judgement:
iminal Appeal No. 47 of 1963.
Appeal by special leave from the judgment and order, dated January 29, 1963 of the Allahabad High Court in Criminal Appeal No. 998 of 1962.
M. K. Ramamurthi, section C. Agarwal, R. K. Garg and D. P. Singh, for the appellant.
Girish Chandra and 0.
P. Rana, for the respondent.
The Judgment of the Court was delivered by Raghubar Dayal, J.
Sahib Singh Mehra, appellant in this appeal by special leave, published an article in his paper 'Kaliyug ' of Aligarh, dated September 12, 1960, under the heading "Ultra Chor Kotwal Ko Dante ' which means that a thief reprimanded the kotwal, a police officer, though the right thing would be the other way.
The article contained the following expressions, as translated "How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into the pockets of public prosecutors and assistant public prosecutors and the extent to which it reaches and to which use it is put.
" The Public Prosecutor and the eleven Assistant Public Prosecutors at Aligarh requested the Superintendent of Police for obtaining the sanction of the Government for filing a complaint by the District Government Counsel in the Court of the Sessions Judge under section 500 I.P.C.
The Government was duly approached through proper channel and, ultimately, the Home Secretary, U.P. Government, wrote to the Inspector General, U.P. on March 1, 1961 : I am directed to convey the sanction of the State Government under section 198B(c) of the Code of 825 Criminal Procedure to the filing of a complaint under section 500 Indian Penal Code in a Court of Sessions, against the Editor and Publisher of the Newspaper 'Kaliyug ' of District Aligarh which published a news item under the caption 'Ulta Chor Kotwal Ko Dante ' in its issue, dated September 12, 1960 containing defamatory remarks against the Assistant Public Prosecutor Sri R. K. Sharma of District Aligarh and other police prosecuting staff of the Government in respect of their conduct in the discharge of public functions.
" Thereafter, the Public Prosecutor of Aligarh filed the complaint in the Court of Session, Aligarh, praying for the summoning of the accused and for his trial according to law for the offence under section 500 I.P.C.
The appellant admitted before the Sessions Judge the publi cation of the impugned article and stated that he never had any evil intention.
He further stated that he had published the news item for the good of the public and that he had published it in most general terms to bring bad things to the notice of the Government and the authorities for the public good.
The Sessions Judge convicted him of the offence under section 500 I.P.C. holding that the aforesaid statements in the article were defamatory and that the appellant was not protected by exceptions 3 and 9 to section 499 I.P.C. He sentenced the appellant to simple imprisonment for six months and a fine of Rs. 200.
His appeal against the conviction was dismissed by the High Court.
Of the points sought to be urged for the appellant, we did not allow one to be urged.
It was that there was no proof that the Government bad sanctioned the lodging of the complaint.
This point had not been taken in the Courts below and was not even taken in the petition for special leave.
What was urged in the petition for special leave was that one of the questions of law which arose in the case for consideration was whether the charge framed was the one for which sanction was granted or the requisite complaint was filed.
This question is very much different from the question whether the Government did grant the sanction or whether the granting of the sanction by the Government had been duly proved in the case.
The other points urged are : (1) that the sanction granted was a general sanction and not with respect to the defamation of any particular Public Prosecutor or Assistant Public Prosecutor and that such sanction was not contemplated by law; (2) that it is not proved that the appellant had any intention to harm the 826 reputation of any particular Public Prosecutor or Assistant Public Prosecutor; (3) that there was no evidence that the remarks were defamatory of any particular group; (4) that the prosecution did not lead any evidence to establish that the defamed group had any reputation which could be banned and (5) that the remarks were for public good.
Before dealing with the contentions raised for the appellant, we may refer to the provisions of law which enable a Public Prosecutor to Me a complaint for an offence under section 500 I.P.C. committed against a public servant.
Section 198 Cr.
P.C. provides inter alia that no Court shall take cognizance of an offence falling under Chapter XXI (which contains sections 499 and 500 I.P.C.) except upon complaint made by some person aggrieved by such offence.
Section 198B, however, is an exception to the provisions of section 198 and provides that notwithstanding anything contained in the Code, when any offence falling under Chapter XXI of the Indian Penal Code other than the offence of defamation by spoken words is alleged to have been committed against any public servant, employed in connection with the affairs of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
It is thus that a Public Prosecutor can file a complaint in writing in the Court of Session directly with respect to an offence under section 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions.
Sub section
(3) of section 198B provides that no complaint under sub section
(1) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of a complaint under section 500 I.P.C.
The sanction referred to above, in this case, and conveyed by the Home Secretary to the Inspector General of Police, was a sanction for making a complaint under section 500 I.P.C. against the appellant with respect to the article under the heading 'Ulta Chor Kotwal Ko Dante ', in the issue of 'Kaliyug ' dated September 12, 1960, containing defamatory remarks against the Assistant Public Prosecutor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions.
The sanction was therefore with respect to defamation of two persons (i) R. K. Sharma, Assistant Public prosecutor, Aligarh; and (ii) the other police prosecuting staff of Government of Uttar Pradesh, which would be the entire prosecuting staff in the State.
There was thus nothing wrong in the form of the sanction.
827 The case did not proceed with respect to the defamation of R. K. Sharma, Assistant Public Prosecutor, as such.
We may, however, here indicate in brief this reference to the defamation of R. K. Sharma.
The appellant published sometime in May 1960 something which was defamatory of R. K. Sharma.
R. K. Sharma filed a complaint about it in September 1960.
The impugned article had stated, prior to the remarks to which objection has been taken, the publication of the earlier article and the news reaching the Editor that R. K. Sharma was contemplating taking action in a Court of law and then expressed that the Editor welcomed the news and would show how the bribe money reaches the Public Prosecutors, how it is utilised and_how justice sees all this show from a distance.
The Public Prosecutor, however, in his complaint, restricted it to the defamation of R. K. Sharma and other police prosecuting staff of the U.P. Government at Aligarh.
It is not possible to say that he was not competent to do so, when the sanction by the Government could be taken to be sanction for the defamation of the entire prosecuting staff in the State of Uttar Pradesh, there being no such express statement in the article as to restrict the imputation to the staff at Aligarh alone and when the remarks could be properly taken to be with reference to the prosecuting staff at Aligarh in the context of 'Kaliyug ' being a local weekly and the desire of the Editor to make public all these matters in a Court in proceedings to be started by R. K. Sharma in view of certain matter published about him in an earlier issue of the paper.
We therefore do not consider that the sanction suffered from any defect.
The next question to determine is whether it is essential for the purpose of an offence under section 500 I.P.C. that the person defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a 'person ' which could be defamed.
Section 499 I.P.C. defines 'defamation ' and provides inter alia that whoever makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases covered by the exceptions to the Section, to, defame that person.
Explanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
It is clear therefore that there could be defamation of an individual person and also of a collection of persons as such.
