judgement:
minal Appeal No. 143 of 1961.
Appeal by special leave from the judgment and order dated May 22, 1961, of the Punjab High Court, Chandigarh in Criminal Revision No. 1448 of 1960.
section K. Kapur, for the appellants.
Harnam Singh Chadha and Harbans Singh, for the respondent.
February 13.
The judgment of the Court was delivered by SUBBA RAO J.
This appeal by special leave raises the question of true construction of section 488(8) of the Code of Criminal Procedure.
Jagir Kaur, the first wife of jaswant Singh, was married to him in 1.930.
Tile said jaswant Singh 76 was employed in the police force in Africa.
The Maklawa ceremony took place about 7 years after the marriage, when the respondent was away In Africa.
Thereafter, the first appellant was taken to her mother in law 's house, and after living there for a few years she returned to her parental house.
5 or 6 years thereafter, jaswant Singh came to India on 5 months ' leave and the couple lived in jaswant Singh 's or his mother 's house at Hans Kalan it is not clear to whom the house belongs for a period of 5 months and thereafter jaswant Singh left for Africa.
Before going to Africa, jaswant Singh married another wife and took her with him to Africa.
After 5 or 6 years, he came back to India on leave and took the first appellant also to Africa.
There she gave birth to a daughter the second appellant.
As disputes arose between them, he sent her back to India, promising to send her money for her maintenance but did not (lo so.
In the year 1960, he came back to India.
It is also in evidence that he had purchased property in Ludhiana District for Rs. 25,000/ .
When he was admittedly in India, the first appellant filed a petition under section 488 of the Code of Criminal Procedure in the Court of the First Class Magistrate, Ludhiana, within whose jurisdiction the respondent was staying at that time.
The petition was filed by the first appellant on behalf of herself and also as lawful guardian of the second appellant, who was a minor, claiming maintenance at Rs. 200/ per month for both of them on the ground that the respondent deserted them and did not maintain them.
The respondent filed a counter affidavit denying the allegations and pleading that the said court had no on the ground that he never resided within its district nor did he last reside with the first appellant in any place within its.jurisdiction.
The learned Magistrate held that the petitioner appellant was the wife of the respondent and that the Court had jurisdiction to entertain the petition as the 77 husband and wife last resided together in the District of Ludhiana.
On the merits, he held that the first wife and her daughter were entitled to maintenance and awarded for the wife maintenance at the rate of Rs. 100/ per month and for the daughter at the rate of Rs. 50/ per month.
The respondent preferred a revision against that order to the Additional Sessions judge, Ludhiana, and the learned Addi tional Sessions judge, agreed with the learned Magistrate both on the question of jurisdiction and also on the right to maintenance and dismissed the revision.
The husband preferred a revision to the High Court of Punjab against that order.
The High Court disagreed with both the lower Courts on the question of jurisdiction.
It held that the husband 's permanent home was Africa and his two visits to Ludhiana for temporary periods did not make him one who resided in that district or who last resided with his wife therein.
On that view, it set aside the order of the learned Additional Sessions judge and dismissed the petition.
Hence the present appeal.
Mr. Kapur, learned counsel for the appellants, contended that the respondent had last resided with his wife in his house in village Hans Kalan in the District of Ludhiana and was also in the said District at the time the application under section 488 of the Code of Criminal Procedure was filed by the first appellant and, therefore, the learned Magistrate had territorial jurisdiction to entertain the application.
In any view, he argued, the respondent submitted to the jurisdiction of the Magistrate and, therefore, he could no longer question the validity of his order on the ground of want of jurisdiction.
On the other hand, the learned counsel for the respondent sought to sustain the order of the High Court for the reasons mentioned therein.
At the outset we must say that the first appellant did not raise the plea of submission 78 either in the pleadings or in any of the three Courts below.
The question is a mixed question of fact and law.
This Court will not ordinarily allow such questions to be raised for the first time before it and we do not see in this case any exceptional circumstances to depart from that practice.
We cannot therefore, permit the first appellant to raise this belated plea.
The only question in the appeal is whether the Magistrate of Ludhiana had jurisdiction to entertain the petition filed under section 488 of the Code of Criminal Procedure.
The question turns upon the interpretation of the relevant provisions of section 488(8) of the Court, which demarcates the jurisdictional limits of a Court to entertain a petition under the said section.
Section 488 (8) of the Code reads : "Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.".
The crucial words of the sub section are, "resides", "is" and "where lie last resided with his wife".
Under the Code of 1882 the Magistrate of the District where the husband or father, as the case may be, resided only had ' jurisdiction.
Now the jurisdiction is wider.
It gives three alternative forums.
This, in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them.
The proceedings under this section are in the nature of civil proceedings.
the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person.
So, the words should be liberally construed ' without doing any violence to the language.
79 The first word is "resides".
A wife can file a petition against her husband for maintenance in a Court in the District where he resides.
The said word has been subject to conflicting judicial opinion.
In the Oxford Dictionary it is defined as : "dwell permanently or for a considerable time; to have one 's settled or usual abode ; to live in or at a particular lace".
The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place.
It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence.
Whichever meaning is given to it, one thing is obvious and it is that it does not include a causal stay in, or a flying visit to, a particular place.
In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute.
In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense.
The purpose of the statute would be better served if the word "resides" was understood to include temporary residence.
The juxtaposition of the words "is" and " 'last resided" in the sub Section also throws light on the meaning of the word "resides".
The word " 'is", as we shall explain later, confers jurisdiction on a Court on the basis of a causal visit and the expression "last resided", about which also we have something to say, indicates that the Legislature could not have intended to use the word "resides" in the technical sense of domicile.
The word "resides" cannot be given a meaning different from the word "resided" in the expression " 'last resided" and, therefore, the wider meaning fits in the setting in which the word "resides" appears.
A few of the decisions cited at the Bar may be useful in this context.
In Santpoornam vs N. Sundaregan (1), it was held that the word "resides" implied something more than (1) , 80 a brief visit.
but not such continuity as to amount to a domicile.
In Khairunissa vs Bashir Ahmed (1), on a consideration of the relevant authorities it wits pointed out that a casual or a flying visit to a place was excluded from the scope of the word "resides".
A full Bench of the Allahabad High Court, in Flowers vs Flowers (2), expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not.
covered by the word "resides".
In Balakrishna vs Sakuntala Bai (3) it was held that the expression "reside" implied something more than "stay" and implied some intention to remain at a place and not merely to pay it a casual visit.
In Charan Das vs Surasti Bai (2), it was held that the sole test on the question of residence was whether a party had animus manendi, or an intention to stay for an indefinite period, at one place; and if he had such an intention, then alone could he be said to "reside" there.
The decisions on the subject are legion and it would be futile to survey the entire field.
Generally stated no decision goes so far as to hold that "resides" in the sub section means only domicile in the technical sense of that word.
There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place.
They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case.
Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word "resides" thus : a person resides in a place if he through choice makes it his abode permanently or even temporarily ; whether a person has chosen to make a particular place his abode depends upon the facts of each case.
Some illustra tions may make our meaning clear : (i) A, living in (1) Bom.
(2) All.
(3) A.I.R. 1942 Mad.
(4) A.I.R. 1940 Lah.
449, 81 a village, goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two.
(2) A, a tourist, goes from place to place during his peregrinations and stays for a few days in each of the places he visits, A, a resident of a village, who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for about 6 months.
(4) A, a permanent resident of a town, goes to a city for higher education, takes a house and lives there, alone or with his wife, to complete his studies.
In the first two cases, A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits.
It cannot, therefore, be said that he "resides" in the places he visits.
In the last two illustrations, though A has a permanent house elsewhere, he has a clear intention or animus manendi to make the places where he has gone for medical relief in one and studies in the other, his temporary abode or residence.
In the last two cases it can be said that though he is not a domicile of those places, he "resides" in those places.
The cognate expression "last resided" takes colour from the word " 'resides" used earlier in the sub section.
The same meaning should be given to the word " resides" and the word " 'resided", that is to say, if the word "resides" includes temporary residence, the expression "last resided" means the place where the person had his last temporary residence.
