judgement:
Appeal No. 1658 of 1966.
Appeal by special leave from the judgment and order.
dated November 19, 1965 of the Calcutta High Court in Matter No. 213 of 1964.
D.N. Mukherjee, for the appellant.
A.N. Sinha and B.P. Jha, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Calcutta High Court dismissing a petition filed under section 33 of the Indian , hereinafter called the Act.
A contract was entered into between appellant and the respondent on January 28, 1964 for sale of 200 bags of Cone yarn.
The contract inter alia contained the following terms and conditions: "(a) In case of any dispute arising out of this contract the matter in dispute shall be referred to the arbitration of the Indian Chamber of Commerce whose decision shall be binding on both the parties.
(b) The Court at Calcutta alone and no other court whatsoever shall have jurisdiction to entertain and try suits in respect of any claim or disputes arising out of or under this contract or in any way relating to the same".
Certain disputes arose between the parties relating to the supply of goods and the respondent demanded a payment of Rs. 25,658.90 as price of the goods alleged to have been supplied.
The appellant maintained that the said goods were not according to the contract and had been rightly rejected.
431 The appellant did not happen to be a member of the Indian Chamber of Commerce, Calcutta, whereas the respondent was a member.
The dispute having been referred to the Chamber the appellant wrote to the Registrar of the Tribunal of Arbitration of the Chamber of Commerce to intimate the names of the persons constituting the court to enable the appellant to ascertain whether they were independent and disinterested persons.
The Registrar sent a reply saying that the names of the arbitrators constituting the court could not be disclosed to the appellant as it was a nonmember.
Later on a list of the office bearers and committee members was sent but according to the appellant the names of the arbitrators were not disclosed.
In September 1964 the Registrar intimated that the meeting of the court of the arbitrators would be held on September 24, 1964.
There was further correspondence.
The appellant 'section attorney again sought information regarding the names and particulars of the arbitrators but without success.
Ultimately the appellant filed an application under section 33 of the Act.
The case of the appellant was that the arbitration agreement contained in the contract was void and ineffective as clauses (a) and (b) reproduced above were in conflict with each other and that the Rules of the Tribunal of Arbitration of the Indian Chamber of Commerce were illegal and void.
The High Court repelled all the contentions raised before it and dismissed the application.
The main emphasis before us has been laid by learned counsel for the appellant on R. III of the Rules of Arbitration of the Indian Chamber of Commerce which, according to him, comes into conflict with the provisions of the Act.
That Rule provides that the Tribunal shall consist of such persons as may be selected by the Committee of the Chamber from time to time.
Sub Rule ( 3 ) reads: "The Committee may, at any time if they think proper so to do, add to the said list the names of other persons qualified as aforesaid.
A list of the members of the Tribunal complete for the time: being shall be kept by the Registrar, and shall always be open for inspection by members on application and at the discretion of the Registrar, also by persons other than members".
It is urged that the non disclosure of the names of the arbitrators by the Registrar is violative not only of the rules of natural justice but also infringes the provisions of the Act.
Before the High Court and before us reliance has been placed on an unreported judgment of the Calcutta High Court in Matter No. 95 of 1963 (Suraj Ratan Binany vs Hindustan Motors Ltd.)(1).
In that Decided on C 4 964.
432 case a similar contention had been raised and it was held that if the names of the arbitrators were not known to the parties until the award was filed the parties would not be in a position to know whether the arbitrators had misconducted themselves entailing removal under section 11 of the Act or a case had ' arisen for moving the court under section 5 of the Act for leave to revoke the ,authority of an appointed arbitrator.
In the judgment under appeal, however, that view was not followed and it has been held that the Arbitration Rules of the Chamber of Commerce did not offend any of the sections of the Act as the powers of the court under sections 5 and 11 remained unaffected by the aforesaid Rules.
In our judgment there is no merit in the challenge to the validity of the arbitration agreement on the ground that the Rules of the Indian Chamber of Commerce which is to be the arbitrator, enable the Registrar of that Chamber to withhold disclosure of the names of the Arbitration Court to a party which does not happen to be a member of the Chamber.
The power given to the Registrar is discretionary and he is not bound in every case to refuse to disclose the names.
At any rate, as soon as proceedings before the arbitrators commence both parties are in a position to know the names and particulars of the arbitrators and if there is any objection on well known grounds to their conducting the arbitration the same can be taken at that stage.
Under section 5 it is not essential that the authority of an appointed arbitrator should be got revoked before the commencement of the arbitration proceedings.
Section 11 contemplates a stage subsequent to the arbitrators entering on the reference.
We can see no conflict between Rule III (3 ) of the Rules of Arbitration of Chamber of Commerce and sections 5 and 11 or section 30 of the Act.
These Rules do not interfere with or take away the powers and the jurisdiction of the court under the aforesaid provisions.
It must be remembered that the appellant agreed to submit to the arbitration of Indian Chamber of Commerce which meant that it was bound by all the Rules of Arbitration of the said body.
No illegality or invalidity can be projected into the agreement by the presence of Rule III(3).
Our attention has been drawn to a statement in Russell on Arbitration, 17th Edn., at page 207 that the appointment of an arbitrator by a party is not complete without communication thereof to the other party.
This Rule can be of no avail to the appellant because in the; present case the arbitrator was known, the arbitrator being the Chamber of Commerce.
Under its Rules the Chamber is authorised to delegate its power to a smaller body.
As the Rules were expressly or by necessary implication incorporated into the contract the Chamber would have the power to appoint a court, by its Registrar, to decide the dispute.
The appointment of the arbitrator was thus complete in every sense in 433 the present case.
It could not be said that it would become complete only when the names of persons constituting the court of arbitration were communicated.
Those persons only discharge the duty which lay on the Chamber in the matter of arbitration.
It is noteworthy that the Rules of Chamber of Commerce in various parts of the country contain provisions similar to the one the validity of which has been impugned.
For instance Rule V(4) of the Rules of Bengal Chamber of Commerce provides that the names or name of the persons or person constituting the court shall not ordinarily be disclosed to the parties nor shall the parties be entitled to such in,formation as of right.
A similar rule is to be found in bye law 8 of the Bombay Chamber of Commerce and Rule V(5) of Arbitration Rules of Madras Chamber of Commerce.
It appears that the aforesaid Rule which has been framed by all these bodies of long standing and experience in the field of business is based on the elimination of all possibility or chance of a party trying to influence the members of the Arbitration Court before they enter upon or proceed with the reference.
It is axiomatic that as soon as a party appears before them or the arbitration proceedings commence the names of the arbitrators can no longer remain a secret and it is always open to a party to initiate: proceedings on the ground of bias or prejudicial interest even at that stage or after the award is made.
The appeal fails and it is dismissed.
There will be no order as to costs.
G.C. Appeal dismissed.

summary:
A contract was entered into between the appellant and the respondent in 1964 for sale of 200 bags of Cone yarn.
The contract inter alia conrained the condition that in case of any dispute arising out of the contract "the matter in dispute shall be referred to the arbitration of the Indian Chamber of Commerce whose decision shall be binding on both the parties".
The appellant was not a member of the said Chamber of Commerce; the respondent was On dispute arising between the parties and being referred to the Chamber for arbitration the appellant wrote to the Registrar of the Tribunal of Arbitration of the Chamber to intimate to it the names of the persons constituting the court to enable the appellant to ascertain whether they were independent and disinterested persons.
The Registrar refused to disclose the names on the ground that under the rules of the Chamber they could not be disclosed to a non member.
On persistent refusal to disclose the names the appellant filed an application under section 33 of the Indian before the Calcutta High Court the application was dismissed, whereupon appeal by special leave was filed in this Court.
It was urged that the non disclosure of the names of the arbitrators by the Registrar was violatire not only of the rules of natural justice but also infringed the provisions of the .
It was contended that there was a conflict between r. III(3) of the Rules of Arbitration of the Chamber of Commerce and sections 5 and 11 or section 30 ' of the Act.
HELD: The appeal must be dismissed.
( i) The power given to the Registrar not to disclose names of the members of the arbitration court to non members is discretionary 'and he is not bound in every case to refuse to disclose the names.
At any rate as soon as the proceedings commence the parties will know the names of the.
arbitrators and objection can be taken at that stage.
Under section 5 of the it is not essential that the authority of an appointed arbitrator should be got revoked before the commencement of the arbitration proceedings.
Section 11 contemplates a stage subsequent to the arbitrator entering on the reference.
