judgement:
ivil Appeal No. 202 of 1562.
Appeal from the judgment and order dated March 10, 1961, of the Andhra Pradesh High Court in Writ Petition No. 677 of 1958.
A.V. Viswanatha Sastri, Jayaram and R. Ganpathi lyer, for the appellant. ' 102 V.K. Krishna Menon, M. K. Ramamurthi, R.K. Garg, section C. Agarwal and D.P. Singh, for the respondent No. 1.
K. R. Chaudhuri and P.D. Menon, for respondent No. 2 1963.
April 18.
The principal question which arises in this appeal is whether the respondent B. Somayajulu is a working journalist under section 2(b) of the Working Journalists Industrial Disputes Act 1955, (No. 1 of 1955) (hereinafter called 'the Act ').
That question arises in this way.
On February 19, 1935, the respondent was appointed a Correspondent at Guntur by the appellant, the management of the Express Newspapers Ltd. He did that work continuously until October, 20, 1955 on which date his services were terminated.
The Andhra Union of Working Journalists, Elluru, then took up the respondent 's cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist, he was entitled to reinstatement and compensation for the period during which he was not allowed to work by the appellant in consequence of the order passed by the appellant terminating his services.
This dispute was referred by the Government of Andhra Pradesh for adjudication to the Labour Court, Guntur.
The question referred for adjudication was whether the termination of services of Mr. B. Somayajulu, Correspondent of Indian Express Newspapers at Guntur was justified? If not, to what relief was he entitled? Before the Labour Court, the respondent claimed that in addition to reinstatement, compensation should be awarded to him from October 13, 1955 to May 1, 1956 at Rs. 75/ per mensem and thereafter up to the 103 date of reinstatement at the rate prescribed by the Wage Board for Working Journalists under the provisions of the Act.
The appellant disputed this claim on several grounds.
It urged that the Labour Court had no jurisdiction to entertain the reference, because the appointment of the respondent had been made at Madras, the money due to him was sent from Madras, and so, the appropriate Government which could have made the reference was the Madras Government and not the Government of Andhra Pradesh.
This argument has been rejected by the Labour Court.
It was also urged that the reference was invalid since the order of reference in terms did not refer to section 10 (1) (c) 01 ' the Industrial Disputes Act under which the power to refer had been exercised.
The Labour Court repelled this contention as well.
Then it was alleged that the dispute referred to the Labour Court for its adjudication was an individual dispute and had not been properly sponsored by any Union.
The Labour Court was not impressed even by this plea.
That is how the preliminary objections raised by the appellant were all rejected.
On the merits, the appellant urged that the respondent was not a working journalist under section 2(b) of the Act.
In support of this plea the appellant averted that the respondent was a part time correspondent unattached to any particular newspaper establishment that a year or so later he was appointed as a selling agent of the publications of the appellant, such as the Express Newspapers, Dinamani and Andhra Pradesh at Guntur which assignment was given to him on his depositing Rs. 6,000/which was later raised to Rs. 7,000/ .
According to the appellant, as such selling agent, the respondent was making on an average about Rs. 1,500/ per mensem as commission, whereas, as a correspondent he was first paid on lineage basis and later an honorarium was fixed at Rs. 50/ which was subsequently 104 raised to Rs. 75/ p.m.
This latter amount was paid to him until his services were terminated.
The appellant, therefore, contended that the avocation of a moffusil correspondent was not the respondent 's principal avocation, and so, he could not claim the benefit of the status of a working journalist under section 2(b) of the Act.
The Labour Court took the view that parttime workers were outside the purview of the Act.
It also referred incidentally to the commission which the respondent received as a selling agent and made some observations to the effect that the payment to the respondent for his work as a correspondent was very much less than the commission which he received from the appellant as its selling agent.
It is common ground that some time before the respondent 's services as a correspondent were terminated, his selling agency had also come to an end.
From the award made by the Labour Court, it is clear that the Labour Court decided the matter against the respondent solely on the ground that as a part time worker he could not be regarded as a working journalist, and it made no finding on the question as to whether his principal avocation at the time when his services were terminated could be said to satisfy the test prescribed by the definition under section 2(b).
The award made by the Labour Court was challenged by the respondent before the Andhra Pradesh High Court by a writ petition under Articles 226 and 227 of the Constitution.
The High Court has held that the respondent is a working journalist under section 2(b) and so, it has set aside the award passed by the Labour Court.
There is no specific direction issued by the High Court remanding the proceedings between the parties to the Labour Court for disposal on the merits in accordance with law, but that clearly is the effect of the order.
It is against this decision that the appellant has come to this Court with a 105 certificate issued by the said High Court; and on behalf of the appellant, the principal contention raised by Mr. Sastri is that the High Court was in ,error in holding that the respondent was a working journalist under section 9,(b).
The Act which applied to the proceedings between the parties was the Act No. 1 of 1955.
This Act came into force on March 12, 1955.
It consists of only 3 sections.
Section 1 gave the title of the Act; section 2 defined 'newspaper ' and 'working journalist ' by clauses (a) and (b); and section 3 made a general provision that the provisions of the applied to, or in relation to, working journalists as they applied to, or in relation to workmen within the meaning of that Act.
In other words, the scheme of the Act was to define newspaper and working journalist and to make the provisions of the applicable to working journalists.
This Act was followed by the working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 (No. 45 of 1955).
This Act consists of 21 sections and makes some specific provisions applicable to working journalists, different from the relevant provisions of the .
Section 2 (f) of this Act defines a working journalist.
The definition prescribed by section 2 (f) of this Act is identical with the definition prescribed by section 2 (b) of the earlier Act, and so, for the purposes of the present appeal, whatever we say about the scope and effect of the definition.
of section 2 (b)in the earlier Act will apply to the definition prescribed by section 2 (f)of the latter.
