judgement:
Appeal No. 1611 of 1968.
Appeal from the judgment and order dated December 5, 1966 of the Allahabad High Court in Special Appeal No. 760 of 1966 and Petition for Special Leave to appeal (civil) No; 676 of 1972, 912 V. M. Tarkunde, J. P. Goyal; and Sobhag Mal Jain, for the appellant.
E. C. Agarwala and A. T. M. Sampat, for respondent No. 2.
The Judgment of the Court was delivered by Dua,J.
The following dispute between M/s.
Bijli Cotton Mills (P) Ltd., and their workmen was referred to the Industrial Tribunal 11, U.P. for adjudication : "Should the employers be required to pay wages for the festival holidays allowed to their workmen in a year ? If so, from which date and with what other details ? According to the workmen the employers had been giving 17 festival holidays to their workmen in a year and though those holidays should have been paid ones the employers were not making any payment.
The dispute was originally espoused at the instance of Hathras Mazdoor Panchayat but later three other unions namely Sooti Mill Mazdoor Panchayat, Congress Mazdoor Sangh and Suti Mill Karmachari Sangh were also accorded right of representation on their applications.
The employer mills contested the claim on various grounds.
The plea on the merits in substance was to the effect that neither in law nor in practice was there any provision for festival holidays with wages.
The Mill, it was averred, was already paying was for three holidays allowed to the workmen under the U.P. Industrial Establishments (National Holidays) Act (U.P. Act XVIII of 1961) and in the entire Agra region in which this Mill is situated to textile mill pays wages for festival holidays.
It was added that the Mill was an uneconomic unit and was not in a position to bear any extra burden.
The Congress Mazdoor Sangh, the Sooti Mill Karmachari Sangh and the Hathras Mazdoor Panchayat filed separate written statements on behalf of the workmen and pleaded that the grant of holidays without wages was illegal and against social Justice.
The employer Mill filed rejoinder statement to the written statements of all the Unions, pleading that the holidays mentioned by the Unions were not allowed to the workmen at the employer ', initiative but were _granted because the workmen demanded the same and these holidays were substituted by other days in lieu of holidays, and as they were paid for the days on which they worked on account of these holidays there was no Toss of wages caused to the workmen.
On july 15, 1965 the parties made their statements under,r. 12 of the U.P. Industrial Disputes Rules, 1957, which provides 913 for procedure at first.
sittings of die Tribunal requiring the parties to state their respective cases.
Shri M. P. Jaiswal, on behalf of the employers admitted that the company gives 17 festival holidays to all its employees, 15 of which are; those mentioned in the written statement of the Congress Mazdoor Sangh and two others being Sankranti and Baldev Chat observed on Bhadon Sukla Chat.
All these holidays were stated by him to be paid holidays in the sense that the workers were allowed to work on their unpaid rest days in substitution of the said festival holidays.
The unpaid rest days were the.
same as those provided and observed under section 52 of the Factories Act as unpaid holidays.
It was admitted that the monthly raters were paid for 365 days in a year whereas piece raters were paid according to the quantum of work done by them on working days in a month.
The national holidays given by the employer are not substituted on any rest day and if any national holiday falls on a rest day the employer pays single day 's wages if no work is done.
If a holiday is substituted on rest day then only one day 's wages are paid.
After this statement four representatives of the contesting unions stated that whenever the management takes work, from the workers on a rest day only one day 's wages are paid and it was emphatically denied that holidays were substituted on a rest day.
Monthly raters, according to these representatives, get their wages for all 365 days.
After these statements the Presiding Officer of the Tribunal put the following question to Shri Jaiswal : Q : Whether the festival holidays observed in the Mill are paid or unpaid ? A : They are paid holidays and payment is made by substitution as stated earlier.
Thereafter it appears that the workmen did not lead any evidence but Shri M. P. Jaiswal, Secretary of the Mills appeared as a witness on behalf of the employer.
He filed two charts showing the festival holidays observed in ,he Mills in the year 1964 and upto July, 1965.
He proved these charts stating that they bad been prepared from the Mills ' Muster Rolls and that they were true copies correctly prepared from the records of the Mills.
These two charts were marked as exhibit E 1 and exhibit E 2. )When the witness tried to depose about the holidays in the Kanpur Textile Mills, the question was disallowed.
While cross examined by Shri B. D. Seth, on behalf of the workmen, Mr. Jaiswal stated that in Ex E 1 only two holidays for Holi were substituted, one on February 23, 1964 and the other on March 1, 1964, the remaining two not being substituted.
In the case of Diwali also.
two holidays were 914 substituted leaving unsubstituted the remaining two holidays.
On being" cross examined by Shri O.P. Gautam also on behalf of the work men the witness stated that in 1965 as well only two holidays on account of Holi were substituted, the remaining two being un substituted.
In the preceding years also the position was stated to be the same in regard to Holi holidays.
The following :two questions and answers may also be re produced Q : When you take work on Sunday which is a weekly holiday on which date you give the festival holiday ? A : As such we do not give the weekly rest day on the day on which the festival falls within the limits allowed under the Factories Act. 0 : Is there any limit for festival holidays in Factories Act ? A : There is no such limit nor any such direction in the Factories Act.
For substitution there is a restriction in Sections 51 and 52 of the Factories Act.
Exhibits E 1 and E 2 show festival holiday for the year 1964 and 1965 and these charts corroborate the answers elicited from Shri Jaiswal that for Holi and Diwali only two days on which substitution was allowed were paid for, the remaining two holidays being unpaid.
It may be pointed out that ;the Tribunal, after the statements of the parties under r. 12, framed the following issue : "Whether the festival holidays are given to the work .
men in the form of substituted holidays on weekly rest days ? If so are the workmen other than the monthly raters entitled to only one day 's wages or two days ' wages i.e., one day 's wages for the work done on the weekly rest day and one day 's wages for the substituted holiday ?" It appears that the language of this issue was not objected to by either party and this appears to be the real crux of the controversy which emerged after the statements of the parties requiring decision by the Tribunal.
It was not disputed before the Tribunal that the employers had been giving 17 festival holidays to all the workmen besides three national holidays.
