after the expiry of his term of appointment, for a period not exceeding six months, or until Ms successor is appointed and enters upon his office, whichever is earlier.
Sub section
(6) provided for the filling up of the vacancy, in the post of the Vice Chancellor, when it fell permanently vacant; and a Vice Chancellor so appointed as per sub sections
(1) and (2) of section 12, was to hold office for a full term of 5 years.
Section 51 (I) repealed the Osmania University Revised Charter, 1947; but sub section
(2) provided that notwithstanding such repeal, the person holding office immediately before the commencement of the Act, as Vice Chancellor, shall, on such commencement, be the Vice Chancellor of the University, and he was entitled to hold office until a Vice Chancellor is appointed in accordance with the Act.
It will be noticed, by the above reference to the material provisions of the Act, that there was no provision for removal of a ViceChancellor; and that the appointment of a Vice Chancellor was to be by the Chancellor, as provided for in section 12.
The term of office of the Vice Chancellor was 5 years and he was eligible for reappointment.
The appellant, who was already a Vice Chancellor, functioning under the Charter of 1947, was entitled to continue, and did continue, as the Vice Chancellor, by virtue of section 51 of the Act.
He was also, as already mentioned, originally appointed as ViceChancellor for a period of 5 years under the Act, in 1959.
The Act was amended in certain particulars by the Osmania University (Amendment) Act, 1966 (Act II of 1966) (hereinafter called the First Amendment Act).
The First Amendment Act received the assent of the Governor on January 29, 1966.
Section 6 of the First Amendment Act, introduced section 7A, which we set out 222 "7A. Instructions by the Government.
The Government may, after consultation with the University, give to the University, instructions relating to matters of major educational policy such as pattern of University education, medium of instruction and establishment of post graduate centres, to be followed by it.
(2) In the exercise of its powers and performance of its functions under this Act, the University shall comply with the instructions issued under sub section (1).
" Similarly, section 9 incorporated new sub sections
(1) and (2) in section 12 of the Act, as follows 12.
(1) The Vice Chancellor shall be appointed by the Chancellor.
(2) The Vice Chancellor shall not be removed from his office except by an order of the Chancellor passed on the ground of misbehaviour or incapacity and after due inquiry by such person who is or has been a Judge of a High Court or the Supreme Court as may be appointed by the Chancellor, in which the Vice Chancellor shall have an opportunity of making his representation against such removal.
" Section 10, while effecting certain other amendments to section 13.
the Act, incorporated a new sub section
(1), as follows : "13.
(1) Subject to the provisions of sub section (2) of section 12, the Vice Chancellor shall hold office for a term of three years from the date of his appointment and shall be eligible for re appointment to that office for another term of three years only; Provided that the Vice Chancellor shall continue to hold office after the expiry of his term of appointment for a period not exceeding six months or until his successor is appointed and enters upon his office, whichever is earlier.
" It was this Amendment Act, when it was in the Bill stage, that appears to have been severely criticised by various authorities on the ground that the autonomy of the University was sought to be interfered with by the Government.
In that connection, the appellant also appears to have made several statements criticising the provisions sought to be incorporated in the Act.
It is also on record that counter statements were made on behalf of the Government meeting these criticisms regarding the proposed amendments.
They have been dealt with by the High Court rather elaborately; but, we do not propose to go into those matters, for the purpose of this appeal.
223 By virtue of the amendments effected and referred to above, it will be seen that the term of office of the Vice Chancellor has been reduced from 5 years to 3 years.
The manner of appointment of the Vice Chancellor has also been changed and a provision is contained for removal of the Vice Chancellor from his office, but that can be done only in accordance with the provisions contained in section 12(2) of the Act.
Section 7A gives power to the Government to give instructions to the University relating to matters of major educational policy; and it is made obligatory on the University to comply with such instructions issued by the Government.
As we have already stated, the appellant was again appointed as Vice Chancellor for a period of 5 years on April 30, 1964; and he was continuing in office when the First Amendment Act was passed.
One of the claims that is made by the appellant, in these proceedings, is that he is entitled to the protection conferred by section 12(2) of the Act referred to above.
There does not appear to be any controversy that any appointment of a Vice Chancellor was made, after the passing of the First Amendment Act .
The Act was further amended by the Osmania University (Second Amendment) Act, 1966 (Act XI of 1966) (to be referred to as the Second Amendment Act).
It received the assent of the Governor on May 16, 1966.
Section 2 of the Second Amendment Act, omitted section 7A of the Act.
