judgement:
il Appeal No. 1919 of 1968.
Appeal by Special Leave from the Judgment and Order dated 15 12 1967 of the Mysore High Court in Writ Petition No. 1579 of 1966.
Shyamla (Mrs.) Pappu and E.K. Joseph for the Appellants R.B. Datar for Respondent No. 1.
N. Nettar for Respondent No. 2.
The Mysore State Road Transport Corporation is the appellant by special leave before us.
The first respondent, a conductor in the Mysore Government Road Trans port Department, had petitioned in the High Court under Article 226 against the appellant and the State of Mysore and asked it to quash an order of his dismissal, passed on 25 1 1961, in disciplinary proceedings taken against him at a time when he was a servant of the Mysore Government Road Transport Department.
The Government Department was abol ished on 1 8 1961.
But, before this event happened, the Mysore Government had sent notices to its employees on 23 6 61 proposing to transfer all those persons who were actually in its service on the date of issue of 927 these notices and had accepted offers of appointment as employees of the Corporation.
The first respondent, having been already dismissed for misconduct on 25 1 1961, was not the recipient of one of these notices to exercise an option.
In his writ petition, questioning the order of his dismissal, the first respondent had also asked for a decla ration that he had continued in service since the date of his suspension and commencement of disciplinary proceedings.
The High Court of Mysore merely quashed the dismissal order of 25 1 1961 and the order of suspension dated 23 7 1960.
It did not grant the declaratory relief asked for.
It observed: "It is further ordered that this is without prejudice to the holding of fresh enquiry if they consider the same necessary".
This order could not possibly amount to a declaration that the first respondent had con tinued in the service of either the Mysore Government or had become the servant of the appellant Corporation, a separate legal entity which came into existence by means of a Notifi cation under section 3 of the Road Transport .Corporations Act, 1950 (hereinafter referred to as 'the Act ').
As a separate legal entity, the Corporation could not be said to have stepped automatically into the shoes of the Mysore Road Transport Department.
No. provision of the Act or rules made thereunder has been shown to us which could have that effect.
The first respondent, however, relied upon a Notification under section 34 of the Act which contains, inter alia, clause 3 which preserves: "(3).
All rights and liabilities which have accrued or are incurred or which may accrue or may be incurred under any contract made by the State Government or by any Officer of the Road.
Transport Department, excepting the Bangalore Transport Service Division prior to the First August 1961, which would have been the rights and liabili ties of the Corporation.
" He also cites another Notification which reads as follows : "1.
The employees of the Mysore Govern ment Road Transport Department who have opted to serve under the Corporation in pursuance of the Notices issued to them by the Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(2)(c) of the Road Transport Corpo rations Act, 1950 and also subject to the following conditions, namely : (a) The transfer of the service of the employees of the Mysore Government Road Trans port Department to the Corporation shall not amount to interruption of service and shall not entail any loss of seniority previously held by such employees.
(b) The terms and conditions of service applicable to such transferred employees including those relating to 928 Provident Fund, Gratuity and other benefits shall not in any way be less favourable than those applicable to them immediately before the transfer.
(c) Benefits regarding leave and other conditions of service available to such trans ferred employees immediately before the transfer shall be continued.
(d) In the event of retrenchment of such transferred employees, in determining the retrenchment compensation, if any, length of service rendered by such transferred employees before the transfer shall also be considered.
(e) Changes in the conditions of service of the transferred employees shall not be effected to their disadvantage without the prior approval of the Government.
In respect of all disciplinary proceed ings or appeals arising therefrom pending immediately before 1st August, 1961, the Corporation or such Officer or Officers as may be designated by it shall be the disciplinary authority competent to pass appropriate orders in accordance with the relevant rules ap plicable to them before the transfer.
" It is clear that the last mentioned notification could apply only to those persons who, on 1 8 1961, had already exercised an option to serve under the Corporation in pursu ance of notices issued to them.
It makes no provision for persons to whom, for any conceivable reason, no notice had been issued.
Neither the Act nor the two notifications section 34(1) of the Act mentioned above contained any provisions which could entitle an employee of the Mysore Government Road Transport Department to get a notice automatically.
It appears that the notices were issued only in exercise of the executive power of the Government.
Clause (7) of one of the two notifications of 1 8 1961 laid down: "(7) The members of the staff of the Mysore Government Road Transport Department, excepting those who are serving in connection with the affairs of the Bangalore Transport Service Division, who have opted to serve under the Corporation with effect from 1st August, 1961, in response to the notice issued to them by Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(ii)(c) of the Road Transport Corporations Act and subject to such assurances as have been given to them by Government in their notice No. HD 8 TRC 60 dated 23rd June 1961.
" This provision also relates to persons who had already exercised options under notices issued to them already.
It may be that there was a lacuna in the rules or in the Act so that cases like those of the first respondent were not provided for at all in the Act or in the rules.
929 Learned counsel for the first respondent relied strongly on section 34 of the Act which lays down as follows : "34(1).
The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, condi tions of service and training of its employ ees, wages to be paid to the employees, re serves to be maintained by it and disposal of its profits or stocks.
(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub section ( '1) except with the previous permission of the State Government.
" This section enables only general directions to be given.
When the first respondent applied in the High Court for another writ or direction under Art 226 in 1966, the High Court seems to us to have over stepped the limits of mere interpretation of application of the law and to have in dulged in what is nothing short of legislation.