The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contem 828 plated by Explanation 2.
The language of Explanation 2 is general and any collection of persons would be covered by it.
of course, that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community.
The prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons.
There is nothing indefinite about it.
This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh.
Within this general group of Public Prosecutors of U.P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh.
This group of persons would be covered by Explanation 2 and could therefore be the subject of defamation.
We have not been referred to any case relating to section 499 I.P.C. in support of the contention for the appellant that the Public Prosecutor and Assistant Public Prosecutors at Aligarh could not form such a body of persons as would be covered by Explanation 2 to section 499 I.P.C.
The impugned remarks are per se defamatory of the group of persons referred to.
It is no defence and it has not been urged as defence that the remarks were true.
The defence in the Courts below was that they were for public good and the appellant was protected under Exceptions 3 and 9, of section 499 I.P.C.
The tenor of the article does not indicate that the purpose of the appellant in publishing these remarks was 'public good '.
According to the article.
the appellant would have welcomed the opportunity that would be offered by the case contemplated against him by R. K. Sharma, to make public the impugned matters.
His remarks therefore could have the tendency to dissuade R. K. Sharma from instituting the proceedings for fear of giving greater currency to untrue allegations which be not favourable to him or to the prosecuting staff at Aligarh or in the State, and by themselves could not render any public good.
No enquiry could have been started by the Government on such a publication implying the passing of money from the pockets of certain set of people to the pockets of the prosecuting staff.
The impugned remarks could certainly lead the readers of the article to believe or suspect that the pro secuting staff is corrupt in the discharge of its duties as public prosecutors, and are thus bound to affect the reputation of the prosecuting staff adversely.
Unless proved otherwise, the presumption is that every person has a good reputation.
In this case, the 829 Public Prosecutor and Assistant Public Prosecutor had deposed that they are not corrupt, and according to their knowledge, none at Aligarh, is corrupt in the discharge of his duty.
There is no evidence to the contrary.
Exception 3 to section 499 I.P.C. comes into play when some defa matory remark is made in good faith.
Nothing has been brought on the record to establish that those defamatory remarks were made by the appellant after due care and attention and so, in good faith.
Exception 9 gives protection to imputations made in good faith for the protection of the interest of the person making it or of any other person or for the public good.
The appellant has not established his good faith and, as we have said above, the imputations could not have been said to have been made for the public good.
We are therefore of opinion that the appellant has been rightly held to have committed the offence under section 500 I.P.C. by defaming the Public Prosecutor and Assistant Public Prosecutors at Aligarh.
It is urged for the appellant that the sentence is severe and be reduced to the period of imprisonment already undergone.
We do not see any justification for reducing the sentence.
The Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person.
Reckless comments are to be avoided.
When one is proved to have made defamatory comments with an ulterior motive and without the least justification motivated by self interest, he deserves a deterrent sentence.
We dismiss the appeal.
The appellant will surrender to his bail.
Appeal dismissed.

summary:
The appellant published in his paper, which had a circulation mainly in Aligarh, a statement to the effect that Public Prosecutors and Assistant Public Prosecutors had been receiving bribes.
The Public Prosecutor and the 11 Assistant Public Prosecutors at Aligarh obtained the sanction of the State Government as required under section 198B(c) of Code of Criminal Procedure to file a complaint under section 500 Indian Penal Code in a court of Sessions against the appellant for publishing defamatory remarks against the Assistant Public Prosecutor S, of District Aligarh and other police prosecuting staff of the Government in respect of their conduct in the discharge of public functions.
The Sessions Judge convicted the appellant and the High Court dismissed his appeal against the conviction.
It was contended on behalf of the appellant, inter alia, that the sanction granted under section 198B(c) was not the sanction contemplated by law because it was a general sanction and not with respect to the defamation of any particular Public Prosecutor or Assistant Public Prosecutor; for the purpose of an offence under section 500 Indian Penal Code the person defamed must be an individual or a particular group and there was no evidence that the remarks were defamatory of any particular group; that the prosecution did not lead any evidence to establish that the defamed group had any reputation which could be harmed; and that in any event the remarks were for public good.
HELD : (i) the sanction given by the Government was specifically with respect to the defamation of S, the Assistant Public Prosecutor, Aligarh, and the other prosecuting staff of the Government and as such it could not be considered a general sanction not contemplated by law.
[826 H] The sanction given, could be taken to be sanction in respect of the defamation of the entire Prosecution staff in the State; there was therefore no force in the contention that the Public Prosecutor Was not competent to restrict his complaint to the defamation of S, and other Public Prosecuting staff of the State Government at Aligarh.
Furthermore, although the impugned article did not contain any express reference to the prosecuting staff at Aligarh, the offending remarks could properly be taken to refer to the prosecuting staff at Aligarh in the context of the paper being a local weekly and the other circumstances of the case.
[827 C E] (ii) Explanation II to section 499 makes it clear that there can be a defamation of an individual person and also of a 'collection of persons '.
Such a collection of persons must be identifiable in the sense, that one could with cartainty say that the particular group had been defamed as dis tinguished from the rest of the community.
The prosecuting staff of Aligarh, and even the prosecuting staff in the State of U.P. would be such an identifiable group or 'collection of persons '.
[827 G H; 828 A C] Supp/. 65 6 824 (iii) The impugned remarks were per se defamatory of the group of persons referred to.
The tenor of the article did not indicate that the purpose of the appellant in publishing these remarks was "public good".
No enquiry could have been started by that Government on such a publication implying the acceptance of bribes by the prosecuting staff.
The impugned remarks could lead readers to believe or suspect that the Public Prosecutors were corrupt and thus affected the reputation of the prosecuting staff adversely.
Unless proved otherwise, the presumption is that every person has a good reputation.
[828 E H] The lower courts were therefore right in rejecting the contention that the impugned remarks were protected under Exceptions 3 and 9 to section 499 I.P.C. and in convicting the appellant.
[829 B D]


judgement:
minal Appeal No. 252 of 1964.
Appeal by special leave from the judgment and order dated July 30, 1964 of the Punjab High Court in Criminal Miscella neous No. 742 of 1962.
M. C. Setalvad, and Naunit Lal, for the appellant.
J. N. Kaushal, Advocate General for the State of Punjab and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Wanchoo J.
This appeal by special leave from the judgment of the Punjab High Court was heard on January 20, 1965.
We then pronounced a short order allowing the appeal and directing the release of the detenu and indicated that reasons would follow later.
We now proceed to give the reasons.
The appellant was detained under r. 3 0 (1 ) (b) of the Defence of India Rules (hereinafter referred to as the Rules) by an order passed by Shri Lal Singh on June 30, 1964.
That order was passed by Shri Lal Singh as District Magistrate of Amritsar.
The only point that has been urged before us on behalf of the detenu is that Shri Lal Singh was not the District Magistrate of Amritsar on June 30, 1964 and therefore he had no power to pass the order of detention under the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the Act and the Rules.