Section 5 of the Second Amendment Act, which introduced new section 13A in the Act, and which provision is the subject of attack in these proceedings, is as follows : "13A. Special provision as to the appointment of a new Vice Chancellor.
Notwithstanding anything in this Act, the person holding the office of the Vice Chancellor immediately before the commencement of the Osmania University (Second Amendment) Act, 1966, shall continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor under sub section (1) of section 12 and enters upon his office; and such appointment shall be made within ninety days after such commencement.
On the appointment of such new Vice Chancellor, and on his entering upon his office, the person holding the office of the Vice Chancellor immediately before such appointment shall cease to hold that office." Again, section 6 of the Second Amendment Act., incorporated section 33A in the Act, which is as follows : "33A. Special provision as to the reconstitution of the Senate, Syndicate, .Academic Council and Finance Com mittee.
Notwithstanding anything in this Act, the members of the Senate, the Syndicate, the Academic Council and the Finance Committee constituted and functioning 224 before the commencement of the Osmania University (Amendment) Act, 1966, shall continue to be such members and function only until a new Senate, Syndicate, Academic Council or Finance Committee, as the case may be, is reconstituted under this Act.
On the reconstitution of such new Senate, Syndicate, Academic Council or Finance Committee, the members of the Senate other than the life members thereof, the members of the Syndicate, Academic Council or Finance Committee, as the case may be, holding office immediately before such reconstitution, shall cease to hold that office.
" Even according to the respondents, section 13A was incorporated for the purpose of terminating the services of the appellant as Vice Chancellor, so as to enable the Chancellor to make a fresh appointment of a Vice Chancellor.
We have referred to section 33A of the Act, because the appellant 's case was also to the effect that with regard to the Senate, Syndicate, Academic Council etc.
, there is no provision similar to section 13A of the Act, though they are also similarly situated like him.
The findings of the learned Judges of the.
High Court may now be briefly summarised : 1.
The Andhra Pradesh Legislature was competent to enact section 5 of the Second Amendment Act.
The said section does not contravene article 19(1)(f) of the Constitution.
The appellant was holding the office of the ViceChancellor when the Act came into force and continued under section 51(2) thereof as Vice Chancellor until the Chancellor passed an order, in 1959 appointing him once again under the Act.
Section 13(1), as introduced by the First Amendment Act, is not retrospective and the right of the appellant to continue as Vice Chancellor for the full term of 5 years stood unaffected and the new section 13(1) does not apply to him.
The new section 12(2), as introduced by the First Amendment Act, is not applicable to the appellant.
Sections 12(2) and 13A of the Act, do not cover the same field.
Section 12(2) provides for removal by way of punishment and its operation is on a different field from that of section 13A where the cessation of office is due to a curtailment of the term.
Section 12(2) applies only to the future Vice Chancellors and section 13A is solely applicable to the existing Vice Chancellor, the appellant.
225 .lm0
Regarding the attack on section 13A, on the basis of article 14 of the Constitution that there is an unreasonable discrimination, the learned Judges were of the view that the said section did not suffer from any such infirmity.
The learned Judges held that the impugned legislation had resulted in classifying Vice Chancellors under two categories, (a) the appellant, as the existing Vice Chancellor, falling under the first category; and (b) future Vice Chancellor, to be appointed under the Act, who falls under the second category.
According to the High Court, the object sought to be achieved by such classification, as could be seen from the objects and reasons of the Second Amendment Act, 1966, was to give effect to the reduced term of 3 years fixed under section 13(1) of the Act after the First Amendment.
The Hi gh Court further held that the classification adopted by section 13A, of putting the appellant, as the existing ViceChancellor, in a class by himself, is founded on an intelligible differentia, which distinguishes the appellant from future ViceChancellors, and that this differentia has a rational relation to the object sought to be achieved by the Second Amendment Act.
In this connection, the learned Judges also advert to the similar provisions enacted, at about the same time, in the Andhra University Act, 1925, and the Sri Venkateswara University Act, 1954.
The High Court is also of the view that the Legislature must have taken into account the fact that the appellant has already put in more than 6 years of service as Vice Chancellor, for treating him as a class by himself, as distinct from future Vice Chancellors, who are to be appointed and, as such, have not put in any service at all.
The learned Judges have, no doubt, adverted to the fact that the appellant has got an eventful record of efficient service, full of recognition and appreciation, but the appellant cannot plead those circumstances when a competent legislature has passed a valid legislative measure, under which he has to lose his office.