The High Court directed the State Government to serve a notice call ing upon the first respondent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporation in the same way in which other employees of the Transport Department of that State had been asked to exercise their options.
The High Court observed : "It is clear that the State Government were under a duty to make available to him that option when the order by which he was illegally dismissed was set aside.
Government are therefore, in our opinion, right in making available to the petitioner that option at least now.
We, therefore, issue a direction that that option will be made available to the petitioner within fifteen days from this date".
We also find that, after proceedings under the Contempt of Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25 1 61, the date of a dismissal which was declared to be illegal by the High Court, and 1 8 61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation.
The State Government owed no duty to the first respond ent to pay him after its transport department was wound up.
No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so.
We do not know what option the State Government has given to.
the first respondent after the writ petition was filed.
If it had already given any option to him, there was no point in directing it to give another option.
In order to compel the Corporation to do anything, as already indicated, only a general direction section 34 of the Act, set out above, could be given by the Government.
There neither could be a 930 specific direction with regard to a particular case nor was any specific direction given by the Government for any such case.
The High Court could not take upon itself the power to fill any gap in the provision of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was under any kind of obligation to do.
The High Court could not give a spe cific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules.
We can find no justification at all for such assump tion of powers by the High Court.
Mrs. Shyamla Pappu learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation vs Krishna Rao & Anr.(1), where this Court held as follows : It is quite clear the employees of the Bangalore Road Transport Service of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dholakia vs The Scindia Steam Navigation Co. ; , or automatically, become the employ ees of the Corporation.
The Corporation was directed to take over only those of the em ployees who opted for its service and to give to them the same terms and conditions as were enjoyed by them while in the service of the Mysore Government.
Thus, the condition prece dent of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1951, was the giving of the option to him and his exercise thereof.
There is no dispute that Respondent 1 was not given the notice of option, presumably because, rightly or wrongly, he was not re garded as having been in the service of the Government 's Road Transport Service immediate ly before the Corporation came into being.
It cannot also be disputed that he never asked for a notice of option on the ground that he continued to be in that service.
That he did not in fact exercise the option is an accepted fact.
That being so, it cannot be said that under the said notification the Corporation was required to have him as its employee or that his service was transferred to the Corpo ration thereunder, the condition precedent to such employment or transfer not having been complied with." This Court also held there: In our view, the Labour Court could not, on the position stated above, treat him as the Corporation 's employee and on that footing grant him the relief which it did.
Once it is found that he did not become the Corpora tion 's (1) C.A. No. 1720 of 1967 given on 6 8 1969.
931 employee, the Corporation could not be held liable to pay him the wages for the period from March 6, 1960, to April 19, 1962.
" The case cited by Mrs. Pappu arose out of a claim under section 33(c)(2) of the , but the views .expressed there accord with ours.
We re spectfully adopt the same reasoning.
Indeed, in the case now before us, the Corporation 's legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted.
That relief would, therefore, be deemed to have been refused.
The first respondent did not himself go up in appeal against that decision.
He cannot claim such a relief in the subsequent writ petition now before us.
The facts set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the.
Government.
It may be that the effect of the High Court 's order, setting aside the dismiss al, .was that the stigma .of dismissal was removed from the record of the first respondent.
Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up.
The most he could say was that he was not dismissed.
The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.
Consequently, we allow this appeal, set aside the judgment and order of the High Court.
The parties will bear their own costs.
S.R. Appeal alllowed.

summary:
Respondent 1, a conductor of the Mysore Government Road Transport Department was dismissed.
for misconduct on 25 1 1961.
The legality of the said dismissal order was questioned in the High Court under article 226 with a further prayer to declare that he had continued in service since the date of his suspension and commencement of disciplinary proceedings.
The High Court allowed the writ petition on 11 9 1964 and quashed the dismissal order with an observa tion viz. "It is further ordered that this is without preju dice to the holding of fresh enquiry if they consider the same necessary".
On 1 8 1961.
the Road Transport Corpora tion was constituted and the Government Road Transport Department was abolished.
Such of the employees who had exercised their option as per the notice dated 23 6 1961, were taken over by the appellant corporation.
The re spondent No. 1 was not given the option as he was dismissed by that date.
On a complaint under the.
Contempt of Courts Act against respondent 2 and the appellant, that there was disobedience to the order of the High Court dated 12 9 1964, the respondent 1 was paid ,,he salary by the State Govern ment for the period 25 1 1961 to 31 7 1971.
Since he was not paid back salary and allowances and also the salary due from 1 8 1961, the respondent filed a writ petition No. 1579/66 which was again allowed.
On a concession made by the counsel for the State Government that the State Govern ment was willing to make available to the petitioner an option to become an employee of the appellant corporation, the High Court held: "Notice shall be in the same form in which it was served on other employees and with a month 's time to exercise his option.
If he exercises his option to become an employee of the corporation the petitioner will have all.
the benefits.
such as continuity in service, seniority, the benefit of the old conditions of service applicable in Mysore Government Road Transport Department.
The petitioner will also be entitled to the salary for the period ' between August 1, 1961 and the date of his appoint ment as an employee of the corporation".