The plea taken by the employers in their pleadings that the holidays are not paid holidays was in the opinion of the Tribunal given the go by in the 915 statement of Shri Jaiswal recorded under r 12 on.
July 15, 1965.
The Tribunal then dealt with that statement and observed that after that statement it was for the, employers to show how payment for the festival holidays Was made by them.
To reproduce the words of the award : "In the written statement without stating whether the festival holidays were paid or unpaid they pleaded that neither in law nor in practice there was any provision for festival holidays with wages and that in the entire Agra Region no textile mill was paying wages for the festival holidays.
Originally it appeared that the employers wanted to set up that the festival holidays were unpaid but at the time of the statement under rule 12, Shri Jaiswal took a contrary position and stated that all the festival holidays were paid holidays and the payment was made in the sense that they were substituted on rest days.
I have already shown how this statement is in correct and no impartial mind will be wrong in drawing a legitimate inference that the purpose of the employers in setting up inconsistent pleas or in giving in consistent statements was only to conceal the truth or it may be that the purpose was to confuse the issue.
" A little lower down, after observing that Shri Jaiswal was not the kind of witness who would give straight answers to straight questions and that the witness had to be warned for this attitude observed : "From the employers own pleadings the statement of Shri Jaiswal recorded under rule 12 and his deposition, it is evident that 17 festival holidays besides three National Holidays are all paid holidays but the employers had been wrongfully depriving their workmen of their dues in this behalf." The Tribunal, while dealing with the case of monthly raters observed that they were not entitled to the relief because they were paid for all the 365 days in a year.
The case of daily raters or piece raters being different (they were paid according to the number of days on which they worked or the quantum of work thev turned out) they were held entitled to festival holidays with wages.
Daily raters were accordingly held entitled to payment on the basis of their daily wage whereas piece raters were held entitled to get the average earning to be calculated on the basis of the average of the last one month immediately preceding the holiday.
The relief granted.
by the award was stated thus "My award, therefore is that the employers shall pay wages to their daily rated and piece rated Workmen 946 for 17: festival holidays besides, three National Holidays, i.e., to each or their workmen who: are daily raters and piece raters with effect, from, the 1st January, 1965.
For the holidays which have accrued, from the 1st January 1965 fill the date of enforcement of the award and ' which are.
given in the list exhibit E 2 the employers shall pay the arrears and in future all the. festival ' holidays and National Holidays shall be paid for.
If the employers substitute festival holidays on a rest day, for that day they shall.
pay double the wages.
" The appellant, feeling aggrieved by this award, presented a writ petition in the Allahabad High Court under article 226 of the Constitution complaining that the Industrial Tribunal had misread ' and misinterpreted the statement of the parties recorded under r. 12 particularly the statement of Shri Jaiswal.
It was also averred that the question of festival holidays depends on so many other factors particularly custom and usage and the Industrial Tribunal had committed a serious error in shutting out evidence in regard to the practice prevalent at Kanpur in respect of the custom and usage regarding festival holidays in the textile industry there.
The main textile industry in the State of Uttar Pradesh according to the appellant 's averment is concentrated at Kanpur.
The alleged admission by Shri Jaiswal contrary to the appellant 's pleading and contrary to the case set up by both parties could: not be conclusive and the Industrial Tribunal illegally based its finding on such alleged admission.
The High Court dismissed the writ petition holding that it was open to the Industrial Tribunal to allow or disallow any question which it considered relevant or irrelevant and the High Court, in exercising its jurisdiction under article 226 of the Constitution, could not go into the correctness or otherwise of the order disallowing a particular question to be put to a witness such function being vested only in an appellate court.
The grounds that the Industrial Tribunal, had misread the statement of Shri Jaiswal in holding that, he had made an admission that 17 paid festival holidays were being allowed to the workmen was also considered to be impermissible in the High Court in writ jurisdiction because that pertains to the appreciation of evidence.
The statement made by Shri Jaiswal under r. 12, according to the High: Court, was capable of the interpretation that it contained an admission that the employers were giving 17 paid festival holidays to their workmen.
Not being satisfied that three impugned award suffered from any error of jurisdiction or from any manifest, error of law the writ petition was dismissed.
Special appeal form the judgment of the learned single Judge to a Bench of two Judges was summarilly dismissed, on, December 917 5, 1966, However, leave to appeal to this Court was granted by the Divisional Bench on February, 16,1968, the petitioner having been held, to.
quote the words of the High Court "entitled to a certificate.
either under cl.
(a) or, (b), of article 13 3 ( 1) of the Constitution".
The High Court also, certified "that the value of the subject matter of dispute before the High Court and in appeal is not less than Rs. 20,000/ ; alternatively, it is certified that the judgment of this Court involves directly or indirectly a claim res pecting wages amounting to more than Rs. 20,000/ .
", Before, us the respondents raised, an objection that the certificate granted ' by the High Court was incompetent and, therefore, should be cancelled.
Out attention was drawn to article 133(1),(a) and (b) of the Constitution and it was pointed out that the High Court missed that part of sub article
133(1) where it is stated that " where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law.
" Merely because the value of the subject matter in dispute is more than Rs. 20,000/ , the respondent contended, it does not by itself justify the grant of a certificate under cl.
(a) or cl.
In the application for the requisite certificate the prayer included cl.
(c) of article 133(1) as well, but apparently at the time of arguments the submission was confined to cls.
(a) and (b) alone.
The appellant, when faced with this difficulty, submitted that this Court should, on its oral request, grant special leave to appeal after condoning delay and it also filed a formal written application for special leave to appeal accompanied with an application for condonation of delay.
For adopting such a course the appellant relied on an unreported decision of this Court in The District Board (afterwards Zila Parishad), Allahabad vs Syed Tahir Hussain & ors.(1) There the appellant had come to this Court on a certificate purporting to have been granted under article 133 of the Constitution.
At the time of hearing it was objected on behalf of one of the respondents there that the certificate could only be granted if there was a substantial question of law and since the certificate did not disclose on its face the existence of any such question, the appeal was incompetent.