But it is said that even on that assumption, the expression can only denote the last residence of the person with his wife in any part of the world and that it is not confined to his last residence in any part of India.
If the words "where he last resided with his wife" are construed in vacuum, the construction suggested by the learned counsel for the respondent may be correct; but by giving such a wide meaning to the said expression we would be giving extra territorial operation to the 82 Code of Criminal Procedure.
Section 2 (1) of th Code extends the operation of the Code to the whole of India except the States of Jammu & Kashmir; that is to say, the provisions of the Code, including section 488 (8) thereof, have operation only throughout the territory of India, except the States of Jammu & Kashmir.
If so, when sub section
(8) of section 488 of the Code, prescribing the limits of Jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence with his wife in the territories of India.
It cannot obviously mean his residing with her in a foreign country, for an Act cannot confer jurisdiction on a foreign court.
It would, therefore, be a legitimate construction of the said expression if we held that the district where be last resided with his wife must be a district in India.
In In re Drucker (No. 2) Basden, Ex Parte the words "or in any other place out of England," in sub section
(6) of section 27 of the Bankruptcy Act, 1883, fell to be construed.
The words were wide enough to enable a Court in England to order that any person who, if in England, would be liable to be brought before it under the section, shall be examined in any place out of England, including a place not within the jurisdiction of the British Crown.
The Court held that the words must be read with some limitation and the jurisdiction conferred by that section does not extend to places abroad which are not within the jurisdiction of the British Crown.
Wright, J., rejecting the wider construction sought to be placed on the said words, observed at p. 211 : "It seems to me that that restriction in prima facie necessary.
It is impossible to suppose that the Legislature intended to empower the Court to order the examination of persons in (1) 83 foreign countries ; for instance, in France or Germany." In Halsbury 's Laws of England, Vol. 36, 3rd edn., at p. 429, it is stated : ". . the presumption is said to be that Parliament is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance, and with no other conduct.
In other words, the extent of a statute, and the limits of its application, are prima facie the same.
" It may be mentioned that the said observations are made in the context of Parliament making a law in respect of a part of the territory under its legislative jurisdiction.
If it has no power at all to make a law in respect of any foreign territory, the operation of the law made by it cannot obviously extend to a country over which it has no legislative control.
It is, therefore, clear that section 488(8) of the Code, when it speaks of a district where a person last resided with his wife, can only mean "where he last resided with his wife in any district in India other than Jammu & Kashmir.
" The third expression is the word "is".
It is inserted between the words "resides" and "last resided".
The word, therefore, cannot be given the same meaning as the word "resides" or the expression "last resided" bears.
The meaning of the word is apparent if the relevant part of the subsection is read.
It reads : "Proceedings under this section may be taken against any person in any district where he. . is. . ." The verb "is" ' connotes in the context the presence or the existence of the person in the district when the proceedings are taken.
It is much wider than the word "resides": it is not limited by the animus manendi 84 of the person or the duration or the nature of his stay.
What matters is his physical presence at a particular point of time.
This meaning accords with the object of the chapter wherein the concerned section appears.
It is intended to reach a person, Who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country, but returns to that district or a neighbouring one on a casual or a flying visit.
The wife can take advantage of his visit and file a petition in the district where he is during his stay.
So too, if the husband who deserts his wife, has no permanent residence, but is always on the move, the wife can catch him at a convenient place and file a petition under section 488 of the Code.
She may accidentally meet him in a place where he happens to come by coincidence and take action against him before lie leaves the said place.
This is a salutary provision intended to provide for such abnormal cases.
Many illustrations can be visualized where the utility of that provision can easily be demonstrated.
To summarize : Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose.
Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief.
Proceedings under the section can be taken against the husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he last resided in any district in India or where he happens to be at the time the proceedings are initiated.
Let us now apply the said principles to the instant case.
To recapitulate the relevant facts : the respondent was born in India in Ludhiana District; he was married to the first appellant in the year 1930; he migrated to Africa and took up a job there 85 as a police officer; he came back to India in or about 1943 and lived with the first appellant in a house at Hans Kalan for about 5 months and thereafter he left again for Africa; 5 or 6 years thereafter, he again came to India on leave and took her to Africa where she gave birth to a daughter; the appellant was sent back to India and she was staying in Ludhiana District with the child; the respondent 's mother is staying in the aforesaid village in the same district and it is also not disputed that the respondent has purchased property worth Rs. 25,000/ in Ludhiana District in the name of his minor children by his second wife; when the petition was filed he was admittedly in the district of Ludhiana indeed, notice was served on him in that district, he filed a counter affidavit, obtained exemption from personal appearance at the time of hearing and thereafter left for Africa.
It is not necessary in this case to express our opinion on the question whether on the said facts the respondent "resides" in India; but we have no doubt that he "last resided" in India,.
We have held that temporary residence with animus manendi will amount to residence within the meaning of the provisions of the sub section.
When the respondent came to India and lived with his wife in his or in his mother 's house in village Hans Kalan, he had a clear intention to temporarily reside with his wife in that place.
He did not go to that place as a casual visitor in the course of his peregrinations.
He came there with the definite purpose of living with his wife in his native place and he lived there for about 6 months with her.
The second visit appears to be only a flying visit to take her to Africa.
In the circumstances we must hold that he last resided with her in a place within the jurisdiction of the First Class Magistrate, Ludhiana.
That apart, it is admitted that he was in a place within the jurisdiction of the said Magistrate on the date when the appellant filed her application for maintenance against him.
Thee said Magistrate had jurisdiction 86 to entertain the petition, as the said proceedings can be taken against any person in any district where he "is".
We, therefore , hold that the First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition under section 488 (8) of the Code.
The next question relates to the quantum of maintenance to be awarded to the appellants.
The Magistrate, on a consideration of the entire evidence, having regard to the salary of the respondent, and the value of the property he purchased awarded maintenance to the wife at the rate of Rs. 100/ per month for herself and at the rate of Rs. 50/ per month for the maintenance of her minor child.
The Additional Sessions judge, on a reconsideration of the evidence, accepted the finding of the learned Magistrate and confirmed the quantum of maintenance awarded by him.
The finding is a concurrent finding of fact the correctness whereof cannot ordinarily be questioned in a revision petition in the High Court.
that is why the only question argued before the High Court was that of jurisdiction.
As we have held that the view accepted by the High Court was wrong, we set aside the order of the High Court and restore that of the Magistrate First Class, Ludhiana.
In the result the appeal is allowed.
Appeal allowed.

summary:
The respondent who was born in the Ludhiana District was married to the first appellant.
He took up a job in Africa and after staving there for some time he came to India and stayed with his wife for 5 months, He then went to Africa and after staying there for 5 or 6 years came to India and took the appellant with him to Africa and a daughter was born to them there.
The appellant was sent back with the child and she was staying in the District of Ludhiana with the child.
It is admitted that the respondent had bought property worth Rs. 25,000/ in that District and that the petition for maintenance was filed by the appellant and the notice was served on him while the respondent was in that District.
The respondent filed a counter affidavit, obtained exemption from personal appearance it the time of hearing of that petition and thereafter left for Africa.
74 The 1st Class Magistrate Ludhiana held that he had jurisdiction to entertain the petition filed by the appellant under section 488 of the Code of Criminal Procedure, 1898, as the appellant and the respondent had last resided in the District Ludhiana.
He awarded for the wife 's maintenance at the rate of Rs. 100/ per month and for the daughter at the rate of Rs. 50/ per month.
A revision petition filed by the respondent before the Additional Sessions judge was rejected.
But the High Court holding that the 1st Class Magistrate had no jurisdiction to entertain the petition allowed the revision petition filed by the respondent.
The present appeal is by way of special leave granted by this Court.
The main contention on behalf of the appellants before this Court was that the respondent having last resided with his wife in the District of Ludhiana and he having been there at the time when the petition tinder section 488 was presented the Magistrate had jurisdiction to entertain the petition.
It was further contended that the respondent having submitted to the jurisdiction of the Magistrate could not question his jurisdiction.
Held, that Ch.
XXVI of the Code of Criminal Procedure providing for maintenance of wife and children intends to serve a social purpose.
Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate to get urgent relief.
