judgement:
N: Criminal Appeal No. 227 of 1972 From the Judgment and order dated the 8th September, 1972 of the Madhya Pradesh High Court in Criminal Appeal No. 927/69.
Mohan Behari Lal for the Appellant.
Ram Panjwani, Dy.
Advocate General for the State of M.P., N. section Parihar and I. N. Shroff for the Respondent.
ORDER CHANDRACHUD, J.
The appellants, Munnu Raja and Chhuttan, were tried by the learned Sessions Judge, Chatarpur on the charge that at about 10 a.m. On April 30, 1969 they committed the murder of one Bahadur Singh.
In support of its case, the prosecution relied upon the evidence of Santosh Singh (P.W. 1 ) and Mst.
Gumni (P.W. 4) who claimed to be eye witnesses and on three dying declarations alleged to have been made by the deceased.
The two eye witnesses were permitted to be cross examined by the Public Prosecutor as they supported the case of the prosecution only partly.
Santosh Singh stated that he saw Chhuttan assaulting Bahadur Singh with a spear but that he did not see Munnu Raja at all.
On the other hand, Mst.
Gumni stated that it was Munnu Raja and not Chhuttan who assaulted the deceased.
Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly.
The learned Judge was also not impressed by any of the dying declarations with the result that he came to the conclusion that the prosecution had failed to establish its case beyond a reasonable doubt.
In that view of the matter, the appellants were acquitted by the learned Judge.
Being aggrieved by the order of acquittal, the State Government filed an appeal in the High Court of Madhya Pradesh, which was allowed by a Division Bench of that Court by its judgment dated September 8, 1972.
The High Court did not discard the evidence of 766 the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased.
Setting aside the order of acquittal, the High Court has convicted the appellants under s: 302 read with section 34 of the Penal Code and has sentenced each of them to imprisonment for life.
The appellants have filed this appeal under section 2(1) of the .
We have heard Mr. Mohan Behari Lal on behalf of the appellants at some length and we have considered each of his submissions care fully.
It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal not for getting that the appellants had a right to file this appeal in this Court lies within a narrow compass.
As we have indicated earlier, no exception can be taken to the view taken by the learned Sessions Judge that it is not safe to place reliance on the testimony of Santosh Singh and Mst.
Gumni.
They resiled from their police statements and it is evident that they have no regard for truth.
Their evidence cannot be used to corroborate the dying declarations either.
We are thus left with the three dying declarations made by Bahadur Singh and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts and circumstances leading to the dying declarations.
In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh.
The second statement which has been treated by the High Court as a dying declaration is exhibit P 14, being the first information report which was lodged by the deceased at the police station.
The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration.
In this assumption, he was clearly in error.
After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act.
The maker of the statement is dead and the statement relates to the cause of his death.
The High Court has held that these statements are essentially true and do not suffer from any infirmity.
It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao vs State of Bombay].
The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from 767 any infirmity by reason of which it was necessary to look out for corroboration.
It was contended by the learned counsel for the appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor.
Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons.
That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length.
In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring.
It was urged by the learned counsel that after the attack, the deceased was all along accompanied by a large number of persons and one cannot therefore exclude the possibility that he was tutored into involving the appellants falsely.
We see no basis for this submission because not even a suggestion was made to any of the witnesses that the deceased was tutored into making the statement.
The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely.
Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for implicating the appellants falsely.
In regard to the second dying declaration, exhibit P 14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect.
In support of this submission, reliance was placed on a Judgment of this Court in Balak Ram vs State of U.P.
The error of this argument consists in the assumption that the dying declaration was made to an investigating officer.
The statement, exhibit P.14, was made by Bahadur Singh at the police station by way of a first information report.
It is after the information was recorded, and indeed because of its that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer.
The Station House officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement.
The judgment on which the counsel relies has therefore no application.
768 We are in full agreement with the High Court that both of these dying declarations are true.
We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration.
Bahadur Singh was assaulted in broad day light and he knew the appellants.
He did not bear any grudge towards them and had therefore no reason to implicate them falsely.
Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely.
They bore no ill will or malice towards the appellants.
We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.
We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration.
exhibit P 2, which is said to have been made by the deceased in the hospital.
The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded.
But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration.
Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged.
We have therefore excluded from our consideration the dying declaration, exhibit P 2, recorded in the hospital.
The High Court was, therefore, justified in reversing the order of acquittal passed by the Sessions Court and in convicting the appellants of the offence of which they were charged.
In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants ' counsel from time to time In the result, we confirm the judgment of the High Court and dismiss the appeal.
P.H.P. Appeal dismissed.

summary:
The appellants were tried by the Sessions Judge on the charge of committing murder of Bahadur Singh.
The prosecution relied on the evidence of two eye witnesses and three dying declarations made by the deceased.
The two eye witnesses supported the prosecution case only partly and were, therefor, permitted to be cross examined by the Public Prosecutor.
The Sessions Judge thought it unsafe to rely on the testimony of the two eye witnesses and was also not impressed by and of the dying declarations.
Consequently he acquitted the appellants.
The High Court in appeal did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations.
The High Court set aside the order of acquittal and convicted the appellants under section 30 read with section 34 I.P.C. and sentenced each of them to imprisonment for life.
In an appeal under section 2(1) of the .
^ HELD: 1.
The Sessions Court rightly discarded the evidence of the hostile eye witnesses.
They resiled from their Police, Statements and it is evident that they have no regard for truth.
Their evidence cannot be used to corroborate the dying declarations.
[766 C] 2.
In regard to the dying declarations the Sessions Court wholly overlooked the earliest dying declaration which was made by the deceased soon after the incident.
The second dying declaration was the first information report lodged by the deceased at the Police Station.
The Sessions Judge was clearly in error in holding that the first information report cannot be treated as a dying declamation.