There is thus no conflict between r. 111(3) of the Rules of Arbitration of the Chamber and sections 5 and 11 and 30 of the Act.
These Rules do not interfere with or take away the powers and jurisdiction of the court under the aforesaid provisions.
The appellant itself had agreed to submit to the arbitration of the Chamber which meant that it was bound by all the Rules of Arbitration of the said body.
No illegality or invalidity could be projected into the agreement by the presence of r. III(3).
[434 C F].
430 (ii) The statement in Russel on Arbitration (17th Edn.
p. 207) that the appointment of an arbitrator by a party is not complete without communication hereof to the other party could be of no avail to the appellant since in the present case the appointment of the arbitrator, namely, the Chamber of Commerce, was in every sense complete.
[434 G H] (iii) The rule objected to by the appellant is part of the long standing practice of Chambers of Commerce in this country its justification being the elimination of all possibility or chance of a party trying to influence the members of the Arbitration court before they enter upon or proceed with the reference.
[435 C D] Unreported judgment of Calcutta High Court in Suraj Ratan Birany vs Hindustan Motors Ltd. decided onApril 10, 1964, disapproved.


judgement:
Appeal No. 899 of 1966.
364 Appeal by special leave from the judgment and decree dated May 14, 1965 of the Allahabad High Court in Second Appeal No. 4136 of 1964.
Yogeshwar Prasad and Harder Singh, for the appellants.
S.N. Anand, for the respondents.
The Judgment of the Court was delivered by Shah, J.
Gokal Chand first respondent in this appeal was a tenant of shop No. 34/2, Dispensary Road, Dehra Dun, which belongs to Munni Devi the first appellant in this appeal.
Munni Devi applied to the Rent Control & Eviction Officer.
Dehra Dun, for an order in ejectment on the plea that Gokal Chand had committed default in paying rent.
The R.C. & E. Officer passed an order observing that the tenant did not lead any evidence to show that he had not vacated the shop and it was clear on the evidence that the tenant was not in occupation of the shop and had let it out to one Alladia.
He accordingly declared that the shop was vacant.
The R.C. & E. Officer allotted the shop to Kishorilal.
Kishorilal then applied to the R,C. & E. Officer that the shop allotted to him was in the illegal occupation of Rawel Chand s/o Gokal Chand.
On May 22, 1957, the R.C. & E. Officer declared that Gokal Chand the previous tenant had vacated the shop.
and that Rawel Chand was in illegal occupation of the shop.
He accordingly issued a notice under section 7A (3) of the Act.
Gokal Chand then filed a civil suit in the Court of the Munsif.
Dehra Dun, for a declaration that he was an allottee and a tenant of the shop and that he was in possession in that capacity.
To that suit were impleaded Munni Devi and Kishorilal as party defendants.
The Trial Court held that Gokal Chand had at no time vacated the shop, no.r was his tenancy terminated.
He accordingly made an order declaring that Gokal Chand was an allottee and a tenant of the shop.
and was entitled to remain in occupation of the same.
An appeal against that order to the District Court was dismissed.
A second appeal to the High Court was also unsuccessful.
In this appeal with special leave, counsel for Munni Devi and Kishorilal urges that the order of the civil court was without jurisdiction.
Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 194 7, imposes certain restrictions on eviction of tenants.
By section 7(1)(a) it is provided: "Every landlord shall, within 7 days after an accommodation becomes vacant by his ceasing to occupy it or 365 by the tenant vacting it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give notice of the vacancy in Writing to the District Magistrate.
" Sub sections (2) & (3) of section 7 provide: "(2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant.
(3) No tenant shall sub let any portion of the; accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously X X obtained." Section 7A which was added by Act 24 of 1952 provides, in so far as it is material: "(1) Where in pursuance of an order of the District Magistrate under sub section (2) of section 7, the vacancy of any accommodation is require.
be reported and is not reported, or where an order requiring any accommodation to be let or not to be let has been duly passed under sub section (2) of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to.
be fixed by him, why he should not be evicted therefrom: Provided (2) If such person fails to appear in reply to the notice served under sub section (1) or, if he appears but fails to satisfy the; District Magistrate that the order under sub section (2) of Section 7 was not duly passed and that he is entitled to remain in occupation of the accommodation the District Magistrate may, without prejudice to any other action which may be taken against him under this Act or any other law for the time being in force, direct him to vacate the premises within a period to be specified.
" Section 16 of the Act provides: "No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court." 366 Counsel for the appellants urged that the suit filed by Gokal Chand was not maintainable, for the Act sets up a complete machinery for determining after enquiry whether any premises governed by the Act have. fallen vacant, and for making an order calling upon the; person or persons in wrongful occupation to vacate and deliver possession of the premises, and that by express enactment in section 16, the order of the District Magistrate is declared final.
We are unable to agree with that contention.
Lord Esher, M.R., in Reg.
vs Commissioner of Income tax(1), observed: "When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise.
There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as.
the jurisdiction, and on finding that it does exist, to proceed further to do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts.
including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
" This rule was approved by this Court in Ebrahim A boobakar and Ant.
vs Custodian General of Evacuee Property (2).
Munni Devi applied for an order in ejectment against Gokal Chand on the.
plea that he had committed default in paying rent.
The R.C. & E. Officer held that Gokal Chand had vacated the premise and had inducted a sub tenant.
The LegiSlature has in (1) 21 C.B.D. 313.
(2) ; 367 vested the District Magistrate with power on the existence of a vacancy to allot the premises to another person, but the Legislature has not made the determination of the preliminary state of facts by the District Magistrate conclusive.
The jurisdiction to pass an order in ejectment only arises if there is a vacancy.
The right of a tenant in possession is a valuable right and there is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises.
Undoubtedly he has jurisdiction to make orders under sections 7 & 7A of the Act, if there be a vacancy.
But whether there is a vacancy is a jurisdictional fact which could not to be decided by him finally.
By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not possess.
It is only when the order is with jurisdiction that the order is not liable to be challenged in a Civil Court by virtue of section 16 of the Act.
In Chaube Jagdish Prasad vs Ganga Prasad Chaturvedi(1), the respondent had obtained on rent the "accommodation" in dispute from the appellant.
The appellant submitted an application under section 3A of the U.P. (Temporary) Control of Rent and Eviction Act, 947, to the House Allotment Officer (on whom the power of the District Magistrate was conferred) for increase in rent.
That Officer passed an order increasing the rent payable by the tenant on the ground that there was a new construction.
The appellant then instituted a suit under section 5 (4) of the Act for the enhancement of "reasonable annual rent".
The respondent contended, inter alia, that there was no new construction of "accommodation" after June 30, 1946, and that, therefore, the suit was not maintainable.
The Trial Court found that there was a new "accommodation" and the Court could determine its rent under section 5(4).
In revision, the High Court held that though the construction was new, the "accommodation" in the occupation of the respondent was not new.
and therefore section 3A of the Act was inapplicable.
In appeal, this Court held that a wrong decision made by the House Allotment Officer who exercised the power of the District Magistrate under section 3A of the Act or an order made by him in excess of his power under that section could be rectified by a suit under section 5(4) of the Act.
In the present case the civil court has come to the conclusion that Gokal Chand had never vacated the shop and no vacancy had occurred.
By wrongly deciding that Gokal Chand had vacated the shop, the District Magistrate had no power to pass orders directing forcible ejectment and allotting the shop to another person.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.
(1) (1959) Supp.
(1) S.C.R. 733.

dataset_name: IN-Abs

summary:
By section 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, "the District Magistrate may require a landlord to let or not let to any person any accommodation which is or has fallen vacant" and section 16 of the Act provides that "no order made under this Act by the State Government or the District Magistrate shall be called in question in any court.
" The first appellant applied for an order in ejectment of the first respondent on the plea that he had committed default in paying rent.
The District Magistrate held that the respondent was not in occupation of the shop, declared the shop vacant and allotted it to another person.
The respondent brought an action in the civil court for a declaration that he was an allottee of the shop and was in possession in that capacity.
The trial court held that the appellant never vacated the shop, nor was his tenancy terminated, and was therefore entitled to remain in occupation of the same.
An appeal to the District Court and a second appeal to the High Court were unsuccessful.
In appeal to this Court, the appellants contended that the suit filed by the respondent was not maintainable, for the Act set up a complete machinery for determining after enquiry whether any premises governed by the Act had fallen vacant.
and that by express enactment in section 16, the order of the District Magistrate was declared final.