On appeal by special leave by the corporation, the Court, HELD: (1) The order of the High Court dated 11 9 1964 could not possibly amount to a declaration that the first respondent had continued in the service of either the Mysore Government or had become the servant of the appellant corpo ration, a separate legal entity which came into existence by means of a Notification under section 3 of the Road Transport Corporation Act, 1950.
As a separate legal entity the corpo ration could not be said to have stepped automatically into the shoes of the Mysore Road Transport Department, there being no provision of the Act or Rules made thereunder to that effect.
[927 A D] (2) The declaratory relief asked for not having been granted, that relief would be deemed to have been refused.
Failure to go in appeal against that decision operates as a bar for claiming such a relief in the subsequent writ petition.
[931 B] (3) The effect of the High Courts ' order setting aside the dismissal was that the stigma of dismissal was removed from the record of the first respondent.
The winding of the department on the facts of the case, operates as the discharge of the respondent.
The respondent cannot be deemed to be the corporation 's employee inasmuch as he has not exercised any option nor did be ask for a notice of option in the original writ petition filed by him.
[931 D E] 926 Mysore State Road Transport Corporation vs A. Krishna Rao & Anr., C.A. No. 1720 of 1967 S.C. decided on 6 8 1969, followed.
(4) Neither the Act nor the two notifications under section 34(1) of the Act contain any provision.
which could entitle an employee of the Mysore Government Road Transport Depart ment to get a notice automatically.
The notifications could apply only to those persons who, on 1 8 1961 had already exercised an option to serve under the corporation in pursu ance of notice issued to them.
It makes no provision for persons to whom for any considerable reason, no notice has been issued.
[928 D F] (5) When the first respondent applied in the High Court for another writ or direction under article 226 in 1966, the High Court over stepped the limits of mere interpretation or application of the law and indulged in what is nothing short of legislation by directing the State Government to serve a notice calling upon the first respondent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporation in the same way in which other employees of the Transport Department had been asked to exercise their option.
[929 C E] (6) The State Government owed no duty to the first respondent to pay him after transport department was wound up in the absence of any contract 10 show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the corporation to do so.
[929 G H] (7) In order to compel the corporation to do anything only a general direction u/s 34 of the Act could be given by the Government.
There neither could be a special direction with regard to a particular case nor was any special direction given by the Government for any such case.
The High Court could not take upon itself the power to fill any gap in the provision of the.
Act, even if there be one, and compel the Government to perform a function which the Gov ernment was not under any kind of obligation to discharge.
The High Court could not give a specific direction to make a provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules.
There is no justification at for such assumption of powers by the High Court.
[929 H, 930 A B]


judgement:
iminal Appeal No. 97 of 1953.
Appeal under Article 134(1)(c) of the Constitution from the judgment and order dated the 15th June 1953 of the Travancore Cochin High Court in Criminal Appeals Nos. 54, 55, 56, 58 and 79 of 1952.
section Mohan Kumaramangalam and section Subramaniam, for the appellants.
Sardar Bahadur, for the respondent.
December 15.
The Judgment of the Court was delivered by BOSE J.
This is a case of rioting in which two police constables were killed.
Thirty one persons were put up for trial.
The learned Sessions Judge acquitted twenty one of them on all the charges and acquitted the remaining ten of the most serious charge of all, namely the offence falling under the sections of the Travancore Penal Code which correspond to section 302 of the Indian Penal Code read with section 149.
But she convicted them on several of the lesser charges and imposed sentences ranging from two to five years on each count and directed that the sentences should run consecutively except in the cases of accused 5 to 8 and 18.
She sentenced each of them on only one count and so there was only one sentence.
The convicts appealed to the High Court and the State of Travancore Cochin also appealed against the acquittals on the murder cum rioting count.
The High Court dismissed the appeals made by the ten accused and allowed the appeals ,against the acquittals and imposed the lesser sentence 1059 of transportation in each case.
These ten accused now appeal here.
The accused are said to be communists.
Two of them, namely numbers 30 and 31, were arrested on 27 2 1950 at about I P.m. and were confined in the Edappilly police lock up.
The prosecution case is that the other 29 accused entered into a conspiracy to release their comrades and in pursuance of that conspiracy attacked the police station at about 2 A.M. on the 28th armed with deadly weapons such as choppers, knives, bamboo and other sticks and a dagger.
Two police constables, Mathew and Velayudhan, were killed in the course of the raid.
The first point taken before us is that the charge is not according to law and has prejudiced the appellants in their defence.
The complaint on this score is that each accused has not been told separately what offences he is being tried for.
They have all been lumped together as follows: "The aforesaid offences having been proved by the evidence adduced by the prosecution, you the accused 1 29 have committed offences punishable under . . . . . . " and then follow a string of ten sections of the Travancore Penal Code.
We are satisfied that the charge neither caused, nor could have caused, prejudice.
The body of the charge set out the fact that the accused 1 29 formed an unlawful assembly and stated the common object; and then the charge specified in detail the part that each accused had played.
In the circumstances, each accused was in a position to know just what was charged against him because once the facts are enumerated the law that applies to them can easily be ascertained; and in this particular case it was just a matter of picking out the relevant sections from among the ten mentioned.
There is nothing in this objection; section 225 of the Criminal Procedure Code expressly covers this kind of case.
The next argument was that the examination of each accused under section 342 of the Criminal Procedure Code was defective and that that caused pre 1060 judice.
We agree that the examination was not as full or as clear as it should have been but we are not satisfied that there was any prejudice.