Section 3 of this latter Act makes the provisions of the , applicable to working.
journalists.
Sections ,4 and 5 make special provisions in respect of retrenchment and gratuity.
Section 6 prescribes the hours of work; section 7 deals with problem of leave 106 section 8 provides for the constitution of a Wage Board; section 9 deals with the fixation of wages; section 10 requires ' the publication of the decision of the Board and its commencement, while section 11 deals with the powers and procedure of the Board.
Section 12 makes the decision of the Board binding and section 13 gives power to the Government to fix interim rates of wages.
These provisions are contained in Chapter II.
Chapter III consists of 2 sections 14 and 15 and they make applicable to the newspaper employees the provisions of the and the Employees ' Provident Funds Act, 1952.
Chapter IV contains miscellaneous provisions, such as those relating to the recovery of money due from an employer under section 17, penalty under section 18 and indemnity under section 19.
Section 20 confers the rule making power on the Central Government, and section 21 repeals the earlier Act.
In dealing with the question as to whether the respondent can be said to be a working journalist, iris necessary to read the definition prescribed by section 2 (b) of the Act: "Working journalist ' means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any establishment for the production or publication of a newspaper or in, or in relation to, any news agency or syndicate supplying material for publication in any newspaper, and includes an editor, a leader writer, news editor, subeditor, feature writer, copy tester, reporter, correspondent, cartoonist, news photographer and proof reader, but does not include any such person who (i) is employed mainly in a managerial or administrative capacity, or 107 (ii) being employed in a supervisory capacity, exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
" It is plain that the definition prescribed by s.2 (b)consists of two parts; the first part provides what a working journalist means, and the second part brings within its purview by an artificial extension certain specified categories of newspaper employees.
It would be noticed that the first part provides for two conditions which must be satisfied by a journalist before he can be .held to be a working journalist.
The first condition is that he must be a journalist whose principal avocation is that of a journalist, and the second condition is that he must be employed as such in, or in relation to, any establishment as there specified.
The first question which arises for our decision is whether the two conditions thus prescribed by the first part of the definition govern the categories of newspaper employees included in the definition by the artificial extention made by the including clause.
The High Court has taken the view that the categories of employees who are included in the definition by name, need not satisfy the two conditions prescribed by the first part.
The argument is that since a correspondent, for instance, has been named in the second clause, the whole object of the legislature was to make him a working journalist without requiring him tO satisfy the two conditions prescribed by the first part.
In our opinion, this construction is plainly erroneous.
The object of the second clause was to make it clear that the employees specified in that clause are journalists and nothing more.
The word "journalist" has not been defined in the Act and the legislature seems to have thought that disputes may arise as to whether a particular newspaper employee was a journalist or not.
There Can, of course, be no difficulty about an editor or 108 a leader writer, or a news editor or a sub editor being regarded as a journalist; but it was apparentIy apprehended that a difficulty may arise, for instance, in the case of a correspondent, a proof reader, a cartoonist, a reporter, a copy tester, or a feature writer, and so, the legislature took the precaution of providing specifically that the employees enumerated in the latter clause are to be regarded as journalists for the purpose of the definition prescribed by section 9, (b).
The object of the artificial extension made by the including clause is not to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist.
There can be no doubt that even the employees falling under the extended meaning must be employed as such.
It is thus obvious that the second requirement prescribed by the first clause that the journalist must be employed as such in, or in relation to, any establishment for the production or publication of a newspaper, as therein specified, has to be satisfied by the employees falling under the latter clause, because unless there was an employment by the newspaper establishment, no relationship of employer and employee can arise, and the journalists specified in the latter clause could not, therefore, claim the status of working journalist qua the employer who manages the journal in question.
Once it is realised that the. test of employment must govern the employees specified in the latter clause, it would become clear that the High Court was in error in assuming that the extended artificial definition of the working journalist dispensed with both the conditions prescribed by the first part of the said definition.
That is why we think the extension was made by the word "includes" only for the purpose of removing any doubt as to whether the persons specified in the said clause are journalists or not.
What is true about the condition as to employment is equally true about the other condition that a journalist can be a working journalist only where it is 109 shown that journalism is his principal avocation.
In other words, the position is that whenever an employee working in the newspaper establishment claims the status of a working journalist he has to establish first that he is a journalist, and then that journalism is his principal avocation and he has been employed as such journalist.
In proving the fact that he is a journalist, the employees specified in the latter clause need not prove anything more than this that they fall under one or the other category specified in the said clause.
But that only proves their status as journalist; they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question.
That takes us to the question as to what is meant by avocation? The High Court thought that the dictionary meaning of the word "avocation" which showed that it meant "a distraction or diversion from one 's regular employment", could be adopted in the context of section 2 (b).
In support of this view, the High Court has cited a passage from Fowler in Modern English Usage.
Fowler says "Avocation originally a calling away, an interruption, a distraction, was for some time commonly used as a synonym for vocation or calling, with which it is properly in antithesis.
This misuse is now less common, and the word is generally used in the plural, a person 's avocations being the things he devotes time to, his persuits or engagements in general, the affairs he has to see to; his vocation as such is neither excluded from, nor necessarily included m, his avocation." Applying this.
dictionary meaning of the word ' 'avocation" the High Court has held that even if the respondent has to satisfy the first condition prescribed by the first part of section 2 (b), it can be held that he satisfied the said test, because the work of a correspondent in his case can be safely said to be his principal avocation in the sense of 110 distraction or diversion from his regular employment.
In our Opinion, in applying mechanically the dictionary meaning of the word "avocation"without due regard to the context of section 2 (b) the High Court has adopted a somewhat pedantic approach.
One has merely to read the definition to realise the word "avocation" used in section 2 (b) cannot possibly mean a distraction or diversion from one 's regular employment.