Rejecting the contention.
HELD: The Legislature while investing the District Magistrate with power to allot the premises to another person on the existence of a vacancy has not made his determination of the preliminary state of facts conclusive.
There is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises.
Whether there is a vacancy is a jurisdictional fact which could not be decided by him finally.
By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not posses 'section It is only when the order is with jurisdiction that the order is not liable to be challenged in a civil court by virtue of section 16 of the.
[368 H 369 C] Reg vs Commissioner of Income tax, , and Ebrahim Aboobakar & Anr.
vs Custodian General of Evacuee Property, ; , referred to.


judgement:
iminal Appeal No.71 of 1968.
Appeal from the judgment and order dated January 15, 1968 of the Kerala High Court in O.P. No. 4394 of 1967 (Contempt).
A.S.R. Chari and B.R.G.K. Achar, for the appellants.
A. C. Jose, S.K. Mehta, K.L. Mehta and Sona Bhatiani, for the respondent.
412 M.R.K. Pillai, for the Advocate General for the State of Kerala.
The Judgment of S.M. SIKRI and P. JAGANMOHAN REDDY, JJ.was delivered by SIKRI, J. MITTER, J. gave 'a dissenting Opinion.
Sikri, J.
In this appeal by certificate of fitness granted by the Kerala High Court two questions arise: (1) Whether on the day when the appellant, A.K. Gopalan, made the statement complained of or when it was published in "Deshabhimani" any proceedings in a court could be said to be imminent; and (2) whether this statement amounts to contempt of court.
The facts in brief are that on September 11, 1967, the ruling parties in Kerala State staged what is called 'Kerala Bandh '.
A serious incident took place on that day during the course of which one C.P. Karunakaran lost his life at a place called Kuttoor.
A First information report was lodged on that very day.
On September 12, 1967 the first information report was transferred to another police station.
On September 20, 1967, the appellant, A.K. Gopalan, made the following statement: "Tearful story It was the story of a young man who had to sacrifice his life to the naked goondaism of Congressmen, that was heard from the trembling lips of so many people in Kuttoor.
Had this tragedy occurred in the course of a sudden fight one could have understood it.
But what I was able to make out was that it was in prosecution of a deliberate conspiracy to commit murder.
It appears that a prominent Congress leader of the Cannanore District had given instructions for this the previous day.
It was as a result of being pounced upon and stabbed while he was in a peaceful and disciplined manner calling for the observance of the Bandh by the closure of shops that Comrade C.P. Karunakaran suffered martyrdom.
Comrade Kunhikannan who was with him also suffered serious injuries.
The police have seized an unlicensed loaded gun and other weapons from the shop of a congressman at the scene of occurrence.
Murder too was planned.
Is it not to be inferred from all this that there was a prearranged plan to commit murder ? The enlightened people of the locality were determined to press forward to the chosen destination of that class for whom Comrade.
Karunakaran has sacrificed his life.
" 413 On September 23, 1967 K.P. Noordeen was arrested along with his two brothers.
On September 24, 1967 the Magistrate remanded the accused to police custody.
In its issue dated September 25, 1967, the Malayalam Daily newspaper called "Deshabhimani" of which P. Govinda Pillai, the second appellant,was the editor and M. Govindankutty was the printer, printed the statement which we have reproduced above.
On September 29, 1967, all the three accused were produced before the Magistrate.
On October 5, 1967, bail was refused by the District Magistrate but was granted by the Sessions Judge.
On November 1, 1967, Noordeen filed the petition under sections 3 and 4 of the (32 of 1952) impleading the three respondents, A.K. Gopalan, P. Govinda Pillai and M. Govindankutty.
The High Court held all the three respondents guilty of contempt of court and convicted them accordingly.
The High Court imposed a sentence of fine of Rs. 200/ on the first respondent and of administering an admonition to respondents 2 and 3.
The High Court discharged respondents two and three after due admonition.
The appellants A.K. Gopalan and P. Govinda Pillai havingsecured certificate of fitness under article 134(1)(c) the appeal is now before us.
This Court in Surendra Mohanty vs State of Orissa(1) exa mined the question whether the publication of a statement at a time when the only step taken was the recording of first information report under section 154, Cr.
P.C., could be contempt of court.
As the judgment in this case has not been reported we think that we should reproduce the main portion of the judgment.
Kapur, I., speaking on behalf of the Court, observed: "Before the publication of the comments complained of, only the first information report was filed in which though some persons were mentioned as being suspected of being responsible for causing the breach in the bund, there was no definite allegation against any one of them.
In the chargesheet subsequently filed by the police these suspects do not appear to be amongst the persons accused.
It was, therefore, argued that by the publication there could not be any tendency or likelihood to interfere with the due course of justice.
The learned Additional Solicitor General for the State submitted on the other hand that if there was a reasonable probability of a prosecution being launched against any person and such prosecution be merely imminent, the publication would be a contempt of court.
The Contempt of Courts Act confers on the High Courts the power to punish for the contempt of inferior Criminal Appeal 107 of 1966 decided on 23 1 1961 414 courts.
This power is both wide and has been termed arbitrary.
The courts must exercise this power with circumspection, carefully and with restraint and only in cases where it is necessary for maintaining the course of justice pure and unaffected.
It must be shown that it was probable that the publication would substantially interfere with the due course of justice; commitment for contempt is not a matter of course but within the discretion of the court which must be exercised with caution.
To constitute contempt it is not necessary to show that :as a matter of fact a judge or a jury will be prejudiced by the offending publication but the essence of the offence is conduct calculated to produce an atmosphere of prejudice in the midst of which the proceedings will have to go on and a tendency to interfere with the due course of justice or to prejudice mankind against persons who are on trial or who may be brought to trial.
It must be used to preserve citizens ' right to have a fair trial of their causes and proceedings in an atmosphere free of all prejudice or prepossession.
It will be contempt if there is a publication of any news or comments which have a tendency to or are calculated to or are likely to prejudice the parties or their causes or to interfere with due course of justice.
As to when proceedings begin or when they are imminent for the purposes of the offence of contempt of court must depend upon the circumstances of each case, and it is unnecessary in this case define the exact boundaries within which they are to be confined.
The filing of a first information report does not, by itself, establish that proceedings in a court of law are imminent.
In order 'to do this various other facts will have to be proved and in each ,case that question would depend on the facts proved.
" Then Kapur J. examined the facts of that case and observed: "In the present case all that happened was that there was a first information report made to the police in which certain suspects were named; they were not arrested; investigation was started and on the date when the offending article was published no judicial proceedings had been taken or were contemplated against the persons named in the first information report.
Indeed after investigation the suspects named in that report were not sent up for trial.
At the date this offending publication was made there was no proceeding pending in a court of law nor was any such proceeding imminent.
" 415 On the first point it seems to us clear that on the facts of this case it cannot be said that any proceedings were imminent on September 20, 1967 in a court.
It is true that the first information report was lodged on September 11, 1967, but this Court has definitely held in Surendra Mohanty 's case(1) that lodging of a first information report does not by itself establish that proceedings in a court were imminent.
This court further said that it would depend on the facts proved in a particular case whether the proceedings are imminent or not.
There are no other facts which tend to establish the imminence of proceedings in a court.
Even the accused were not arrested till September 23, 1967, and even if it be relevant there is no proof that arrest was imminent on September 20, 1967.
Ordinarily until an accused is arrested it cannot be said that any proceedings in a court are imminent against that person because he may never be arrested or he may be arrested after a lapse of months or years.
It would be an undue restriction on the liberty of free speech to lay down that even before any arrest has been made there should be no comments on the facts of a particular case.
In same cases no doubt, especially in cases of public scandal regarding companies, it is the duty of a free press to comment on such topics so as to bring them to the attention of the public.
As observed by Salmon, L.J., in R.v.
Sayundranaragan and Walker(").
"It is in the public interest that this should be done.
Indeed, it is sometimes largely because of facts discovered and brought to light by the press that criminals are brought to justice.
The private individual is adequately protected by the law of libel should defamatory statements published about him be untrue, or if any defamatory comment made about him is unfair".
Salmon, L.J. further pointed out that "no one should imagine that he is safe from committal for contempt of court if, knowing or having good reason to believe that criminal proceedings are imminent, he chooses to publish matters calculated to prejudice a fair trial." The learned counsel for the State urges that the crucial date is not September 20, 1967, when the statement was made, but September 25, 1967, when the newspaper published the statement.