Ultimately, on these findings, the High Court came to the conclusion that section 5 of the Second Amendment Act, introducing section 13A in the Act, is not vitiated by any infirmity, as alleged by the appellant, and, finally, dismissed the appellant 's writ petition.
The appellant has again raised, no doubt, most of the contentions that were taken before the High Court.
But the main ground of attack that has been pressed before us, by learned counsel for the appellant, is the one based upon article 14 of the Constitution.
The findings recorded, and the views expressed, by the High Court are sought to be sustained by the learned Additional Solicitor General, appearing for the respondents.
But, we do not think it necessary to go into the larger controversy that has been raised by the appellant, before the High Court, in the view that we take, that the appellant must succeed in respect of the attack levelled against the impugned 226 provision, based upon article 14 of the Constitution.
As to whether the criticism, made by the appellant, about the proposals to amend the Act, was or was not responsible for the passing of the legislation in question, does not assume much of an importance; because, the simple question is whether the provision, section 13A, as it now stands n the Act, is violative, in any manner, of article 14 of the Constitution.
If the answer is 'yes ', it is needless to state that the provision will have to be struck down.
Therefore, we are confining our attention only to the provisions of the Act and we will refer to any other circumstance that is brought to our notice only for the limited purpose of considering the grounds of attack based upon article 14 of the Constitution.
According to Mr. Setalvad, the appellant is entitled to take advantage of the provisions of section 12(2) of the Act.
On the date of the passing of the First Amendment Act, the appellant was, admittedly, a Vice Chancellor and he had been continuing as such.
He cannot be removed from his office, except in accordance with the provisions of section 12(2) of the Act.
But, in view of section 13A of the Act, introduced by the Second Amendment Act, the appellant is forced out of his office, within 90 days of the passing of the Second Amend ment Act.
The creation of two classes of Vice Chancellors, viz., Of Vice Chancellors appointed under the Act and the Vice Chancellor who was in office at the commencement of the Second Amendment Act, is not on any rational basis.
Person is appointed as ViceChancellors, constitute a group, and the impugned provision makes a differentiation between the person who is a Vice Chancellor then and other persons who are to be appointed Vice Chancellors thereafter, for which differentiation, there is absolutely no basis.
Further, even if it can be stated that there is any basis for the said classification, nevertheless there should be a nexus or connection between the basis of the classification and the object of the legislation, which again, is lacking in this case.
Mr. Setalvad further urged that while the services of a ViceChancellor, appointed under the Act, could be terminated only in accordance with the provisions contained in section 12(2) of the Act, the appellant 's services could be terminated under section 13A, without adopting the procedure laid down in section 12(2) of the Act.
There was also no provision in the Act, Mr. Setalvad pointed out, making section 13(2) applicable to Vice Chancellors to be appointed in future.
Though the term of office for a Vice Chancellor has been fixed under the Act, even after the amendments, as three years, and that may apply to all the Vice Chancellors, so far as the appellant is concerned, his term has been reduced or restricted to 90 days under section 13A of the Act.
Mr. Setalvad again urges that even assuming that it is open to the Legislature, in an appropriate case, to make provisions applicable 227 to only one individual or a group of individuals, nevertheless, it is well established, by this Court, that the classification that is effected ,by the statute must be a classification founded on an intelligible differentia and that differentia must have a rational relation to the object sought to be achieved by the statute.
Applying these two tests, learned counsel urges, that the impugned legislation must be.
considered to be violative of article 14 of the Constitution.
The learned Additional Solicitor General has urged that the, term of office of the Vice Chancellor has been reduced to three; years by the First Amendment Act.
The Legislature, in order to give effect to this provision and to enable fresh appointments to be made under the Act, has enacted section 13A.
That section has, necessarily, to apply only to persons like the appellant who are holding.
office at the time when these provisions came into force.
Such a provision, in the nature of things, cannot apply to Vice Chancellors who are to be appointed in future under the Act.
Therefore it is wrong to state that all Vice Chancellors,.
irrespective of the manner ' or mode under which they are appointed, in present or in future, fall under the same category.
Further, the appellant has been a Vice Chancellor for nearly 7 years.
The legislature, the learned Solicitor points out, having regard to these circumstances, has chosen to treat the appellant, the Vice Chancellor holding office on the date of the Second Amendment Act, as a class by himself and has differentiated him from persons to be appointed ViceChancellor for the first time.
Such a classification, is reasonable and it has got a rational relation to the object sought to be achieved by the Second Amendment Act, viz., bringing about uniformity in the tenure of three years of office for all Vice Chancellors.