On the contrary, it plainly means one 's vocation, calling or profession.
The plain idea underlying section 2 (b) is that if a person is doing the work, say of a correspondent, and at the same time is pursuing some other calling or profession, say that of a lawyer, it is only where his calling as a 'journalist can be said to be his principal calling that the status of a working journalist can be assigned to him.
That being the plain object of section 2 (b), it would, think, be, on the whole, inappropriate to adopt the dictionary or the etymological meaning of the word "avocation" in construing section 2 (b).
We ought to add that Mr. Menon who appeared for the respondent did not attempt to support the approach adopted by the High Court in dealing with this point.
Therefore, when a question arises as to whether a journalist can be said to be a working journalist, it has to be shown that journalism of whatever kind contemplated by section 2 (b) is the principal avocation of the person claiming the status of a working journalist and that naturally would involve an enquiry as to the gains made by him by pursuing the career of a journalist as compared with the gains made by him by the pursuit of other callings or professions.
It is obvious that this test will be merely academic and of no significance in the case of full time journalists, because in such cases the obvious presumption would be that their full time employment is their principal avocation and no question of comparing their income from journalism with income from other sources can arise.
In fact, the status of such full time journalists as 111 working journalists will not be affected even if in some cases the income received by them from such employment may be found to be less than, say, for instance, the income from their ancestral property.
This test assumes significance and importance only in the case of journalists who are employed on parttime basis.
Reverting to the second requirement of employment which we have already seen must obviously govern the employees failing under the latter part of section 2 (b) if they seek the status of working journalists, it is plain that an employment must be proved, because that alone will create a relationship of employer and employee between them and the newspaper establishment.
Unless there is an employ ment, there can be no conditions of service and there would be no scope for making any claim under the Act.
Thus the requirement of employment postulates conditions of service agreed between the parties subject to which the relationship of master and servant comes into existence.
In the context, employment must necessarily postulate exclusive employment, because a working journalist cannot serve two employers, for that would be inconsistent with the benefits which he is entitled to claim from his employer under the Act.
Take the benefit of retrenchment compensation, or gratuity, or hours of work, or leave; how is it possible for a journalist to claim these benefits from two or more employers? The whole scheme of the Act by which the provisions of the have been made applicable to working journalists, necessarily assumes the relationship of employer and employee and that must mean exclusive employment by the employer on terms and conditions of service agreed between the parties.
Normally, employment contemplated by section 2(b) would be full time employment; but part time employment is not excluded from section 2(b) either.
Most of the employees 112 falling under the first clause of section 2 (b) or even under the artificial extension prescribed by the later clause of section 2(b) would be full time employees.
But it is theoretically possible that a news photographer, for instance, or a cartoonist may not necessarily be a full time employee.
The modern trend of newspaper establishments appears to be to have on their rolls full time employees alone as working journalists; but on a fair construction of section 2(b), we do not think it would be possible to hold that a part time employee who satisfies the test prescribed by section 2(b) can be excluded from its purview merely because his employment is part time.
The position, therefore, is that the Labour Court was m error in making a finding that the respondent was not a working journalist on the ground that he was a part time employee, whereas the High Court is in error in holding that the respondent is an employee because he has not to satisfy the test that journalism is his principal avocation.
As we have held, the respondent can be said to be a working journalist only if he satisfies the two tests prescribed by the first part of section 2(b).
The test that he should have been employed as a journalist would undoubtedly be satisfied because it is common ground that since 1935 he has been working as a correspondent of the appellant at Guntur and the payment which the appellant made to him by whatever name it was called was also regulated by an agreement between the parties; in its pleadings, the appellant has, however, disputed the fact that the respondent was exclusively employed.
by it and so, that is one question which still remains to be tried.
The further question which has to be considered is whether the respondent satisfies the other test: "was his working as a correspondent his principal avocation at the relevant time"? The definition requires that the respondent must show that he was a working journalist at the time when his services were terminated; 113 and that can be decided only on the evidence adduced by the parties.
Unfortunately, though the Labour Court has made certain observations on this point, it has not considered all the evidence and has made no definite finding in that behalf.
That was because it held that as a part time employee, the respondent was outside section 2(b).
The High Court has no doubt purported to make a finding even on this ground in the alternative, but, in our opinion, the High Court should not have adopted this course in dealing with a writ petition under Articles 226 and 227.
Even in dealing with this question, the High Court appears to have been impressed by the fact that in discharging his work as a correspondent the respondent must have devoted a large part of his time; and it took the view that the test that journalism should be the principal avocation of the journalist implied a test as to how much time is spent in doing the work in question? The time spent by a journalist in discharging his duties as such may no doubt be relevant, but it cannot be decisive.
What would be relevant, material and decisive is the gain made by the part time journalist by pursuing the profession of journalism as compared to the gain made by him by pursuing other vocations or professions.
In dealing with this aspect of the matter, it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated, the respondent 's selling agency had come to an end, and so, the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts.
The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent, because his claim that he is a working journalist on these grounds is disputed by the appellant, and it is only if he establishes the fact that he is a working journalist that the 114 question as to determining the relief to which he is entitled may arise.
We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment.
There would be no order as to costs.
Before we part with this appeal, however, we would incidentally like to refer to the fact that the test of the principal avocation prescribed by section has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report.
In paragraph 505, dealing with the question of working journalists, the Commission observed that it thought that "only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working .journalists," and it added that "we have deliberately included the words "professed avocation" because we have come across cases where persons belonging to some other professions, such as law, medicine, education, have devoted part of their time to the supply of news to and writing articles for, newspapers.
It may be that in the case of some of them, particularly during the earlier years of their professional career, income from the practice of their own profession.
But it would not, on that account, be correct to classify them as working journalists.
so long as their professed avocation is other than journalism.
" It would be noticed that the expression "professed avocation" has not been adopted by the legislature instead, it has used the words "principal avocation".