After making the statements before the police the deceased succumbed to his injuries and, therefore, the statement can be treated as a dying declaration, and is admissible under section 32(1) of the Evidence Act, The maker of tho statement is dead and the statement relates to the cause of his death.
[766DF] 3.
It is, well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross examination, there is neither a rule of law nor a rule of prudence that a dying declaration cannot be acted upon unless it is corroborated.
[766G] 4.
Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
What is necessary is that the whole of the statement made by the deceased must be laid before the court without tampering with its terms or its tenor.
[767 C] 5.
The deceased did not bear any enmity or hostility towards the appellants nor did any other persons who were in the company of the deceased after the assault were shown to have any animus for implicating the appellants false.
[767E] 765 6.
The second dying declaration was not made to the Investigating officer.
It was made by way of First Information Report and it was only after the information was recorded that the investigation commenced.
The High Court was right in relying on the first and second dying declarations.
Considering the facts and circumstances of the case these two dying declarations can be accepted without corroboration.
[767F, 768C] 7.
The High Court ought not to have relied on the third dying declaration which is said to have been made by the deceased in the hospital.
The Investigating officer ought to have requisitioned the services of a Magistrate for re cording that dying declaration, Investigating officers are naturally integrated in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged.
[768CD] 8.
The High Court in reversing the order of acquittal passed by the Sessions rt did not violate any of the principles governing appeals against acquittal.
[768E]


judgement:
Civil Appeal No. 360 of 1971.
From the Judgment and order dated the 27/29 1 1965 of the Bombay High Court in Income Tax Reference No. 75 of 1961.
section C. Manchanda, K. J. John and J. B. Dadachanji for the Appellant.
section T. Desai, Girish Chandra and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
The appellant is a private limited company.
The assessment year is 1955 56 for which the relevant previous year ended on June 30, 1954.
The shareholders of the appellant company arc Mulraj Kersondas, members of his family, allied concerns and nominees only.
In 1944 the appellant purchased the managing agency of the Elphinston Spinning and Weaving Mills Ltd. for Rupees six lakhs and thereafter entered into a separate managing agency agreement with the managed company for a period of seventeen years.
The appellant 's only source of income was this managing agency in the relevant year.
Mulraj and his group also held among themselves 25,000 ordinary and 10,000 preference shares of the Elphinston Spinning and Weaving Mills Ltd. Mulraj entered into an agreement for sale of these shares with K. D. Jalan of Calcutta for a consideration of Rupees forty five lakhs; one of the terms of the agreement was that Mulraj would have the managing agency of the appellant company terminated.
In implementation of this agreement Mulraj wrote to the appellant company on October 21, 1953 asking the company to give up the managing agency on receipt of a sum of Rupees ten lakhs as compensation which he promised to pay.
On the same day the appellant company passed a resolution accepting Mulraj 's offer and 775 wrote to the managed company, Elphinston Spinning and Weaving Mills Ltd., tendering resignation of its office as managing agents.
The resignation was in due course accepted.
The assessee received from Mulraj a sum of Rs. 9,95,000/ as compensation for premature termination of the managing agency, Rs. 5,000/ having been paid by Mulraj as brokerage to one Dhirajlal Maganlal.
The amount received was credited to the Capital Reserve Account in the appellant 's books for the year ending on June 30, 1954 described as "compensation for loss of office".
In the assessment year 1955 56 for which the appellant 's previous year ended on June 30, 1954, the Income tax officer assessed the entire amount of Rupees ten lakhs in the hands of the appellant company under section 10(5A) of the Income Tax Act, 1922.
Section 10(1) of the Income Tax Act, 1922 states that the "tax shall be C payable by an assessee under the head "Profits and gains of business, profession or vocation in respect of the profit or gains of any business, profession or vocation carried on by him." Sub section (5A) was inserted in section 10 by the Finance Act, 1955 with effect from April 1, 1955, the relevant part of which is in these terms: "(5A) Any compensation or other payment due to or received by, (a) a managing agent of an Indian company at or in connection with the termination or modification of his managing agency agreement with the company; (b) a manager of an Indian company at or in connection with the termination of his office or modification of the terms and conditions relating thereto; (c) any person, by whatever name called, managing the whole or substantially the whole affairs of any other company in the taxable territories, at or in connection with the termination of his office or the modification of the terms and conditions relating thereto; (d) any person, by whatever name called, holding an agency in the taxable territories for any part of the activities relating to the business of any other person, at or in connection with the termination of his agency or the modification of the terms and conditions relating thereto; shall be deemed to be profits and gains of a business carried on by the managing agent, manager or other person, as the case may be, and shall be liable to tax accordingly;" The company preferred an appeal to the Appellate Assistant Commissioner against the order of the Income tax officer.
The Appellate Assistant Commissioner allowed the appeal holding that section 10(5A) created a new source of income for which the previous year was not the previous year for the managing agency business which ended on June 30, 1954, that the compensation of Rupees 776 ten lakhs which the appellant received in October, 1953 fell in the financial year 1953 54 which would be the previous year for this income for which the assessment year was 1954 55 which was before sub section (5A) of section 10 was enacted, and the fact that the appellant had entered the amount in its books for the year that ended on June 30, 1954 could not be taken as an exercise of option by the assessee accepting the said year as the previous year in respect of the receipt.
The Appellate Assistant Commissioner further held that if at all the amount was taxable in the assessment year 1955 56, the assessee was entitled to a deduction of Rupees six lakhs paid for acquiring the managing agency.
The Department took an appeal to the Tribunal against the order of the Appellate Assistant Commissioner.
The Tribunal was of opinion that section 10(5A) only regards the compensation received by the managing agent as profits and gains of a business and does not create a fresh source therefore, and as the amount in question in this case was received in the accounting year relevant to the assessment year 1955 56 it was taxable in the assessment year 1955 56.
The Tribunal however agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rupees six lakhs which the assessee had paid for acquiring the managing agency, and allowed the appeal partly holding that the assessee was liable to pay tax on the sum of Rs. 3,95,000/ .