Proceedings under the section can be taken against the husband or the father as the case may be, in a place where he resides permanently or temporarily, or where lie last resided in any District in India or where he happens to be at the time the proceedings are initiated.
The expression "resides" implied something more than a brief visit but not such continuity as to amount to domicile.
Sampoornam vs N. Sandaram, , referred to.
A casual or flying visit to a place for a temporary purpose was not covered by the word residence.
Khairunnissa vs Baskir Ahmad, Bom.
781, Flowers vs Flowers, (1910) 1.
R. 32 All.
203 and Balakrishna vs Sakuntala Rai, A. 1.
R. , referred to.
The sole test on the question of residence was whether a party had animus manendi or an intention to stay for an in definite period at the place.
75 Charan Das vs Surasti Bai, A. 1.
R. referred to.
The appellant not having raised the plea of submission to jurisdiction either in the pleadings or in any of the courts below will not in the absence of special circumstances be allowed to raise it before this Court.
Where a legislature has no power to make laws in respect of any territory the operation of the law made by it cannot extend to that territory.
The facts and circumstances of the case show that the respondent last resided with his wife in a place within the jurisdiction of the First Class Magistrate, Ludhiana, and that he was in a place within the jurisdiction of the Magistrate on the date when the appellant filed her application for maintenance against him.
In re Druker (No. 2) Basden, Ex Parte, referred to.


judgement:
Appeal No. 289 of 1961.
Appeal by special leave from the judgment and order dated February 6, 1959, of the Bombay High Court in Special Civil Appeal No. 2647 of 1958.
M. C. Setalvad, C. K. Daphtary Solicitor General of India, section B. Jathar and R. H. Dhebar, for the appellants.
section G. Patwardhan and A. C. Ratnaparkhi, for respondent No. 1.
50 1963.
February 13.
The judgment of the Court was delivered by SHAH J.
With special leave, the Collector of South Satara has appeared against the order of the High Court of judicature at Bombay directing him to assess compensation payable to the respondent under section 9 (1) of the Bombay Pargana and kulkarni Watans (Abolition) Act, 1950.
Laxman Mahadev Deshpande hereinafter called 'the respondent ' was the holder of Paragana Watan land bearing Survey Nos.
503/2.
and 504/1 in Mouza Aitwade, Taluka Valve, District South Satara.
Performance of service in respect of the Watan had been commuted under an arrangement made in or about 1864 under a commutation settlement popularly known as "Gordon Settlement" whereby the holder was, on agreeing to pay a fixed sum, relieved of the obligation to perform service as a Village Officer.
The Legislature of the State of Bombay enacted an Act called the Bombay Paragana and Kulkarni Watans (Abolition) Act LX of 1950, which abolished all Paragana and Kulkarni Watans.
The respondent applied to the Collector of South Satara for an order under section 9 of the Act awarding Rs. 10,479 2 8 as compensation for extinction of his right in the watan land, and of his "right to enjoy part of the land revenue.
" By his order dated April 29, 1957, the Collector rejected the application, and the order of the Collector was affirmed by the Bombay Revenue Tribunal in appeal under section 9 (4) of the Act.
But in petition under article 227 of the Constitution the High Court of Bombay set aside the order of the Collector and directed that officer to assess and pay compensation to the respondent under section 9 (1) of the Abolition Act.
The land was granted to an ancestor of the respondent as remuneration for performance of Paragana service some time in the sixteenth century 51 by the Ruler of Satara, and that grant was confirmed by the British Government.
The original grant and the confirmation sanad have not been produced, but it is common ground between the parties that the grant was of the soil and not merely of the royal share of revenue.
In adjudging the claim made by the respondent for compensation under section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act it is necessary in the first instance to ascertain the true character of the rights of a watandar in the land granted as remuneration for performance of service and the effect of the commutation settlement, in the light of the material provisions of the Bombay Hereditary ices Act, III of 1874, commonly known as the Watan Act.
By section 4 of the Watan Act `Watan property ' is defined as meaning " 'moveable or immovable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary ice x X" 'Hereditary ice ' is defined as meaning "every ice held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration.
The expression includes such ice even where the services originally appertaining to it have ceased to be demanded.
The watan property, if any, and the hereditary ice and the rights and privileges attached to them together constitute the watan" and the expression `watandar ' means a person having an hereditary interest in a watan : it includes a person holding watan property acquired by him before the introduction of the British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance.
Section 15 of the Act provides for commutation of service.
By sub section
(1) it is provided : "The Collector may, with the consent of the 52 holder of a watan, given in writing, relieve him and his heirs, and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." By sub section
(2) which was repealed by Act XVI of 1895, it was provided : " 'Any settlement made for this purpose before the date of this Act coming into force by any Collector or other officer acting on behalf of Government with the holder of any watan shall have the same force as if made under this Act.
" Clause (3) provides : "Every settlement made or confirmed under this section shall be binding upon both the State Government and the holder of the watan and his heirs and successors.
" It is clear that the watan property, if any, the hereditary ice, and the rights and privileges attached thereto, together constitute a watan and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded.
Commutation of service does not therefore, in the absence of an express agreement to that effect alter the tenure of the land held as watan.
By agreement, the State, for consideration, may agree to relieve the holder of the ice and his successors of the duty to perform the service for performance of which the grant was made, but the ice and the grant continue, subject to the terms of the settlement under section 15 of the Bombay Hereditary ices Act, 1874.
In Appaji Bapuji vs Keshav Shamrav (1), the nature of the tenure of land held originally as (1) Bow.
53 watan.land, after commutation of service, fell to be determined before the Bombay High Court, Sargent C. J., observed at p. 23 : "What is termed a Gordon Settlement was an arrangement entered into in 1864 by a Committee, of which Mr. Gordon, as Collector, was chairman, acting on behalf of Government with the vatandars in the Southern Maratha Country, by which the Government relieved certain vatandars in perpetuity from liability to perform the services attached to their ices in consideration of a 'judi ' or quit rent charged upon the vatan lands.
x x x x x x the reports of Mr. Gordon 's Committee on the Satara and Poona Districts and their correspondence with Government can, we think, leave no doubt that the settlements made by that committee, unless it was otherwise specially provided by any particular settlement, were not intended by either party to these settlements, to convert the vatan lands into the private property of the vatandars with the necessary incident of alienability, but to leave them attached to the hereditary ices, which although freed from the performance of service remained intact, as shown by the definition of hereditary ice in the declaratory Act III of 1874.
" But the Commutation settlement does not confer an indefeasible title to the grantee, for the right affirmed by the settlement under section 15 (3) of the Watan Act is liable to be determined by lapse, confiscation or resumption (section 22 of the Watan Act).
The State having created the watan, is entitled to put an end to the watan i. e. to cancel the watan and to resume the grant : Bachharam Datta Patil vs Vishwanath Pundalik Patil (1).
Therefore if there be mere commutation of service, the watan ice ordinarily (1) ; 54 survives without liability to perform service, and on that account the character of watan property still remains attached to the grant.
But the State Government may abolish the ice and release the property from its character as watan property.
It is in the light of these features of the watan and the property granted for remuneration of the Watandar that the relevant provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act, have to be considered in adjudging the right to receive compensation claimed by the respondent on abolition of his watan.
By section 3 of the Abolition Act, it is provided that : "With effect from and on the appointed day, notwithstanding anything contained in any law, usage, settlement, grant, sanad or order (1) all Paragana and Kulkarni watans shall be deemed to have been abolished ; (2) all rights to hold ice and any liability to render service appertaining to the said watans are hereby extinguished; (3) subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land : Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of 55 section 5 of the Watan Act or the rights of an alience thereof or any person claiming under or through him; (4) all incidents appertaining to the said watans are hereby extinguished.
" The material part of section 4 provides that : "A watan land resumed under the provisions of this Act shall x x x x be regranted to the holder of the watan to which it appertained, on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land x x x x x x and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land x x x; all the provisions of the Code and rules "relating to unalienated land shall, subject to the provisions of this Act, apply to the said land:" By section 6 right to compensation in lieu of cash allowance or land revenue is granted.
It provides : "6.