This Court, in view of its earlier decision in Shri Durga Prasad & anr.
vs The Banaras Bank Ltd.(2), sustained this objection and in the absence of a certificate of the High Court showing the existence of some substantial question of law held the appeal to be incompetent.
The appellant in, that case when faced with a similar situation, had made an oral request praying for special leave, undertaking to.
file a written (1) C.A. No; 578 of 1963 decided on July 23,1965.
(2) [1964] 1 S.C.R. 475.
918 petition for that purpose supported by an affidavit and accompanied by an application for condonation of delay.
This Court considered the case to be fit and proper for granting special leave which granted on oral prayer but the appellant there Ws directed to file special leave petition in this Court within a week.
The appellant in the present case also filed during the course of hearing special leave petition No. 676 of 1972 duly supported by an affidavit and Civil Miscellaneous Petition No. 1319 of 1972 with a supporting affidavit praying for (i) condonation of delay, (ii) treating court fee paid on C.A. No. 1611 of 1968 as court fee on special leave to appeal and (iii) the security deposit.
in the earlier appeal being treated as security in the special leave appeal.
We heard all the matters together.
We consider the case to be covered by the precedent cited and accordingly held the certificate granted by the High Court to be incompetent and, therefore, liable to be cancelled.
With the cancellation of the certificate C.A. No. 1611 of 1968 must be dismissed; but in the circumstances there would be no order as to costs.
With regard to the prayer for granting special leave to appeal there can be no dispute that this Court is fully competent to entertain this prayer and if the cause of justice so demands, to grant the same and consider the special leave to, appeal on the merits.
Article 136 is couched in very wide terms and it vests this Court with discretionary power for setting right grave injustice in fit cases.
In Shri Durga Prasad 's case (supra), this Court, having regard to all the circumstances, did not consider that to be a fit case for granting special leave to appeal whereas in the later case of the District Board (afterwards Zila Parishad) Allahabad (supra), it may be recalled, this Court granted special leave to appeal on oral request, directing, that a formal special leave application be filed within a week.
After considering all the circumstances we consider the present case to be fit for granting special leave to appeal and for condoning the delay.
We order accordingly.
The appellant, however, must pay full court fee payable within two weeks but the security already deposited in C.A. No. 1611 of 1968 may be treated as security in the special leave appeal.
The result, therefore, is that now we have the fresh appeal by special leave before us for decision.
The appellant 's learned counsel drew our attention to the statements of the respective cases of the parties before the Industrial Tribunal and also to the statement of Shri Jaiswal under r. 12.
In our view the statement of Shri Jaiswal had, as a matter of law, to be read as a whole and also in the back ground and along with the pleadings as disclosed in the respective statements of cases of the parties in order to understand whether Shri Jaiswal 's statement 919 amounted to, a clear and conscious admission eliminating a crucial, part of the controversial issue.
Reading them as ' a whole we do not consider it possible to hold that the appellant had admitted ,that the 17 festival holidays were being given by.
them as paid ' holidays dispensing with the enquiry into the question referred for adjudication to the industrial Tribunal.
It may in this connection be pointed out that the real purposes and object of r. 12 is only to pinpoint the precise.
controversy by requiring the, parties to state their respective cases at the very first sitting of the Tribunal.
This statement is not like the testimony of a witness, part Of which can be accepted and thereat rejected.
11 was only in the nature of a supplementary pleading designed mainly to remove vagueness and to clear ambiguities or indefiniteness in the pleadings.
This statement had, therefore, to be read and considered as a whole.
If it was considered unsatisfactory in some respects this factor could be taken into account in appreciating the pleadings and evidence led in the case while coming to the final decision but it could not debar the appellant from leading evidence on the controversial issue as if such issue did not arise.
It is noteworthy that even the workmen did not plead that the festival holidays were (treated as paid holidays but no payment was as.
a matter of fact being made.
The holidays were of course allowed to the workmen but the written statement on behalf of the appellant unequivocally denied that there was any provision in law or practice for allowing festival holidays with wages and it also denied that in the Agra region where the appellant 's mill is situated any textile mill was paying wages for festival holidays.
The appellant Mill it was emphasised could not be treated on a different footing.
It was further pointed out that the appellant Mill was a highly uneconomic mill an, , was not in a position to take any extra burden.
The statement made by Shri Jaiswal under r. 12 could on no reasonable hypothesis be considered to have replaced this unequivocal and clear plea.
It is true that Shri Jaiswal tried to be somewhat clever by stating that the festival holidays were paid in the sense that the workers were allowed to work on unpaid rest days in substitution of the said festival holidays.
But this statement clearly explains in unambiguous terms the sense in which Shri Jaiswal meant to say that the festival holidays were paid.
The facts contained in the explanation lead to the only conclusion that festival holidays are not paid as 'the National Holidays are.
This statement read with the detailed explanation which constitutes its real core could not logically serve as a ground for ignoring the unequivocal denial in the written statement particularly when even the workmen did not set up this case.
The Industrial Tribunal had, in our opinion, erroneously 92O ignored the real plea and had on the basis of this manifest blatant error, which is clear on the face of the record, disallowed the evidence on the question of the practice and custom.
in the textile 'industry in Kanpur.
In Shri Jaiswal 's statement we find a clear distinction drawn that three National Holidays were paid holidays and the other festival holidays were such for which the workers were allowed to work on substituted rest days.
It was also clearly mentioned in that statement that if a holiday is substituted on a rest day then the workmen gets only one day 's wages.
This important part of the statement was virtually ignored by the Tribunal.
The facts being clearly stated, in our view, the Industrial Tribunal was wrong in law in holding that the appellant 's written plea was modified by reason of the statement under r. 12 or that there was a clear admission superseding the earlier plea.
The learned Single Judge of the High Court, in our opinion, also missed the real point; and if the real plea was ignored and it was erroneously held that Shri Jaiswal 's statement under r. 12 constituted an admission overriding the earlier plea and as a result evidence on that plea was excluded, then it was an eminently fit case for interference under article 226 of the Constitution, the error being gross and palpable which was manifest on the face of the record and the same having resulted in failure of justice by excluding evidence on the mos vital point.