At the instance of the parties the Tribunal referred the following two questions to the High Court under section 66(1): "(i) Whether the sum of Rs. 10 lakhs is income assess able in the year 1955 56 by virtue of Section 10 (5A) ? (ii) If the answer is in the affirmative, whether the initial cost of acquisition of the Managing Agency of Rs. 6 lakhs and Rs. 5000/ paid as brokerage on sale are deductible ?" The first question was referred at the instance of the assessee and the second at the instance of the Department.
The High Court overruled the contention of the assessee that the amount in question was income from a new source for which the previous year was 1953 54, and answered the first question in the affirmative and in favour on the revenue.
As regards the second question, the High Court answered it in favour of the assessee and upheld the order of the Tribunal.
In the present appeal brought on a certificate under section 66A(2), the assessee challenges the correctness of the answer given by the High Court to the first question.
"Previous year" is defined in section 2(11) of the Income Tax Act, 1922 and the relevant part of the definition is as follows: "(11) 'Previous year ' means in respect of any separate source of income, profits and gains (a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have 777 been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee the year ending on the day to which his accounts have so been made up ;" As stated already, sub section (5A) of section 10 came into force on April 1, 1955.
Therefore, the amount in question, if received by the assessee during the previous year for the assessment year 1955 56, would be taxable under that sub section.
By a legal fiction introduced by sub section (5A) any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profits and gains of a business carried on by the managing agent.
The appellant contends that sub section (SA) indicates that this deemed income is to be treated as receipt from a New source and, that being, so, the relevant previous year for this income would not necessarily be the year ending on June 30, 1954 which was the previous year for the managing agency business, and the assessee should have been given an opportunity to choose the previous year in respect for the receipt in question; if the financial year 1953 54 is taken as the previous year for this income from a new source, the argument proceeds, then the amount would not be taxable in the assessment year 1955 56.
It is further argued that the amount received as compensation could not be profits and gains of the managing agency business because the business itself was being terminated.
The words of the sub section, according to learned counsel for the appellant, indicate that the receipt is to be treated as income from a new and independent source.
Sub section (5A) states, inter alia, that any compensation or other payment received by a managing agent in connection with the termination of his managing agency agreement shall be deemed to be profits and gains of "a business" carried on by the managing agent.
The use of the indefinite article before the word 'business ', it is submitted, makes it plain that the income is not relatable to the managing agency business but to a new and separate source.
We are unable to accept the contention.
The fiction introduced by sub section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business.
The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business.
It is of course true that the amount was not earned in carrying on the business of managing agency, hut it is clear that the source of the receipt was the managing agency business itself.
It cannot therefore be said that the receipt was income from a new and independent source.
In our opinion the High Court was right in holding that in enacting sub section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income.
Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income tax, Bombay vs Sir 778 Chunilal vs Mehta & Sons Private Ltd and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. vs Commissioner of Income Tax, Kerala and Coimbatore, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business, and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself.
In our view these two decisions state the law on the point correctly.
The appeal fails and is dismissed with costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The assessee appellant received in October, 1953, a sum of Rs, 9,95,000/ out of Rs. 10,00,000 compensation for the premature termination of its managing agency business, a sum of Rs. 5,000/ , having been deducted towards brokerage.
The said amount was credited to the Capital Reserve Account in its books for the year ending on June 30, 1954 described as "compensation for loss of office".
In the assessment year 1955 56, for which, the appellant 's previous year ended on June 30, 1954, the Income Tax Officer assessed the entire amount of Rs. 10,00,000 in the hands of the appellant company under section 10 (5A).
The Company preferred an appeal to the Appellate Assistant Commissioner who allowed the appeal holding that (i) section 10(5A) created a new source of income for which the previous year was not the previous year for the managing agency business ending on June 30, 1954; (ii) the compensation of Rs. 10,00,0000 which the assessee received in October, 1953 fell in the financial year 1953 54 ` which would be the previous year for this income for which the assessment year was 1954 55, which was before the enactment of sub section SA of section 10; (iii) the fact that the appellant had entered the amount in its books for the year that ended on June 30, 1954, could not be taken as an exercise of option by the assessee, accepting the said year as the previous year in respect of the receipt; and (iv) if at all the amount was taxable in the assessment year 1955 56, the assessee was entitled to a deduction of Rs. 6,00,000/ paid for acquiring the managing agency.
The appeal preferred by the Department was partly allowed.
Tho Tribunal agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rs. which the assessee had paid for acquiring the managing agency business.
The Tribunal however held that Sec. 10 (5A) does not increase a fresh source of income that since tho amount in question was received in the accounting year relevant to the assessment year 1955 56 it was taxable in the assessment year 1955 56; The High Court on a reference under section 66(1) of the Act on the two questions namely (i) Whether the sum of Rs. 10 lakhs is income assessable in the year 1955 56 by virtue of Section 10(5A)? and (ii) If the answer is in the affirmative, whether the initial cost of acquisition of the Mananging Agency of Rs. 6 lakhs and Rs. 5 thousands paid as brokerage on sale are deductible ? agreed with the views of the Tribunal.
On appeal by certificate under section 66A(2) and dismissing the appeal, the Court, ^ HELD: (1) Since sub section 5A of section 10 came into force on April 1, 1955, the amount in question if received by the assessee during the previous year for the assessment year 1955 56, would be taxable under that sub section.
By 774 a legal fiction introduced by the sub section, any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profit and gains of a business carried on by the managing agent.
The fiction regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business.
The amount received by the appellant was the payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business.
Though the amount was not earned in carrying on the business of managing agency, yet the source of the receipt was the mananing agency business itself, it is not therefore correct to say that the receipt was income from a new and independent source (2) The High Court was right in holding that in enacting sub section 5A, the Legislature was concerned only with providing a head under which the or receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source fur that deemed income.
[777G] (3) The compensation paid for the termination of a managing agency business is a payment in relation to the said business and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself.