It is necessary to set out certain facts with respect to the position Shri Lal Singh was occupying on June 30, 1964 when the order of detention was passed.
It appears that Shri P. N. Bhalla was the District Magistrate of Amritsar in April 1964.
He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964.
At that time Shri Lall Singh was the Additional District Magistrate of Amritsar and had been inter alia invested under section 10 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) with all the powers of a District Magistrate under the Code or under any other law for the time being in force by an order which had been passed on April 10, 1963.
Further when the order of transfer of Shri Bhalla was made, instructions were issued that Shri Bhalla should hand over charge to Shri Lall Singh, Additional Deputy Commissioner, Amritsar who would hold the current charge of the post of Deputy Commissioner, Amritsar, till further orders.
It appears that Shri Bhalla handed over charge of the office of the Deputy Commis 847 sioner to Shri Lall Singh on the afternoon of May 15, 1964 in accordance with the instructions above mentioned, and thus Shri Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964.
No order appointing Shri Lall Singh as District Magistrate of Amritsar as required under section 10 (1) of the Code was passed.
But as Shri Lall Singh was already invested as an Additional District Magistrate with all the powers of the District Magistrate under the Code and under any other law for the time being in force, he carried on the duties of ' the office of the District Magistrate also.
At the same time it may be noted that no other officer was posted as District Magistrate from May 16 till June 30, 1964 when the order of detention was passed.
The new District Magistrate Shri lqbal Singh took over charge as District Magistrate, Amritsar, on July 1, 1964 and ' Shri Lall Singh was then appointed as District Magistrate, Hissar.
On these facts the contention on behalf of the detenu is that Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964, even though he signed himself as District Magistrate when he passed the order of detention.
It is submitted that in the absence of an order under section 10 (1) of the Code appointing Shri Lall Singh as District Magistrate of Amritsar, he could not be the District Magistrate of Amritsar for the purpose of passing an order of detention under the Act and the Rules, whatever might be his powers to carry on the administration of the district as an Additional District Magistrate and Additional Collector under the powers conferred on him by various notifications of April 1963.
Consequently the order of detention passed by him on June 30, 1964, was without authority and liable to be set aside.
In reply, the learned Advocate General for the State of Punjab has raised two points.
In the first place he urges that the notification delegating to all District Magistrates the State Government 's powers to detain persons under r. 30 of the Rules is law and relies in this connection on the decision of this Court in Jayantilal A mratlal Shodhan vs F. N. Rana(1).
It is further contended that by the notification of April 1963, Shri Lall Singh was invested with an the powers of a District Magistrate under the Code and under any other law for the time being in force and would therefore have the power to detain persons under the law contained in the notification delegating the power of detention to all District Magistrates.
In the second place it is urged that as Shri Lall 1. ; 848 Singh was holding charge of the current duties of the office of the Deputy Commissioner and as no one else had been posted in Amritsar between May 16 and June 30, 1964 as District Magistrate lie was in fact and in law the District Magistrate of Amritsar.
We do not think it necessary for purposes of this case to decide the first point raised by the learned Advocate General, for we have come to the conclusion that no officer other than the District Magistrate of a District can pass an order of detention under r. 30 of the Rules in view of the provisions of the Act and of the Rules to which we shall now refer.
Section 3(1) of the Act gives power to the Central Government by notification in the Official Gazette to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community.
Section 3 (2) then provides for the making of rules for various purposes without prejudice to the generality of the powers conferred by section 3 (1), and the 15th clause thereof provides for detention.
The relevant portion of that clause necessary for our purposes reads thus : "(15).
Notwithstanding anything in any other law for the time being in force (i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India 's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.
" It would be seen that section 3 (2) (15) (i) which is the source of power to detain according to the Rules to be framed thereunder itself 849 lays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate.
Then we came to section 40 (2) of the Act, which gives power to the State Government to delegate its powers to any officer or authority subordinate to it.
This power of delegation, however, must be read harmoniously with section 3 (2) (15) and therefore under section 40 (2) the State Government cannot delegate its power to detain to any officer below the rank of a District Magistrate.
Rule 30 of the Rules then provides for detention and under that rule the power is conferred on the Central Government or the State Government to detain any person.
That power of the State Government can however be delegated under section 40 (2) to any officer subordinate to it.
But as we have already indicated the power of delegation must be read harmoniously with section 3(2)(15) and therefore the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate.
The position is further clearly brought out in r. 30 A which provides for review of a detention order made by an officer.
It is made clear there also that the officer shall in no case be lower in rank than a District Magistrate.
The effect of these provisions thus is that the power of detention can either be exercised by the State Government or by its delegate who however can in no case be lower in rank than a District Magistrate.
The Act and the Rules therefore show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.
We may in this connection contrast the language of section 3 (2) of the Preventive Detention Act, No. 4 of 1950, which lays down that any of the following officers, namely: (a) district magistrates, (b) additional district magistrates specially empowered in this behalf by the State Government, (c) (d) may exercise the powers conferred by section 3 (1) (a) (ii) and (iii).
If the intention under the Act and the Rules was that the Additional District Magistrate may also exercise the power of detention conferred thereunder we would have found a provision similar to that contained in the Preventive Detention Act.
850 Two questions then arise on the view we hold that no officer below the rank of a District Magistrate can exercise the power of detention under the Act and the Rules.
The first is whether Shri Lal Singh was the District Magistrate of Amritsar on June 30, 1964.
Secondly if he was not the District Magistrate on that date, could he as Additional District Magistrate exercise the power of detention and that would depend upon whether an Additional District Magistrate is of the same rank as the District Magistrate or below him in rank ? Now section 10 (1) of the Code provides for the appointment of a District Magistrate and lays down that "in every district outside the presidency towns, the State Government shall appoint, a Magistrate of the first class, who shall be called the District Magistrate".
The appointment of a District Magistrate therefore has to be made under section 10 (1).
Section 10(2) then gives power to the State Government to appoint any Magistrate first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force as the State Government may direct.
But even if an Additional District Magistrate has been appointed with all the powers under the Code and also under any other law for the time being in force, he is still not the District Magistrate unless the Government appoints him as such under section 10 (1) of the Code.
Further section 11 of the Code envisages the contingency of the office of the District Magistrate becoming vacant.
It provides that where this contingency arises, any officer succeeding temporarily to the chief executive administration of the district shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District Magistrate.
But even if an officer is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the District Magistrate until he is appointed as such under section 10(1) of the Code.
We have therefore to see whether Shri Lall Singh was appointed as District Magistrate of Amritsar under section 10 (1) of the Code.
As to that it is admitted that there was no notification appointing Shri Lall Singh as the District Magistrate of Amritsar under section 10(1) of the Code.