Notwithstanding anything contained in any law, usage, settlement, grant, sanad or order, (1) a sum equal to seven times the amount of the cash allowance due to a holder on the appointed day of a watan in respect of which a commutation settlement has been effected, shall be paid to such holder; (2) in the case of any land or village, in respect of which the watan property consists of the whole or a part of the land revenue of such land or village, a sum equal to ten times the 56 amount of such land revenue shall be paid to the holder x x x x x X." Section 9 provides for assessment and payment of compensation for the abolition, extinction or modification by virtue of section 3 of rights in property not provided for in the Act.
Sub section (1) provides : "If any person is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to or interest in property and if compensation for such abolition, extinguishment or modification has not been pro vided for in the provisions of this Act such person may apply to the Collector for compensation.
" Sub section (2) prescribes the procedure of an application for compensation and sub section
(3) precludes the grant of compensation to any person on the ground that any watan land which was wholly or partially exempt from the payment of land revenue has been under the provisions of the Act subjected to the payment of full assessment.
It appears clear from the scheme of section 6 that if the remuneration of the Watandar is merely cash allowance, or part or whole of the land revenue of the land, compensation at the rate prescribed is payable to the holder on abolition of the watan.
If the remuneration consists not of cash allowance or remission of land revenue, but of the land itself by the combined operation of sections 3(3) and 4 the holder of the watan land is entitled to be regranted occupancy rights as in unalienated land.
Section 9 deals with the rights of persons to receive compensation for abolition, extinguishment or modification of the right or interest in watan property by virtue of the provisions of the Act, in cases where no other provision is made in that behalf in the Act.
There is 57 no serious dispute raised about this being the true position in law.
But two questions remain in controversy between the parties : (1) Whether the right to or interest in property of a watandar is abolished, extinguished or modified by the provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act; and (2) Whether provision for compensation for the abolition, extinguishment or modification or the right or interest in the watan land of the holder is made by any provision in the Act, so as to exclude the operation of section 9(1) of the Act.
The first question presents little difficulty in its solution.
Section 3 in terms provides for abolition of the watan, extinction of the ice and modification of the right in which the land is held.
The abolition, extinction and modification arise by the operation of section 3 of the Act, ' and not from the exercise of the executive power of confiscation or resumption, by the State.
Undoubtedly the power of resumption of a watan may be exercised under section 22 of the watan Act and such a resumption may destroy the right of the holder both to the ice and the watan land, and in the absence of any provision in that behalf no right to compensation may arise.
But where the abolition of the watan is not by executive action, but by legislative decree, its consequences must be sought in the statute which effectuates that abolition.
On the second question the respondent affirms the contention which appealed to the High Court that where the grant to a watandar is of the soil and 58 not merely of cash allowance or of remission of land revenue as remuneration for performance of the duties of his ice, compensation has to be awarded under section 9, for Act LX of 1950 makes no provision for payment of compensation to the watandar for abolition of his ice and rights in the land held by him.
The correctness of this view is challenged by the appellant.
It must be remembered that the power which the State Government always possessed by the clearest implication of section 22 of the Bombay Hereditary ices Act, 1874, of resumption is statutorily enforced by section 3 in respect of the Paragana and Kulkarni Watans.
The State Government having the power to abolish a watan ice, and to resume land granted as remuneration for performance of the duties attached to the ice was not obliged to compensate the wandar for extinction of his rights.
But the Legislature has, as a matter of grace, presumably because of settlements between the holders and the Government under the Gordon Settlement, provided by section 6 that cash compensation be awarded for loss of the right to cash allowance or remission of land revenue and has by section 4 Conferred upon the holder of the watan land, for loss of his right, a right to regrant of the land as occupant and free from the obligation imposed by its original tenure as watan land.
Provision is also made by section 9 for awarding compensation to persons whose right or interest in property is abolished, extinguished or modified by virtue of the section, and no other provision for compensation for such extinction, abolition or modification is made by the Act.
The right to cash compensation under section 9 depends upon the existence of two conditions : the abolition, extinction or modification of rights in property by virtue of the provisions of the Act; and the absence of any other provision in the Act for compensation in that behalf.
If, therefore, section 4 which provides for conferment of occupancy rights in land, be regarded as a provision for compensation for abolition, extinction or modification of the 59 right to hold it as watan land, the residuary enactment in section 9 will not on the plain terms be attracted.
By the operation of section 3 all Paraganas and Kulkarni watans falling within the Act are abolished, the right to hold ice is extinguished, and the land granted as remuneration for performance of service is resumed.
The holder of the land is thereafter liable to pay land revenue, and is entitled, on payment of the occupancy price at the prescribed rate, to be regranted occupancy rights as if it is unalienated land.
The right so conferred is, though not a right to cash compensation, a valuable right of occupancy in the land.
By the resumption of watan land and regrant thereof in occupancy right, all the restrictions placed upon the holder of watan land are by the provisions of the Watan Act, and the terms of the grant, statutorily abolished.
But the right of occupancy granted by section 4 adequately compensates the holder for loss of the precarious interest of a watandar, because the land regranted after abolition of the watan, is held subject only to the restrictions imposed by sub section
(2) of section 4, and is freed from the incidents of watan tenure, such as restriction on alienation beyond the life time of the holder, devolution according to the special rule of succession, and the liability to confiscation or resumption.
In our judgment, compensation contemplated to be awarded, not as a matter of right but as of grace, is not merely money compensation; it includes grant of occupancy rights which compensates for the loss of ice and the interest of a watandar in the land.
By section 4 the Legislature has granted for the loss suffered by the watandar on abolition of the watan and the rights in watan land, a right of occupancy in the land which may properly be regarded as compensating him for the abolition of his rights.
Provision for levy of what is substantially a nominal occupancy price will not detract from that character.
After the commutation settlement, the holder being relieved of the obligation to perform service, the ice of wandar survives in name only, but the land 60 granted as walan remains subject to the restrictions imposed by the Watan Act.
by the regrant of the land in occupancy right, on abolition or extinction of the watan, the holder is not in truth prejudicially affected.
Loss of watan rights in land, and the watan ice is compensated by the regrant of occupancy rights in the land.
It would, therefore, be reasonable to infer that the Legislature contemplated the grant of compensation under sub section
(2) of section 9 for abolition, extinction or modification of rights other than the rights of the watandar to land or to cash allowance or remission of land revenue.
The appeal is therefore allowed and the order passed by the High Court set aside.
We are informed at the Bar that the respondent has not claimed right of occupancy in the land which was previously held by him as watan land be granted to him.
Whether he will be entitled thereto in view of his failure to make a claim to a regrant is a matter on which we express no opinion.
Having regard to the circumstances, we direct that there will be no order as to costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
On abolition of his watan, the respondent applied to the Collector claiming compensation under section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, for extinction of his right in the watan land, and of his "right to enjoy part of the land revenue.
" The Collector rejected the application and in appeal the order was affirmed by the Revenue Tribunal.
The High Court in a petition under article 227 of the Constitution set aside the order of the Collector and directed him to assess and pay compensation to the respondent under section 9 (1) of the Act.
Held, that the watan property if any the hereditary ice, and the rights and privileges attached thereto, together 49 constitute a watan, and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded.
Commutation of service does not in the absence of an express agreement to that effect alter the tenure of the land held as watan.
By agreement, the State may relieve the holder of the ice and his successors of the duty to perform the service for which the grant was made,but the ice and the grant continue, subject to the terms of the settlement under section 15 of the Bombay Hereditary Offices Act, 1874.
Appaji Bapuji vs Keshav Shamrav, (1890) 1.
L. R. and Bachharam Datta Patil vs Viswanath Pundalik Patil, ; , referred to.
Held, further, that after the commutation settlement, the holder being relieved of the obligation to perform service, the ice of watandar survives in name only but the land granted as watan remains subject to the restrictions imposed by the Watan Act.
By the regrant of the land in occupancy right, on abolition or extinction of the watan, the holder is not in truth prejudicially affected.
Loss of watan rights in land, and the watan ice is compensated by the regrant of occupancy rights in the land.
Grant of compensation was contemplated under sub section
(2) of section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act for abolition, extinction or modification of rights other than the rights of a watandar, to land or cash allowance or remission of land revenue.