[778A] Commissioner of Income Tax, Bombay vs Sir Chunilal V. Metha & Sons Private Ltd., ; and R. V. Lakshmiah Naidu and Co. vs Commissioner of Income Tax, Kerala and Coimbatore. , relied on


judgement:
ition No. 469 of 1971.
Under article 32 of the Constitution af India.
V. M. Tarkund, V. N. Ganpule and P. C. Kapoor for the petitioners.
G. L. Sanghi and section P. Nayar for respondents 1 4, respondents S to 16 not represented.
The Judgment of the Court was delivered by BEG, J.
Twenty two petitioners under Article 32 of the Constitution have come to this Court with the following assertion: (1) They are employed as civilian non gazetted Officers holding posts of Chargemen Grade II (Chemists) in high explosives ' Factory, Kirkee, which is one of the 28 ordnance Factories, located all over India, controlled by opposite party No. 2, the Director General of ordnance Factories, with his Head office at Calcutta.
(2) The Factory has four cadres of officers: (i) Gazetted officers; (ii) Non Gazetted officers; (iii) Non Industrial employees; (iv) lndustrial employees.
The petitioners belong to the second cadre which has four grades: (a) Foremen; (b) Assistant Foremen; (c) Chargemen Gr.
I; (d) Chargemen Grade II.
The 3rd cadre of nonindustrial employees has two grades (i) Supervisor 'A ' Grade; and (ii) Supervisor 'B ' grade.
The employees of the 3rd cadre are classified as Class III employees in the general scheme of classification of Govt.
servants who are governed by India ordnance Factories (Recruitment and Conditions of Service of Class II personnel) Rules.
(3) The seniority rules of Gazetted and Non Gazetted officers of the ordnance Factories are laid down in office Memorandum dated 4th January, 1956, amended in 1961 (Annexure 'B ').
(4) The Director General of ordnance Factories, Respondent No. 2, issued an advertisement, dated 14th November, 1962 for direct recruitment to the grade of Foremen, Assistant Foremen, Chargemen Grade I and Ghargemen Grade II.
At the time of this advertisement, all the petitioners, except petitioner No. 12, were already serving as officiating Supervisors of 'A ' Grade of Class IIl: employees.
In answer to the advertisement for appointment to temporary posts with prospects of being "considered for permanent appointment in due course", the petitioners, who possessed the minimum qualification prescribed, applied for direct recruitment which was open to them also.
The petitioners were for interview by a letter issued by the General Manager, High explosives ' I Factory, Kirkee, on 7th February, 1963, but, after the interviews, no letters of appointment were received by the petitioners other than petitioner No. 12.
760 (5) They were promoted between April, 1963, and November, 1963, from their substantive grade of Supervisor 'A ' to Chargemen Grade II by the General Manager of their factory, on short term basis, by virtue of powers delegated to him.
Petitioner No. 12, who was not in service at all before, was appointed a temporary chargemen, Grade II, in April, 1963, as a result of his selection after interview.
Respondents 5 to 16, however, entered ' the ' grade of Chargemen Grade II between 1st December, 1963 and 4th February, 1965, and were also shown as temporary Chargemen Grade II, but, they were not holding any post in the grade of Supervisors.
The respondents were apprentices before entering into the Grade II of Chargemen.
r (6) The promotions of the petitioners were given ' retrospective effect, by an order dated 11th June, 1965, passed by the Director General ordnance Factories.
In December, 1967, however, the petitioners were superseded by others who were alleged to be their juniors.
The petitioners made representations and sent reminders which were not replied to.
Respondents S to 16 were promoted from Chargemen Grade II to the grade of Assistant Foremen by an order of the respondent No. 2 Director General ordnance Factories dated l 7th September, 1971.
This order according to the petitioners amounted to another supersession of the petitioners who were shown as holding permanent posts only as Supervisors of 'A ' grade in 1971.
The petitioners, therefore called to this Court on 14th December, 1971 against the orders dated 17th September, 1971, Which amounted to their supersession.
The petitioners also alleged that as no orders were communicated to them showing that they were considered direct recruits by the ordnance Depot by the Ministry of Defence Production in the Govt of India or anyone on its behalf, they came to know, for the first time, as a result of the replies filed by the respondents to the Writ Petition that they were being treated as direct recruits so that they could only be confirmed when their turn came in the 20% quota of direct recruits and not in the 80% quota of the promotees.
The petitioners, therefore, applied for the amendment of the petition and were permitted by this Court, under an order dated 16th November, 1973, to do so.
They alleged, by means of this amendment that their classification as direct recruits instead of as Promotees was Seniority fanciful, arbitrary, and even capricious".
They also alleged that the seniority list filed in reply to their petition had been kept concealed from them and that it was prepared in utter disregard to statutory rules 10(1) to 10 to (4) contained in S.R.O. 4.
These rules are 10(1) The Director General will prepare a seniority list of all the officers in their own categories according to the following procedure: (i) As between two officers holding a particular class of appointment, in a substantive capacity, seniority in that 761 class of appointment as well as in the officiating appointments held by them in the same rank or different ranks shall be determined with reference to the date of the substantive appointment.
(ii) Subject to the provisions of clause (iii), an officer holding an appointment in a particular class in a substantive capacity will he normally senior to an officer holding an appointment in the same class in a non substantive capacity.
(iii) Seniority of persons holding temporary appointments which are made on agreement or on probationary basis and which are expected to be continued after the expiry of the initial period, will be reckoned vis a vis others holding permanent appointments in the same grade in the ordnance Factories from the date from which the officer concerned have been holding appointments of the same grade continuously.
The seniority so assigned to such per sons shall not be disturbed on their confirmation at a later stage.
Note: This clause applies only to persons recruited through the Union Public Service Commission and to those recruited directly, otherwise than through the Union Public Service Commission prior to 1st April 1947.