All that the Advocate General can point out is the instruction issued by the Governor of the Punjab when transferring Shri Bhalla who was the District Magistrate of Amritsar to the effect that Shri Bhalla should hand over charge to Shri Lall Singh who will hold the current 851 charge of the office of the Deputy Commissioner, Amritsar.
This means that there was a temporary vacancy on the transfer of Shri Bhalla and Shri Lall Singh temporarily succeeded to the chief executive administration of the district.
As such he would be entitled to exercise the powers of the District Magistrate under the Code under s.11.
Further as he had been empowered as Additional District Magistrate to exercise powers of the District Magistrate under any other law for the time being in force:, he would exercise those powers also by virtue of being so authorised.
But even though Shri Bhalla may have gone away after handing over charge on the afternoon of May, 15, 1964 Shri Lall Singh could not and did not become the District Magistrate of Amritsar in the absence of a notification under section 10 (1) of the Code by the State Government.
The instructions to which we have already referred cannot in our opinion take the place of a notification under section 10 (1) of the Code.
Therefore though Shri Lall Singh may be exercising all the powers of the District Magistrate by virtue of his being an Additional District Magistrate under the notification issued in April 1963 and also by virtue of section 11 of the Code he was not the District Magistrate of Amritsar in law on June 30, 1964.
It is true that when passing the order he showed his designation as District Magistrate and that may be because Shri Bhalla who was the District Magistrate had gone away and no other officer had replaced him till June 30, 1964.
The transfer of Shri Bhalla would not automatically make Shri Lall Singh, the District Magistrate of Amritsar, in the absence of a notification under section 10 (1) of the Code.
When we say this we should not be understood to mean that a notification appointing a District Magistrate must necessarily recite in terms that it was being made under section 10 of the Code; all that we mean is that there must be an order of the State Government appointing an officer as District Magistrate of the district.
In the absence of such an order no officer can claim to be the District Magistrate of the district.
The instructions which were issued in this case however do not say that Shri Lal Singh was being appointed the District Magistrate of the district in place of Shri Bhalla.
If that were so, we would have found a proper notification to that effect, published in the Gazette.
We, therefore, hold that Shri Lal Singh was not the District Magistrate of Amritsar when he made the order on June 30, 1964.
The next question is whether an Additional District Magistrate can be said to be of the same rank as the District Magistrate.
We are clearly of the opinion that an Additional District Magis 852 trate is below the rank of a District Magistrate and cannot be said to be of the same rank as the District Magistrate.
We may in this connection refer to section 10(2) of the Code which shows that an Additional District Magistrate need not necessarily be conferred with all the powers of the District Magistrate under the Code or any other law for the time being in force.
He can be an Additional District Magistrate though he may be exercising only some of the powers of the District Magistrate.
Clearly, therefore, an Additional District Magistrate must be an officer below the rank of the District Magistrate.
Further sub section
(3) of section 10 bears this out.
That sub section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.
Therefore even if the Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in section 10(3) of the Code.
Besides there is only one District Magistrate in a district and all other magistrates whether they be Magistrates first class or even Additional District Magistrates must obviously be below him in rank.
As section 3 (2) (15) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank of a District Magistrate.
The order of the detention passed by Shri Lall Singh on June 30, 1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must be set aside.
Appeal allowed.

dataset_name: IN-Abs

summary:
The Additional District Magistrate of Amritsar who was invested with the powers of a District Magistrate under section 10(2) of the Code of Criminal Procedure, 1898 was under instructions from the State Government in charge of the office of the District Magistrate, when the District Magistrate was transferred.
No order appointing him as Dis trict Magistrate as required by section 10(1) of the Code was however passed.
During the period he was in charge of the office of the District Magistrate he passed an order detaining the appellant under r. 30(1)(b) of the Defence of India Rules, 1962.
In appeal by special leave from Punjab High Court, it was contended by the appellant, that in the absence of an order under section 10(1) of the Code the Additional District Magistrate could not be the District Magistrate for the purpose of passing an order of detention under Defence of India Act and the Rules, and consequently the order of detention passed by him was without authority and liable to be set aside.
HELD : The order of detention was not in accordance with the Defence of India Act and Rules and must be set aside, as he was not then the District Magistrate, but only an Additional District Magistrate.
[852 F] The Defence of India Act and the Rules show unmistakably that the powers of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.
An Additional District Magistrate is below the rank of a District Magistrate.
[849 E F; 851 H 852 A] Even if an Additional District Magistrate had been appointed with all the powers under the Code and also under any other law for the time being in force, he was still not the District Magistrate unless the Government appointed him as such under section 10(1) of the Code of Criminal Procedure.
[850 D E] Even if an officer was exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he was still not the District Magistrate until he was appointed as such under section 10(1) of the Code of Criminal Procedure.
[850 F G] The instructions could not take the place of a notification under section 10(1) of the Code.
[851 C D] 846


judgement:
minal Appeal No. 178 of 1963.
Appeal by special leave from the judgment and order dated August 19, 1963, of the Bombay High Court in Criminal Revision Application No. 388 of 1963.
section G. Patwardhan and M. section Gupta, for the appellants.
W. section Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No. 1.
The Judgement of the Court was delivered by Raghubar Dayal, J. Bhaurao Shankar Lokhande, appellant No. 1, was married to the complainant Indubai in about 1956.
He married Kamlabai in February 1962, during the lifetime of Indubai.
Deorao Shankar Lokhande, appellant No. 2, is the brother of the first appellant.
These two appellants, together with Kamlabai and her father and accused No. 5, a barber, were tried for an offence under section 494 I.P.C.
The latter three were acquitted by the Magistrate.
Appellant No. 1 was convicted under section 494 I.P.C. and appellant No. 2 for an offence under section 494 read with section 114 I.P.C. Their appeal to the Sessions Judge was dismissed.
Their revision to the High Court also failed.
They have preferred this appeal by special leave.
The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the appellant No. 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through.
It is urged for the appellants that the essential ceremonies for a valid marriage were not performed during the proceedings which took place when appellant No. 1 and Kamlabai married each other.
On behalf of the 'State it is urged that the proceedings of that marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that therefore the second marriage of appellant No. 1 with Kamlabai was a valid marriage.
It is also urged for the State that it is not necessary for the commission of the offence under section 494 I.P.C. that the second 8 39 marriage be a valid one and that a person going through any form of marriage during the life time of the first wife would commit the offence under section 494 I.P.C. even if the later marriage be void according to the law applicable to that person.
Section 494 I.P.C. reads : "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descrip tion for a term which may extend to seven years, and shall also be liable to fine." Prima facie, the expression 'whoever. marries ' must mean 'whoever marries validly ' or 'whoever. marries and whose marriage is a valid one '.
If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises.
If the marriage is not a valid marriage, it is no marriage in the eye of law.
The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.
Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the of 1955, which made a second marriage of a male Hindu, during the life time of his previous wife, void.