The learned Solicitor points out further that the appellant is not entitled to the benefit of section 12(2) of the Act.
The Legislature was competent to enact the Measure in question and the object of the Legislature was to give effect to the amendment provisions as early as.
possible.
He pointed out that similar provisions were also made in two other enactments at about the same time, viz., in the Andhra University Act, 1925, and the Sri Venkateswara University Act, 1954.
It may be that the Legislature could have adopted another method for replacing the present Vice Chancellor, but that is a matter of policy, which cannot be reviewed by the Courts, so long as the Legislature had the competence to enact the measure and the provisions, so enacted, do not suffer from any other legal infirmities.
We have given due consideration to the various contentions placed before us by Mr. Setalvad, learned counsel,for the appellant, and the learned Additional Solicitor General, on behalf of the respondents; but we are not inclined to agree with the contentions of the learned Additional Solicitor General.
228 The principles to be borne in mind, when a question arise under article 14 of the Constitution, have been laid down in several ,decisions, by this Court,on a number of occasions.
In Budhan Choudhry vs The State of Bihar(1), Das J., speaking for the Court said : "It is now well established that while article 14 forbids class 'legislation, it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the, classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.
" Therefore, it will be seen that in order to accept a classification as permissible and not hit by article 14, the measure in question will have to pass the two tests laid down in the above decision.
The observations, extracted above, have been quoted by Das C. J., in .Ram
Krishna Dalmia vs Shri Justice section R. Tendolkar(2).
It is no doubt true, as pointed out by the learned Additional SolicitorGeneral, that a statute may direct its provisions against one individual person or thing, or against several individual persons or things.
But, before such a provision can be accepted as valid, the Court must be satisfied that there is a reasonable basis of classification which appears on the face of the statute itself, or is deducible from the surrounding circumstances or matters of common knowledge.
If no such reasonable basis of classification appears on the face of the statute, or is deducible from the surrounding circumstances, the law will have to be struck down as an instance of naked discrimination.
It should also be borne in mind that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon the party who attacks the same as unconstitutional, to ,Show that there is a clear transgression of the constitutional principles; but, as observed by Das C.J., in Ram Krishna Dalmia 's case(2), at p. 297, "while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried (1) ; ,1049.
(2) ; , 296. 229 to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
" Having due regard to the principles referred to above, we now proceed to consider as to whether the appellant has been able to establish that section 5 of the Second Amendment Act, introducing s.13A in the Act, is discriminatory and, as such, violative of article 14 of the Constitution.
We have already stated that the appellant was appointed, under the Act, for a further term of 5 years, as Vice Chancellor, on April 30, 1964, and he was continuing in office, as such, at the time when the two Amending Acts were passed; and, normally,.
he, would be entitled to continue in that post for the full term, which will expire only at the end of April 1969.
The First Amendment Act provided, in section 12 of the Act, that the Vice Chancellor is to be appointed by the Chancellor; but section 12(2) specifically provided that the Vice Chancellor shall not be removed from his office excep t by an order of the Chancellor passed on the ground of misbehaviour or incapacity and, after due inquiry by such person who is, or has been, a Judge of a High Court or the Supreme Court, as may be appointed by the Chancellor.
It was also provided that the ViceChancellor was to have an opportunity of making his representation against such removal.
Prima facie; the provisions contained in sub section
(2) of section 12, must also apply to the appellant, who did continue in office even after the passing of the First Amendment Act.
No doubt the term of office of the Vice Chancellor was fixed at 3 years under section 13(1) of the Act.
But no provisions, were made in the First Amendment Act regarding the termination of the tenure of office of the Vice Chancellor who was then holding that post.
There can be no controversy that section 13A, introduced by section 5 of the Second Amendment Act, deals only with the appellant.
In fact, the stand taken on behalf of the respondents in the counteraffidavit filed before the High Court, was to the effect that the Legislature had chosen to treat the Vice Chancellor holding office at the time of the commencement of the Second Amendment Act, as a class by himself and with a view to enable the Chancellor to make fresh appointments, section 13A of the Act was enacted.
Therefore, it is clear that section 13A applies only to the appellant.
Though, no doubt, it has been stated, on behalf of the respondents,,,, that similar provisions were incorporated, at about the same time, in two other Acts, relating to two other Universities, viz., the Andhra University and the Sri Venkateswara University, and though this circumstance has also been taken into account by the learned Judges of the High Court, in our opinion, those provisions 230 have no bearing in considering the attack levelled by the appellant on section 13A of the Act.