The Division Bench on special appeal from the judgment of the learned single Judge fell into the same error in summarily dismissing the appeal in limine without even recording a speaking order on the crucial point of substance arising in the case which went to the root of the matter.
The question of festival holidays requires consideration from several aspects.
Employers and workers have always differed in their suggestions about the level at which uniformity in the number of holidays should generally be achieved.
In the Report of ,the National Commission on Labour prepared in August, 1969 we find at p. 105 that the workers ' organisaitions generally favour a minimum of 7 to 12 paid holidays in a year without mainly any differentiation as between different categories of employees.
Enployers, on the other hand, feel that the number of paid holidays enjoyed by workers in India is already on the high side, and, 'therefore, uniformity should be achieved at a much lower level.
The opinion of the Commission contained, in its Report supported the view of its Study Group on Labour Legislation which recomended three paid National Holidays viz. 26th January (Republic Day, 15th August (Independence Day) and 2nd October (Mahatma Gandhi 's Birth Day) and five paid festival holidays as may be fixed by the appropriate Government in consultation with the representatives, of employers and employees.
The Report also suggests that there is a trend towards industry wise uniformity in 921 the matter of holidays, as in the case of jute and coal.
Incidentally it may be mentioned that in U.P., the U.P. Industrial Establishments (National Holidays) Act No. XVIII of 1961 and rules made under section 9 thereof provide for paid National Holidays but that Act does not deal with festival holidays.
In the case before us, according to the appellant, the 17 festival holidays as directed by the award would impose on the appellant industry an additional burden to the extent of about Rs. 1,49,600 as was stated in the order of the Allahabad High Court while granting leave.
Custom, practice and uniformity in the industry without prejudicially affecting efficiency and increased production are some of the relevant factors which have to be taken into account in determining the number of paid festival holidays per year.
The question affects national economy and the present instance may well be cited in future in deciding similar questions in other allied concerns in the region.
The effect of such instances, therefore, does not remain confined only to the establishment concerned but has its impact on other concerns as well.
This aspect has been completely ignored by the Industrial Tribunal which has proceeded solely on the basis of the statement of Shri Jaiswal as interpreted by it.
This statement being the sole basis of the Tribunal 's conclusion if it is not possible to read in this statement any admission having the effect of giving up the only crucial plea that the workmen have no right to 17 paid holidays than this is clearly a misreading of that statement and the Tribunal 's order must be held to be tailed by a manifest error of law on the face of the record which has resulte in grave failure of justice as evidence on the only material point in issue was illegally shut out.
In our view, the High Court also fell into the same error and did not apply its mind to the real point which arose for decision in the case.
We accordingly allow this appeal, set aside the orders of the High Court and of the Industrial Tribunal and remit the case back to the Tribunal for a fresh decision on the merits after permitting the parties to lead relevant evidence in accordance with law and in the light of the observations made above.
As the whole trouble arose because of the unsatisfactory nature of the statement made by Shri Jaiswal, who was also found by the Tribunal as a person who was not inclined to give straight answers to straight questions, it is only just and proper that the appellant should pay the respondents ' costs both in this Court and in the High Court.
The court fee, as already directed, must be paid by the appellant within two weeks.

summary:
An industrial dispute arose between the appellant and its workmen as to 'whether the employers were required to pay wages for the festival holidays allowed to their workmen in a year.
The appellant contested the workmen 's claim mainly on the grounds that neither in law nor in practice was there any provision for festival holidays with wages, that the appellant was already paying wages for three holidays allowed to the workmen under the U.P. Industrial Establishment (National Holidays) Act, 1961 and that in the entire region in which this mill is situated, no textile mill pays wages for festival holidays.
The mill was stated to be an uneconomic unit and, therefore, not in a position to b@r an extra burden.
The workmen, on the other band, in their separate written statements, filed through three Unions.
pleaded that the grant of holidays without wages was illegal and against social justice.
In their rejoinder the appellant pleaded that the holidays mentioned by the Unions were (,ranted because the workmen had demanded the same and those holidays were substituted by other days in lieu of holidays and as they were paid for the days on which they worked on account of those holidays there was no loss of wages caused to them.
The Tribunal by its award made the appellant liable to pay to their daily rated and piece rated workmen for 17 festival holidays, besides three national holidays, plus arrears, on the ground that the Secretary of,the appellant mill admitted that the festival holidays were paid holidays in the sense that workers were allowed to work on their unpaid rest days in substitution of the said festival holidays.
The appellant being aggrieved by the award presented a writ petition before the High Court which was dismissed by a single Judge.
Special leave to a Divisional Bench of the High Court was dismissed in Iimine, but the Bench certified the case to be fit for appeal to this Court.
The appellant was held entitled ' to certificate either under cl.
(a) or cl.
(b) of article 133(1) of the Constitution on the ground that value of the subject matter of dispute or claim The respondent in the Supreme Court objected to the competence of the certificate on the ground that though the judgment of the Division Bench was one of affirmance the certificate did not disclose on its face the existence 'of any substantial question of law.
This objection was upheld but as the case was considered fit for special leave, on oral request special leave was granted on the condition that the appellant would file a formal application for special leave accompanied by an application for condoning the delay 911 Allowing the appeal on the merits, HELD : By reading the statement of the Secretary of the appellant along with the pleadings as disclosed in the respective statement of cases of the parties, it is not possible to bold that the appellant had admitted that the 17 festival holidays were being given by them as paid holidays dispensing with the enquiry into the question referred for adjustment to the Industrial Tribunal.
Even the workmen did not plead that the festival holidays were treated as paid holidays.
The Secretary 's statement that no festival holidays were paid in the sense that the workers were allowed to work on unpaid rest days in substitution of the said festival holidays.
This statement clearly explains that sense in which the Secretary meant to say that the festival holidays were paid.
The facts contained in the explanation lead to the only conclusion that festival holidays are not paid as the festival holidays are.
This statement read with the detailed explanation could not logically serve as a ground for ignoring the unequivocal denial in the written state ment.
The industrial Tribunal, was therefore, wrong in holding that the statement made by the Secretary was an admission on behalf of the appellant.
The learned single Judge also missed the real point and held that the Secretary 's statement constituted an admission and all 'facts evidence was therefore, excluded.