The latter date may be relevant in the case of the other appellant but as far as Gopalan is concerned it is September 20, 1967, which is the relevant date.
There is no evidence that he was instrumental in getting this statement published on September 25, 1967.
We are accordingly of the opinion that the appellant Gopalan was wrongly convicted by the High Court.
There is no evidence that any proceedings in a court were imminent.
(1) Cr. A. 107 of 1956 decided on 23 1 1951.
(2) [1968]3 All E.R. 439.
416 Let us now examine the case of P. Govinda Pillai, the second appellant.
The statement was published, as we have already said, in the daily newspaper Called "Deshabhimani" on September 25, 1967.
Were any proceedings in a court imminent on that date ? The accused had already been arrested on September 23, 1969, in a serious cognizable case.
Arrest means that the police was prima facie on the right track.
The accused must have been produced before a magistrate within 24 hours of the arrest in accordance with article 21 of the Constitution, and, the magistrate must have authorised further detention of the accused.
In these circumstances it is difficult to say 'that any proceedings in a court were not imminent on that date.
The fact that the police may have after investigation come to the conclusion that the accused was innocent does not make the proceedings any the less imminent.
Proceedings in a court may be imminent on one day and yet not be brought the next day.
For instance, the accused may in the meantime die or he may be proved innocent.
To advance the day of imminence to the day when the police makes a report under section 173, Cr.
P.C would do untold harm to those who may actually be ultimately prosecuted.
Not only will it tend to harm the accused but would also tend to subvert the scheme of our criminal law and procedure.
It would subvert it because it would tend to encourage public investigation of a crime and a public discussion of the character and antecedents of an accused in detention.
The investigation of a cognizable case is eminently the province of the police, and if a person has information relevant to the commission of a particular crime there is nothing to prevent him from transmitting it to the police.
This it seems to us would be the ordinary rule in the case of an investigation of a murder.
It may be that in an investigation involving prolonged examination of account books of companies and the ramifications of a conspiracy, proceedings may not be said to be imminent as soon as the accused is arrested.
Some of these cases take a long time to investigate and as observed by this Court, it is difficult to lay down any inflexible rule.
But as far as an investigation of a charge of murder is concerned once an accused has been arrested proceedings in court should be treated as imminent.
In view of this conclusion we must hold that as far as the appellant P. Govinda Pillai is concerned proceedings in a court were imminent on September 25, 1967.
It has not been argued that Govinda Pillai did not know of the arrest of the accused or that he had good reasons to believe that no arrest had been effected by September 25, 1967.
It is true that the statement does not mention the name of the accused but it does suggest that the person who committed the deliberate murder was acting as a result of a conspiracy and it was not a 417 case of a sudden fight.
It seems to us that the statement would tend to prejudice mankind against the accused.
In the result we maintain the conviction entered by the High Court against the appellant P. Govinda Pillai.
Accordingly the appeal of A.K. Gopalan is allowed and the appeal of P. Govinda Pillai dismissed.
The fine, if already paid by A.K. Gopalan, shall be refunded.
Mitter, J.
With respect I agree with the order proposed as regards Govinda Pillai but I am unable to concur in allowing the appeal of the first appellant.
The facts are stated sufficiently in the judgment of my learned brother and need not be repeated.
He has held and indeed there can be no doubt that any publication or comment which has a tendency to or is calculated or likely to prejudice the parties or their causes or with the.
due course of justice in pending proceedings would constitute a contempt of court.
It is also universally accepted that even if proceedings have not actually begun but are imminent conduct of the kind referred to above would be punishable.
In my view the consensus of authorities both in England and in India is that contempt of court may be committed by any one making a comment or publication of the exceptionable type if he knows or has reason to believe that proceedings in court though not actually begun are imminent.
There does not appear to be any decision of this Court on the last aspect and it is therefore necessary to make a brief reference to the.
authorities.
It is agreed that there were no proceedings pending in a court when the first appellant made his statement on September 20, 1967 which was actually published in the Malayalam Daily newspaper in its issue dated September 25, 1967.
In my view although no criminal proceedings Were actually pending in any court on 20th September, it is not possible to hold that at that time such proceedings were not imminent or that the first appellant had no reasonable cause to believe that they were not imminent.
The does not purport to define what actually constitutes such contempt.
This was done with a purpose as attempts to interfere with the course of justice are of so many different kinds and may be committed in circumstances so various that the Legislature possibly thought it unwise to define the limits thereof.
Courts in India have referred to the manifold aspects of the law of Contempt of court and accepted the principles laid down in English decisions which go back to a date well over a century.
Early in the present century in Rex vs Parke(1) one Dongal was brought up before the petty Sessions of Saffron Walden charged with forgery and remanded without any evidence (1) 418 being taken.
Articles to his disadvantage appeared in a newspaper of which the defendant was the editor.
A rule was issued by the High Court to show cause why he should not be committed for contempt of court.
A point was taken that the jurisdiction would not be attracted if at the time of the publication of the article complained of there were no proceedings actually pending in any court but the petty sessions court and that the jurisdiction to punish the publishers of articles of the kind before the court was confined to cases in which at the moment of publication there was some cause actually de:ending in the High Court.
In rejecting this contention Wills J. observed: "The reason why the publication of articles like those with which we have to deal is treated as a contempt of court is because their tendency and sometimes their object is to deprive the court of the power of doing that which is the end for which it exists namely to administer justice duly, impartially, and with reference solely to the facts judicially brought before it.
Their tendency is to reduce the Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned .
If it be once grasped that such is the nature of the offence, what possible difference can it make whether the particular Court which is thus sought to be deprived of its independence, and its power of effecting the great end for which it is created, be at that moment in session or even actually constituted or not.
" Dealing with the argument that the remedy only existed when there was a cause pending in the court the Judge said: ".
in very nearly all the cases which have arisen there has been a cause ' actually begun so that the expression quite natural under the circumstances, accentuates the fact, not that the case has been begun, but that it is not at an end.
That is the cardinal consideration.
It is possible very effectually to poison the fountain of justice* before it begins to flow.
It is not possible to do so when the stream has ceased." In a recent judgment of the Court of Appeal in England observations have been made which run counter to the dictum in the lust sentence.
The last extract from the judgment of Wills, J. was quoted by Lord Hewart C.J. in R.V. Daily Mirror(1) and by Lord Goddard C.J. in Regina vs Odhams Press Ltd.(2).
Dealing with the ques (1) [1927] I K.B. 84.5 at 851.
(2) [1957]1 Q.B. 73 at 81.
tion whether mens rea was necessary to constitute the offence the learned Chief Justice said: "It is obvious that if a person does not know that proceedings have begun or are imminent, he cannot by writing or speech be said to influence the course of justice or to prejudice a litigant or accused person, but that is no answer if he publishes that which in fact is calculated to prejudice a fair trial.
" In R.V. Savundaranayagan and Walker(1) to be referred in detail later the Court of Appeal in England expressed similar views in no unmistakable terms.
We may now turn to the decisions of our High Courts.
In Tuljarama Rao vs Sir James Taylor(") and in the matter of "Tribune", Lahore(3) opinions were expressed that a comment on proceedings which were imminent but not yet launched in court with knowledge of the fact was as much a contempt as a comment of a case actually launched.
According to the Lahore High Court it was sufficient that the proceedings were imminent to the know]edge of the person charged with contempt.
It was pointed out in Surendra Mohanty vs The State of, Orissa(4) that: "As to when proceedings begin or when they are imminent for the purposes of the offence of contempt of Court must depend upon the circumstances of each case, and it is unnecessary in this case to define the exact boundaries within which they are to be confined.
The filing of a First Information Report does not, by itself, establish that proceedings in a court of law are imminent.
In order to do this various other facts will have to be proved and in each case that question would depend on the facts proved.
" The facts in Surendra Mohanty 's case(4) were that there was a breach in a bund in a big reservoir between August 12 and 13, 1953 as 'a result of which some fields were flooded.
On August 13, 1953 a first information was lodged at a police station stating that it had been cut and the cutting was suspected to have been done by one or more of the persons whose names were therein mentioned, The police thereupon started investigation and on the 24th September under the orders of the Sub Divisional Magistrate statements of five witnesses were recorded presumably under section 164 Criminal Procedure Code.
On October 26, 1953 a report called the charge sheet for an offence under section 430 I.P.C. was received (1) at 441.
(2) I.L.R. at 476.
(3) I.L.R. 25 Lahore 111.
(4) C.A. 107 of 1956 decided on 23 1 1961.