It is to be noted that the question of prejudice was not raised in either of the Courts below nor was it raised in the grounds of appeal to this Court.
The point was taken for the first time in the arguments before us and even there counsel was unable to say that his clients had in fact been prejudiced , all he could urge was that there was a possibility of prejudice.
We agree that the omission to take the objection in the grounds of appeal is not necessarily fatal; everything must depend on the facts of the case; but the fact that the objection was not taken at an earlier stage, if it could and should have, been taken, is a material circumstance that will necessarily weigh heavily against the accused particularly when he has been represented by counsel throughout.
The Explanation to section 537 of the Criminal Procedure Code expressly requires the Court to "have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings".
Another strong circumstance is this: the petition for appeal does not set out the questions that, according to the appellants, they should have been asked nor does it indicate the answers that they would have given if they had been asked.
Again, though that is not necessarily fatal ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches.
It is true that in certain exceptional cases prejudice, or a reasonable likelihood of prejudice, may be so patent on the face of the facts that nothing more is needed; but that class of case must be exceptional.
After all, the only person who can really tell us whether he was in fact prejudiced is the accused; and if there is real prejudice he can at once state the facts and leave the Court to judge their worth.
But if the attitude of the accused, whether in person or through the mouth of his counsel, is: "I don 't know what I would have said.
I still have, 1061 to think that up.
But I might have said this, that or the other", then there will ordinarily be little difficulty in concluding that there neither was, nor could have been, prejudice.
Here, as elsewhere, the Court is entitled to conclude that a person who deliberately withholds facts within his special knowledge and refuses to give the Court that assistance which is its right and due, has nothing of value which he can disclose and that if he did disclose anything that would at once expose the hollowness of his cause.
The purpose of section 342 is set out in its opening words "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him".
If the accused is not afforded that opportunity, be is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked.
In other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact, to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along.
But if he does not ask this in the last Court of fact he is in little better position when the case comes here than be would be in had he, say, omitted to call, in his defence, a witness who, he says, would have deposed in his favour.
In very exceptional cases be might be allowed to call such a witness even at such a stage, but if he does not ask for that when his case is under appeal he would normally have but slender hope of succeeding here.
It is true he is in a stronger position when section 342 is in question because the section places a solemn and serious duty on the Court, and the accused can very rightly and properly complain if the Court fails to do its duty; but when all is said and done, he cannot claim to be placed in a better position than he would have been in bad the Court discharged its duty at the outset.
Therefore, all he is entitled to say on appeal is, "I was not asked to explain this matter, Here is my explanation; this is 1062 what I would have said: please consider it".
But if he does not take up that position at the appellate stage and complains of prejudice for the first time here, the inference is strong that the plea is an afterthought and that there was no real prejudice.
However, as the true meaning of "prejudice" in section 537 and other sections of the Code is not yet properly appreciated, probably for want of an authoritative decision by this Court, we invited counsel to tell us what questions his clients should have been asked and at any rate to indicate what, according to him, they might reasonably have said.
His main grievance on this score is that none of the appellants has been asked about the common object and he said it is obvious that most of them could very reasonably have said that they bad no idea that it was murder and that they did not even know that any of the members of the assembly carried lethal weapons.
It is necessary at this stage to explain that both courts find that there was an unlawful assembly and that the police station at Edappilly was raided and that arms and ammunition and some of the station records were carried away by the raiders; also that two of the police constables who were on sentry duty were murdered.
The only point on which they differ is about the common object.
The charge set out that the common object was to rescue the 30th and 31st accused by force and to murder the policemen on duty as well as to loot the records, arms and ammunition of the police station.
The learned Sessions Judge found, mainly because of a concession made by the Public Prosecutor, that the common object could not be placed higher than that of rescue despite the fact that some of the members were armed with deadly weapons; accordingly she (for the learned Sessions Judge was a lady) acquitted all the accused of the charge under section 302 of the Indian Penal Code read with section 149, or rather under the corresponding provisions of the Travancore Penal Code.
The State appealed against these acquittals and 1063 the High Court thereupon convicted on the murdercum rioting charge and imposed the lesser sentence.
The convicts also appealed but their appeals were dismissed.
In view of the admission made by the learned Public Prosecutor we do not think the High Court was justified in holding that the assembly bad the common object to murder but we do not think that that makes any difference to the result.
Even if it be assumed that the common object was only to rescue the two accused who were in the lock up, it is obvious that the use of violence was implicit in that object.
People do not gather together at the dead of night armed with crackers and choppers and sticks to rescue persons who are guarded by armed police without intending to use violence in order to overcome the resistance of the guards; and a person would have to be very naive and simple minded if he did not realise that the sentries posted to guard prisoners at night are fully armed and are expected to use their arms should the need arise; and he would have to be a moron in intelligence if be did not know that murder of the armed guards would be a likely consequence in such a raid; and what holds good for murder also holds good for looting in general.
Now section 149 applies not only to offences actually committed in pursuance of the common ob ject but also to offences that members of the assembly know are likely to be committed.
It would be impossible on the facts of this case to hold that the members of the assembly did not know that murder was likely to be committed in pursuance of a common object of that kind by an assembly as large as the one we have there.
Accordingly, even if the common object be not placed as high as murder the conviction on the murder cum riotiNg charge was fully justified.
,,, This answers the main ground of appeal.