This is a clear case where the statute itself directs its provisions by enacting section 13A, against one individual, viz., the appellant; and before it can be sustained as valid, this Court must be satisfied that there is a reasonable basis for grouping the appellant as a class by himself and that such reasonable basis must appear either in the statute itself or must be deducible from other surrounding circumstances According to learned counsel for the appellant, all Vice Chancellors of the Osmania University come under one group and can be classified only as one unit and there is absolutely no justification for grouping the appellant under one class and the Vice Chancellors to be appointed in future under a separate class.
In any event, it is also urged that the said classification has no relation or nexus to the object of the enactment.
Our attention has been drawn to the Statement of Objects and Reasons to the Second Amendment Bill, the material part of which is as follows "The term of office of the Vice Chancellor has been reduced to three years under section 13(1) of the Osmania University Act as amended by section 10 of the Osmania University (Amendment) Act, 1966.
Section 13 A, proposed to be inserted by clause 5 of the Bill, enjoins that notwithstanding anything in the Act, the person holding the office of the Vice Chancellor immediately before the commencement of the Osmania University (Second Amendment) Act, 1966 shall continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor under section 12(1) as amended and enters upon his office, and such appointment shall be made within ninety days after such commencement.
" We are inclined to accept the contention of Mr. Setalvad, that there is no justification for the impugned legislation resulting in a classification of the Vice Chancellors into two categories, viz., the appellant as the then existing Vice Chancellor and the future Vice.
Chancellors to be appointed under the Act.
In our view, the Vice Chancellor, who is appointed under the Act, or the Vice Chancellor who was holding that post on the date ,of the commencement of the Second Amendment Act, form one single group or class.
Even assuming that the classification of these two types of persons as coming under two different groups can be made nevertheless, it is essential that such a classification must be founded on an intelligible differentia which distinguishes the appel 231 lant from the Vice Chancellor appointed under the Act.
We are not able to find any such intelligible differentia on the basis of which the classification can be justified.
It is also essential that the classification or differentia effected by the statute must have a rational relation to the object sought to be achieved by the statute.
We have gone through the Statement of Objects and Reasons of the Second Amendment Bill, which became law later, as well as the entire Act itself, as it now stands.
In the Statement of Objects and Reasons for the Second Amendment Bill, extracted above, it is seen that except stating a fact that the term of office of the Vice Chancellor has been reduced to 3 years under section 13(1) and that s.13A was intended to be enacted, no other policy his indicated which will justify the differentiation.
The term of office fixing the period of three years for the Vice Chancellor, has been already effected by the First Amendment Act and, therefore, the differential principle adopted for terminating the services of the appellant by enacting section 13A of the Act, cannot be considered to be justified.
In other words, the differentia adopted in section 13A and directed as against the appellant and the appellant alone not be considered to have a rational relation to the object sought to be achieved by the Second Amendment Act.
While a Vice Chancellor appointed under section 12 of the Act can be removed from office only by adopting the procedure under section 12(2), the services of the appellant, who was also a Vice.
Chancellor and similarly situated, is sought to be terminated by enacting section 13A of the Act.
We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant.
The term of office of the Vice Chancellors has been no doubt reduced under the First Amendment Act and fixed for 3 years for all the Vice Chancellors.
But, so far as the appellant is concerned, by virtue of section 13A of the Act, he can continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days.
While all other Vice Chancellors, appointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office on the expiry of 90 days from the date of commencement of the Second Amendment Act.
There is also no provision in the statute providing for the termination of the services of the ViceChancellors, who are appointed under the Act, in the manner provided under section 13A of the Act.
By section 13A, the appellant is even denied the benefits which may be available under the proviso to sub section
(1) of section 13 of the Act, which benefit is available to all other ViceChancellors.
The appointment of the appellant in 1959 and, again in 1964, under section 12(1) of the Act, as it stood prior to the two amendments, by the Chancellor, must have been, no doubt, from a panel of 232 names submitted by a committee constituted under section 12(2).
The appointment of a Vice Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under section 12(1), as the section now stands.
That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice Chancellor from a Vice Chancellor to be appointed under the Act, as amended.
Another circumstance relied on is that the appellant has been a Vice Chancellor for 7 years.
In our opinion, these are not such vital or crucial factors which will justify treating the appellant as a class by himself, because the powers and duties of a Vice Chancellor, either under 'the Act, prior to the amendment, or under the Act, after amendment, continue to be the same.