That is why we are inclined to take the view that the time taken by a person in pursuing two different.professions may not be decisive; what would be decisive is the income derived by him from the different professions respectively.
It does appear that the legislature was inclined to take the view that if a person following the profession of law in 115 the early years of his career received more money from journalistic work and satisfied the other tests prescribed by section 2(b), he may not be excluded from the definition merely because he is following another profession.
To that extent, the provision of section 2(b) departs from a part of the recommendation made by the Press Commission.
In regard to part time employees who, as we have held, are not necessarily excluded from section 2(b) the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955, shows that the Committee treated some part time employees as working journalists.
In paragraph 103, the committee has observed that it had provided a regular scale or retainer for part time correspondents, and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if, in accordance with the definition in paragraph 23, Part II, of its recommendations, their principal avocation is journalism.
The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business, and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference, and so, it made no recommendations in regard to that class.
Appeal allowed.
Case remanded.

summary:
The reapondent 's services as a correspondent at Guntur under the appellant were terminated.
The Andhra Union of Working Journalists, Elluru, took up the respondent 's cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist, he was entitled to reinstatement and compensation.
the dispute was referred to the Labour Court, Gunrut, by the Government of Andhra Pradesh.
The appellant raised preliminary objections before the Labour Court, which were all rejected.
On the merits, the appellant contended that the avocation of a moffusil correspondent was not the respondent 's principal avocation, and so, he could not claim the benefit of the status of a working journalist under section 2 (b) of the Act.
The Labour Court decided the matter against the respondent solely on the ground that as a part time worker he could not be regarded as a working journalist, and it made no finding on the question as to whether his principal avocation at the time when his services were terminated could be said to satisfy the teat prescribed by the definition under section 2 (b) of the Act.
The award was challenged by the respondent by a writ petition before the High Court of Andhra Pradesh.
The High Court held that the respondent was a working journalist under section 2 (b) of the Act and so it set aside the award.
On appeal by certificate the appellant 's principal contention in this Court was that the High Court was in error in holding that the respondent was a working journalist under section 2 (b) of the Act.
Held that whenever an employee working in a newspaper establishment claims the status of a working journalist, 101 he has to establish first that he is a journalist, and then that journalism is his principal avocation and he has been employed as such journalist.
In proving the fact that he is a journalist, the employees specified in the latter clause of section 2 (b) of the Act need not prove anything more than this that they fail under one or the other category specified in the said clause.
But that only proves their status as journalist; they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question.
The object of the artificial extention made by the including clause is not to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist.
Having regard to the context of section 2 (b) it would be inappropriate to adopt the dictionary or the etymological meaning of the word "avocation" in construing s 2 (b)of the Act.
Held further that normally employment contemplated by 2 (b) would be full time employment but part time employment is not excluded from section 2 (b) either.
On a fair construction of section 2 (b), it would be impossible to hold that a part time employee who satisfies the test prescribed by section 2 (b) can be excluded from its purview merely because his employment is part time.
In the present case, the onus to prove the issue as to whether the work of a correspondent was his principal avocation at the relevant time in the light of the relevant facts.
as well as, the issue as to whether he was in the exclusive employment of the appellant lies on the respondent and it is only if he establishes the fact that he is a working journalist, the question as to determining the relief to which he is entitled may arise.


judgement:
minal Appeal No. 165 of 1960.
Appeal from the judgment and order dated July 22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960.
A.S.R. Chari, N.S. Bindra, and D.N. Mukherjee, for the appellant.
B. Sen, section C. Mazumdar and P. K. Bose., for respondent.
April 22.
The judgment of the Court was delivered by GAJENDRAGADKAR J.
The appellant Chittaranjan Das was charged with having commited an offence punishable under section 376 I.P.C.
This charge was framed against him on three counts.
It 240 was alleged that between November 18, 1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie committed rape on Sandhyarani Das Gupta alias Nirmala.
The second count was that he committed the same offence at the same place and in respect of the same girl between December 1, 1958 and December 6, 1958 ; and the third count related to the commission of the said offence between December 9, 1958 and December 15, 1958 at the same place and in respect of the same girl.
Along with the appellant, Ganesh De was charged with having abetted the appellant in the commission of the said offence, the charge framed against Ganesh De being under section 376 read with section 109 of the Indian Penal Code.
The learned Presidency Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons.
Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate committed them to the Sessions on May 4, 1960.
The case of the appellant and his co accused was then tried by the City Sessions Court at Calcutta with the aid of jury.
The jury returned a verdict of guilty against the appellant in respect of all the three counts.
A similiar verdict was brought by the jury in respect of the co accused Ganesh De.
The learned Sessions judge took the view that the verdict of the jury was not perverse, and so, he decided to accept the said verdict and accordingly convicted the appellant under section 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge.
No separate sentence was awarded in respect of the other charges.
Ganesh De was also sentenced to a similiar period of imprisonment.
This order was passed on July 9, 1960.
241 The appellant challenged the correctness of the order of conviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court.
A Division Bench of the said High Court did not feel impressed by the points made on appellant 's behalf, and so, his appeal was summarily dismissed on July 22, 1960.
The appellant then applied for a certificate under Article 134 (1) (c) of theConstitution.
This application was allowed by Labiri C.J. and Bose J. on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law, and so ' _they granted him a certificate under the said Article.
It is with this certificate that the appellant has come to this Court.
Before dealing with the points which fall to be considered in the present appeal, it is necessary to state briefly the material facts leading to the prosecution of the appellant.
Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the Refugee Colony at Ghola.
It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house 'at Ashutosh Mukherjee Road, Bhowanipur some time in the first week of November 1958.
Manibala induced Sandhya to go to her place with a promise that she would secure a nurse 's job for her.