Section 5 of the provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage.
Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of sections 494 and 495 I.P.C. shall apply accordingly.
The marriage between two Hindus is void in view of section 17 if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living.
If the marriage which took place between the appel lant and Kamlabai in February 1962 cannot be said to be 'solemnized ', that marriage will not be void by virtue of section 17 of the Act and section 494 I.P.C. will not apply to such parties to the marriage as had a spouse living.
L4Sup./65 7 840 The word 'solemnize ' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form ', according to the Shorter Oxford Dictionary.
It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form ' it cannot be said to be 'solemnized '.
It is therefore essential, for the purpose of section 17 of the Act, that the marriage to which section 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form.
Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.
We are of opinion that unless the marriage which took place between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been 'solemnized ' and therefore appellant No. 1 cannot be held to have committed the offence under section 494 I.P.C.
We may now determine what the essential ceremonies for a valid marriage between the parties are.
It is alleged for the respondent that the marriage between appellant No. 1 and Kamlabai was in 'gandharva ' form, as modified by the custom prevailing among the Maharashtrians.
It is noted in Mullas Hindu Law, 12th Edition, at p. 605 : "The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination.
It has at times been erroneously described as an euphemism for concubinage.
This view is based on a total misconception of the leading texts of the Smritis.
It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste.
" At p. 615 is stated : "(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely (1) invocation before the sacred fire, and 841 (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.
(2) A marriage may be completed by the performance of ceremonies other than those referred to in subsection (1), where it is allowed by the custom of the caste to which the parties belong.
" It is not disputed that these two essential ceremonies were not performed when appellant No. 1 married Kamlabai in February 1962.
There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community.
In fact, the prosecution led no evidence as to what the custom was.
It led evidence of what was performed at the time of the alleged marriage.
It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the 'gandharva ' form of marriage in their community.
Such a statement does not mean that the custom of the community deemed what took place at the 'marriage ' of the appellant No. 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated.
There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage.
What took place that night when appellant No. 1 married Kamlabai, has been stated thus, by P.W. 1 : "The marriage took place at 10 p.m. Pat wooden sheets were brought.
A carpet was spread.
Accused No. 1 then sat on the wooden sheet.
On the other sheet accused No. 3 sat.
She was sitting nearby accused No. 1.
Accused No. 4 then performed some Puja by bringing a Tambya pitcher.
Betel leaves and coconut was kept on the Tambya.
Two garlands were brought.
Accused No. 2 was having one and accused No. 4 having one in his hand.
Accused No. 4 gave the garland to accused No. 3 and accused No. 2 gave the garland to accused No. 1.
Accused nos.
1 and 3 then garlanded each other.
Then they each struck each other 's forehead.
" 842 In cross examination this witness stated: "It is not that Gandharva according to our custom is performed necessarily in a temple.
It is also not that a Brahmin Priest is required to perform the Gandharva marriage.
No 'Mangala Ashtakas ' are required to be chanted at the time of Gandharva marriage.
At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted.
There is no custom to blow a pipe called 'Sher ' in vernacular.
" Sitaram, witness No. 2 for the complainant, made a similar statement about what happened at the marriage ceremony and further stated, in the examination in chief : "Surpan is the village of accused No. 3 's maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place.
There is no custom requiring a Brahmin Priest at the time of Gandharva." He stated in cross examination : "A barber is not required and accused No. 5 was not present at the time of marriage.
There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act.
" It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, were all the ceremonies which, by custom, were necessary for the validity of the marriage.
In the absence of a statement by the witness himself that according to custom these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the foreheads completed the gandharva form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage.
Bhagwan, witness No. 3 for the complainant, made no state ment about the custom, but stated in cross examination that it was not necessary for the valid performance of gandharva marriage in their community that a Brahmin priest was required and mangala ashtakas were to be chanted.
The statement of Jeebhau, witness No. 4 for the complainant, does not show how the custom has 843 modified the essential forms of marriage.
He stated in cross examination : "I had witnessed two Gandharvas before this.
For the last 5 or 7 years a Brahmin Priest, a Barber and a Thakur is not required to perform the Gandharva but formerly it was essential.
Formerly the Brahmin used to chant Mantras and Mangala ashtakas.
It was necessary to have a maternal uncle or any other person to make touch the foreheads of the sponsors together.
A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names.
" This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage.
The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community.
Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which, till then, were essential for the marriage, were given up.
If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the .
Clause (a) of section 3 of the Act provides that the expressions 'custom ' and 'usage ' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.
We are therefore of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by section 7 of the Act.
It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.
It follows therefore that the marriage between appellant No. 1 and Kamlabai does not come within the expression 'solemnized marriage ' occurring in section 17 of the Act and consequently does not come within the mischief of section 494 I.P.C. even though the first wife of appellant no.1 was living when he married Kamlabai in 1 February 1962.
We have not referred to and discussed the cases referred to in support of the contention that the 'subsequent marriage ' referred 844 to in section 494 I.P.C. need not be a valid marriage, as it is unnecessary to consider whether they have been correctly decided, in view of the fact that the marriage of appellant No. 1 with Kamlabai could be a void marriage only if it came within the purview of section 17 of the Act.
The result is that the conviction of appellant No. 1 under section 494 I.P.C. and of appellant No. 2 under section 494 read with section 114 I.P.C. cannot be sustained.
We therefore allow their appeal, set aside their convictions and acquit them.
The bail bonds of appellant No. 1 will stand discharged.
Fines, if paid, will be refunded.
Appeal allowed.

summary:
Appellant No. 1 was convicted of an offence under section 494 I.P.C. (and appellant No. 2 of abetting him) for going through a marriage which was, void by reason of its taking place during the life time of a previous wife.
It was contended on behalf of the appellants that in law it was necessary for the prosecution to establish that the alleged marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through.
On the other hand it was urged by the State that for the commission of an offence under section 494, it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the life time of the first wife would commit the offence; and that in any event, in the present case the rites necessary for a 'Gandharva ' form of marriage, as modified by custom prevailing among Maharashtrians, had been duly observed.
HELD: (i) Prima facie, the expression 'whoever marries ' in section 494 must mean 'whoever marries validly ' or 'whoever marries and whose marriage is a valid one.
If a marriage is not a valid one according to the law applicable to the parties, no question arises of its being void by reason of its taking place during the life of the husband or wife of the person marrying, [839 C D] (ii) For a marriage between two Hindus to be void by virtue of section 17 of the , two conditions are required to be satisfied, i.e. (a) the marriage is solemnised after the Act; and (b) at the date of such marriage, either party has a spouse living.
Unless the mar riage is celebrated or performed with proper ceremonies and due form, it cannot be said to be 'solemnised ' within the meaning of section 17.
Merely going through certain ceremonies, with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom.