To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice Chancellors and it has no rational relation to the object of the statute, and so section 13A is hit by article 14.
The appellant has attacked section 13A, as discriminatory, relying upon a different provision, made under section 33A, in respect of the Senate, Syndicate, Academic Council and the Finance Committee.
We have, however, not considered the question as to whether the appellant can be treated as falling under the same class, as the other authorities mentioned in section 33A, as we have accepted the appellant 's contention, based upon article 14, on other grounds.
For the above reasons, we accept the contentions of the learned counsel for the appellant, and hold that section 5 of the Second Amendment Act (Act XI of 1966), introducing section 13A in the Act, is discriminatory and violative of article 14 of the Constitution and, as such, has to be struck down as unconstitutional.
The result is that the appeal is allowed, and the appellant will be entitled to his costs in the appeal, payable by the respondents, here and in the High Court.
R.K.P.S. Appeal allowed.
M19Sup.
C.I./66 2,500 18 7 67 GIPF.

summary:
As a result of the Osmania University (Amendment) Act 11 of 1966, section 12(1) of the Osmania University Act, 1959,. was amended to provide for the appointment of the Vice Chancellor by the Chancellor alone; in section 12(2) a provision was introduced whereby he could only be removed from office by an order of the Chancellor passed on the ground of mis behaviour or incapacity after enquiry by a person who was or had been a Judge of a High Court or the Supreme Court and after the Vice Chancellor had been given an opportunity of making his representation against such removal Section 13(1) of the 1959 Act was also amended so as to reduce the term of office of the Vice Chancellor from 5 to 3 years.
The 1959 Act was again amended later in 1966 by the Osmania University (Second Amendment) Act XI of 1966.
Section 5 of this amending Act introduced a new section 13A into the 1959 Act whereby it was provided that the person then holding the office of Vice Chancellor could only hold that office until a new Vice Chancellor was appointed; and that such new appointment must be made within 90 days of the commencement of the Act whereupon the old Vice Chancellor would cease to hold office.
The appellant filed a writ petition claiming, inter alia, that section 5 of the second amending Act introducing the new section 13A was discriminatory as against him and therefore violative of article 14.
The High Court dismissed the petition.
In the appeal to the Supreme Court, it was contended on behalf of the respondents that as the term of office had been reduced to 3 years by the first amending Act, the legislature.
, in order to give effect to this provision and to enable fresh appointments to be made under the Act, had enacted section 13A which had, necessarily, to apply to a person like the appellant who was in office at the time when the provisions came into force.
Such provisions could not, in the nature of things, apply to Vice Chancellors who were to be appointed in future; the appellant was appointed from a panel submitted by a committee constituted under the unamended section 12(2) whereas future Vice Chancellors were to be appointed by the Chancellor alone; furthermore, the appellant had been the Vice Cancellor for 7 years.
Having regard to these circumstances the legislature had chosen to treat the appellant as a class by himself and had differentiated him from persons to be appointed Vice Chancellors in the 215 future; that such classification was reasonable and had a rational relation to the object sought to be achieved by the second amending Act i.e. bringing about uniformity in the tenure of 3 years.
of office fee all Vice Chancellor; that the appellant was not entitled to the benefit of section 12(2) and the legislature was competent to enact section 13A so as to give effect to the amended provisions as early as possible.
HELD: Section 5 of the second amending Act (XI of 1966) introducing s 13A into the 1959 Act was discriminatory and therefore violative of article 14.
[232 E] There was no intelligible differentia on the basis of which a classification of Vice Chancellors into two categories i.e. the appellant as the then existing Vice Chancellor and the future Vice Chancellors to be appointed under the Act,, could be justified.
The term of office of three years for the Vice Chancellor had already been fixed by the first amending Act Therefore the differential principal adopted for terminating the appellant 's service under section 13A in introduced by the second amending Act and directed as against the appellant alone could not be considered to have a rational relation to object sought to be achieved by the second amending Act.
Budhan Choudhary vs The State of Bihar,[1955] 1 S.C.R.1045, 1049; Ram Krishna Dalmia vs
Shri Justice S.R. Tendolkar ; , 296; referred to.
[231 B D] While a Vice Chancellor appointed under section 12 could be removed from office only by adopting the procedure under section 12(2), the services of the appellant, who was also a Vice Chancellor and similarly situated were sought to terminated by enacting section 13A of the Act.
There was no policy underelying the Act justifying this differential treatment.
There was also no justification for the distinction whereby the appellant would appointed under the Act would continue in office for three years [231E G]