But to go back to the argument about section 342 of the Criminal Procedure Code.
What we have to assess here is the explanation which counsel says each appellant could reasonably have given in the trial Court if he had been asked for one, namely that 1064 he did not know that any member of the assembly carried lethal weapons and that murder was likely to result.
The answer to that is plain.
There is nothing to indicate that the appellants are deficient in intelligence and understanding, and if they are judged by the standard of men of reasonable intelligence, as they must be, then an explanation of this kind cannot be believed.
Men who band themselves together to rescue persons locked behind prison bars and guarded by armed police do not set out with bare hands and doves of peace; of course, they arm themselves with implements that are strong enough to break open locks and break down doors and iron bars and it is obvious that implements of this kind can be used with deadly effect should the need and the desire to use them in that way arise.
It hardly matters whether each member knew the exact nature of the implements, namely that some had choppers and some sticks.
It is enough that they knew that instruments that could be used as deadly weapons would necessarily have to be carried if the purpose underlying the common object was to be achieved.
Therefore, even if the answer now suggested to us bad been given in the trial Court it would have made no difference to the result.
Turning next to the first accused, counsel said that he was not asked about identification in his examination under section 342.
But that is not correct.
The question put was "P.Ws. 1 and 4 say that they had seen you, beating constables Mathew and Velayudhan, etc.
" The point about identification is implicit in this question and we are satisfied that this appellant understood what the question imported because the cross examination of these witnesses discloses that the question of identity was present to the mind of the cross examiner; he specifically questioned each witness about the matter.
Next, it was said that no question was put to the first accused about any robbery, but we need not examine this any further because the matter becomes academic once the murder cum riot conviction is up 1065 held and once we make the sentences concurrent instead of consecutive as we intend to do.
The arguments on this point about the rest of the appellants except the seventh accused, followed the same pattern and we need not examine them separately.
, As regards the seventh accused, the only point of substance in his case is that he was not asked to explain his presence at Kadiparambu where the agreement to rescue and the planning are said to have taken shape.
Counsel said that this accused lives there, so the mere fact that he was seen among a crowd that had gathered there in the day time could not be regarded as a circumstance of suspicion.
That would have had force had it not been for the fact that he was again seen at the police station at 2A.M. and was identified as one of the rioters who took an active part in the raid.
We have gone into the question of possible prejudice under section 342 in the way we have because, as we have said, appellants do not appear to appreciate what is necessary when this kind of plea is raised.
We do not intend to lay down any hard and fast rule but we do wish to emphasise that what we have done in this case is not to be regarded as a precedent and that in future it will be increasingly difficult to induce this Court to look into questions of prejudice if the requisite material is not placed before it and if appellants deliberately withhold from the Court assistance which it is in their power to render; an inference adverse to them must be expected if that attitude is adopted.
Counsel then tried to attack the credibility of the witnesses and the correctness of the findings generally but, following our usual practice, we decline to interfere with concurrent findings of fact where there is ample evidence which, if believed, can be used in support of the findings.
That is the position here.
The only ground on which interference is called for is where the sentences were directed to run consecutively.
The High Court confirmed the convictions and sentences passed by the learned Sessions Judge 1066 but when it allowed the appeal by the State and passed the lesser sentence it said that "the sentences passed on each accused will run concurrently".
We are not sure whether the learned Judges meant that the sentences imposed by them should run concurrently with the others or whether they meant to allow the appeal to that extent.
, In order to remove all doubts, we allow the appeal to the extent of directing that the sentences imposed on each accused shall run concurrently and not consecutively.
Except for that, the appeal is dismissed.

dataset_name: IN-Abs

summary:
The appellants were put up for trial along with others before the Court of Sessions.
The charge against them set out the fact that they formed an unlawful assembly, stated the common object specifying in detail the part each accused had played and then gave a list of ten sections of the.
Travancore Penal Code including sections which correspond to section 302 of the Indian Penal Code read with section 149.
The Sessions Judge acquitted them under section 302 read with section 149 but convicted them on the lesser charges.
They appealed to the High Court against their convictions and the State appealed against their acquittals under section 302 read with section 149.
The High Court dismissed their appeals and allowed the appeals against their acquittals and sentenced each of them to transportation for life.
It was contended on their behalf that the charge was not in accordance with law and their examinations under section 342 of the Code of Criminal Procedure were defective and prejudiced them.
Held, that the charge framed was a legal one and was expressly covered by section 225 of the Code of Criminal Procedure.
Each of the accused was apprised of the facts alleged against him and he could easily pick out the relevant sections under which he was charged.
There could, therefore, be no prejudice to any one of them.
Held further, that as no objection was taken to the defective examination under section 342 of the Code of Criminal Procedure at an earlier stage although the accused were represented by counsel, and as the petition of appeal did not set out the questions the court should have put to them and the answers they would have given and as they thereby withheld from the court facts which were within their special knowledge, the court was entitled to draw an adverse conclusion against them and hold that no prejudice had been caused to them.
That when an accused person is not properly questioned under section 342 so as to enable him to explain the circumstances appearing in the evidence against him he is entitled to ask the appellate Court, which is the ultimate court of fact, to place him in the same position 1058 he would have been in if he had been properly questioned and to take the explanation he would have given, if he had been asked, into consideration when weighing the evidence in just the same way as the court would have done if the explanation had been there all along.