(iv) Temporary seniority in a given grade will be reckoned from the date from which the officer concerned has been occupying it continuously, irrespective of whether he has a substantive appointment in some lower grade" The reply of the respondents is that the so called promotion orders, of which the petitioners want to take advantage, were really the result of a mistake or misunderstanding in not realising the actual legal position of the petitioners as direct recruits.
It was pointed out that, in the letters issued calling them for interviews as direct recruits, it was made clear to them that their appointments did not carry with them any decision about their fitness for the post applied for and that they could be considered for any lower post to which they might he so entitled.
In other words, this clearly meant that they were on trial.
It was also pointed out that promotions are only made under Rule 6 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956, as amended in 1961 to Chargemen Grade II, on the basis of "a selection list prepared by the appropriate Departmental Promotion Committee".
rt was asserted that, in the minutes of the Departmental Promotions ' Committee held in the month of April 1963, prior to the appointment of petitioners as Chargemen Grade II, the Committee had prescribed a normal minimum qualification of three years ' service in the post of Grade 'A ' for promotion barring exceptional cases of ex apprentices.
It was asserted that, as the Petitioners had not satisfied this condition, they could not be considered for promotion to the posts of Chargemen Grade II.
They did not belong to the class 762 which had any exceptional qualifications.
Hence, their names did not appear in the list of persons to be promoted prepared by the Departmental Promotions ' Committee for the post of Chargemen Grade II.
It was asserted that they were being treated as direct recruits and not promotees despite their wrong description and even wrong orders conveying the impression that they were promotees.
The condition precedent to promotion not having been satisfied they could only be considered as direct recruits and get the appointments reserved for the class of direct recruits as and when their turns arrived in this quota.
It was conceded on behalf of the respondents that much larger number of appointments had been made in the class of direct recruits than the vacancies available.
It was, however, explained that this was due to the sudden and exceptional demands for these appointments as a result of the pressure on our ordnance Factories due to the war with China and other defence requirements.
It was urged that the petitioners could not take advantage of erroneous orders made by the Manager of their ordnance Factory even if the error had been repeated by the Director General Ordnance Factories.
If the petitioners had not satisfied the condition precedent to promotion, they could not get the appointments reserved for the 80% quota of promotees whose work was watched by the Promotions ' Committee so that they could be declared fit for promotion.
The promotions were on the basis of a selection on merit, the tests of which had not been satisfied by the petitioners In fact, the petitioners were considered with others, and were not selected.
It was not necessary to give them opportunities of being heard on comparative merits, as they claimed, just as candidates at an examination are not entitled to any such opportunities as these are not disciplinary proceedings.
Counsel for the petitioners was, in our opinion, not able to meet the objections put forward to petitioners ' claims as promotees.
He could not show that they satisfied the conditions precedent to promotions.
Hence, the so called orders of promotion could not cure the defect.
It was immaterial that the petitioners were wrongly shown as Promotees in their service records or that they had not received intimations or their appointments as direct recruits.
There was a justifiable ground for a distinction between them and the class to which the respondents belonged.
There was no challenge to the fairness of the 20% quota reserved for direct recruits as against that of promotees.
Hence, we do not think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution.
Petitioners cannot also claim any benefit resulting from being treated as persons belonging to the same class as respondents 5 to 16 whose places on the seniority list are questioned by them as 763 amounting to illegal supersessions of the petitioners.
We may mention here that Mr. Sanghi, Counsel appearing for the Union of India, Respondent No. 1, and the Director General ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far as the case af Petitioner No. 11 is concerned, it stands on a special footing and that his clients are considering it on that footing.
Counsel for the petitioners has also conceded that so far as 3 of the petitioners are concerned, they have been rightly treated as direct recruits.
We find no error in treating the others also as direct recruits.
It may also be mentioned here that Mr. Sanghi, Counsel for the Union of India and its officials, has stated to the Court that none of the petitioners will be reverted to his substantive post merely on the ground that he was treated as a direct recruit.
The question of inter se seniority is a different matter.
The petitioners have been unable to establish that they have been denied their seniority in violation of any right under Article 16 of the Constitution.
Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546): "It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it were given unjustifiable preference over him".
As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice, we are unable to accept the petition before us.
We therefore, dismiss this petition.
The parties will bear their own costs.
V.P.S Petition dismissed.

summary:
The Ordinance Factory in which the petitioners were employed hold four cadres.
In the 2nd cadre of non gazetted officers there were four grades Foremen.
Assistant Foremen, Chargemen Grade I and Chargemen Grade II.
The 3rd cadre of non industrial employees had 2 grades Supervisor 'A ' Grade and 'B ' Grade, and were governed by the Indian ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules,1956.
Appointment was on the basis of 20% of the quota for direct recruits and 80% for promotees.
In answer to an advertisement for appointment by direct recruitment to the 4 grades of the 2nd cadre, the petitioners, all of whom except petitioner No. 12, were serving as Supervisors 'A ' Grade, applied.
Petitioner No. 12 was not in service.
They were interviewed but none of the petitioners, except Petitioner No. 12, received orders of appointment.
Petitioner No. 12 was appointed Chargeman Grade II.
Between April, 1963, and November, 1963, The other petitioners were promoted as Chargemen Grade II.
Respondents 5 to 16 who were apprentices, were also promoted as Chargemen Grade II, and were later promoted to the grade of Assistant Foremen.
Treating this order as an order of supersession, the petitioners filed a writ petition under article 32 claiming to be promotees, and seniority on the basis of statutory rules 10(1)(i) to (iv) contained in S.R.O. 4.
Dismissing the petition, ^ HELD.
(I) There was a justifiable ground for distinction between the petitioners, who were direct recruits, and the respondents who were promotees, and hence, there was no violation of article 16.
1762 G] The petitioners were really direct recruits and not promotees despite the wrong description in their service records and even wrong orders conveying the impression that they were promoters.
even though they had not received intimation of their appointment as direct recruits.