The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and, according to the prosecution, the co accused Ganesh De was a Peon in the said office.
The prosecution alleged that in course of time, Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment.
When Sandhya met the appellant, the appellant held out the hope of a job for her and he managed to ravish her.
Similarly, Sandhya was taken to the house of the appellant on two or three occasions within a 242 period of one month and each time the appellant had sexual intercourse with her.
Every time this happened the appellant promised that he would provide Sandhya with a job.
The prosecution case is that as a result of this sexual intercourse, Sandhya conceived and the appellant was anxious to cause her abortion.
In accordance with the plan, Mani bala attempted to cause her abortion but did not succeed, and so, the girl was taken to the Chittaranjan Sevasadan on February 11, 1959 where the abortion was completed.
Some time, thereafter, she was sent back to her own house on her insistance.
It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him.
This happened on two or three occasions again.
At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli.
This young man had approached the appellant for a job.
The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage.
Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife.
Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph.
This time again Sandhya was ravished by the appellant.
That, in broad outlines, is the prosecution case against the appellant.
On June 6, 1959, Sandhya 's mother filed a complaint that her daughter had disappeared.
This complaint was investigated by the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from the house of Ganesh De on June 10, 1959.
She was then taken to the Tollygunge Police Station where her statement was recorded.
It, however, appeared that the offence which on 243 Sandhya 's statement seemed to have been committed by the appellant was within the jurisdiction of the Amherst Street Police Station, and so, the case papers were transferred to the said Police Station.
Sandhya 's statement was again recorded at this Police Station on June 12, 1959.
As a result of the statement, Challan was forwarded which specified November 14, 1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had raped Sadhya.
Subsequently, the appellant was arrested and he along with the co accused was charged before the Court of the Presidency Magistrate as we have already mentioned.
In 'granting certificate to the appellant, the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance.
In fact, it has observed that the scheme of section 222 of the Criminal Procedure Code seems to suggest that the charge framed in the present case con travened the requirement of section 222 (1), and was therefore, invalid.
The High Court also appears to have thought that this contention received support from a decision of the Calcutta High Court in Ali Hyder vs Emperor, (1).
It is, therefore, necessary to examine this argument at the outset.
We have already set out the 3 counts of the charge framed against the appellant and we have noticed that in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya.
The first period was between 18.11.1958 to 21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.1958.
The argument is that section 222 (1) Cr.
P.C. requires that the charge must specify, inter alia, the particulars as to the time when the offence was committed, and this means that the precise date on which and the time at which the offence was committed must be stated (1) 244 in the charge.
Before dealing with this argument, it is necessary to read section 22 : "(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 : Provided that the time included between the first and last of such dates shall not exceed one year.
" The appellant 's contention is that it is only in cases under section 222 (2) where the prosecution is not required to specify the precise date and time at which the offence is committed ; and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which the said sub section applies that liberty may be claimed by the prosecution not to mention the date and time of the offence.
In all other cases to which section 222 (1) applies, particulars as to the time and place of the alleged offence must be specifically mentioned.
In our opinion, this contention is not well founded.
In fact, Mr. Chari who appeared for the appellant himself fairly conceded that in almost every charge 245 to which section 222 (1) applies, it is usual to state that the particular offence was committed on or about a certain date.
In other words, it is not suggested by Mr. Chari that the specific date and the specific time must necessarily be stated in the charge in every case.
If it is permissible to say in a charge that a particular offence was committed on or about a specified date, without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed section 222 (1) has been contravened.
It is true that sub section (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed.
It is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been committed, it 'would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of section 222 (1) is that the accused person must have a reasonably sufficient notice as to the case against him.
The basic requirement in every criminal trial therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and that validity of the charge must in each case be determined ' by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged ? It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal courts naturally take the precaution of framing charges with sufficient precision and particularity 246 in order to ensure a fair trial ; but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify The particular date and time at which any offence is alleged to have been committed.
In this connection, it may be relevant to bear in mind that the . requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice.
Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves ; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused.
This position is made clear by sections 535 and 537 Cr.
P. C. Take, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence.
In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body.
In cases of circumstantial evidence of this character, it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was committed.
All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been committed.
That means the precision of the charge in respect of the date on which the offence is alleged to have been committed will depend upon the nature of the information available to the prosecution in a given case.
Where 247 it is possible to specify precisely the necessary particulars required by 'section 222 (1), the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge.
In this connection, it may be useful to refer to the facts in the present case.
The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the country, and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the course of earning money by selling her body.
In such a case, if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time, it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her.
If it is insisted that in a case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was committed by him, it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would, in the ordinary course of things, not be able to state precisely the dates on which she was made to submit to the appellant.
Therefore, in dealing with the question as to whether the charge framed in a criminal trial has contravened section 222 (1), the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the Court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused.
That, in our opinion, is the reasonable course to adopt in dealing 248 with contentions like the one raised by the appellant before us.
The question of prejudice did not impress the High Court, because it has summarily dismissed the appeal.
It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court.
In this connection we ought to add that the decision in the case of Ali Hyder (1) to which the High Court has referred in granting a certificate on this point does not support the contention in question.
The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal, and in coming to the conclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein vs The State of Bombay, (2 ) and Shreekantiah Ramayya Municipalli vs State of Bombay (3).
In Mushtak Hussein 's case, this Court has no doubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require consideration.
It was also added that in cafes which prima facie raise no arguable issue, that course is, of course, justified.
It is in the light of this conclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised.
In the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment, one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench.
It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein (2), that summary rejections of appeals (1) (1939) 40 Cr.
L .T. 280.
(2) A I.R. 1953 $.C. 282.
(3) A. I. R. , 249 which raise issues of substance and importance are to be disapproved.
With respect, there can be no9 doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that no High Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law.