But he cannot ask to be placed in a better position than he would have been in if the court had done its duty from the start.
Therefore, when complaining of prejudice he must set out the questions he should have been asked and indicate the answers he would have given.


judgement:
ivil Appeal Nos.
231.0 & 1826 of 1968.
(From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh High Court in Misc.
First Appeals Nos. 219 and 220 of 1965) and Civil Appeal No. 132 of 1969 (From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh.
High Court in Misc.
First Appeal No. 203 of 1965).
G.L. Sanghi, Talat A nsari, R.K. Sanghi and K.J. John.
In CAs.
132/69 & 1826/68 for the Appellant in 132 & in 1826/ 68.
G.S. Chatterjee & D.P. Mukherjee. for Respondents 1 3. 1.
N. Shroff & H.S. Parihar for Respondent No. 8.
H.K. Puri and A.G. Ratnaparkhi. for Respondent No. 6 for Respondents 9 to 11.
G.S. Chatterjee & D.P. Mukherjee, in CA No. 2310 of 1968 for the appellants.
G.S. Sanghi, Talat Ansari, R.K. Sanghi and K.J.John for respondent No. 1.
H.S. Parihar & 1.
N. Shroff for respondent No. 3.
H.K. Puri for respondent No. 4.
The Judgment of the Court was delivered by FAZAL ALI, J.
With the emergence of an ultra moderd age which has led to strides of progress in all spheres of tile, we have switched from fast to faster vehicular traffic which has come as a has boon to many, though some times in the case of some it has also 946 proved to be a misfortune.
Such are the cased of the victims of motor accidents resulting from rash and negligent driving which take away quite a number of precious lives of the people of our Country.
At a time when we are on the way to progress and prosperity, our country can iII afford to lose so 'many precious lives every year, for though the percentage of deaths caused by motor accidents in other countries is high, in our own country the same is not by any means negligible, but is a factor to be reckoned with.
Our lawmakers being fully conscious of the expanding needs of our nation have passed laws and statutes to minimise motor accidents and to provide for adequate compensation to the families who face serious socio economic problems if the main bread earner loses his life in the motor accident.
The time is ripe for serious consideration of creating no fault liability.
Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nationalisation of bus transport, the law of torts based on no fault needs reform.
While section 110 of the Motor Vehicles Act provides for the constitution of Claims Tribunals for determining the compensation payable, section 110 A provides for the procedure and circumstances under which the family of a victim of a motor accident can get compensation and lays down the var ious norms, though not as exhaustively as it should have.
The Courts, however, have spelt out and enunciated valuable principles from time to time which guide the determination of compensation in a particular situation.
Unfortunately, however, section 95(2)(d) of the Motor Vehicles Act limits the compensation to be paid by an Insurance Company to Rs. 2,000/ only in respect of death to any third party and this is one disconcerting aspect on which we shall have to say something in a later part of our judgment.
With this little preface we now take up the facts in the appeals by certificate filed by B.L. Gupta and Smt.
Manjus hri Raha in this ' Court, and which after being consolidated have been disposed of by one common judgment both by the Claims Tribunal as also by the High Court.
Manjushri Raha, the main appellant in Civil Appeal No. 2310 of 1968 will, in short, be referred to hereafter aS "Raha", whereas respond ents Oriental Fire & General Insurance Company would be referred to as "Oriental Company" and the New India Insur ance Company as "New India Company".
Manjula Devi Bhuta representing the owner of vehicle No. MPG 4615 will be referred to as "Bhuta", whereas B.L. Gupta the owner of vehicle No. MPG 4307 belonging to the M.P. Speedways Company would be referred to as "Gupta".
Padmavati Shastri, the respondent in one of the appeals, would be referred to as "Shastri".
The appeals arise in the following circum stances.
Claim Case No. 6 of 1962 was filed by Raha along with her two minor children against Bhuta, Sushil Kumar driver of vehicle No. MPG 4615, Oriental Company, New India Company, Gupta owner of the M.P. Speedways Company and Ram Swaroop driver of vehicle No. MPG 4307.
The applicant Raha claimed compensation for a 947 sum of Rs. 3,00,000/ against the respondents Under section 110 A of the Motor Vehicles Act.
Similarly Shastri filed Claim Case No. 5 of 1962 against the respondents mentioned above claiming Rs. 1,20,000/ as compensation from the aforesaid respondents.
Both these claims were consolidated and heard and decided by one common judgment by the Claims Tribunal, Gwalior.
The facts giving rise to the claims of Raha and Shastri were that on April 10, 1962 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No. MPG 4397 (owned by Gupta of the M.P. Speedways Company) from Bhind to TM Gwali or.
When the bus travelled a distance of about 26 miles on the Bhind Gwalior road another bus bearing No. MPG 4615 belonging to Bhuta was seen coming from the opposite direc tion.
The driver of the M.P. Speedways Company was Ram Swaroop while that of the bus belonging to Bhuta was Sushil Kumar.
When the two buses were approaching in opposite directions, both the drivers being negligent and having failed to take the necessary precautions of keeping to their left led to a head on collision of the two buses as a conse quence of which the two persons, namely, Satyendra Nath Raha and Uma Shanker Shastri sustained fatal injuries to which they succumbed on the 'same day in the Gohad Hospital.