420 ,by the Magistrate who took cognizance and summoned the per sons accused therein and the proceedings were continued in the court of the Magistrate.
Between August 14 and October 26, 1953 two Oriya papers published comments in regard to the incident thus: "In the year 1952, a water reservoir had been constructed at Dangarpara in the Titlagarh Sub Division of the District of Bolangir by the Government at a cost of Rs. 33,000.
This has been breached due to heavy rainfall.
It is heard that 15 days before the breach of this bund, Abhut Sankh, Chintamani Subudhi and Bhagaban Das and others of Lakhana on seeing the condition of the reservoir apprehended a breach and brought it to the notice of the S.D.O. and requested him to open an escape for the discharge of the surplus water.
But in spite of 'hearing this, the S.D.O. did not open an escape.
When there was excessive accumulation of water, the Bund was unable to withstand and gave way.
It is heard that the S.D.O. in order to conceal his own fault is accusing Mangra Naihi of Bana Bahal, Nilamani Mahakud of Kumanbahal and Satya Ganda, Banemali, Nariha and others of Dangarpara of the offences of cutting the bund and trying to create evidence by assaulting them through the police and by keeping watch (over the locality).
If actually the aforesaid persons had reported to the S.D.O. regarding the said bund and the S.D.O. neglected in taking proper steps himself, why he should not be responsible for this." This Court held that the order of conviction by the High Court could not be sustained in view of the facts that on the date when the offending article was published no judicial proceeding had been taken or were contemplated against the persons named in the first information report.
According to the report the breach was not caused through any natural cause but was due to cutting by some persons who were suspected.
Indeed, after investigation the suspects named in that report were sent up for trial.
On the date when offending publication was made, there was no proceeding pending in a court of law nor was any such proceeding imminent.
It is difficult to hold on the facts of this case that the first appellant did not know or had no reason to believe that proceedings in court were not imminent when he made the statement on 20th September.
It is common knowledge that whenever a man loses 421 his life through a cause other than natural the police will invariably come to the scene, take custody of the dead body and start investigations.
Indeed under section 174 Cr.
P.C. even when information is received that a person has died under circumstances raising a reasonable suspicion that some other person has committed an offence, it is the duty of the officer in charge of the police station within whose jurisdiction the death occurs to give intimation thereof to the nearest Magistrate empowered to hold inquest and to proceed to the place where the body of such deceased person is, to make an investigation and draw up a report.
Here a person lost his life in broad day light not by accident but by stabbing when two groups of people clashed.
One of the groups was charged by the statement of the first appellant to be guilty of deliberate conspiracy to commit murder and it was further alleged that a prominent member of that party had given instructions for this, the day prior to the violent disturbance.
The first appellant was not an illiterate person who could not be reasonably expected to know that criminal proceedings were bound to be launched in respect of the affair: whether anybody would be successfully prosecuted is a different matter, but that would depend upon the evidence which would be brought before the court.
But no person with any experience of worldly affairs, much less a person of the standing of the first appellant, a member of Parliament and a leader of a political group could be ignorant of the fact that a murder in broad day light when two groups of people clash is sure to be investigated into and made the subject of criminal proceedings.
The statement of the appellant suggests that he had made some personal enquiries in the matter and had come to gather therefrom that certain members of a particular political party had entered into a conspiracy to murder and had actually carried their plan into execution.
He had also charged a leader of a rival party, who was not named, with having given instructions the previous day.
There can be no doubt that the motive and the object was not only to further the cause of a particular political party but also to create an atmosphere of prejudice against members of that party and charge some of them with one of the most serious offences known to law, namely, that of conspiracy to murder followed by actual homicide.
In the case of R.V. Savundranayagan and Walker (1) the Court of Appeal in England although of opinion that a free press had the right and duty to comment on topics of public interest so as to bring them to the attention of the public like the failure of an insurance company in which the moving figure was a man with an unsavory record who appeared to have used large sums of the company 's money for his own purposes and disappeared abroad (1) up.
CI/70 15 422 at a point of time when there was nothing to suggest that criminal proceedings were even in contemplation, yet took a different view of the television programme depicting an interview with the appellant shortly after his return to England, when according to the Court: "It must surely have been obvious to everyone that he was about to be arrested and tried on charges on gross fraud".
Salmon, L.J. added: "It must not be supposed that proceedings to commit for contempt of court can be instituted only in respect of matters published after the proceedings have actually begun.
No one should imagine that he is safe from committal for contempt of court if, knowing or having good reason to believe that criminal proceedings are imminent, he chooses to publish matters calculated to prejudice a fair trial.
" How jealously courts of law regard the preservation of the purity of the course of justica and the prevention and punishment of any attempt at pollution or perversion thereof as a solemn obligation will appear from a recent decision of the English Court of Appeal in Attorney General vs Butterfield & others(1).
The words of Lord Denning, M.R. are worth repeating.
He said: "I have no hesitation in declaring that the victimisation of a witness is a contempt of court, whether done while the proceedings are pending or after they have finished.
Such a contempt can be punished by the court itself before which he has given evidence: and so that those who think of doing such things may know where they stand, I would add that, if the witness has been damnified by it, he may well have redress, in a civil court for damages.
" In my view, we should hold that a contempt of court may be committed by a person when he knows or has good reason to believe that criminal proceedings are imminent.
The test is whether the circumstances in which the alleged contemnor makes the statement are such that a person of ordinary prudence would be of opinion that criminal proceedings would soon be launched.
In my way of thinking the first appellant must have realised on September 20, 1967 that the investigation by the police was sure to lead to cognizance of the offence being taken by a Magistrate and the prosecution of some persons for the offence of culpable homicide.
His statement itself shows that to his knowledge the police (1) 423 were on the track of the ,guilty and had seized an unlicenced loaded gun and other weapons from the shop of a person belonging to a political party some members whereof were being accused of the crime.
I would therefore dismiss the appeal by the first appellant also.
ORDER BY COURT In accordance with the opinion of the majority, the appeal of A.K. Gopalan is allowed and the appeal of P. Govinda Pillai is dismissed.
The fine, if already paid by A.K. Gopalan, shall be refunded.

summary:
A first information report was lodged on Sept. 11, 1967 regarding the loss of life of a person when two groups of people clashed.
On Sept. 20, 1967 the first appellant made a statement charging one of the groups being guilty of deliberate conspiracy to commit the murder and alleging that a prominent member of that party had given instructions for this.
The respondent along with his two brothers was arrested on Sept. 23, 1967 and on the next day the Magistrate remanded the accused to police custody.
In its issue dated Sept. 23, 1967 a newspaper of which the second appellant was the editor printed the statement of the first appellant.
Later on all the three accused were produced before the Magistrate.
The respondent filed a petition under sections 3 and 4 of the against the first appellant, second appellant and the printer of the newspapers.
The High Court found all the persons guilty of contempt of court.
In appeal by certificate obtained by the first and second appellants this Court, HELD : (Per Full Court): The second appellant was guilty of contempt of court, as proceedings in a court were imminent on Sept. 23, 1967 when the statement was published in the newspaper.
When the accused had already been arrested on September 23, 1969 in connection with a serious cognizable case proceedings in a court were imminent on that date.
The fact that the police might, after investigation, come to the conclusion that the accused was innocent.
would not make the proceedings any the less imminent.
To advance the day of imminence to the day when the police makes a report under section 173 Cr.
P.C. would do untold harm to those who may actually be ultimately prosecuted.
[418 B D] (Per Sikri and Jaganmohan Reddy, JJ.) : The first appellant was not guilty of contempt of court as there was no evidence that any proceedings in a court were imminent on the date when the statement was made.
The lodging of a first information report does not by itself establish that proceedings in a court were imminent.
It would depend on the facts proved in a particular case whether the proceedings are imminent or not As far as the first appellant was concerned the relevant date was Sept. 20, 1967 when he made the statement and not Sept. 25, 1967 when the newspaper published the statement.
There was no evidence that the first appellant was instrumental in getting this statement published on Sept 25, 1967.
Even the accused were not arrested till September 23, 1967, and ordinarily until an accused is arrested it cannot be said that any proceedings in a court are imminent against that person because he may never be arrested or he may be arrested after a lapse of months or years.
[416 E, F; 4 17 A C] 411 Surendra Mohanty vs State of Orissa Cr.
A No. 107 of 1956 dt.
23 1 1961.
relied on.