[839 G H; 840 A C] (iii) The two ceremonies essential to the validity of a Hindu marriage, i.e. invocation before the sacred fire and sapatapadi, are also a requisite part of a 'Gandharva ' marriage unless it is shown that some modification of these ceremonies has been introduced by custom in any particular community or caste.
It was not disputed that in the present case these two ceremonies were not performed when the appellant No. 1 married a second time and the evidence on record did not establish that these essential ceremonies had been abrogated by custom.
The prosecution had therefore failed to establish that the second marriage was performed in accordance with the customary rites applicable.
[840 H: 84 A C; 843 E G] 838 Mullas Hindu Law, 12th Edn.
605 and 615, relied upon.
(iv) The facts that the two essential ceremonies may not have been performed for a period of five or seven years could not be said to have established a custom as contemplated by section 3(a) of the .
[843 C E]


judgement:
No. 95 of 1964.
Petition under article 32 of the Constitution for enforcement of fundamental rights.
T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bhadur for the petitioner.
V. P. Gopala Nambiar, Advocate General for the State of Kerala and V. A. Seyid Muhammad, for the respondent.
The Judgment of the Court was delivered by Subba Rao, J.
This is a petition under article 32 of the Constitution for issuing an appropriate writ to quash the order and notification dated October 3, 1963, issued by the respondent and to restrain it from interfering with the petitioner 's right in the property comprised in survey Nos. 646 to 650 in Trivendrum City.
Kizhakke Kottaram (i.e., Eastern Palace), 2 acres and 57 cents.
in extent, comprised in survey Nos. 646 to 650 and consisting of land, trees, buildings, out houses, the surrounding well on all sides, gates and all appurtenant, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore, Under a sale deed dated January 7, 1959, the Maharaja sold the same to the petitioner.
The petitioner 's case is that the eastern wall now in dispute is a portion of the Palace wall and is situate in survey Nos. 646 to 650 and that since the purchase he has been in possession of the same.
On October 3, 1963, the Government of Kerala passed an order, G.O. (MS) No. 661/63/Edn., purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112/M.E. ( 193637 A.D.) Under that order the Government considered the Fort walls around the Sree Padmanabhaswamy Temple as of archaeological importance and that they should be preserved as a protected monument.
Under that order the said are described as being situated, among others, in the aforesaid survey numbers also.
Pursuant to that order the State Government issued a notification dated October 3, 1963, declaring the said walls to be a protected monument for the purpose of the said Regulation The petitioner, alleging that the part of the said walls situate in the said.
survey numbers belonged to him and he was in possession thereof and that the said notification infringed his fundamental right under article 19(1) (f) of the Constitution, filed the present writ petition.
870 The State filed a counter affidavit in which it admitted that the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wan which bounded the Kizhakke Kottaram on the east was part of the fort wall which had always remained and continued to remain to be the property of the Travancore Cochin, and later on Kerala, Government.
It was further alleged that though the said wan was part of the historic fort wall, the petitioner deliberately "intermeddled" with it.
In short, the respondent claimed that the said wall was part of the historic fort wall and, therefore, the said notification was validly issued in order to preserve the same and that the petitioner had illegally encroached upon it.
It is not necessary to state the different contentions of the parties at this stage, as we shall deal with them separately.
The learned Advocate General of Kerala raised a preliminary objection to the maintainability of the application on the ground that the petition is barred by the principle of res judicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed.
The petitioner filed O.P. No. 1502 of 1960 in the High Court of Kerala at Emakulam for a relief similar to that now sought in this petition.
The said petition came up before Vaidialingam, J., who dismissed that petition on the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under article 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit.
When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court.
It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner 's contentions, but dismissed the petition for the reason that the petitioner had an effective remedy by way of a suit.
Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right.
If by a final decision of a competent Court his title to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it.
In that context the doctrine of res judicata may be invoked.
But where there is no such decision at all, there is no scope to call in its aid.
We, therefore, reject this contention.
871 The next question is whether the petitioner has any funda mental right in respect of the wall in dispute within the meaning of article 19(1) (f) of the Constitution.
The Sale deed under which the petitioner has purchased the Eastern Palace from the Maharaja is filed along with the petition as Annexure A 2.
Under the said sale deed, dated January 7, 1959, the Maharaja sold the Eastern Palace situate in survey Nos. 646 to 650, 2 acres and 57 cents, in extent, to the petitioner.
The outer compound walls of the said Palace building were also expressly conveyed under the sale deed.
In the schedule of properties annexed to the sale deed the eastern boundary is given as a road.
Prima facie, therefore, the sale deed establishes that the Maharaja conveyed the eastern wall of the building abutting the road to the petitioner.
In the counter affidavit the State, while admitting the title of the Maharaja to the Eastern Palace and the execution of the sale deed by him conveying the said Palace to the petitioner, asserted that the disputed wall is part of the historic Fort wall.
According to the State, Sree Padmanabhaswamy Temple is surrounded by the historic Fort wall and the disputed wall is a part of it.
In support of this contention, the State has given extracts from the Travancore State Manual, the list of forts furnished to the Government by the Chief Engineer in 1886, the history of Travancore by Sri K. P. Sankunni Menon.
, the Memoir of the Survey of Travancore and Cochin States by Lieutenants Ward and Conner, and the Trivendrum District Gazetteer published in 1962.
The said extracts describe the history of the Fort wall.
It is not possible, without further evidence, on the basis of the affidavits filed by the petitioner and the State to come to a definite conclusion whether the disputed part of the wall is a part of the historic Fort wall.
We are, therefore, withholding, our final decision on this point, as we are satisfied that the petitioner has purchased the disputed wall from the Maharaja and is in physical possession thereof.
Indeed, the fact that he is in possession has been admitted by the State in its counter affidavit.
It is stated therein that the petitioner has "intermeddled" with the wall.
The petitioner has possessory title in the wall and is, therefore entitled to be protected against interference with that right without the sanction of law.
The next question is whether the Travancore Ancient Monu ments.
Preservation Regulation (Regulation 1 of 1112/M.E.) ceased to be law in the State of Kerala and, therefore, the said notification issued thereunder had no legal force.
It was contended that Regulation 1 of 1112 M.E. was impliedly repealed by the extension of the Central Act, i.e., the Ancient Monuments Preservation Act, 1904, in the year 1951 to Kerala, as the said Up./65 9 872 Act covered the same field occupied by the State Act, or at any rate the Said Regulation was impliedly repealed by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of 1951) and the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958).
To appreciate this contention it would be convenient at the outset to notice the relevant legislative fields allotted to the Central and State Legislatures by the entries in the three Lists of the Seventh Schedule to the Constitution.
The following are the relevant entries in the said Schedule : Entry 67 of List 1 (Union List) Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.
Entry 12 of List II (State List) Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.
Entry 40 of List III (Concurrent List) Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.
It will be noticed that by reason of the said entries Parliament could only make law with respect to ancient and historical monuments and archaeological sites and remains declared by Parliament to be of national importance.