The facts and circumstances under which the accident took place have not been disputed by counsel for the parties, nor have the essential findings of fact given by the Claims Tribunal and the High Court been challenged before us.
The appeal, therefore, lies within a very narrow compass.
But before dealing with the appeals, it may be necessary to indicate the reliefs granted by the Claims Tribunal to the parties concerned.
The Claims Tribunal decreed the claim of Raha to the extent of Rs. 60,000/ only against all the respondents holding that the drivers of both the buses were negligent.
The claim of Shastri was decreed only to the extent of Rs. 40,000/ against Bhuta, Sushil Kumar driver and Oriental Company.
No decree was passed against Ram Swaroop driver of the M.P. Speedways Company and New India Company because there was no allegation of negligence against these persons in the claim flied by Shastri.
Against the decision the Claims Tribunal, Gupta field Miscellaneous First Appeal No. 203 of 1965 against Bhuta, Raha and others which was dismissed by the High Court.
Civil Appeals Nos.
1826 of 1968 and 132 of 1969 in this Court arise out of the aforesaid appeal before the High Court.
Miscellaneous First Appeal No. 219 of 1965 was filed by Bhuta against Raha, Gupta and others which was also dismissed by the High Court, but Bhuta has not filed any appeal to this Court against the decision of the Tribunal and the High Court in that appeal.
But Bhuta had flied an appeal in the High Court being Miscellaneous First Appeal No. 220 of 1965 against Shastri which was allowed by the High Court to this extent that the decree against Gupta and Ram Swaroop was made joint and several along with the appel lant Bhuta.
Miscellaneous First Appeal No. 222 of 1965 was flied before the High Court by Oriental Company against Shastri but that was also dismissed.
Similarly Miscellane ous First.
Appeal No. 223 of 1965 was flied before the High Court by Oriental Company against Raha which was also dis missed along with the cross objection 948 which was filed by Raha for enhancement of the compensation.
The High Court, however, held in Miscellaneous First Appeal No. 223 of 1965 that Oriental Company was to pay a total compensation of Rs. 20,000/ out of which Rs. 8,000/ was to be paid to Shastri and Rs. 12,000/ to Raha.
The present appeals in this Court have been filed by Gupta and Raha.
Neither Shastri, nor Bhuta, nor any of the Insurance Companies have filed any appeal before this Court.
The short point raised by Mr. Sanghi appearing for Gupta was that in the circumstances the compensation awarded by the Claims Tribunal to Raha was too high and at any rate the High Court ought not to have made the appellant Gupta liable jointly and severally with others.
In the appeal filed by Raha it is claimed that the compensation granted by the Claims Tribunal was grossly inadequate and should be enhanced.
It has been stated before us by Mr. Sanghi, though not admitted by the other side, that Gupta and the Insurance Companies have paid a total amount of Rs. 29,000/ (Rs. 15,000/ by Gupta and Rs. 14,000 by insurance Companies) in full and final settlement of the claim of Raha and, there fore, the appeal should be decreed in terms of the compro mise.
It was further contended that even if the amount awarded by the Claims Tribunal to Raha is enhanced that should be payable by Bhuta alone and not by the appellant Gupta, who has settled the claim with the appellant Raha.
There can be no doubt that if really a settlement has been reached between Gupta and Raha then no further decree can be passed as against Gupta.
The appellant further undertook to pay Rs. 10,000/ to Shastri in fulfilment of her claim.
As Rs. 10,000/ has already been paid to Shastri with the result that Bhuta has yet to pay Rs. 20,000/ being her share to Shastri.
Finally, it was contended that as there was no allega tion of negligence against Ram Swaroop the driver of the M.P. Speedways Company the High Court ought not to have decreed the c1aim of Raha against the appellant Gupta.
We have perused the plaint before the Claims Tribunal, which is rather loosely drafted, but it clearly contains the relief of compensation even against Gupta and Ram Swaroop driver.
The High Court has pointed out that even though there is no clear plea of negligence in the claim of Raha, the facts alleged and proved in the case dearly show that Ram Swaroop the driver of the M.P. Speedways Company was both rash and negligent.
Pleadings have to be interpreted not with forma listie rigour but with latitude or awareness of low legal literacy of poor people.
We fully agree with the finding of the High Court and see no reason to disturb it.
We also agree with the order of the High Court by which it makes Gupta and Bhuta jointly and severally liable.
That was the only decree which could have been passed in the circum stances.
Coming now to the 'appeal filed by Raha, counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is grossly inadequate and certain important factors have not been taken into consideration.
On a perus al of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Satyen 949 dra Nath Raha would have got upto the age of 55 years which has been taken at Rs. 1,20,000/ and after deducting half which would normally have been spent, the actual income lost to the family was Rs. 60,000/ .
It seems to us, however, that in making the calculation, the Claims Tribunal and the High Court overlooked two important and vital considera tions.
In the first place, while the admitted position was that the deceased Satyendra Nath Raha was working in the grade of Rs 590 30 830 35 900 and was getting a salary of Rs. 620/ p.m. at the time of his death, the Courts below have not taken into account the salary which he would have earned while reaching the maximum of his grade long before his retirement.
It is admitted that the deceased Satyendra Nath Raha was 37 years of age at the time of the accident and at this rate he would have reached the maximum of the grade of Rs. 900/ at the age of 46 years i.e. full 9 years before his superannuation.
The claimant has produced a certificate Ext.