In this connection, it is, however, necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to consider whether it raises any arguable or substantial question of fact or law, or not.
Section 421 (1) of the Code provides that on receiving the petition and copy under section 419 or section 420., the appellate court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.
The proviso to this section requires that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
Sub section (2) empowers the appellate court to call for the record of the case before dismissing the appeal under sub section (1) but it does not make it obligatory on the court to do so.
Therefore, the position under section 421 is clear and unambiguous.
When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question; if it is so satisfied, the appeal should be admitted; if, on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct, it can summarily dismiss the appeal.
It is necessary to emphasis that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied 250 its mind to all the points raised by the appellant.
Summary dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because in its opinion, the 'decision appealed against is right.
Therefore, we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court.
If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it.
The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury.
It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did not correspond to the dates given by Sandhya in her evidence, the learned Judge told the jury that if the statement of the girl in her cross examination is taken as the basis, the dates on which the girl was ravished by the appellant would not be covered by the three sets of dates mentioned in the charge, and then he added that "in case you hold that the charges are in order, in that case you shall proceed to consider the evidence.
" It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement constituted a misdirection.
The argument was that whether or not a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision; inasmuch as he left that question to the jury, he failed to exercise his jurisdiction and to discharge his duty, and as such the 251 charge must be held to suffer from a serious misdirection.
This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr. Chari.
In our opinion, there is no substance in this argument.
We should have stated earlier that after the committal order was passed by the presidency Magistrate, the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed.
The High Court rejected this contention and held that the charge was valid within the meaning of section 222 and section 234 of the Cole.
Therefore, the true position is that at the time when the learned Sessions judge delivered his charge to the jury, the question about the validity of the charge had been considered by the High Court and so far as the learned Sessions Judge was concerned, the finding of the High Court was binding on him, so that when the learned Sessions judge told the jury that they may consider whether the charges were in order, he was really leaving it open to the jury to consider the matter which had been decided against the appellant and in favour of the prosecution.
If there can be any grievance against this part of the charge, it would be in the side of the prosecution and not on the side of the appellant.
That leaves to be considered certain other alleged misdirections to which Mr. Chari has referred.
Mr. Char; contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned judge did not cell the jury that in view of the contradictions brought out in the evidence of Sandhya and in view of her past career and record, her evidence should not be believed.
Mr. Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the 252 prosecutrix must appear to the court to be a reliable witness.
If the prosecutrix does not appear to be a reliable witness, or if her evidence suffers from serious infirmities, corroborations in some particulars would not help the prosecution, and according to Mr. Chari, this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions judge.
We do not think there is any substance in this contention.
We have carefully read the charge and we are satisfied that on the whole, the charge has not only been fair, but has.
been more in favour of the appellant than in favour of the prosecution.
In fact, the whole tone of the charge indicates that the learned Sessions judge was not satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt.
But in delivering charge to the jury, the learned Sessions judge can never usurp the function of the jury.
He cannot pronounce on the reliability or otherwise of any witness.
The requirement as to corroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury.
He told them that the most important witness in the case was Sandhya and that there was hardly any corroborative evidence to her story.
He also warned them that though it was not illegal to act upon the evidence of a prosecutrix, it was unsafe to adopt that course and he said that before convicting the appellant on the uncorroborated testimony of Sandhya, the members of the jury should ask themselves whether they were so much convinced about the truthfulness of the girl as to accept her evidence in its entirety.
He referred to the broad and material contradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or not.
Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr. Chari 's grievance that the charge was materially defective in this matter.
253 The next misdirection or) which Mr. Chari has relied is in regard to the prosecution evidence about the age of the girl.
The prosecution alleged that the girl was below If) years of age, whereas the defence contended that she was above 16 and was a consenting party.
As usual, evidence was given by the prosecution in support of its case as to the girl 's age.
This evidence consisted of the testimony of the girl 's mother Saudamini and of Dr. Nag as well as Dr. Saha.
Having summarised the material evidence fairly and accurately, the learned judge told the jury that the said evidence was no doubt somewhat conflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below 16.
Mr. Chari contends that at this stage, the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant.
We do not think there is any substance in this argument.
In the first part of his charge, the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under section 376, and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16. 'That being so, we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice or the appellant.
The last misdirection on which Mr. Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court.
It appears that on behalf of the appellant the evidence given 254 by the girl on a previous occasion had been brought out under s.145 of the Indian Evidence Act.
In that statement the girl had sworn that Anil Chatterjee had sexual relations with her day after day and that she had sexual relations with others also.
The girl admitted in her cross examination that her statement had been recorded on a previous occasion by the Magistrate, Alipore, but when the contents of the statement were put to her, she said she did not remember whether she had made those statements or not.
Now, it is clear that when a previous statement is put to a witness in cross examination under s.145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence he gives at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial.
That is the true legal position and no grievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge.
Therefore, we do not think that the grievance made by Mr. Chari that the charge suffered from serious misdirections is well founded.
There is one more point which we may mention before we part with this appeal.
After the verdict was returned by the jury, the learned Sessions Judge considered the question as to whether he should accept the said verdict, or should make a reference.
In that connection, he observed that the verdict that the jury had returned against the appellant, was practically based on the uncorroborated testimony of the prosecutrix but he thought that the said course adopted by the jury cannot be said to be illegal and he was not prepared to take the view that the verdict of the jury was in any way perverse.
255 Mr. Chari contends that having regard to the general tone of the charge delivered by the learned judge to the jury, the learned judge should have treated the verdict as perverse and not acted upon it.
We do not think that this contention can be accepted.
In his charge, the learned judge no doubt indicated that the evidence of the girl was not satisfactory, that it was not corroborated and that there were other circumstances which showed that the prosecution case might be improbable, but having done his duty, the learned judge had to leave it to the jury to consider whether the prosecution had established its charge against the appellant beyond reasonable doubt or not.