Where the Parliament has not declared them to be of any national importance, the State Legislature has exclusive power to make law in respect of ancient and historical monuments and records and both Parliament and the State Legislature can make laws subject to the other constitutional provisions in respect of archaeological sites and remains.
Regulation 1 of 1112 M.E. is of the year 1936 A.D.
It was a State law and it is not disputed that it was validly made at the time it was passed.
After the Travancore Cochin State was formed, under the Travancore Cochin Administration and Application of Law Act, 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D), the existing laws of Travancore were extended to that part of the area of the new State which before the appointed day 873 formed the territory of the State of Travancore.
The result was that the said Regulation continued to be in force in the 'Travancore area of the new State.
Ile Part B States (Laws) Act, 1951 (Act No. III of 1951) was made by Parliament; and thereunder the Ancient Monuments Preservation Act, 1904, was extended to the new State of Travancore Cochin.
A comparative study of the two Acts, i.e., the Ancient Monuments Preservation Act, 1904, and the Travancore Ancient Monuments Preservation Regulation 1 of 1112 M.E., shows that they practically covered the same field.
If there was nothing more, it may be contended that the State Act was impliedly repealed by the Central Act.
But section 3 of the Part B States (Laws) Act, 1951, made the application of the Central Act to the State subject to an important condition.
The said section 3 reads : "The Acts and Ordinances specified in the Schedule shall be amended in the manner and to the extent therein specified, and the territorial extent of each of the said Acts and Ordinances shall, as from the appointed day, and in so far as any of the said Acts or Ordinances or any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws, be as stated in the extent clause thereof as so amended." The condition is that the said Act shall relate to matters with respect to which Parliament has power to make laws.
The question, therefore, is whether Parliament can make a law in respect of ancient monuments with respect whereof the State had made the impugned Regulation.
As we have pointed out earlier, the Parliament can make a law in respect of ancient and historical monuments and records declared by or under law made by it to be of national importance, but the Central Act of 1904 did not embody any declaration to that effect.
Therefore, the Central Act could not enter the field occupied by the State Legislature under List II.
If so, it follows that the State Act held the field notwithstanding the fact that the Central Act was extended to the State area.
Nor can the learned counsel for the petitioner call in aid the, Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of 1951), to sustain his argument.
That Act applied to ancient and historical monuments referred to or specified in Part 1 of the Schedule thereto which had been declared to be of national importance.
In Part 1 of the Schedule to the said Act 874 certain monuments in the District of Trichur in the Travancore Cochin State were specified.
The monument in question was not included in the said Schedule.
The result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951.
The State Act, therefore, survived even after the passing of the said Central Act.
The next Central Act is the Ancient Monuments and Archaeo logical Sites and Remains Act, 1958 (Act XXIV of 1958).
It repealed the Central Act LXXI of 1951.
Under section 3 thereof all ancient and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act.
Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under section 3 of the said Act.
But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance.
If so, that Act also did not replace the State Act in regard to the monument in question.
For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question.
It follows that the notification issued under the State Act was valid.
The next argument of the learned counsel may be briefly stated thus : The disputed wall is not an ancient monument, but an archaeological site or remains; the said matter is covered by entry 40 of the Concurrent List (List 111) of the Seventh Schedule to the Constitution: when Act VII of 1904 was extended by Part B States (Laws) Act III of 1951 to the Travancore area, it occupied practically the entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act.
Assuming that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains.
The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M.E.) and that in the Central Act of 1904.
It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts 875 apply to both ancient monuments strictly so called and to archaeological site or remains.
If the definition was wide enough to cover both on which we do not express any opinion that State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act.
But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monument is good, as we have held it to be, the impugned notification was validly issued thereunder.
The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments are archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List.
The dictionary meaning of the two expressions also brings out the distinction between the two concepts.
"Monument" is derived from monere, which means to remind, to warn. "Monu ment" means, among others, "a structure surviving from a former period" whereas "archaeology" is the scientific study of the life and culture of ancient peoples.
Archaeological site or remains, therefore, is a site or remains which could be explored in order.
to study the life and culture of the ancient peoples.
The two expressions, therefore, bear different meanings.
Though the demarcating line may be thin in a rare case, the distinction is clear.
The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument.
The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property.
He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act.
Nor did he argue before the High Court to that effect.
In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments.
He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid.
The present argument is only an afterthought.
The extracts given in the counter affidavit filed by the State from the relevant Manuals and other books and documents show 876 that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple.
It is not an archaeological site for exploration and study, but an existing structure surviving from a former period.
For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under section 3 of the State Regulation 1 of 1112 M.E.
We are not deciding in this case whether the wall in dispute is part of the Fort wall.
Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder.
In this view, it is not necessary to express our opinion on the question whether article 363 of the Constitution is a bar to the maintainability of the petition.
In the result, the petition fails and is dismissed with costs.
Petition dismissed.

summary:
By a Notification under the Travancore Ancient Monuments Preservation Regulation (1 of 1112/M.E. 1936 37 A.D.), the State Government declared a fort wall, which was within certain property purchased by the petitioner, to be protected monument for the purposes of the Regulation.
The petitioner challenged the Notification as infringing his fundamental right under article 19(1) (f).
It was contended on behalf of the petitioner that the impugned Notification had no legal force as Regulation 1 of 1112/M.E., though validly made when it was passed, was impliedly repealed by the extension to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central Act VII of 1904) as that Act covered the same field occupied by the State Government, and in any event there was an implied repeal of the Regulation by the Central Acts LXXI of 1951 and XXIV of 1958.
It was also contended that the disputed wall was not an ancient 'monument ' but fell within the term 'archaeological sites or remains ' and as the latter subject was in the Concurrent List, upon the extension of the Central Act VII of 1904 in 1951 to the State, the Central Act occupied practically the entire field covered by the State Act and thereby implicitly repealed the State Act.
HELD:By virtue of Entry 67 of the Union List, Parliament could make a law in respect of ancient and historical monuments declared by or under a law made by it to be of national importance, but the Central Act of 1904 did not embody the requisite declaration.
Therefore the Regulation, which fell under Entry 12 of the State List, continued to hold the field despite the extension of the Central Act to the State.
[873 F G] Similarly, the Central Acts LXXI of 1951 and XXIV of 1958 applied only to ancient or historical monuments specified in Part 1 of the Schedule to the 1951 Act or expressly notified by the Central Government under section 4 of the 1958 Act.
As neither of these Acts covered the monument in question, the State Regulation continued to be applicable in respect of it therefore followed hat the Notification issued under the State Act was valid.
[873 H; 874 A E] The contention based on the argument that the disputed wall was not a monument but an archaeological site or remain could not be accepted, because it was clear from the evidence before the court that the Fort wall was not an archaeological site for exploration and study but that it was 869 an existing structure surviving from a former period and, as such, a monument.