judgement:
Appeal No. 359 of 1962.
Appeal by special leave from the Award dated April 3, 1961 of the Seventh Industrial Tribunal, West Bengal, in Case No. VIII 303 of 1960.
B.Sen, S.C. Mazumdar, D. N. Mukherjee for B. N. Ghosh, for the appellant.
Janardhan Sharma, for the respondents.
February 22.
The judgment of the Court was delivered by HIDAYATULLAH J.
By this appeal filed with the special leave of this Court, by the Meenglas Tea 167 Estate against its Workmen the Company seeks to challenge an award dated April 3 , 1961, pronounced by the Seventh Industrial Tribunal, West Bengal.
The order of reference was made by the Government of West Bengal as far back as October 29, 1957, in respect of the dismissal of 44 workmen.
The issue which was referred was as follows: "Whether the dismissal of the workmen mentioned in the attached list is justified ? What relief by way of reinstatement and/or compensation are they entitled to?" From November 5, 1957, to August 17, 1960, this reference remained pending before the First Labour Court.
It was then transferred to the Seventh Industrial Tribunal and the letter made the impugned award on April 3, 1961.
By the time the award was made two of the workmen (Nos. 12 and 37) had died and four had been reemployed (Nos. 31, 33, 34 and 35).
One of the workmen (No. 22) was not found to be a workman at all.
The Tribunal held that the orders of dis missal of fourteen workmen were justified though retrospective effect could not be given to the orders.
The Company was ordered to re instate the remaining workmen and to pay them compensation in some cases (but not all) amounting to three months ' wages.
In the present appeal the Company seeks to challenge the award regarding 13 of those workmen who have, been ordered to 'be reinstated.
of these workmen the cases of three fall to be considered separately and those of the remaining ten can be considered together.
We shall now give the facts from which the reference arose.
The appellant Meenglas Tea Estate in Jalpaiguri District of West Bengal is owned by Dun can Brothers Ltd. The workers belong to the Zilla Chabagan Workers ' Union, Malbazar, District 168 jalpaiguri.
On January 18, 1956, there was an ugly incident in which a group of workmen assaulted the Manager, Mr. Marshall and his two Assistant Managers Mr. Nichols and Mr. Dhawan.
This happened one morning in a section of the tea gardens where about two hundred workmen had surrounded Mr. Nichols and were making a violent demonstration.
First Mr. Dhawan and soon after Mr. Marshall arrived on the scene and the workmen surrounded them also.
In the assault that followed these three officers were wounded Mr.Marshall seriously.
A criminal cage was started against some of the rioters but we are not concerned with it.
The Company also started proceedings against some workmen.
It first issued a notice of suspension which was to take effect from February 6, 1956, and then served charge sheets on a large number of workmen charging them with participation in .
the riot.
The Work men replied denying their complicity.
The Company then held enquiries and ordered the dismissal of a number of workmen with effect from January 18, 1956.
A sample order of dismissal is exhibited as annexure F in the case.
In the enquiry before the Tribunal the Union admitted the incident though it said that it was caused by provocation on the part of the Management.
The Union, however, denied that any of the workmen who were charged was concerned in the affray pointing out that none of these workmen was prosecuted by the police.
The enquiry was held by Mr., Marshall and Mr. Nichols and the record of the proceedings is marked Exhibits 17 and 18 series.
That record was produced before us by the appellant for our perusal.
It was admitted before us that there was no further record of evidence for the Company as none was recorded.
Exhibit 17 and 18 series are the answers of the workmen to the charges against .
them and such replies as they gave to questions put to them in cross examination, 169 The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice.
It is contended that this conclusion was erroneous.
But we have no doubt about its correctness.
The enquiry consisted of putting questions to each workman in turn.
No witness was examined in support of the charge before the workman was, questioned.
It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported.
He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires.
Then he must be given a chance to rebut the evidence led against him.
This is the barest requirement of an enquiry of this character and this requirements must be substantially fulfilled before the result of the enquiry can be accepted.
A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him.
In the present case neither was any witness examined nor was any statement made by any witness tendered in evidence.
The enquiry, such as it was, was made by Mr. Marshall or Mr. Nichols who were not only in the positionof judges but also of prosecutors and witnesses.
There Was DO opportunity to the persons charged to cross examine them and indeed they drew upon their own knowledge of the incident and instead cross examined the persons charged.
This was such a travesty of the principles of natural ,justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it.
In the enquiry which the Tribunal held the Company examined five witnesses including Mr. Marshall, Mr. Nichols and Mr. Dhawan, who were the eye witnesses.
In view of the fact that the 170 enquiry was being made into an incident which took place four and a half years ago the Tribunal in assessing the evidence held that it would not accept that any workman was incriminated unless at least two witnesses deposed against him.
Some of the workmen got the benefit of this approach and it is now contended that the Tribunal was in error in insisting upon corroboration before accepting the evidence of a single witness.
Reference in this connection is made to section 134 of the Indian Evidence Act (1 of 1872) which lays down that no particular number of witnesses shall in any case be required for the proof of any fact.
It is not a question of an error in applying the Evidence Act.
It is rather a question of proceeding with caution in a case where admittedly many persons were involved and the incident itself took place a very long time ago.
The Tribunal acted with caution and did not act upon uncorroborated testimony.
It is possible, that the evidence against some of the persons to whom the benefit has gone, might be cogent enough for acceptance, but the question is not one of believing a single witness in respect of any particular workman but of treating all workmen alike and following a method which was likely to eliminate reasonably chances of faulty observation or incorrect recollection.
On the whole, it cannot be said that the Tribunal adopted an approach which made it impossible for the company to prove its case.
It followed a standard which in the circumstances was prudent.
We do not think that for this reason an interference is called for.
Since no other point was argued the appeal of the Company in respect of the ten workmen, who were alleged to be concerned in the occurrence of January 18, 1956, must be dismissed.
This brings us to the consideration of the three special cases.
They concern Dasarath Barick (No. 25), Lea Bichu (No. 26) and Nester Munda (No. 27).
Dasarath Barick was said to have threatened the 171 loyal workers and to have prevented them from work on March 15, 1956.
Lea Bichu was said to have forced the chowkidar to hand over the keys of the gate to him on the same day and to have locked the gate with a view to hampering the movement of workmen.
The Tribunal held that the enquiry in both the cases was not a proper enquiry and the conclusion was not acceptable.
Here, again no witness was examined in the enquiry to prove the two occurrences and even before the Tribunal there was no evidence against them except the uncorroborated testimony of Mr. Mar shall.
No worker was examined to prove that he was threatened by Dasarath Barick or to show that it was Lea Bichu who had taken the keys from the chowkidar and locked the gate.
In view of these circumstances the Tribunal was justified in not accepting the findings which proceeded almost on no evidence.
We agree with the Tribunal that no case was made out before the Tribunal for the dismissal of Dasarath Barick and Lea Bichu.
The last case is of Nester Munda who is the Secretary of the Union., ' It was alleged against him that on, January 16, 1956, he had abused Mr. Nichols and had demonstrated at the head of a hostile group of workmen.
Here, again, no proper enquiry was held and the conclusion reached at the enquiry by the Company was not acceptable.
The Tribunal, therefore, enquired into the case for itself.
Mr. Nichols and Mr. Dhawan gave evidence which the Tribunal was not prepared to accept.
It pointed out that their testimony conflicted on vital points.
Since the Tribunal had the opportunity of hearing and seeing Mr. Nichols and Mr. Dhawan we should be slow to reach a conclusion different from that of the Tribunal.
In addition, in such cases, it is not the practice of this Court to enter into evidence with a view to finding facts for itself.
Following this well settled practice we see no reason 172 to interfere with the conclusion of the Tribunal.
The result is that the appeal fails and is dismissed with costs.

summary:
In January, 1956, there was an incident in which a group of workmen assaulted the Manager and two Assistant Managers of tile appellant company.
All the three officers Were Wound ed.
Some workmen were suspended, and charge sheets were served on them, charging them with participation in the riot.
After an inquiry the workmen were dismissed.
The inquiry was held by the Manager and one of the Assistant Managers,During the inquiry, no witness was examined and no statement made by any witness was tendered in evidence.