The jury apparently considered the matter for an hour and half and returned the unanimous verdict of guilty.
In the circumstances of this case, we cannot accede to Mr. Chari 's argument that the Session Judge was required by law to treat the said verdict as perverse.
In a jury trial where questions of fact are left to the verdict of the jury, sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge, but that itself can be no justification for characterising the verdict as perverse.
In the result, the appeal fails and is dismissed, the appellant to surrender to his bail bond.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was the Zonal officer of the Refugee Rehabilitation office and the co accused Ganesh De was a peon in the said office.
One Sandhyarani, a minor girl was staying with her mother in the Refugee colony.
She was induced by one Manibala to go to her place with a promise for a nurse 's job.
In course of time, she was taken to the appellant 's house in about the middle of November 1958 on the representation that he wanted to give her employment.
The appellant held out the hope of a job for her and managed to ravish her.
Similarly, she was taken to the house of the appellant on two or three occasions within a period of one month and each time he bad sexual intercourse with her.
Sandhya 's mother filed a complaint which was investigated and she was recovered from the house of Ganesh De.
Sandhya 's statement was recorded and challan was forwarded which specified the dates on which the appellant had raped Sandhya.
The charge was framed against the appellant on three counts and in the three counts, periods were mentioned within which the appellant was alleged to have committed rape on Sandhya.
The first period was between 18.11.1958 to 21.11.1958, second was 1.
12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.
Ganesh De was charged under s, 376 read with section 109 of the Indian Penal Code.
They were tried by the City Sessions Court with the aid of jury.
The jury returned a verdict of guilty against the appellant in respect of all the three counts which was accepted by the Sessions Judge and the appellant was convicted and sentenced under section 376 to undergo rigorous imprisonment for four years on the first charge.
No separate sentence was 238 awarded in respect of the other charges.
Ganesh De was also sentenced to a similar period of imprisonment.
The appellant preferred an appeal, which was summarily dismissed by a vision Bench of the High Court.
The appellant then obtained a certificate under article 134(1) (c) of the Constitution, hence this appeal.
Held that where it is possible to specify precisely the necessary particulars required by section 222(1), the prosecution ought to mention the said particulars in the charge but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge.
In dealing with the question as to whether the charge framed in a criminal trial has contravened section 222(1), the court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused.
The charge framed in the present case did not contravene the requirement of section 22(1),2 and was therefore, valid.
Ali Hyder vs Emperor, , held in applicable.
Held further, that the position under section 421 is clear and unambiguous.
If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it.
Therefore, the High Court was not right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the High Court.
Mushtak Husain vs State of Bombay, A.I.R. 1953 S.C.282 and Shreekantiah Ramayya Municipally vs State of Bombay, A.I.R. , distinguished.
Held further that the requirement as to corroboration in regard to the evidence of a prosecutrix had been elaborately explained by the Sessions Judge to the Jury and having regard to the several statements made by the learned Judge in his charge on this topic, it is difficult to accept that the charge was materially defective in this matter.
239 The failure of the learned judge to mention the point about onus to prove the age of the girl once again, when he dealt with the actual relevant evidence, cannot be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice of the appellant.
When a previous statement is put to a witness in cross examination under a. 145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence given at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial.
That being the true legal position the charge did not suffer from serious misdirection.
In a jury trial where questions of fact are left to the ver dict of the jury sometimes the verdicts returned by the jury may cause a disagreeable surprise to the Judge, but that itself can be no justification for characterising the verdict as perverse.
The appeal, therefore, must be dismissed.


judgement:
minal Appeal No. 126 of 1961.
Appeal from the judgment and order dated May3,1961 of the Allahabad High Court in Criminal Appeal No. 381 of 1960.
O. P. Rana, for the appellant.
The respondent did not appear.
April 25.
The judgment of the Court was delivered by RAGHUBAR DAYAL J.
Raja Kamlakar Singh of Shankargarh, U.P. took a lease from the District Board, Allahabad, with respect to the realisation of bayai and bazaar dues on the sale of commodities in the bazaar of Shankargarh.
Bachchoo Lal was his employee to collect these dues.
On April 13, 1959, Bahadur Singh , a peon of the Raja Sahib, asked Shyam Lal Kurmi, P.W. 2, who had sold two bullock load of linseed to Mewa Lal, respondent 2, in that 360 bazaar, to accompany him to the Munim in order to pay the bayai dues there.
Mewa Lal asked Shyam Lal not to pay those dues.
The peon, however, took Shyam Lal to Bachchoo Lal, appellant, at the grain godown.
Mewa Lal, armed with a lathi, came there and on Bachchoo Lal 's asking him as to why he was creating obstruction in the realisation of the dues, filthily abused him and threatened to break his hand and feet and kill him.
Bachchoo Lal, thereafter, instituted a complaint against Mewa Lal, on obtaining sanction of the District Magistrate for prosecuting Mewa Lal for an offence under section 107 of the United Provinces District Board Act, 1922 (U.P. Act No. X of 1922), hereinafter called the Act.
The trial Magistrate, the II Class Tashildar Magistrate of Karchana, convicted Mewa Lal of the offences under sections 504 and 506, I.P.C., and also of an offence under section 107 of the Act.
On appeal, the Sessions Judge, Allahabad, acquitted Mewa Lal holding that proper authority in favour of Bachchoo Lal for prosecuting Mewa La] under section 10 7 of the Act had not been proved, that the Magistrate had no jurisdiction to try an offence under section 506, Part II, I.P.C. which was triable by a Magistrate of the I Class, and that the prosecution case under section 504 I.P.C., was suspicious.
Bachchoo lal filed an appeal against the acquittal of Mewa Lal, after obtaining the permission of the High Court under sub section
(3) of section 417 of the Code of Criminal Procedure, hereinafter called the Code.