The State Government was therefore within its rights in issuing the impugned notification under section 3 of Regulation 1 of 11II 12/ M.E. [875 H; 876 A B]


judgement:
minal Appeal No. 215 of 1963.
Appeal from the judgment and order dated April 30, 1963 of the Madhya Pradesh High Court in Criminal Revision No. 24 of 1963.
Ravinder Narain, O.C. Mathur and J. B. Dadachanji, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Station House Officer, Gharsiwa filed an informa tion in the Court of the Magistrate, First Class, Raipur against the two appellants complaining that they had on March 10, 1962 allowed three passengers to occupy the front seat in a public carrier and had loaded goods in excess of the sanctioned weight, and had, 854 thereby committed offences punishable under sections 124 and 112 of the 4 of 1939.
The Magistrate issued process against the appellants for their appearance in Court by pleader, but did not make any endorsement thereon in terms of section 130(1)(b) of the Act.
The appellants submitted that the summonses served upon them were not according to law and the Magistrate by failing to make an endorsement on the summonses as required by cl.
(b) of sub section
(1) of section 130 of the Act had deprived them of the right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25/ as may be specified.
The Magistrate rejected this plea and directed that the case against the appellants be "proceeded further according to law".
The Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pra desh recommending that the order passed by the Magistrate be set aside, for in his view the Trial Magistrate having failed to comply with the mandatory terms of section 130(1) (b) the proceeding against the appellants was unlawful.
The High Court of Madhya Pradesh declined to accept the reference.
Against that order, with certificate granted by the High Court, the appellants have preferred this appeal.
Section 130 of the which occurs in Ch.
IX which relates to "Offences, penalties and procedure" provides: " (1) A Court taking cognizance of an offence under this Act shall, unless the offence is an offence specified in Part A of the Fifth Schedule, state upon the summons to be served on the accused person that he (a) may appear by pleader and not in person, or (b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding twenty five rupees as the Court may specify.
(2) Where the offence dealt with in accordance with sub section (1) is an offence specified in Part B of the Fifth Schedule, the accused person shall, if he pleads guilty of the charge, forward his licence to the 855 Court with the letter containing his plea in order that the conviction may be endorsed on the licence.
(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub section (2), no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.
" Offences under sections 112 & 124 of the Act with which the appellants were charged are not included in the first part of the Fifth Schedule to the Act, and the Magistrate was therefore bound to comply with the terms of section 130(1).
There can be no doubt on the plain terms of section 130(1) that the provision is mandatory.
But there was difference of opinion about the nature of the duty imposed by sub section
(1) upon the Court taking cognizance of the complaint.
The Sessions Judge held that a Magistrate taking cognizance of an offence of the nature specified had, by virtue of section 130(1), to make an endorsement on the summons in terms of cls.
(a) & (b) and thereby to give an option to the person charged either to appear by pleader or to plead guilty to the charge by registered letter and remitting therewith the sum specified in the summons, and if the Magistrate failed to give that option, the proceedings initiated would be liable to be set aside as infringing the mandatory provision of the Act.
The High Court was of the view that sub section
(1) of section 130 left an option to the Magistrate exercisable on a consideration of the materials placed before him when taking cognizance of an offence to issue a summons without requiring the accused to appear by pleader to call upon him to plead guilty to the charge by registered letter and to remit the fine specified in the summons.
According to the High Court therefore the Magistrate had the option to issue a summons with an endorsement in terms of sub section
( 1 ) (a) or of sub section
(1) (b) and only if a summons was issued with the endorsement specified by sub section
(1) (b) it was open to the accused to avail himself of the option to plead guilty and to claim the privilege mentioned in sub section
In our judgment the High Court was right in the view it has taken.
The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub section
(1) of section 130.
But there is nothing in that sub section which indicates that he must endorse the summons in terms of both the clauses (a) & (b): to hold that he is so commanded would be to convert the conjunc 4Sup./65 8 856 tion "or" into "and".
There is nothing in the words used by the Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act.
The procedure in sub section
(1) of section 130 applies to cases in which the offence charged is not one of the offences specified in Part A of the Fifth Schedule, but applies to the other offences under the Act.
The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25/ or less.
It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permissible under the section to which the provision is applicable, to avoid imposition of a hi her penalty than Rs. 25/ by merely pleading guilty.
Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25/ .
If the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under sub section
(1) (b) escape by paying an amount which cannot exceed Rs. 25/ .
Again the Magistrate is authorised under section 17 of the Act in convicting an offender of an offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment to pass an order declaring the offender unfit for holding a driving licence generally, or for holding a driving licence for a particular class or description of vehicle.
Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender or for other reasons, that he is unfit to obtain or hold a driving licence.
But if the offender avails himself of the option given to him by the Magistrate of pleading guilty, no further proceeding in respect of the offence can in view of sub section
(3) of section 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence.
It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used section 130(1) 857 does not apply: see Sch.
Five Part A Item 9.
But there are offences under the which do not fall within that description and also do not fall under other items, which are punishable with imprisonment e.g. section 113(2).
There are also certain offences which, if repeated but not otherwise, are liable to be punished with imprisonment e.g. certain offences under sections 118A and under section 123 of the Act.
It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committeed, the offender would be entitled to compound the offence by paying the amount specified in the summons, which the Magistrate would be bound to accept, if the contention raised by the appellants is correct.
Having regard to the phraseology used by theLegislator which prima facie gives a discretion to the Magistrate exercisable at the time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the HighCourt was right in holding that the Magistrate is not obliged in offences not specified in Part A of the Fifth Schedule to make an endorsement in terms of cl.
(b) of sub section
(1) of section 130 of the Act.
We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. vs Mangal Singh(1) and the High Court of Assam in State of Assam vs Suleman Khan(2) on which the Sessions Judge relied is not correct.
The appeal therefore fails and is dismissed.
Appeal dismissed.

summary:
For offences under sections 112 and 124 of the , the Magistrate issued process against the appellants for their appearance in court by pleader, but did not make any endorsement thereon in terms of section 130(1)(b) of the Act.
The appellants submitted that the summons served on them were not according to law and the failure to make this endorsement had deprived them of their right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25 as may be specified.
The trial Magistrate rejected this plea, but on being moved by the appellants, the Sessions Judge made a reference to the High Court recommending that the order passed by the Magistrate be set aside.
The High Court declined to accept the reference.
In appeal by certificate : HELD : The Magistrate was not obliged in offences not specified in Part A of the Fifth Schedule to make an endorsement in terms of section 130(1) (b) of the Act.
[857 D] The Magistrate taking cognizance of an offence was bound to issue summons of the nature prescribed by sub section
(1) of section 130.
But there is nothing in that subsection which indicates that he must endorse the summons in terms of both cls.
(a) & (b) : to hold that he was commanded would be to convert the conjunction "or" into "and".
[855 H 856 All]