Promotions arc only made under section 8 of the Indian ordnance Factories (Recruitment and Conditions of service of Class III Personnel) Rules, 1956, as amended in 1961, to Charge men Grade II, on the basis Of a selection list prepared by the appropriate Departmental Promotion Committee.
The Committee had prescribed a normal minimum qualification of 3 years ' service in the post of Supervisor Grade 'A ' before promotion except in exceptional cases of ex apprentices.
The petitioners did not belong to the class which had any exceptional qualification, and, since they had not satisfied tho 3 years ' condition, they could not be considered for promotion in the 80% quota reserved for promotees, to the post of Chargemen, Grade Ir.
E Hl (2) The petitioners have not established that they have been denied their seniority in violation of any right under article 16 nor that the seniority list had been prepared in violation of any rule or principle of justice.
The question of inter se seniority is also based upon the 4:1 (80%: 20%) ratio and it was for the petitioners to satisfy the Court that they were not given the senior 759 grade although they satisfied all the required conditions, and that others, who A were promoted, were given unjustifiable preference over them.
[763C] Amrit Lal Berry vs Collector of Central Excise Central Revenue & ors., AIK @ 546, followed.


judgement:
N: Criminal Appeal No. 162 of 1971.
Appeal by special leave from the Judgment and order dated the 11th December, 1970 of the Calcutta High Court in Criminal Revision No. 145 of 1969.
N.C. Talukdar, Prodyut Kumar Chatterjee and Sukumar Basu for the Appellant.
G.S. Chatterjee and Sukumar Basu for the Respondents.
783 The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellant, who is a homeopathic practitioner, runs a dispensary at Harrison Road, Calcutta.
In the issue of a Hindi newspaper, "Sanmarg", dated September 14, 1967 he had the following advertisement published: "New Life, New Vigour, New Spirit, New Wave.
If you want a cure, see today well known world famous experienced registered Physician.
Special diseases such as oldness in youth, all sorts of defects in nerves, or weakness laziness are treated with full responsibility, with new methods, new machines of science and electric treatment and are cured permanently. " In behalf of this advertisement, the appellant was prosecuted under section 7 read with section 3 of the Drugs and Magic Remedies (objectionable Advertisements Act 21 of 1954.
The learned Presidency Magistrate, 8th Court, Calcutta convicted the appellant of the aforesaid charge and sentenced him to pay a fine of Rs. 100/ .
The order of conviction and sentence having been confirmed by the High Court of Calcutta, the appellant has filed this appeal by special leave.
The Drugs and Magic Remedies (objectionable Advertisements) Act provides by section 3, in so far as relevant, that no person shall take part in the publication of any advertisement "referring to any drug in terms which suggest or are calculated to lead to the use of that drug" for the maintenance or improvement of the capacity of human beings for sexual pleasure or the diagnosis, cure or treatment E. Of any disease or condition specified in the Schedule to the Act.
Item 14 of the Schedule refers to "Disorders of the nervous system '.
Section 7 of the Act makes it penal to contravene any of the provisions of the Act.
The contention of the appellant was and before us is that the particular advertisement does not refer to any "drug" and therefore the provisions of the Act are not attracted.
For appreciating this contention, it is necessary to refer to section 2(b) of the Act which runs thus: "2.
In this Act, unless the context otherwise requires, (a) * * * * (b) "drug" includes (i) a medicine for the internal or external use of human beings or animals; (ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or animals; (iii) any article, other than food, intended to affect or influence in any way the structure or any 784 organic function of the body of human beings or animals; (iv) any article intended for use as a component of any medicine, substance or article, referred to in sub clauses (i), (ii) and (iii)." The learned Magistrate as well as the High Court have taken the view that the advertisement in question; refers to a drug as defined by section 2(b) (ii) above as "machines of science" are a "substance" intended to be used in the diagnosis, cure or treatment of diseases in human beings.
We do not propose to examine the correctness of this view because it seems to us clear that, in any event, the impugn ed part of the advertisement refers to a drug as defined by section 2(b)(iii).
Any article, other than food, which is intended to affect or influence in any way any organic function of the body of a human being is a drug within the meaning of that provision.
The so called "machines of science" or of "electric treatment" whose magically curative properties were advertised by the appellant are Articles intended to influence the organic function of the human body.
Indeed, the very claim of the appellant is that by the use of these machines he could cure nervous diseases amongst other ailments.
That a machine is an "article" requires no great learning either to expound or to understand.
A machine is a tangible thing which can both be seen and felt and as such it answers the description of an 'article ' within the meaning of section 2(b) (iii) of the Act.
The 'Shorter oxford English Dictionary ' (Ed. 1964, Vol.
I, p. 102) says that 'article ' means.
inter alia, "a piece of goods or property".
Webster 's 'New World Dictionary ' defines an 'article ' as a "commodity" and 'commodity ' as "any useful thing" or "any article of commerce".
(See Ed.
1962 pp. 83 and 295).
Putting it simply, a "machine" is a "thing" and is therefore an "article".
Law may not all be commonsense and logic may not be the life of law but commonsense is not taboo in law courts.
A machine is after all intended to be and is conceived as a useful thing and is therefore an "article".
The Statement of objects and Reasons to the Act says that many an advertisement causes the ignorant and the unwary "to resort to quacks who indulge in such advertisements for treatments which cause great harm".
The appellant may not be a quack, so will be assume, but his "machines of science" designed to confer on man kind the blessings of 'New Life, New Vigour, New Spirit, New Wave" are most likely to trap the ignorant and the unwary.
The articles of commerce which he has benefully advertised must, as far as possible and without doing violence to the language of the Act, be brought within the mischief of the Act.
It does no violence either to commonsense or to rules of interpretation to say that a machine is an "article".
In the result, we confirm the judgment of the High Court, though for a different reason, and dismiss this appeal.
P.B.R. Appeal dismissed.

summary:
Section 3 of the Drugs and Magic Remedies (objectionable Advertisements) Act provides that no person shall take part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for the maintenance or improvement of the capacity of human beings for sexual pleasure or the diagnosis, cure or treatment of any disease or condition specified in the Schedule to the Act.