The Division Bench fell into the, same error in summarily dismissing the appeal in limine.
(920 A EJ (ii) The U.P. Industrial Establishments (National Holidays) Act, 1961 and rules provide for paid National Holidays but that Act dotes not deal with festival holidays.
In determining the number of paid festival holidays per year, certain facts, like custom, practice and uniformity in the industry without prejudicially affecting efficiency and increased produCtion are some of the relevant factors to be taken into account.
The question affects national economy and does not remain confined only to the establishment concerned but has its impact on other concerns as well.
This aspect has been completely ignored by the, Industrial Tribunal.
Further the Tribunal proceeded solely on the basis of misreading of the Secretary 's statement.
thereby ignoring the plea taken by the appellant.
There is.
thus the manifest error of law apparent on the fact of the record which resulted in grave failure of justice, because evidence on the only material point was illegally shut out.
[921 A] The District Board (afterwards Zila Parishad Allahabad vs Syed Tahir Hussain & ors C.A. No. 57 8 of 1963 decided oh July 23, 1965, Shiri Durga Prasad & Anr.
vs The Banaras Bank Ltd., [1964] 1 S.C.R.475.preferred to.


judgement:
minal Appeal No. 156 of 1969.
Appeal by special leave from the judgment and order dated April 15, 1969 of the Calcutta High Court in Criminal Revision No. 1114 of 1963.
C. K. Daphtary and D. N. Mukherjee, for the appellants.
P.K. Chatterjee and G. section Chatterjee, for respondent No. 1.
P. K. Mukherjee, for respondent No. 2.
The Judgment of the Court was delivered by Beg, J.
On 11 7 1963 Sunilakshva Choudhry a Director of the Metropolitan Industrial Corporation Ltd., Calcuta, having been authorised by its Board of Directors, filed a complaint against the appellant Debendra Nath Bhattacharjee (or Bhattacharya), a former Director, and Banamali Pathak, Cashier of the Bengal 16 L1061SupCI/72 974 Luxmi Cotton Mills Ltd., and Hiran Roy, Chief.
Accountant of the Bengal Luxmi Cotton Mills Ltd., alleging offence punishable under Sections 408/409/467/471/477A/109 Indian Penal Code.
The complainant alleged that, when the Life Insurance business was nationalised in 1956 the Metroplitan Insurance Co. Ltd. (hereinafter referred to as 'the Company ') received a sum of about Rs. 10,25,523/ as compensation, and the Company was transformed into Metropolitan Industrial Corporation (hereinafter referred to as 'the Corporation ').
The business of the Corporation was said to be confined to making of loans, and dealings in stocks and shares.
The complainant was Director of the Company in 1957 and the accused appellant D. N. Bhattacharjee was alleged to he its Managing Diecor with absolute control over the funds of the Company and the only person authorised to operate the tanking account of the Company with.
the Metropolitan Bank Ltd. Roundabout October, 1958, alth ugh, the appellant Bhattacharjee was said to have ceased to be the Managing Director, yet, he is alleged to have continued to exercise the powers he had possessed as Managing Director, After the Company became the Corporation Certain activities of the appellant D N. Bbattacha jee are alleged to ,have come to light and compelled his resignation on 28 2 1963 so that he handed over some of the Books and records of the Court oration to the complainant.
The complainant after having, examined the records handed over by D. N. Bhattacharjee claimed to have found monthly pay sheets containing names of certain employees who were not employees of the Corporation at all and who were suspected to be fictitious as they could not be traced.
The complainant alleged that, on further enquiry, he round that the Corporation had not employed anybody at all but had taken occasional help from certain employees of sister concerns which had their offices in the same building.
In other words, the complainant claimed to have discovered that the pay sheets of the Corporation were totally false and fabricated.
He also complained that fictitious signatures of suport different persons appeared to him to have been made by a single person so as to appear as signatures of different actually existing individuals.
The complainant alleged that his suspicions were confirmed by sending these alleged signatures to a Handwriting Expert for opinion.
Accordinq to the complainant, all this was done at the instance of or with the cornplicit of D. N. Bhattacharjee and with the aid of the two other co accused.
It was asserted that D. N. Bhattacharjee bid full knowledge of what was taking place and had dishonestly misappropriated and converted to his own use large sums of money belonging to the Corporation.
He and the two co accused, who are said to have actually made the entries, were alleged to have been engaged in a conspiracy .
The complainant gave a list of five witnesses, including that of a Handwriting Expert, and he relied 975 upon a number of account books, documents, and records of the Company and the Corporation.
After an enquiry in to the allegation contained in the complaint a Presidency Magistrate found prima facie evidence of a conspiracy ,to commit breach of trust by forging, receipts and us of forged receipts and falsification of accounts.
On 2 8 1963, the Presidency Magistrate, ordered the case to be put up before the Chief Presidency Magistrate for further orders.
On 10 8 1963, the Chief Presidency Magistrate, after giving particulars of the prosecution case and the evidence produced to support it, went on to observe "In assessing the evidence adduced for the purpose of taking out a process, certain broad facts and circumstances and probabilities cannot, in my opinion, be overlooked".
The Chief Presidency Magistrate then mentioned the reasons which, in his opinion, justified a dismissal of the complaint without issue of process.
He pointed out : firstly, that the Company, which was admitted to be a going concern, must have had some of its own employees,who must have been taken over, by the Corporation in 1960 , second, that D., N. Bhattacharjee, at the time of his resignation on 28 2 1963 had handed over the records and account books of the Company to the complainant which fact indicated that be "probably." did not know that any of these were forged for fabricated; thirdly, that it was "improbable" that the Corporation could carry on its business without its own employees; fourthly, that evidence had not, been led to show :what enquiries were made to indicate that the, names oft the pay sheet were fictitious fifthly, that the complainant had himself admitted that one or two persons shown in the pay sheet might have been employed by the Corporation and that this "demolished" the whole prosecution case of fictitious entries; and, Sixthly, that the opinion of the Handwriting Expert "does not appear to be emphatic" and was also not supported by "sufficient reasons".