(1) , 166 The dispute was first referred to the Labour Court and then to the Industrial Tribunal, West Bengal.
The Tribunal set aside the inquiry held by the appellant company and asked the company to prove the allegations against each workman de novo before it.
The company examined five witnesses.
The Tribunal held that orders for dismissal of 15 workmen were justified but it ordered the remaining workmen to be reinstated.
The company came to this Court by special leave.
Held, that the view of the Tribunal was correct that the inquiry made by the company was not in accordance with the principles of natural justice.
The inquiry consisted of putting questions to each workman in turn.
No witness was examined in support of the charge before the workman was questioned.
It is an elementary principle that a person who is required to answer a charge must not only know the accusation but also the testimony by which the accusation is supported.
He must be given a clear chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires.
He must also be given a chance to rebut the evidence led against him.
As regards two workmen, this Court held that the Tribunal was justified in not accepting the findings which proceeded almost on no evidence.
As regards one workman, this Court held that as the Tribunal had the opportunity of hearing and seeing the two Assistant Managers, this Court would be slow to reach a conclusion different from that of the Tribunal.
Moreover, in such cases, it is not the practice of this Court to enter into evidence with a view to finding facts for itself.


judgement:
iminal Appeals Nos. 26 and 27 of 1952.
Appeals under Article 134 (1) (c) of the Constitution of India from the Order dated 4th February, 1952, of the Calcutta High Court (CHAKRAVARTTI and SINHA JJ.) in Criminal Revision Nos. 102 and 103 of 1952.
S.C. Das Gupta and A.K. Dutt for the appellants.
B. Sen for the respondent.
Arun Kumar Datta for the complainant.
1953, April 10.The Judgment of the Court was delivered by MAHAJAN J.
838 MAHAJAN J.
These two appeals arise in the following circumstances: One Mokshadamoyee Dassi, mother of Dhirendra Nath Bera, died some time in the evening of the 3rd September, 1949.
At the moment of her death Dhirendra Nath was not present at the house.
On his return at, about 8 30 p.m. he along with some other persons took the dead body to the cremation ground.
It appears that Nurul Huda, the appellant in Criminal Appeal No. 27 of, 1952, had lodged information at the police station to the effect that Dhirendra Nath had beaten and throttled his mother to death.
When the funeral pyre was in flames, Nurul Ruda along with the appellants in Criminal Appeal No. 26 of 1952 and accompanied by the sub inspector of police arrived at the cremation ground.
The appellants pointed out the dead body and told the sub inspector that the complainant had killed his mother by throttling her and that there were marks of injury on the body which they could show to the sub Inspector if he caused the body to be brought down from the pyre.
At their suggestion the fire was extinguished and the dead body was taken down from the pyre in spite of the protests from the complainant.
On an examination of the dead body it was found that there were no marks of injury on.
it and the appellants were unable to point out any such marks.
The body was however sent for postmortem examination which was held on 5th September, 1949, but no injury was found on the person of the deceased.
The sub inspector after investigation reached the conclusion that a false complaint had been made against Dhirendra Nath.
On the 24th September, 1949, Dhirendra Nath filed a petition of complaint in the Court of the Sub Divisional Officer of Uluberia in the district of Howrali against the appellants in both the cases and one Sanwaral Huq.
It was alleged in the complaint that the information given by Nurul Huda to the police was false, that Nurul Huda and the other appellants had made imputations mala fide out of enmity against him with the intention of harming his reputation and that to wound his religious feelings they had trespassed on 839 the cremation ground and caused the dead body to be taken out by making false imputations.
The appellants were tried before Shri R. Ray Choudhury, Magistrate 1st class, Uluberia, on charges under sections 297 and 500, Indian Penal Code.
The charges fraimed against them were in these terms : "(1) That you on or about the 17th day of Bhadra, 1356 B.S. at Panshila, P. section Shyampur, with the intention of wounding the religious feelings of P. W. 1, Dhirendra Nath Bera, the complainant, committed trespass upon the cremation ground where the funeral rites of the mother of the complainant were being performed and thereby committed an offence punishable under section 297, Indian Penal Code, and within my cognizance; (2) That you oil or about the 17th day of Bhadra, 1356 B. section at Panshila, P. section Shyampur, defamed P. W. 1, Dhirendra Nath Bera, the complainant, by making imputation to the effect that he had killed his mother intending to harm, or knowing or having reason to believe that such imputation would harm the reputation of the complainant and thereby committed an offence punishable under section 500, Indian Penal Code, and within my cognizance.
" None of these charges relates to the falsity of the report made to the police or contains facts or allegations which disclose an offence under section 182, Indian Penal Code.
The charge under section 297, Indian Penal Code, was a distinct one and concerned an act of the accused committed after the giving of the report.
The charge under section 500 related to defamatory and libellous allegations contained in the report itself.
It was contended on behalf of the defence that Nurul Huda had lodged information with the police tinder a bona fide belief created in his mind on the statement of one Asiram Bibi and that none of the accused persons had entered the cremation ground as alleged by the complainant, 840 The magistrate held the charges proved against all the appellants and convicted each of them under sections 7 and 500, Indian Penal Code.
Each of the appellants was awarded three months ' rigorous imprisonment on the charge under section 297 and each of them was sentenced to a fine of Rs. 100 on the charge under section 500.
The appellants went up in appeal to the Sessions Judge of Howrah who by his order dated 31st July, 1,950, set aside the convictions and sentences and acquitted them.
He held that on the facts stated in the complaint the only offence that could be said to have been committed by the appellants was one under section 182 or section 21 1, Indian Penal Code, and that a court was not competent to take cognizance of those offences except on a complaint by a proper authority under the provisions of section 195, Criminal Procedure Code.
Against the acquittal order an application in revision was preferred to the High Court.
This petition came up for hearing before a Bench of the High Court (K. C. Das Gupta and P. N. Mookerjee JJ.).
The learned judges reached the conclusion that on the facts alleged in the petition of complaint distinct offences under sections 182, 297 and 500, Indian Penal Code, had been disclosed.
They however referred for the decision of the Full Bench the following question: "If the facts alleged in a petition of complaint, or in an information received by the magistrate, on which a magistrate can ordinarily take cognizance of an offence under section 190, Criminal Procedure Code, disclose an offence of which cognizance cannot be taken by the magistrate because of the special provisions of section 195, or 196, or 196 A, or 197, or 199, Criminal Procedure Code, is the magistrate also debarred because of this from taking cognizance of other offences disclosed by the facts alleged, which are not in any way affected by the provisions of section 195, or 1.96, or 196 A or 197 or 199, Criminal Procedure Code.
" The Full Bench answered the question referred in the negative.
In respect of the conviction under 841 section 297, Indian Penal Code, the learned Judges said that there as nothing in sections 195 to 199, Criminal Procedure Code, which could in any way bar the prosecution of the appellants under that section, as it could in no way be said that it arose out of the facts which would constitute an offence under section 182, or section 211, Indian Penal Code.
On the other hand, it arose from an entirely different set of facts, namely, the trespass by the opposite parties in the burial ground and the removal of the corpse from the lighted funeral pyre.
With regard to the offence under section 500, it was observed that though the prosecution for defamation was based on the false information given to a public officer, that circumstance, however, was no bar for the prosecution of the appellants under that section.
In the result the application in revision was allowed, the order of acquittal was set aside and the sessions judge was directed to re hear the appeal on the merits.
After remand the appeal was heard on the merits and was dismissed.
The convictions and sentences passed by the magistrate were confirmed.
Against the order of the sessions judge the appellants went up in revision to the High Court but these applications were summarily dismissed.
The appellants thereupon applied to the High Court for a certificate under article 134 (1) (c) of the Constitution for leave to appeal to this Court.
In the application the order of the Full Bench dated 22nd June, 1951, was challenged.
This application was opposed on behalf of the complainant on the ground that the interim order of the Pull Bench not having, been appealed against could not be challenged at that stage.
Thus two substantial questions were argued in the leave application, namely, 1.whether it was open to the accused to question the correctness of the Full Bench decision, it not having been appealed from when it was passed, and, 2.whether the point decided by the Full Bench in itself was of sufficient importance to justify the granting of a certificate under article 134(1)(c).