Section 7 of the Act makes it penal to contravene any of the provisions of the Act.
The appellant inserted an advertisement in a newspaper to the effect that he would treat diseases "with new methods, new machines of science and electric treatment".
He was prosecuted under section 7 read with section 3 of the Act and was convicted and sentenced.
The High Court confirmed the conviction and sentence.
On appeal to this Court.
it was contended that the particular advertisement did not refer to any "drug" and, therefore, the provisions of the Act were not attracted.
Dismissing the appeal, ^ HELD: "Machines of science" designed to confer on mankind the blessings of "New Life, New Vigour, New Spirit, New Wave" advertised by the appellant are most likely to trap the ignorant and the unwary.
The articles of commerce which the appellant had banefully advertised must be brought within the mischief of the Act.
[784 GH] (1) Any article other than food which is intended to affect or influence in any way any organic function of the body of a human being is a drug within the meaning of that provision.
The so called "machines of science" or of "electric treatment" whose magically curative properties were advertised by the appellant are articles intended to influence the organic function of the human body.
[784C] (2) A machine is a tangible thing which can both be seen and felt and as such, it answers the description of an article within the meaning of section 2(b)(iii) of the Act.
A machine is intended to be and is conceived as a useful thing and is therefore, an "article".
It does no violence either to commonsense or to rules of interpretation to say that a machine is an "article".
[784 D E]


judgement:
vil Appeal No. 139 of 1955.
Appeal under Articles 132 and 133 of the Constitution of India against the Judgment and Order dated the 23rd December 1953 of the High Court of Judicature for the State of Punjab in Civil Writ Application No. 24 of 1953.
N.C. Chatterjee, (B. section Narula, with him) for the appellant.
G.S. Pathak and Veda Vyas, (Ganpat Rai, with them), for respondent No. 5 1955.
September 6.
The Judgment of the Court was delivered by BOSE J.
The proceedings that have given rise to this appeal arise out of an election petition before the Election Tribunal, Delhi.
The appellant Shrimati Sucheta Kripalani together with the contesting respondent Shrimati Manmohini Sahgal and others were candidates for election to the House of the People from the Parliamentary Constituency of New Delhi.
The polling took place on 14th January, 1952, and when the votes were counted on 18th January, 1952, it was found that the appel lant had secured the largest number of votes and that the contesting respondent Manmohini came next.
The appellant was accordingly notified as the returned candidate on 24th January, 1952.
On 6th March, 1952, the appellant filed her return of election expenses.
This was found to be defective, and on 17th April, 1952, the Election Commission published a notification in the Gazette of India disqualifying the appellant under Rule 114(5) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, on the ground that she bad "failed to lodge the return of election expenses in the manner required" and that she had thereby "incurred the disqualifications under clause (c) of section 7 and section 143 of the Representation of the People Act, 1951".
452 In view of this the appellant submitted a fresh return with an explanation under Rule 114(6) on 30th April, 1952.
This was accepted by the Commission and on 7th May, 1952, it published a notification in the Gazette of India under Rule 114(7) stating that the disqualification had been removed.
In the meanwhile, on 7th April, 1952, the contesting respondent Manmohini filed an election petition praying that the appellant 's election be declared void and that she (the petitioner) be declared to have been duly elected.
It will be noticed that this was before 17th April, 1952, the date on which the Election Commission disqualified the appellant.
The validity of the election was attacked on many grounds.
A number of major corrupt practices were alleged and the return which the appellant had filed on 6th March,1952, of her election expenses was challenged as a minor corrupt practice on two grounds: (1) that the return was false in material particulars and (2) that it was not in accordance with the rules and so was no return at all in the eye of the law.
Particulars of the instances in which the return was challenged as false were then set out.
The appellant filed her written statement in reply on 7th October, 1952.
It will be noticed that this was after she had put in her second return and after the Election Commission had removed the disqualification due to the first return.
Her reply was as follows: (1) That as the disqualification with respect to the return of her election expenses had been removed by the Election Commission under section 144 of the Representation of the People Act, 1951, this question could not be reopened; (2) That a minor corrupt practice which cannot vitiate an election and which is not capable of materially affecting an election is wholly outside the scope of a proper election petition and so no cognisance of it can be taken by the Election Tribunal; (3) That only such matters can be put in issue as are necessary to decide whether the election of the returned candidate is liable to be set aside within the meaning of section 100(2) of the Act, 453 The contesting respondent Manmohini filed a replication on 15th October, 1952.
In it she said: (1)that the Election Commission did not and could not decide whether the return was or was not false in material particulars and so the question was still open.
(This had reference to the first return dated 6th March., 1952.); (2) that in any event "even the revised return is false in material particulars and the objections with regard to the original return also apply exactly with regard to the revised return".
The broad propositions of law raised by points (2) and (3) in the appellant 's written statement were also denied.
Then followed an item by item reply to the allegations made by the appellant in the list which she had appended to her written statement.
That list was a reply to the particulars of false return and corrupt practices furnished by the contesting respondent Manmohini.
It is evident then that Manmohini attacked the second return on exactly the same grounds as the first and, furnished the same particulars.
Now we have spoken of these returns as the first and the second.
But counsel on both sides agreed before us that the first return was in fact no return at all in the eye of the law and that therefore the contesting respondent 's real attack was on the second return which must be regarded as the only return which the law will recognise as a valid return.
It was agreed that there cannot be two returns of expenses: either the one originally filed is amended or it is treated as a nullity so far as it purports to be a return.
In view of this agreement, it is not necessary for us to express any opinion on the matter and we will concentrate our attention on what, for convenience, we will continue to call the second return.
The first point that now arises is whether the decision of the Election Commission to remove the disqualification attaching to the first return precludes an enquiry into the falsity of the second return simply because the respondent Manmohini alleged that the 454 particulars of the falsity are exactly the same as before.