On these grounds, the Chief Presidency Magistrate , after holding that there were "really, no sufficient grounds to proceed further" dismissed the complaint under Sec.
203 Criminal Procedure Code.
The complainant then invoked the Revisional jurisdiction of the Calcutta High Court.
That Court, after an examination of the complaint, the evidence produced for the purpose of issuing process to the accused persons, and the order of the Chief Presidency Magistrate, came to the conclusion that the order of dismissal of the complaint under Sec.
203 Criminal Procedure Code was improper.
The High Court held that the order contained ape mature verdict on the merits of the case.
Furthermore, the High Court pointed out that the Chief Presidency Magistrate had misread the oral evidence in finding that the complainant said that one or two persons 976 mentioned in the pay sheets might have been employed by the Company sometimes.
A correct reading of the evidence of the complainant, which we have also examined, was that one or two persons may have been employed by the Company, from time to time but none of the persons whose names appeared in the pay sheets were any of those persons.
Even if the complainant had said that some of the entries in the account books.
,appeared to be, deliberately false, the complaint would not have merited a forthright dismissal without further enquiry.
The High Court, in our opinion, rightly considered the order pronouncing a judgment on the merits of 'the, case on bare Probabilities and surmises to be Premature.
High Court very rightly, did not express any opinion on, merits of the prosecution case 'beyond saying that the case called for further, enquiry.
it, therefore, set aside the order of dismissal under Section 203 of the Criminal Procedure Code and, sent back the case for further enquiry in accordance with law.
The accused have come up to this Court by Special leave against the above mentioned Order of the High Court for further enquiry into the case.
It is urged that the High Court should not have, in exercise of its revisional jurisdiction, set aside the Chief Presidency Magistrate 's order.
We are unable to accept this contention because we think that the Presidency Magistrate had not correctly understood the scope and purpose of the power to dismiss a complaint under Section 203 Criminal Procedure Code.
It has to be remembered that an order of dismissal of a com plaint under Section 203 Criminal Procedure Code has to be, made on judicially sound grounds.
It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction.
It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant.
But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not.
Ile mere existence of some grounds which would 'be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail.
On the other hand, such grounds.
may indicate the need for proceeding further in order to discover the truth after a full and proper investigation.
If, however, a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203 Criminal Procedure Code.
977 In the case before us, the learned Magistrate was in error in assuming that merely because the.
names of one or two former employees of the Company may be mentioned in the pay sheets the whole prosecution case was actually demolished.
Moreover, as the High Court had rightly pointed out, the complainant 's actual evidence had fully supported and not contradicted any part of the complaint.
No such absurdity was revealed by he complainant 's evidence as to merit a forthright dismissal of the complaint under Section 203 Criminal Procedure Code.
What the Magistrate had to determine at the stage of issue of process was not the, correctnes or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie, case on the assumption that what was stated could be% true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true.
As we, in agreement with the High Court, think that the order of the Chief Presidency Magistrate in dismissing the complaint was premature and was also based on obvious 'misconceptions, we dismiss this appeal.
V.P.S. Appeal dissmissed.

dataset_name: IN-Abs

summary:
An order of dismissal of complaint under section 203 Cr.
P.C., has to be made on judicially sound grounds.
It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction.
A Magistrate is not debarred,.
at this stage, from going into the merits of the evidence produced by the complainant, but the, object of such consideration could only be to whether There are sufficient grounds for proceeding further.
The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessary fail.
On the other hand, such grounds indicate the need for proceeding further in order to discover the truth after a full and proper investigation.
If, however, a bare perusal of a complaint or the evidence led in support of it show that the essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further the complaint could be properly dismissed under the section.
[9176 F H] Where, therefore, the Magistrate dismisses a complaint on a misreading of the oral evidence and the evidence, in fact, does not reveal,any absurdity so as to merit a forthright dismissal of the complaint under the section, such an order is.
fit to be set aside by the High Court.


judgement:
minal Appeal No. 132 of 1954.
Appeal by Special Leave granted by the Supreme Court by its Order dated the 3rd September, 1954 from the Judgment and Order dated the 15th June ' 1954 of the High Court of Judicature for the State of Punjab at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of the Court of Additional Sessions Judge in Session Case No. 4 of 1954.
J.G. Sethi, (Naunit Lal, with him), for the appellant.
1204 Gopal Singh and P. G. Gokhale, for the respondent.
January 25.
The Judgment of the Court was delivered by IMAM J.
This appeal by Nanak Chand comes by special leave against the judgment of the Punjab (1) High Court.
The appellant was convicted by the High Court under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was con firmed.
On the facts alleged by the prosecution there can be no doubt that Sadhu Ram was killed on the 5th of November, 1953, at about 6 45 P.m. at the shop of Vas Dev P. W. 2.
It is alleged that the appellant along with others assaulted Sadhu Ram.
The appellant was armed with a takwa.
Numerous injuries were found on the person of Sadhu Ram.
According to the doctor, who held the postmortem examination, injuries 1, 3 and 4 were due to a heavy sharp edged weapon and could be caused by a takwa.
It was denied by the prosecution that the deceased was assaulted by any other person with a takwa.
According to the Medical evidence, injuries 1, 3 and 4 individually, as well as collectively, were enough to cause: death in the ordinary course of nature.
In the Court of Sessions the appellant along with others was charged under section 148 and section 302, read with section 149 of the Indian Penal Code.
The Additional Sessions Judge, however, held, that the charge of rioting was not proved.
He, accordingly found the appellant and three others guilty under section 302 read with section 34 of the Indian Penal Code.
He acquitted the other three accussed There was an appeal by three convicted persons to the High Court and the high court convicted the appellant alone under section 302 of the Indian Penal Code, confirming the sentence of death but altered the conviction of the other accused 'from section 302/34 to section 323, Indian Penal Code.
it held that the provisions of section 34 of the Indian Penal Code did not apply.
1205 On behalf of the appellant questions of law and questions of fact were urged.
It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted.
The principal question of law to be considered is as to whether the appellant could legally be convicted for murder and sentenced under section 302, Indian Penal Code when he was not charged with that offence.