It would be an undue restriction on the liberty of free speech to lay down that even before any arrest has been made there should be no comments on the facts of a particular case.
In some case no doubt, especially in cases of public scandal regarding companies, it is the duty of a free press to comment on such topic so as to bring them to the attention of the public.
[417 D] R.v.
Savundranayagan and Walker, , referred (Per Mitter, J. dissenting) : A contempt of court may be committed by a person when he knows or has good reason to believe that criminal proceedings are immigrant.
The test is whether the circumstances in which the alleged contemnor makes the statement are such that a person of ordinary prudence would be of opinion that criminal proceedings would soon be launched.
The first appellant must have realised on September 20, 1967 that the investigation by the police was sure to lead to cognizance of the offence being taken by a Magistrate and prosecution of some persons for the offence of culpable homicide.
The first appellant was not an illiterate person who could not be reasonably expected to know that Criminal proceedings were bound to be launched in respect of the affair; whether anybody would be successfully prosecuted is a different matter.
but that would depend upon the evidence which would be brought before the court.
But no person with any experience of worldly affairs, much less a person of the standing of the first appellant, a member of Parliament and a leader of a political group could be ignorant of the fact that a murder in broad day light when two group of people clash is sure to be investigated into and made the subject of criminal proceedings.
His statement suggested that he had some personal enquiries in the matter and had come to gather therefrom that certain members of a particular political party had entered into a conspiracy to murder and had actually carried their plan into execution.
There, can be no doubt that the first appellant 's motive and object was not only to further the cause of a particular political party but also to create an atmosphere of prejudice against members of that party and charge some of them with one of the most serious offences known to law, namely, that of conspiracy to murder folio.wed by actual homicide.
[422 H 423G] Surendra Mohanty vs The State of Orissa, Cr. A. No. 107 of 1956 dr. 23 1 1961, distinguished.
Rex vs Parke, , R.V. Daily Mirror. , 851, Ragina vs Odhams Press Ltd. at 81, R.V. Savundaramareyagan and Walker, at 441, Tuljarama Rao vs Sir James Tavlor.
I.L.R. at 476, In the matter Tribune, Lahore.
25 Lahore 111, and Attorney General vs Butterworth & Ors. , referred to.


judgement:
iminal Appeal No. 90 of 1952.
Appeal under article 134(1) (c) of the Constitution of India from the Judgment and Order, dated 28th November, 1954, of the Punjab High Court in Criminal Revision No. 865 of 1951, arising out of the Judgment, dated 2nd August, 1951, of the Court of Additional Sessions Judge, Rohtak, Gurgaon, in Criminal Revision No. 4 of 1951.
M. C. Setalvad, Attorney General for India (Tek Chand and Rajinder Narain, with him) for the appellant.
Gopal Singh and K. L. Mehta for the respondent.
section M. Sikri, Advocate General for the State of Punjab (Jinder Lal and P. G. Gokhale, with him) for the Intervener (The State of Punjab).
October 12.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.
This appeal, by leave of the High Court of Judicature at Simla, raises a novel and interesting question of law, viz., whether a person accused of an offence under the Indian Penal Code and committed in a district which after the partition of India became Pakistan, could be tried for that offence by a Criminal Court in India after his migration to that country, and thereafter acquiring the status of a citizen.
The material facts relevant to this enquiry are these: The respondent, Ram Narain, acting on behalf of his firm, Ram Narain Joginder Nath, carrying on business at Mailsi in Multan District, was allowed a cash credit limit of rupees three lakhs by the Mailsi branch of the Central Bank of India Ltd. (the appellant) on the 23rd 699 December, 1946, shortly before the partition of British India.
The account was secured against stocks which were to remain in possession of the borrowers as trustees on behalf of the bank.
On 15th August, 1947, when British India was split into two Dominions, the amount due to the bank from Ram Narain was over Rs. 1,40,000, exclusive of interest, while the value of the goods pledged under the cash credit agreement was approximately in the sum of Rs. 1,90,000.
On account of the disturbances that followed in the wake of the partition of the country, the bank 's godown keeper at Mailsi left Mailsi some time in September, 1947, and the cashier, who was left in charge, also was forced to leave that place in October, 1947, and thus no one was in Mailsi to safeguard the bank 's godowns after that date.
It is alleged that in January, 1948, when, Mr. D. P. Patel, Agent of the Multan branch of the appellant bank, visited Mailsi, he discovered that stocks pledged by Messrs. Ram Narain Joginder Nath, against the cash credit agreement had disappeared.
On inquiry he found that 801 cotton bales pledged with the bank had been stolen, and booked by, Ram Narain to Karachi on the 9th November, 1947, and that he had recovered a sum of Rs. 1,98,702 12 9 as price of these bales from one Durgadas D. Punjabi.
The bank claimed this amount from Ram Narain but with no result.
It then applied under section 188, Criminal Procedure Code, to the East Punjab Government for sanction for the prosecution of Ram Narain for the offences committed in Pakistan in November, 1947, when he was there, in respect of these bales.
The East Punjab Government, by its order dated 23rd February, 1950, accorded sanction for the prosecution of Ram Narain, under sections 380 and 454, Indian Penal Code.
Ram Narain, at this time, was residing in Hodel, District Gurgaon, and was carrying on business under the name and style of Ram Narain Bhola Nath, Hodel.
In pursuance of this sanction, on 18th April, 1950, the bank filed a complaint against Ram Narain under sections 380 and 454, Indian Penal Code, and also under section 412 of the Code before the District Magistrate of Gurgaon.
700 Ram Narain, when he appeared in Court, raised a preliminary objection that at the time of the alleged occurrence he was a national of Pakistan and therefore the East Punjab Government was not competent to grant sanction for his prosecution under section 188, Criminal Procedure Code, read with section 4, Indian Penal Code.
This objection was not decided at that moment, but after evidence in the case had been taken at the request of both sides the Court heard arguments on the preliminary point and overruled it on the finding that Ram Narain could not be said to have acquired Pakistan nationality by merely staying on there from 15th August, till 10th November, 1947, and that all this time be had the desire and intention to revert to Indian nationality because he sent his family out to India in October, 1947, wound up his business there and after his migration to India in November, 1947, he did not return to Pakistan.
It was also said that in those days Hindus and Sikhs were not safe in Pakistan and they were bound to come to India under the inevitable pressure of circumstances over which they had no control.
Ram Narain applied to the Sessions Judge, Gurgaon, under sections 435 and 439, Criminal Procedure Code, for setting aside this order and for quashing the charges framed against him.
The Additional Sessions Judge dismissed this petition and affirmed the decision of the trial magistrate.
Ram Narain then preferred an application in revision to the High Court, Punjab, at Simla, and with success.
The High Court allowed the revision and quashed the charges and held that the trial of respondent, Ram Narain, by a Magistrate in India was without jurisdiction.
It was held that until Ram Narain actually left Pakistan and came to India he could not possibly be said to have become a citizen of India, though undoubtedly he never intended to remain in Pakistan for any length of time and wound up his business as quickly as he could and came to India in November, 1947, and settled in Hodel.
It was further held that the Punjab Government had no power in February, 1950, to sanction his prosecution under section 188, Criminal Procedure Code, for acts 701 committed in Pakistan in November, 1947.
The High Court also repelled the further contention of the appellant bank that in any case Ram Narain could be tried at Gurgaon for the possession or retention by him at Hodel of the sale proceeds of the stolen cotton which themselves constitute stolen property.
Leave to appeal to this Court was granted under article 134(1) (c) of the Constitution.
The sole question for determination in the appeal is whether on a true construction of section 188, Criminal Procedure Code, and section 4 of the Indian Penal Code, the East Punjab Government had power to grant sanction for the prosecution of Ram Narain for offences committed in Pakistan before his migration to India.
The relevant portion of section 4, Indian Penal Code, before its amendment read thus: "The provisions of this Code apply also to any offence committed by (1) any Native Indian subject of Her Majesty in any place without and beyond British India; Since 1950, the wording is: "Any citizen of India in any place without and beyond India Section 188, Criminal Procedure Code, formerly read thus : " When a Native Indian subject of Her Majesty commits an offence at any place without and beyond the limits of British India he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found. " These wordings were subsequently adapted after the formation of two Dominions and read as follows: When a British subject domiciled in India commits an offence at any place without and beyond all the limits of the provinces he may be dealt with in respect of such offence as if it had been committed at any place within the Provinces at which he may be found." After 1950, the adapted section reads as follows " When an offence is committed by 90 702 (a)any citizen of India in any place without and beyond India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. " The learned Attorney General contended that Ram Narain was, at the time when sanction for his prosecution was given by the East Punjab Government, a citizen of India residing in Hodel and that being so, he could be tried in India being a citizen of India at that moment, and having committed offences outside India, and that the provisions of section 4, Indian Penal Code, and section 188, Criminal Procedure Code, were fully attracted to the case.