Our answer to that is No.
If the first return is no return in the eye of the law, then the only return we are concerned with is the second and that must be treated in the same way as it would have been if it had been the only return made.
If there had been no other return and this return had been challenged on the grounds now raised, it is clear that the truth of the allegations made would have to be enquired into.
That enquiry cannot be shut out simply because the allegations against the second return happen to be exactly the same in the matter of its falsity as in the case of the first return.
We are therefore of opinion that the jurisdiction of the Tribunal to enquire into these matters was not ousted on that account.
Our reasons for this are these.
Section 76 of the Act requires every candidate to file a return of election expenses in a particular form containing certain prescribed particulars.
The form and particulars are set out in the Rules.
Section 143 prescribes the penalty for failure to observe those requirements.
It is disqualification.
This ensues if there is a "default" in making the return.
It also ensues: "if such a return is found. . upon the trial of an election petition under Part VI. . to be false in any material particular".
That places the matter beyond doubt.
The trial of an election petition is conducted by an Election Tribunal and this section makes it incumbent on the Tribunal to enquire into the falsity of a return when that is a matter raised and placed in issue and the allegations are reasonably connected with other allegations about a major corrupt practice.
The jurisdiction is that of the Tribunal and not of the Election Commission.
The duty of the Election Commission is merely to decide under Rule 114(4) whether any candidate has, among other things, "failed to lodge the return of election expenses. in the manner required by the Act and these rules".
It is a question of form and not of substance.
If 455 0 the return is in proper form no question of falsity can arise unless somebody raises the issue.
If it is raised, the allegations will be made in some other document by some other person and the charges so preferred will be enquired into by the Tribunal.
If the return is not in proper form, disqualification ensues but the Election Commission is invested with the power to remove the disqualification under Rule 114(6).
If it does, the position becomes the same as it would have been had the Election Commission decided that the form was proper in the first instance.
That would still leave the question of falsity for determination by the Tribunal in cases where the issue is properly raised.
Mr. Chatterjee contended on behalf of the appellant that we were not concerned with the second return in this appeal and 0strongly protested against Mr. Pathak being allowed to argue this point.
But that has been the main bone of contention almost from the start.
When the election petition was filed, there was only one return to attack.
The second had not been put in.
Later, when it was put in, the contesting respondent, Manmohini, attacked, both and the appellant herself said that questions about the falsity of the return could not be gone into because of the Election Commission 's order removing the disqualification.
That argument applies as much to the second as to the first return and raises an issue about the respective jurisdictions of the Election Commission and the Election Tribunal on this point.
The Tribunal decided against the appellant on this point and held, as we do, that the Election Commission was not concerned with the issue of fact about the falsity of the return.
The appellant then filed a petition under article 226 to the High Court and questioned the Tribunal 's jurisdiction to enquire into the issue of falsity.
The High Court upheld the Tribunal 's decision and the appellant pursued the matter here both in her grounds of appeal and in her statement of the case.
She cannot at this stage ask us to leave 456 the matter open so that she can come here again and re agitate this question.
We accordingly overrule Mr. Chatterjee 's objection.
The next question argued was whether an Election Tribunal can enquire into a minor corrupt practice if it is of such a nature that, standing by itself, it could not have been made the basis of an election petition because it could not materially affect the result of the election.
We need not go into that because the question is purely academic in this case.
The allegation about the minor corrupt practice does not stand by itself.
There are also allegations about major corrupt practices which require investigation and the minor corrupt practices alleged are reasonably connected with them.
Section 143 of the Act is a complete answer to the question of the Tribunal 's jurisdiction on this point when it is properly seised of the trial of an election petition on other grounds.
Whether it could be properly seised of such a trial if this had been the only allegation, or if the minor corrupt practice alleged was not reasonably connected with the other allegations about major corrupt practices, does not therefore arise.
As the trial is proceeding on the other matters the Tribunal is bound under section 143, now that the issue has been raised, also to enquire into the question of the falsity of the return.
Without such an enquiry it cannot reach the finding which section 143 contemplates.
We need not look into the other sections which were touched upon in the arguments and in the Courts below because section 143 is clear and confers the requisite jurisdiction when a trial is properly in progress.
The appellant has failed on every question of substance that she raised.
There was some vagueness in the Election Tribunal 's order about which of the two returns formed the basis of the enquiry on this point but even if the Tribunal intended to treat the first return as the basis, that did not really affect the substance because exactly the same allegations are made about the second return and the issue of fact would therefore have to be tried in any event.
The appel 457 lant 's whole endeavour was to circumvent such an enquiry and oust the Tribunal 's jurisdiction.
In that she has failed, so she will pay the contesting respondent 's costs throughout.
The appeal fails and is dismissed with costs all through.

summary:
The provisions of the Representation of the People Act and the Rules framed thereunder assign distinct and different jurisdictions to the Election Commission and an Election Tribunal so far as a Return of election expenses is concerned.
Where there are allegations of major corrupt practices and a Tribunal constituted is in lawful seisin of the dispute, section 143 of the Act gives it the sole jurisdiction and makes it incumbent on it to inquire into the falsity of any particulars mentioned in the return where such falsity is alleged and brought into issue and is reasonably connected with the major corrupt practices.
What the Election Commission has to do under Rule 114(4) is to satisfy itself that the return is in the prescribed form.
It is no part of its function to inquire into the correctness of any particulars mentioned therein.
That question can only arise when some one raises a dispute and brings the matter into issue.
Consequently, in a case where, as in the present, the Election Commission removed the disqualification it had imposed on the returned candidate for lodging a defective return of election expenses on the lodging of a fresh return; Held, that the decision of the Election Commission removing the disqualification attaching to the first return in no way precluded the Tribunal from inquiring into the falsity of the particulars in the second return although they were identical with those challenged in the first return; that the removal of the disqualification only meant that the accepted return was the only valid return, being the first to be correct in form, and the Tribunal had only that return before it, 451