109 842 As the judgment of the Full Bench did not terminate the proceedings but merely directed the appeal to be reheard, it was held that the petitioners could not appeal from it at that time and it was open to them to raise the point at this stage.
The second question was considered of sufficient importance to justify the grant of leave and leave was accordingly granted.
The learned counsel for the respondent raised a preliminary objection in order to canvass the first question mentioned above, while the learned counsel for the appellants canvassed the question of the correctness of the decision of the Full Bench on its merits.
He contended that the magistrate had no jurisdiction to take cognizance of the complaint under section 500 and section 297, Indian Penal Code, as the facts disclosed constituted an offence under section 182 which offence could not be tried except on a complaint by a public servant.
Section 195, Criminal Procedure Code, on which the question raised is grounded, provides, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188, Indian Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate.
The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an of fence under section 182 can be taken cognizance of.
It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well.
The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence.
The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made.
It was however argued that if on the same facts an 843 offence of which no cognizance can be taken under the provisions of section 195 is disclosed and the same facts disclose another offence as well which is outside the purview of the section and prosecution for that other offence is taken cognizance of without the requirements of section 195 having been fulfilled, then the provisions of that section would become nugatory and if such a course was permitted those provisions will stand defeated.
It was further said that it is not permissible for the prosecution to ignore the provisions of this section by describing the offence as being punishable under some other section of the Penal Code.
In our judgment, the contention raised by the learned counsel for the appellants is without any substance so far as the present case is concerned.
The charge for the offence under section 297, Indian Penal Code, could in no circumstance, as pointed out by the High Court, be described as falling within the purview of section 195, Criminal Procedure Code.
The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post report period.
In these circumstances, no serious contention could be raised that the provisions of section 195 would stand defeated by the magistrate having taken cognizance of the offence under that section.
As regards the charge under section 500, Indian Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him.
Section 499, Indian Penal Code, which mentions the ingredients of the offence of defamation gives within defined limits immunity to persons making depositions in court, but it is now well settled that immunity is a qualified one and is not absolute as it is in English law.
Under section 198, 844 Criminal Procedure Code, a complaint in respect of an offence under section 499, Indian Penal Code, can only be initiated at the instance of the person defamed, in like manner as cognizance for an offence under section 182 cannot be taken except at the complaint of the public servant concerned.
In view of these provisions there does not seem in principle any warrant for the proposition that a complaint under section 499 in such a situation cannot be taken cognizance of unless two persons join in making it, i.e., it can only be considered if both the public servant and the person defamed join in making it, otherwise the person defamed is without any redress.
The statute has prescribed distinct procedure for the making of the complaints under these two provisions of the Indian Penal Code and when the prescribed procedure has been followed, the court is bound to take cognizance of the offence complained of The decided cases fully support this view and our attention has not been drawn to any case which has taken a contrary view as regards offences under section 500, Indian Penal Code.
In Satish Chandra Chakravarti vs Ram Dayal De (1), five judges of the Calcutta High Court considered this question and held that where the maker of a single statement is guilty of two distinct offences, one under section 21 1, Indian Penal Code, which is an offence against public justice, and the other an offence under section 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court for taking cognizance of that offence.
It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of.
That they are distinct in character is patent from the fact that the former is made non compoundable, while the latter remains compoundable; in one for the the initiation of the proceedings the legislature requires the sanction of the court under section 195, (1) 845 Criminal Procedure Code, while in the other, Cognizance can be taken of the offence on the complaint of the person defamed.
It could not be denied that the accused could be tried of charges under sections 182 and 500, Indian Penal Code, separately on the same facts provided the public servant as well as the person defamed made complaints.
If that is so, there is no reason why one cannot be tried independently of the other so long as the requirements of each are satisfied.
Harries C. J. while delivering the Full Bench decision in question examined all the earlier cases of the Calcutta High Court and observed that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of section is 195 to 199 of the Code of Criminal Procedure.
Sections 195 to 199 deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for the offences actually indicated.
If it was the intention of the legislature to make sanctions or complaints in a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in these sections, the legislature could have said so but it did not.
Recently this matter was canvassed before a Full Bench of the Madras High Court and it was held that in such cases it was open to the party defamed to take proceedings under section 499, Indian Penal Code, without the court filing a complaint in accordance with the provisions laid down in section 195.
There the question was whether the alleged defamer who had given false evidence in a court could be prosecuted under section 499, Indian Penal Code, without a complaint by the court before whom fie gave evidenice and the question was answered in the affirmative after an exhaustive review of the decided cases of the different High Courts in India.
It was said that if the offence of 846 giving false evidence in a judicial proceeding and defamation do not belong to the same genus but are distinct and separate in their characteryistics and ingredients, it was difficult to perceive any serious inhibition by the Criminal Procedure Code for initiation and trial of one of these offences independently of anterior resort to fulfillinig the conditions necessary to comnience a prosecution for the other.
These observations have apt application to the present case.
The ingredients of the offence under section 182 cannot be said to be the ingredients for the offence under section 500.
Nor can it be said that the offence relating to giving false information relates to the same group of offences as that of defamation.
Though, in our judgment, section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages.
The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required.
In other words, the provisions of the section cannot be evaded by the device of charging a person with ail offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian penal Code,, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code.
Merely by changing the garb or label of an offence which is essentially all offence covered by the provisions of section 195 prosecution for such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it.
Before concluding, reference nay also be made to the decision of the Federal Court in Hori Ram Singh vs The Crown(1).
The appellant in that case was charged (1) 847 with offences under sections 409 and 477 A, Indian Penal Code.
The offence under section 477 A could not be taken cognizance of without the previous consent of the Governor under section 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under section 409, Indian Penal Code.
The charge was that the accused dishonestly misappropriated or converted to his own certain medicines entrusted to him in his official capacity as a sub assistant surgeon in the Punjab Provincial Subordinate Medical Service.
He was further charged that being a public servant, be wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession.
The proceedings under section 477 A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing oil the merits as regards the charge under section 409, Indian Penal Code, and the order of acquittal passed by the sessions judge under that charge was set aside.
Two distinct offences having been committed in the same transaction, one an offence of misappropriation under section 409 and the other an offence under section 477 A which required the sanction of the Governor, the cir cumstance that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under section 409.
Leave to appeal under article 134 (1) (c) of the Constitution was limited to the question of law referred to the Full Bench in this case, and it was distinctly said in the order disposing of the leave petition that leave would not have been granted had the scope of the appeal been limited to the merits of the case.
It was observed that having regard to the findings recorded by the final court of fact, as also the evidence in the case the elements of both the offences had been fully established.
The learned counsel for the appellants attempted to argue that on the facts found no 848 offence under section 297 could be said to have been made out.
This point, in our opinion, is not open at this stage, it having been hold that all the ingredients of the offence had been established on the record.
Even otherwise there is no substance in the contention because the prosecution evidence is sufficient to hold the offence proved against all the appellants.
For the reasons given above we hold that there is no substance in these appeals and they are accordingly dismissed.
Appeals dismissed.
Agent for the complainant: section C. Bannerjee.

summary:
The accused lodged information at a police station that X had beaten and throttled his mother to death and when the funeral pyre was in flames he entered the cremation ground with the police.
The dead body was examined and the complaint was found to be false.
On the complaint of X, the accused was charged with offences under section 297, Indian Penal Code (trespass to wound religious feelings) and section 500 Indian Penal Code (defamation).
It was contended that, as the complaint disclosed offences under sections 182 and 211, Indian Penal Code, the Court could not take cognizance of the case except on a complaint by the proper authority under section 195, Criminal Procedure Code: Held, (i) that the facts which constituted the offence tinder section 297 were distinct from those which constituted an offence under section 182, as the act of trespass was alleged to have been committed after the making of the false report, so section 195 was no bar to the trial of the charge under section 297.
(ii)As regards the charge under section 500, where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of section 195, Criminal Procedure Code, from seeking redress for the offence committed against him.
Satish Chandra Chakravarti vs Ram Dayal De ; Hori Ram Singh vs The Crown [1939] F.C.R. 139 referred to.