It was urged that as the appellant had been acquitted of the charge of rioting and the offence under section 302/149 of the Indian Penal Code, he could not be convicted for the substantive offence of murder under section 302, Indian Penal Code, without a charge having been framed against him under that section.
Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of the Privy Council in Barendra Kumar Ghosh vs Emperor(1) and certain decisions of the Calcutta High Court to which reference will be made later on.
It was urged that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under sections 234, 235, 236) 237 and 239 of the Code of Criminal Procedure.
Section 149 of the Indian Penal Code creates a specific offence and it is a separate offence from the offence of murder punishable under section 302 of the Indian Penal Code.
The provisions of sections 236, 237 and 238 of the Code of Criminal Procedure did not apply to the facts and circumstances of the present case.
Off behalf of the Prosecution, however, it was urged that section 149 did not create any offence at all and therefore no separate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant could have been convicted and sentenced, under section 302 of the Indian Penal Code, although no charge for the substantive offence of murder had been framed against him.
(1) Cal, 197, 1206 It is necessary, therefore, to examine the provisions of section 149 of the Indian Penal Code and consider as to whether this section creates a specific offence.
Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity.
Section 149 of the Indian Penal Code reads: "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence".
This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence.
Under this section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly.
Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly.
Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed.
Similarly under section 150 of the Indian Penal Code, a specific offence is created.
Under this section a person need not be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be committed by 1207 a member of the unlawful assembly in the circumstances mentioned in the section.
Sections 149 and 150 of the Indian Penal Code are not the only sections in that Code which create a specific offence.
Section 471 of the Indian Penal Code makes it an offence to fraudulently or dishonestly use as genuine any document which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document.
Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence.
The sentence to be inflicted may be the same as for the principal offence.
In Chapter XI of the Indian Penal Code offences of false evidence and against public justice are mentioned.
Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding.
Section 195 creates an offence and the person convicted of this offence is liable in certain circumstances to be punished in the same manner as a person convicted of the principal offence.
Sections 196 and 197 to 200 of the Indian Penal Code also create offences and a person convicted under any one of them would be liable to be punished in the same manner as if he had given false evidence.
It was, however, urged on behalf of the Prosecution that section 149 merely provides for constructive guilt similar to section 34 of the Indian Penal Code.
Section 34 reads: "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
This section is merely explanatory.
Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal act is done by them, each of them is liable for that act as if the act bad been done by him alone.
This section does not create any specific offence.
As was pointed out by Lord Sumner in Barendra Kumar Ghosh vs Emperor(1) " 'a criminal act ' means that (1) Cal. 197, 1208 unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence".
There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused.
The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime.
In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime.
In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. ' There is no question of common intention in section 149 of the Indian Penal Code.
An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled.
Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.
In Barendra Kumar Ghosh vs Emperor(1) Lord Sumner dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose.
In the opinion of Lord Sumner, however, section 149 is certainly not otiose,, for in any case it created a specific offence.
It postulated an assembly of five or more persons having a common object, as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object and he referred to Queen vs Sabid Ali and (1) Cal, 197, 1209 Others(1).
He pointed out that there was a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, was replaced in section 149 by membership of the assembly at the time of the committing of the offence.
It was argued, however, that these observations of Lord Sumner were obiter dicta.
Assuming though not conceding that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code.
It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, the Privy Council reviewing as a whole the provisions of sections 34, 114 and 149 of the Indian Penal Code.
On behalf of the appellant certain decisions of the Calcutta High Court were relied upon in support of the submission made, viz. Panchu Das vs Emperor(2), Reazuddi and Others vs King Emperor(3) and Emperor vs Madan Mandal and Others( ' ).
These decisions support the contention that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code.
, On the other hand, the prosecution relied upon a decision of the.
Full Bench of the Madras High Court in Theetkumalai Gounder and Others vs King Emperor(5) and the case Queen Empress vs Bisheshar and Others(6).
The decision of the Madras High Court was given in April, 1924, and reliance was placed upon the decision of the Allahabad High Court.
The decision of the Privy Council in Barendra Kumar Ghosh 's case was in October, 1924.
The Madras High Court, therefore, did not have before it the decision of the Privy Council.
It is impossible to, say what view might have been expressed (1) [1873] 20 W.R. (Cr.) 5.(2) Cal.
(3) [1961] 6 O.W.N 98.(4) ,Cal.
(5) Mad. 746.(6) All.
1210 by that court if the Privy Council 's judgment in the aforesaid case had been available to the court.
The view of the Calcutta High Court had been noticed and it appears that a decision of the Madras High Court in Taikkottathil Kunheen(1) was to the effect that section 149 of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code.
Because of this it was thought advisable to refer the matter.
to a Full Bench.
Two questions were referred to the Full Bench: (1) When a charge omits section 149, Indian Penal Code, and the conviction is based on the provisions of that section, is that conviction necessarily bad, or does it depend on whether the accused has or has not been materially rejudiced by the omission? (2) When a charge has been framed under sections 326 and 149, Indian Penal Code, is a conviction under section 326, Indian Penal Code, necessarily bad, or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge? The Full Bench agreed with the view expressed by Sir John Edge in the Allahabad case that section 149 created no offence, but was, like section 34, merely declaratory of a principle of the common law, and its object was to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt.
It was observed by Spencer, J. that a person could not be tried and sentenced under section 149 alone, as no punishment is provided by the section.
Therefore the omission of section 149 from a charge does not create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for every distinct offence of which any person is accused there shall be a separate charge.
They did not agree, with the general statement in Reazuddi 's case(2) that it is, settled law that when a person is charged by implication under section 149, he cannot be convicted of the substantive offence.
A charge for a substantive offence under section 302, or section 325 of the Indian Penal Code, etc.
is for a distinct and separate offence from that under section (1) [1928] 18 L.W. 946.
(2) (1901] 1211 302, read with section 149 or section 325, read with section 149, etc.
and to that extent the Madras view is incorrect.
It was urged by reference to section 40 of the Indian Penal Code that section 149 cannot be regarded as creating an 'offence ' because it does not itself provide for a punishment.
Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty.
Therefore the appropriate punishment section must be read with it.
It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it.
The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence.