In our opinion, this contention is not well founded.
The language of the sections plainly means that if at the time of the commission of the offence, the person committing it is a citizen of India, then even if the offence is committed outside India he is subject to the jurisdiction of the Courts in India.
The rule enunciated in the section is based on the principle that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the offence.
If, however, at the time of the commission of the offence the accused person is not a citizen of India, then the provisions of these sections have no application whatsoever.
A foreigner was not liable to be dealt with in British India for an offence committed and completed outside British India under the provisions of the sections as they stood before the adaptations made in them after the partition of India.
Illustration (a) to section 4, Indian Penal Code, delimits the scope of the section.
It indicates the extent and the ambit of this section.
I runs as follows: "(a) A, a coolie, who is a Native lndian subject commits a murder in Uganda.
He can be tried and convicted of murder in any place in British India in which he may be found.
" In the illustration, if (A) was not a Native Indian subject at the time of the commission of the murder, the provisions of section 4, Indian Penal Code, could not apply to his case.
The circumstance that after the commission of the offence a person becomes domiciled in another country, or acquires citizenship of that 703 State ' cannot confer jurisdiction on the Courts of that territory retrospectively for trying offences committed and completed at a time when that person was neither the national of that country nor was he domiciled there.
The question of nationality of Ram Narain really does not arise in the case.
The real question to be determined here is, whether Ram Narain had Indian domicile at the time of the commission of the offence.
Persons domiciled in India at the time of coming into force of our Constitution were given the status of citizens and they thus acquired Indian nationality.
If Ram Narain had Indian domicile at the time of the commission of the offence, he would certainly come within the ambit of section 4, Indian Penal Code, and ,section 188, Criminal Procedure Code.
If, on the other hand, he was not domiciled in India at the relevant moment, those sections would have no application to his case.
Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of 'domicile ' The simplest definition of this expression has been given by Chitty J. in Craignish vs Craignish(1), wherein the learned Judge said: " That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom. " But even this definition is not an absolute one.
The truth is that the term domicil ' lends itself to illustra tions but not to definition.
Be that as it may, two constituent elements that are necessary by English Law for the existence of domicil are: (1) a residence of a particular kind, and (2) an intention of a particular kind.
There must be the factum and there must be the animus.
The residence need not be continuous but it must be indefinite, not purely fleeting.
The intention must be a present intention to reside for ever in the country where the residence has been taken up.
It is also a well established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him a domicil in a country where in reality he has not.
A person may be a vagrant (1) , 192.
704 as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory.
In order to make the rule that nobody can be without a domicil effective, the law assigns what is called a domicil of origin to every person at his birth.
This prevails until a new domicil has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevetheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country.
It has been held by the High Court that Ram Narain remained in Multan District of the West Punjab, where he and his ancestors had lived till his migration to India.
The contention that as no Hindu or Sikh could possibly remain in Pakistan and therefore every such person must have been bound upon making his way to India as quickly as possible and that merely by forming an intention to come to India be became an Indian subject and was never even for a moment a subject of Pakistan, was negatived, and it was said that "though there is no doubt that so far as Punjab is concerned the vast majority of Hindus and Sikhs came to India but even in the Punjab the exodus has not been complete and in the East Bengal there are a considerable number of non Muslims who no doubt by now have become full citizens of Pakistan.
" In view of these findings it was concluded that the only possible way by which a resident of the territories which became Pakistan could become an Indian subject was by actually coming to India and unless and until any such person did come to India he retained Pakistan domicil, and was not covered by the words "Native Indian subject of Her Majesty" in the meaning which they automatically acquired as from the 15th August, 1947, and he certainly could not be described as a citizen of India in November, 1947, The learned Attorney General combated this view of the learned Judge and laid considerable emphasis on his following observations: 705 " There does not seem to be any doubt in the evidence produced that Ram Narain never intended to remain in Pakistan for any length of time.
In fact, he wound up his business as quickly as he could and came to India later in November 1947 and settled in Hodel" and he further emphasized the circumstance relied upon by the trial magistrate and Sessions Judge that Ram Narain had sent his family to India in October, 1947.
In our opinion, none of these circumstances conclu sively indicate an intention in Ram Narain of permanently removing himself from Pakistan and taking up residence in India.
It has to be remembered that in October or November, 1947, men 's minds were in a state of flux.
The partition of India and the events that followed in its wake in both Pakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that arose.
Minds of people affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicil in one place or another.
People vacillated and altered their programmes from day to day as events happened.
They went backward and forward; families were sent from one place to another for the sake of safety.
Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode.
They overnight became refugees, living in camps in Pakistan or in India.
No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that be was for ever abandoning the place of his ancestors.
Later policies of the Pakistan Government that prevented people from going back to their homes cannot be taken into consideration in determining the intention of the people who migrated at the relevant moment.
Ram Narain may well have sent his family to India for safety.
As pointed out by the learned Judge below, he and his ancestors lived in the Multan District.
He had considerable business there.
706 The bank had given him a cash credit of rupees three lakhs on the security of goods.
He had no doubt some business in Hodel also but that was comparatively small.
There is no evidence that he had any home in India and there is no reason to go behind the finding of the learned Judge below that he and his ancestors had been living in Mailsi.
In these circumstances, if one may use the expression, Ram Narain 's domicil of origin was in the district of Multan and when the district of Multan fell by the partition of India in Pakistan, Ram Narain had to be assigned Pakistan domicil till the time he expressed his unequivocal intention of giving up that domicil and acquiring Indian domicil and also took up his residence in India.
His domicil cannot be determined by his family coming to India and without any finding that he had established a home for himself.
Even if the animus can be ascribed to him the factum of residence is wanting in his case; and in the absence of that fact, an Indian domicil cannot be ascribed to Ram Narain.
The subsequent acquisition by Ram Narain of Indian domicil cannot affect the question of jurisdiction of Courts for trying him for crimes committed by him while he did not possess an Indian domicile The question in this case can be posed thus: Can it be said that Ram Narain at the time of the commission of the offence was domiciled in India ? That question can only be answered in one way, viz., that he was not domiciled in India.
Admittedly, then he was not a citizen of India because that status was given by the Constitution that came into force in January, 1950.
He had no residence or home in the Dominion of India.
He may have had the animus to come to India but that animus was also indefinite, and uncertain.
There is no evidence at all that at the moment he committed the offence he had finally made up his mind to take up his permanent residence in India, and a matter of this kind cannot be decided on conjectural grounds.
It is impossible to read a man 's mind but it is even more than impossible to say how the minds of people worked during the great upheaval of 1947.
707 The learned Attorney General argued that Ram Narain was a native Indian subject of Her Majesty before the 15th August, 1947, and that description continued to apply to him after the 15th August, 1947, whether he was in India or in Pakistan, but we think that the description 'Native subject of Her Majesty ' after the 15th of August, 1947, became applicable in the territory now constituted India only to residents of provinces within the boundaries of India, and in Pakistan to residents of provinces within the boundaries of Pakistan and till the time that Ram Narain actually landed on the soil of India and took up permanent residence therein he cannot be described to be domiciled in India or even a Native Indian subject of His Majesty domiciled in India.
For the reasons given above we are of the opinion that the decision of the High Court that Ram Narain could not be tried in any Court in India for offences committed in Mailsi in November, 1947, is right and that the Provincial Government had no power under section 188, Criminal Procedure Code, to accord sanction to his prosecution.
The result is that the appeal fails and is dismissed.
Appeal dismissed.

summary:
A person accused of an offence under the Indian Penal Code and committed in a district which after the partition of India became part of Pakistan cannot be tried for that offence by a Criminal Court in India after his migration to India and acquiring thereafter the status of a citizen of India.
The fact that after the commission of an offence a person becomes domiciled in another country, or acquires citizenship of that State does not confer jurisdiction on the Court of that country retrospectively for trying offences committed and completed at a time when that person was neither the national of that country nor was he domiciled there.
According to section 4 'of the Indian Penal Code and section 188 of the Code of Criminal Procedure if at the time of the commission of the offence the person committing it is a citizen of India then even if the offence is committed outside, India he is subject to 698 the jurisdiction of the Courts in India, as qua citizens the jurisdiction of Courts is not lost by reason of the Venue of an offence.