The High Court dismissed the appeal repelling the contentions for the appellant to the effect that the appellant, being the complainant and therefore a party to the criminal case against Mewa Lal, ought to have been given notice of the appeal by the Sessions judge and also ought to have been given an opportunity to be heard and that such notice and opportunity of hearing were necessary on the principles of natural justice and in view of the fact that section 417 (3) of the Code conferred a 361 substantive right of appeal on the complainant.
The High Court further held that though the Sessions judge was wrong in holding that the sanction required by section 182 of the Act had not been proved, the sanction was in the name of Raja Sahib of Shankargarh and not of Bachchoo Lal and therefore the complaint was not a valid complaint and that the Raja Sahib could not collect Tah Bazari through his agents.
It also held that the acquittal of the accused of the offence under section 506 I.P.C., was justified and that the acquittal of the offence under section 504 I.P.C. could not be said to be erroneous and that in any case the matter was too petty for interfering with an order of acquittal even if it had taken a different view of facts from the one taken by the Sessions judge.
The High Court, accordingly, dismissed the appeal.
Bachchoo La] has preferred this appeal after obtaining the requisite certificate from the High Court under article 134 (I.) (c) of the Constitution.
The State of U.P. is the first respondent and Mewa Lal, the accused, is respondent No. 2.
Three questions have been raised on behalf of the appellant.
One is that the Assistant Sessions judge ought to have issued a notice of the hearing of the appeal to the appellant on whose complaint Mewa Lal was convicted by the Magistrate and against which order of conviction he had filed an appeal.
No such notice was issued to him and therefore the order of the Assistant Sessions Judge acquitting Mewa Lal was not a good order. ' The second contention is that the High Court was wrong in holding that the Raja of Shankargarh could not collect the Tah Bazari dues through his agents.
The third contention is that Bachchoo Lal had requisite sanction under section 182 of the Act for prosecuting Mewa La] and, therefore, the finding to the contrary is wrong.
362 The third contention is correct.
The requisite authority under section 182 of the Act is in favour of not only the Raja of Shankargarh, but also in favour of several of his employees including Bachchoo Lal, the appellant.
We need not express an opinion on the second contention as we do not know the terms of the lease executed by the District Board in favour of the Raja of Shankargarh and as we are not concerned with the civil rights with respect to the manner of collecting the dues which he could collect under the lease.
We are, however, of opinion that section 107 does not make obstruction or molestation of an employee of the person under contract with the Board an offence.
Section 107 of the Act reads "Whoever obstructs or molests a person employed by, or under contract with, the Board under this Act in the performance of his duty or in the fulfilment of his contract, or removes a mark set up for the purpose of indicating any levels or direction necessary to the execution of works authorised by this Act, shall be liable on conviction to a fine which may extend to fifty rupees.
" The section speaks of the obstruction or molestation of two classes of persons.
One class of persons consists of persons employed by the District Board under the Act.
The Raja of Shankargarh or Bachchoo Lal is not an employee of the District Board.
The second class of persons consists of those who are under contract with the Board under the Act.
Surely, the person under contract with the Board is the Raja of Shankargarh and not Bachchoo Lal.
Bachchoo Lal is only an employee of the Raja.
363 We did not hear the learned counsel on the merits of the case under section 504 of the Code and accept the finding of the court .
below.
In view of the considerations mentioned, no interference is possible with the acquittal of the respondent No. 2 on merits.
It is, therefore, not necessary to decide the first question raised for the appellant.
We accordingly dismiss the appeal.

summary:
One Raja Sahib took a lease from the District Board, Allahabad,.
with respect to the realisation of bayai and bazar dues on the sale of commodities in the bazar.
The appellant was his employee to collect these dues.
A peon of Raja Sahib asked Shyam Lal, P.W. 2, who had sold linseed to Mewa Lal, respondent No. 2, to come to the Munim and pay the beyai dues.
Mewa Lal asked Shyam Lal not to pay those dues.
The peon took Shyam Lal to the appellant.
The respondent No. 2 armed with a lathi, came there and on appellant 's asking him as to why he was creating obstruction in the realisation of the dues, filthily abused him and threatened to kill him.
The appellant, thereafter, on obtaining sanction of the District Magistrate, instituted a complaint against Respondent No. 2 for prosecuting him for an offence under section 107 of the United Provinces District Board Act.
The trial Magistrate convicted him of the offences under sections 504 and 506 of the Indian Penal Code and also of an offence under section 107 of the Act.
On appeal, Sessions judge acquitted him of all the charges.
Against acquittal, the appellant filed an appeal to the High Court which was dismissed.
On appeal by certificates three contentions were raised by the appellant in this Court: (i) The order of the Sessions judge aquitting Mewa Lal was bad as no notice of hearing of the appeal was issued to the appellant, on whose complaint the Magistrate convicted him, (ii) The High Court was wrong in holding that the Raja could not collect the Tah Bazari dues through his agents, and (iii) that the appellant had requisite sanction under section 182 of the Act, for prosecuting Mewa Lal, respondent No. 2.
Held that section 107 of the Act does not make obstruction or molestation of an employee of the person under contract with 359 the Board, an offence.
The section speaks of the obstruction or molestation of two classes of persons.
One class consists of persons employed by the District Board under the Act.
The Raja or the appellant is not an employee of the District Board.
The second class consists of those persons who are under contract with the Board under the Act.
Surely, the person under contract with the Board is the Raja and not the appellant.
The appellant is only an employee of the Raja.
In view of these considerations, the acquittal of the respondent No. 2 could not be interfered with merits.
The appeal, therefore, must be dismissed.
The appeal was not heard on merits.
If was considered not necessary to decide the first contention and the Court did not express any opinion on the second contention as the terms of the lease were not known.
The third contention was held to be correct.