Reliance was also placed upon the decision of the Patna High Court in Ramasray Ahir vs King Emperor(1) as well as the decision of the Allahabad High Court in Sheo Ram and Others vs Emperor(1).
In the former case the decision of the Privy Council in Barendra Kumar Ghosh 's case was not considered and the decision followed the Full Bench of the Madras High Court and the opinion of Sir John Edge.
In the latter case the Allahabad High Court definitely declined to answer the question as to whether the accused charged with an offence read with section 149, Indian Penal Code, or with an offence read with section 34, Indian Penal Code, could be convicted of the substantive offence only.
After an examination of the cases referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the correct view namely, that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed 'as required by section 233 of the Code of Criminal Procedure.
It was urged that in view of the decision of this Court in Karnail Singh and another vs State of Punjab(1) a conviction under section 302, read with see (1) Patna 484.
(2) A.I.R. 1948 All. 162, (3) , 155 1212 tion 149, could be converted into a conviction under section 302/34 which the trial Court did.
There could be no valid objection, therefore, to converting a conviction under section 302/34 into one under section 302 which the High Court did. ' This argument is unacceptable.
The High Court clearly found that section 34 was not applicable to the facts of the case and acquitted the other accused under section 302/34, that is to say the other accused were wrongly convicted by the trial court in that way but the appellant should have been convicted under section 302.
The High Court could not do what the trial court itself could not do, namely, convict under section 302, as no separate charge had been framed under that section.
It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person could be convicted of an offence which he is shown to have committed although he was not charged with it.
Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code.
The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed.
In these circumstances if there had been an omission to frame a charge, then under section 237, a conviction could be arrived at on the evidence although no charge had been framed.
In the present case there is no doubt about the facts and if the allegations against the ap pellant that he bad caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder bad been committed.
There was no room for the application of section 236 of the Code of Criminal Procedure.
It had been argued on behalf of the prosecution that no finding or sentence pronounced shall be deemed invalid merely on the ground that no charge was framed.
Reliance was placed on the provisions of section 535 of the code of criminal procedure 1213 Reference was also made to the provisions of section 537 of that Code.
Section 535 does permit.
a court of appeal or revision to set aside the finding or sentence if in its opinion the non framing of a charge has resulted in a failure of justice.
Section 537 also permits a court of appeal or revision to set aside a finding or sentence if any error, omission or irregularity in the charge has, in fact, occasioned a failure of justice.
The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier stage in the proceedings.
In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact framed.
Section 232 of the Code of Criminal Proce.
dure permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit.
In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure.
Assuming, however, for a moment that there was merely an irregularity which was curable we are satisfied that, in the circum stances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code.
By framing a charge under section 302, read with section 149 of the Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.
In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease, Attention has been 1214 drawn to the Medical evidence.
With reference to injury No. I the doctor stated that the wounds were not very clean cut.
It is further pointed out that the other incised injuries on the head were bone deep.
The bone, however, had not been out.
Injuries on the head although inflicted by a blunt weapon may sometimes assume the characteristics of an incised wound.
Reference was made to Glasgow on Medical Jurisprudence, 9th Ed., at page 241, where it is stated that under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may stimulate the appearance of an incised wound.
These wounds are usually found over the bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others.
It is also pointed that Vas Dev P.W. 2 bad admitted that Mitu took away the takwa from the appellant after Sadhu Ram had been dragged out of the shop but no takwa blow was given outside the shop.
Prakash Chand P.W. 4, another eye witness, also admitted that Mitu had taken the takwa from the appellant when they had come out of the shop.
It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses.
It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non framing of a charge under section 302, Indian Penal Code.
Having regard to the view expressed on the question of law, it is unnecessary to refer to the arguments on the facts.
The appeal is accordingly allowed and the conviction and the sentence of the appellant is set aside and the case of the appellant is remanded to the court of Sessions at Jullundur for retrial after framing a charge under section 302 of the Indian Penal Code and in accordance with law.
Appeal allowed.

summary:
Section 34 of the Indian Penal Code is merely explanatory.
It does not create any specific offence.
Under this section several persons must be actuated by a common intention and when in further (1) A.I.R. 1936 Lah.
1202 ance of that common intention a criminal act is done by them, each of them is liable for that act as if the act had been done by him alone.
There is a clear distinction between the provisions of section 34 and section 149 of the Indian Penal Code and the two sections are not to be confused.
The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime.
In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime.
In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone.
There is no question of common intention in section 149 of the Indian Penal Code.
An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and the other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled.
Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.
There is a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence.
A charge for a substantive offence under section 302, or section 325 of the Indian Penal Code, etc.
is for a distinct and separate offence from that under section 302, read with section 149 or section 325, read with section 149, etc.
A person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure.
There was no room for the application of section 236 of the Code of Criminal Procedure to the facts of the present case.
The provisions of section 236 of the Code of Criminal Procedure can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed.
In the present case there was no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceeased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed, 1203 In the present case there was no question of any error, omission or irregularity, in the charge within the meaning of section 537 of the Code of Criminal Procedure because no charge under section 302 of the Indian Penal Code was in fact framed.
There was an illegality in the present case and not an irregularity which was curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure.
Assuming however that there was merely an irregularity which was curable, the irregularity in the circumstances of the case was not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code.
By framing a charge under section 302, read with section 149, Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.
In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease.
Barendra Kumar Ghosh vs Emperor ( (1925] I.L.R. 52 Cal. 197), Queen vs Sabid Ali and others ( [1873] 20 W.R. (Cr.) 5), Panchu Das vs Emperor ( Cal.
698), Beazuddi and Others vs King Emperor ([1901] , Emperor vs Madan Mandal and Others ( Cal. 662), Theethumalai Gounder and Others vs King Emperor ([1924] I.L.R. , Queen Empress vs Bisheshar and Others ( All. 645), Taikkottathil Kunheen ( [1923] 18 L.W. 946), Bamasray Ahir vs King Emperor ( Patna 484), Sheo Ram and Others vs Emperor (A.I.R. 1948 All. 162), and Karnail Singh and another vs State of Punjab ( , referred to.