If, of however, at the time of the commission of the offence the accused person is not a citizen of India these sections have no application at all.
The term "domicil" does not admit of an absolute definition.
The simplest.
definition of domicil is: That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom.
The fact is that the term domicil can be illustrated but cannot be defined.
Craignish vs Craignish ([1892] 3 Ch.
180, 192) referred to.


judgement:
Appeal No. 1115 of 1966.
Appeal by special leave from the judgment and decree dated November 18, 1965 of the Punjab High Court in Regular Second Appeal No. 1169 of 1962.
Rameshwar Dial and .4.
D. Mathur, for the appellants.
K.S. Chawla, K.L. Mehta and S.K. Mehta, for respondents Nos. 1 to 7.
The Judgment of the Court was delivered by Shah, J.
Ram Sarup was the owner of a piece of land measuring 30 bighas 12 biswas.
By a deed dated August 16, 1935, Ram Sarup mortgaged without possession a part of the land measuring approximately 26 bighas with one Meda.
Ram Sarup on November 27, 1941, mortgaged with possession the entire area of the land to Ananda.
Ram Sarup then sold his rights in 27 bighas and 1 biswa of the land on May 14, 1943 to Buru and others who may be collectively called 'the plaintiffs ' for Rs. 6,000.
The plaintiffs then applied on May 23, 1951, under section 4 of the Redemption of Mortgages (Punjab) Act 2 of 1913 for redeeming the mortgage in favour of Meda.
This application was rejected on June 29, 1951.
Thereafter the plaintiffs instituted on August 20, 1960, a suit in the civil court for redemption of the mortgage.
The suit was resisted, inter alia, on the ground that the period of limitation prescribed by article 14 of the Indian Limitation Act, 1908, had expired.
It was submitted that the plaintiffs had moved an application for redemption of mortgage under section 4 of the Redemption of Mortgages (Punjab) Act 2 of 1913 but the same was dismissed oft June 29, 1951, by the Assistant Collector and since no suit was filed within one year from that date, the suit for redemption of the first mortgage in favour of Meda was barred.
The Trial Court dismissed the suit for redemption of the mortgage in favour of Meda, and granted a decree for redemption of the second mortgage dated November 27, 1941.
The plaintiffs appealed to the District Court, Gurgaon.
The District Court allowed the appeal and ordered redemption of the land including the mortgage in favour of Meda.
The decree passed by the District Court was confirmed in second appeal by the High Court of Punjab With special leave, this appeal has been preferred by sons of Meda.
The record of the proceedings before the Assistant Collector was, it was reported, destroyed before the suit was filed, and an 407 extract from the register of redemption applications could be tendered in evidence.
The last column of the extract contained the entry: "The application is rejected and should be consigned to the record room".
An endorsement on the docket maintained by the Advocate who appeared in the case before the Assistant Collector showed an endorsement dated June 29, 1951: "Application rejected.
The petitioner has today been ordered to file a civil suit.
" The Trial Court and the District Court held that the petition for redemption was not tried by the Assistant Collector; he ' rejected the petition holding that the application raised complicated questions of fact and law, and on that account was not triable in exercise of the summary jurisdiction prescribed under Act 2 of 1913.
With this view the High Court agreed.
Counsel for the appellants contends that the order of the Assistant Collector rejecting the petition under section 4 of the Punjab Act 2 of 1913 became final by virtue of section 12 of the Act and the mortgagor could not sue to redeem the mortgage in favour of Meda after the expiry of one year from the date of the order.
The relevant provisions of the Redemption of Mortgages (Punjab) Act 2 of 1913 may first be noticed.
By section 4 it is provided: "The mortgagor or other person entitled to institute a suit for redemption may, at any time after the principal money becomes payable and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is with possession that he be put in possession of the mortgaged property.
Sections 5, 6 and 7 deal with the procedure to be followed in the trial of applications under the Act.
Section 8 provides: "Where both parties appear when the petition is called on for hearing, the Collector shall enquire from the mortgagee whether he admits that the petitioner is entitled to redeem, whether he is willing to accept the sum in deposit in full discharge of the mortgage debt, and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property.
If the mortgagee replies in the affirmative, the Collector shall make an order as laid down in section 6(a), (b), (c) and (d) of this Act.
408 Section 9 on which reliance is primarily placed provides: "If the mortgagee raise 's objection on any ground other than the amount of the deposit, or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector may either (a) for reasons to be recorded dismiss the petition, or (b) make a summary enquiry regarding the objection raised by the mortgagee or regarding the sum due.
" Section 10 provides for enquiry into objections raised by the mortgagee, and section 11 provides for enquiry regarding the sum due under the mortgage and further provides for making deposit by the mortgagor within the period to be fixed by the Collector.
Section 12 provides by the first paragraph: "Any party aggrieved by an order made under sections 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive.
" Article 14 of Sch. 1 of the Limitation Act, 1908, provides that a suit to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, shall be filed within one year of the date of the act or order.
We are unable to agree with the appellant 's contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable.
Section 9(1)(a)of the Act authorises the Collector or dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee.
There is no evidence that the mortgagor declined to pay the sum demanded by the ' mortgagee.
Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him.
He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.
Such an order, in our judgment, does not fall within the terms of section 9 of Act 2 of 1913.
Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by article 14 of the Limitation Act.
An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage.
Such 409 an order is not one which is required to be set aside.
An order required to be set aside is one which the officer making it has jurisdiction to make and has the effect of barring the claim for relief unless it is set aside.
The order of the Assistant Collector merely declared the rights of the plaintiff under the common law: It did not bar the claim to relief_ for redemption in a civil suit, and on that account it was not an order which was required to be set aside.
Tulsi Das vs Diala Ram(1), Tek Chand, J., delivering the principal judgment of the Court dealt with the question which falls to be determined in this case.
The learned Judge observed: " . the suit referred to in section 12 is to establish the 'erroneous nature of the order '.
Now what is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit ? No civil court can grant a declaration that the Collector 's view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry.
The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie.
No suit under section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinary course.
" The same view was expressed in a judgment of the Punjab High Court Dewan Chand vs Raghbir Singh(2).
The Court, in that case pointed out, in our judgment rightly, that article 14 of Sch. 1 to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government.
When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collector 's decision does not stand in the way of the suit for redemption.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
(1)I.L.R. (2) I.L.R. [1966] 1 Punjab 193.

summary:
In August, 1935 the owner of a piece of land mortgaged a part of it without possession to M.
In November 1914 he mortgaged the entire area of the land to A.
Thereafter he sold his rights in the land (except in a small area) in May. 1943 to the plaintiffs.
In May, 1951 the plaintiffs applied under section 4 of the Redemption of ' Mortgages (Punjab Act 2 of 1913) for redeeming the mortgage in favour of M but this application was rejected by the Assistant Collector on June 29, 1951.
A suit filed by the plaintiffs in August, 1960 in a civil court for redemption of the mortgage was resisted, inter alia, on the ground that it was time barred by virtue of article 14 of the Limitation Act, 1908 as it was not filed within one year of the rejection of the application by the Assistant Collector.
The trial court dismissed the suit for redemption of the mortgage in favour of M and granted a decree for redemption of the second mortgage of November, 1941.
The District Court, allowing an appeal, ordered redemption of the land including the mortgage in favour of M and this decision was confirmed in second 'appeal by the High Court.
There was a concurrent finding by the courts below that the petition for redemption was not tried by the Assistant Collector on the merits but that he rejected it holding that the application raised complicated questions of fact and law and on that account was not triable in exercise of ' the summary jurisdiction prescribed under Act 2 of 1913.
On appeal by special leave to this Court.
HELD: Dismissing the appeal.
The suit for redemption filed by the plaintiffs was not barred by the Law of Limitation.
The Assistant Collector merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding. 'Such an order does not fall within the terms of section 9 of Act 2 of 1913.
Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by article 14 of the Limitation Act.
An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption.
for it raises no cloud on the title of the mortgagor arising out of the mortgage.
Such an order is not one which is required to be set aside.
An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside.
[410 F H] L2Sup(CI)/70 14 406 Tulsi Das vs Diala Ram, I.L.R. [1944] Lab. 1 (F.B.) and Dewan Chand vs Raghbir Singh, I.L.R. [1966] 1 Punjab 193; referred to and approved.