Section 195 cannot however be evaded by the device of charg ing a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code.


judgement:
Appeal No. 687 of 1962.
Appeal by special leave from the judgment and decree dated December 1, 1961, of the Punjab High Court at Chandigarh, in Execution Second Appeal No. 586 of 1960.
K. L. Mehta, for the appellant.
K. L. Gosain, K. K. Jain and P. C. Khanna, for the respondents Nos. 2 to 6. 1963.
February 20.
The judgment of the Court was delivered by HIDAYATULLAH J.
This appeal with the special leave of this Court arises out of execution of a decree for pre emption passed in favour of the appellant Jang Singh.
By the order under appeal the High Court has held that jang Singh had not deposited the full amount as directed by the decree within the time allowed to him and his suit for pre emption must therefore be ordered to be dismissed and also the other proceedings arising therefrom as there was no decree of which he could ask execution.
The facts of the case are simple.
Jang Singh filed a suit for pre emption of the sale of certain lands against Brij Lal the first respondent (the vendor), and Bhola Singh the second respondent (the vendee) in the Court of Sub judge 1st Class, Sirsa.
On October 25, 1957, a compromise decree was passed in favour of jang Singh and he was directed to 147 deposit Rs. 5951 less Rs. 1000 already deposited by him by May 1, 1958.
The decree also ordered that on his failing to make the deposit punctually his suit would stand dismissed with costs.
On January 6, 1958, jang Singh made an application to the Sub judge, Sirsa, for making the deposit of the balance of the amount of the decree.
The Clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to jang Singh so that the amount might be deposited in the Bank.
In the challan (and in the order passed on the application, so it is alleged) Rs. 4950 were mentioned instead of Rs. 4951.
jang Singh took the challan and the application and made the deposit of the wrong balance the same day and received one copy of the challan as an acknowledgement from the Bank.
In May, 1958, he applied for and received an order for possession of the land.
It was reported by the Naib Nazir that the entire amount was deposited in Court.
Bhola Singh then applied on May 25, 1958, to the Court for payment to him of the amount lying in deposit and it was reported by the Naib Nazir on that application that Jang Singh had not deposited the correct amount and the deposit was short by one rupee.
Bhola Singh applied to the Court for dismissal of jang Singh 's suit, and for recall of all the orders made in jang Singh 's favour.
The Sub Judge, Sirsa, accepted Bhola Singh 'sapplication observing that in pre emption cases a Court had no power to extend the time fixed by the decree for payment of the price and the preemptor by his failure to deposit the correct amount had incurred the dismissal of the suit under the decree.
He ordered also the reversal of the earlier orders passed by him in favour of Jang Singh and directed that possession of the fields be restored to the opposite party.
jang Singh appealed against that order.
The 148 District judge recorded the evidence of the Execution Clerk, the Revenue Accountant, Treasury ice and jang Singh.
He also examined Bhola Singh.
the learned District judge held that the record of the case showed that on the day the case was compromised and the decree was passed Jang Singh was not present and did not know the exact decretal amount.
The learned District judge assumed that it was the duty of jang Singh to be punctual and to find out the exact amount before he made the deposit.
He, however, held that as jang Singh had approached the Court with an application intending to make the deposit to be ordered by the Court, and the Court and its clerk made a mistake by ordering him to deposit an amount which was less by one rupee, jang Singh was excused in as much as the responsibility was shared by the Court.
The learned District Judge, therefore, held that this was a case in which jang Singh deserved to be relieved and he came to the conclusion that jang Singh was prevented from depositing the full amount by the act of the Court.
He concluded "thus the deposit made was a sufficient compliance with the terms of the decree".
The order of the Sub Judge, Sirsa dismissing the suit was set aside.
Bhola Singh appealed to the High Court.
This appeal was heard by a learned single.judge who was of the opinion that the decree which was passed was not complied with and that under the law the time fixed under the decree for the payment of the decretal amount in pre emption cases could not be extended by the Court.
He also held that the finding that the short deposit was due to an act of the Court was unsupported by evidence.
He accordingly set aside the decision of the learned District judge and restored that of the Sub judge, Sirsa.
The facts of the case almost speak for themselves.
A search was made for the application on 149 which the order of the Court directing a deposit of Rs. 4950 was said to be passed.
That application remained untraced though the District Judge adjourned the case more than once.
It is, however, quite clear that the challan was prepared under the Court 's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount.
This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person.
The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared.
It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it.
It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligation , under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished.
If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court.
If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused.
There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake.
This is aptly summed up in the maxim: "Actus curiae neminem gravabit".
In the present case the Court could have ordered 150 Jang Singh to make the deposit after obtaining a certified copy of the decree thus leaving it to him to find out the correct amount and make the correct deposit.
The Court did not do this.
The Court,, on the other hand, made an order and through its clerk prepared a challan showing the amount which was required to be deposited.
jang Singh carried out the direction in the order and also implicit in the challan, to the letter.
There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on jang Singh.
To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake.
Jang Singh was expected to rely upon the Court and its officers and to act according to their directions.
That he did so promptly and fully is quite clear.
There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of jang Singh can be ordered to be dismissed.
The learned single judge of the High Court considered the case as if it was one of extension of time.
He reversed the finding given by the District Judge that the application made by Jang Singh did not mention any amount and the ice reported that only Rs '.
4950 were due.
The learned single judge exceeded his jurisdiction there.
It is quite clear that once the finding of the District judge is accepted and it proceeds on evidence given by jang Singh and the Execution Clerk the only conclusion that can be reached is that jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court.
In these circumstances, following the well accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub.
Judge, Sirsa.
The District judge was, however, in error in 151 holding that the decree was "sufficiently complied with".
That decree could only be fully complied with by making the deposit of Re. 1 which the District judge ought to have ordered.
In our opinion the decision of the learned single judge of the High Court must be set aside.
The mistake committed by the Court must be set right.
The case must go back to that stage when the mistake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh.
If he fails to make the deposit within the time specified by us his suit may be dismissed but not before.
We may point out however that we are not deciding the question whether a Court after passing a decree for re emption can extend the time originally fixed for deposit of the decretal amount.
That question does not arise here.
In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tune.
The appeal is, therefore, allowed.
The appellant is ordered to deposit Re.1 within one month from the date of the receipt of the record in the Court of the Sub judge, Sirsa.
In view of the special circumstances of this case there shall be no order about costs throughout.
Appeal allowed.

summary:
The appellant filed a suit for pre emption for the sale of certain lands against the first respondent.
A compromise decree was passed in favour of the appellant and lie was directed to deposit Rs. 5951/ less Rs. 1000/ already deposited.
The suit was to stand dismissed with costs if the deposit was not.
made punctually.
The appellant made an application to the Subordinate judge for making the deposit of the balance of ' the amount.
The clerk of the Court prepared a challan in duplicate and handed it over to the appellant.
In the challan Rs. 4950/ were mentioned instead of Rs. 4951.The money was deposited by the appellant.
Later on, it was pointed out that the deposit was short by Re. 1.
The Subordinate judge accepted the objection and set aside the decree for pre emption passed in favour of the appellant.
The order of the Subordinate judge was set aside by the District judge.
It was held that the Court and its clerk made a mistake by ordering the appellant to deposit an amount which was less by Re. 1,/ and hence the appellant was excused in as much as the responsibility was shared by the Court.
The decision of the District judge was set aside by the High Court and the appellant came to this Court by special leave.
Held, that the decision of the District judge was correct and the appellant was ordered to deposit Re. 1/ in the court of the Subordinate Judge.
The appellant was an illiterate person and the Court and its officers had largely contributed to the error committed by him.
It is true that the litigant must be vigilant and take care, but where a litigant goes to the court and asks for its assistance, so that this obligation under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his.
own devices to ensure that the correct information is furnished ', If the Court in supplying the information makes a mistake, the responsibility of the litigant, though it does not altogether cease, 146 Is at least shared by the Court.
If the litigant acts on the faith of that information, the court cannot hold him responsible for a mistake which it itself causes.
No act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of Court, he should be restored to the position lie would have occupied but for that mistake.