P 4 from the office of the Accountant General, Madhya Pradesh, Gwalior, which shows that from April 11, 1962 (i.e. the date next to the date of the death of Satyendra Nath Raha) to October 15, 1980 which would be the last working day of the deceased Raha, the deceased Raha would have drawn Rs, 1,89,402 including the increments earned and the maximum grade drawn.
This figure may be rounded off to Rs. 1,88,000/ .
Even if half of this be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of incometax and other charges, the actual income lost to the family including the value of the estate and the loss to.
the dependents would be Rs. 94,000/ .
This will be a fair estimate which does not take into account the economic value of the deprivation to the wife of her husband 's company for ever and the shock felt by the children.
It was suggested by the High Court that as the deceased Raha was not a perma nent employee, the amount taken into account by the Compen sation Tribunal was correct.
This is, however, not a con sideration which could have weighed with the Claims Tribunal in making the assessment because it was purely contingent.
On the other hand with the rise in price index it could well have been expected that there would be several revisions in the grade by the time the deceased Raha had attained the age of superannuation, which, if taken into account, would further enhance the amount.
In these circumstances, there fore, we think that the amount of Rs. 90,000/ would represent the correct compensation so far as the salary part of the deceased Raha is concerned.
The Courts below have also not considered the effect of the.
pensionary benefits which the deceased Raha would undoubtedly have got after retirement, and in fact the Claims Tribunal has restricted the span of the life of the deceased only to the age of 55 years i.e. the age of super annuation, whereas in the present economic conditions the life of an average Indian has increased more than two fold.
It is, therefore, reasonable to expect that if the deceased had not died due to accident, he would have lived up at least upto the age of 65 years, if not more, so as to earn the pensionary benefits for 10 years after retirement.
According to the certificate Ext.
P 4 the deceased Raha would have been entitled to a monthly pension of Rs. 337 50 which 950 would mean about Rs. 4,050/ per year.
There can be no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate.
The certif icate Ext.
P 4 further shows that the deceased Raha would have got death cum retirement gratuity to the extent of Rs. 13,500/ calculated on the basis of the presumptive aver age emoluments and presumptive last emoluments.
If the deceased had lived after superannuation, he might probably have got this amount.
After adding this amount of Rs. 13,500/ to.
Rs. 90,000 the total amount would come to Rs. 1,03,500/ which may be rounded off to roughly Rs. 1,00,000/ .
In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1,00,000/ , and the Courts below erred in completely over looking these two important aspects which we have dis cussed.
It appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insur ance Companies, but unfortunately the Motor Vehicles Act has taken a very narrow view by limiting the liability of the Insurance Companies under section 95 (2) (d) to Rs. 2,000/ only in case of a third party.
While our Legislature has made laws to cover every possi ble situation, yet it is well nigh impossible to make provi sions for all kinds of situations.
Nevertheless where the social need of the hour requires that precious human lives lost in motor accidents leaving a trail of economic disas ter in the shape of their unprovided for families.
call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation par ticularly through Insurance Companies.
It is true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention.
Our country can ill afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupa tion dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned.
Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind.
In these circumstances it is only just and fair that the Legis lature should make a suitable provision so as to pay ade quate compensation by properly evaluating the.
previous life of a citizen in its true perspective rather than deval uing human lives on the basis of an artificial mathematical formula.
It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a com pensation of Rs. 1,00,000/. or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2,000/ .
Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par ticular conveyance and the value of his life is considerably reduced if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet section 95(2)(d) of the Motor Vehicles Act seems to.
suggest such a distinction.
We hope and trust that our law makers will give.
serious attention to this aspect of the matter and remove this serious lacuna in section 95(2)(d) of the Motor 951 Vehicles Act.
We would also like to.
suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case.
We further hope our suggestions will be duly implemented and the observa tions of the highest Court of the country do not become a mere pious wish.
In M/s. Sheikhupura Transport Co. Ltd. vs Northern India Transporters Insurance Co. Ltd. (1) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/upto a maximum of Rs. 20,000/ on the plain words of section 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motor acci dents.
In P.B. Kader & Ors.
vs Thatcharoma and Ors.(2) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows: "It is sad that an Indian life should be so devalued by an Indian law as to.
cost only Rs. 2,000/ , apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in the Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/ per individual, in volved in an accident, to make it more realis tic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the lawmakers that humanism is the basis of law and justice.
" We find ourselves in complete agreement with the obser vations made by the Kerala High Court in the aforesaid case and we would like to remind the law makers that the time has come to take a more humane and practical view of things while passing statute like the Motor Vehicles Act in regu lating compensation payable by Insurance Companies to vic tims of motor accidents.
We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time.
The result is that Civil Appeals Nos. 1826 of 1968 and 132 of 1969 are dismissed and Civil Appeal No. 2310 of 1968 is allowed to this extent that the claim preferred by Raha is enhanced from Rs. 60,000/ to Rs. 1,00,000/ .
As no authentic proof of any settlement between Gupta and Raha has been produced before us, the decree passed by us will be jointly and severally recoverable from Gupta and Bhuta after giving credit for the amounts received by Raha.
It will, however, be open to the executing court on proof of any full and final settlement of the claims of Raha with Gupta or any other Judgment debtor to adjust the claims accordingly under 0.23 r. 3 of the Code of Civil Procedure.
In the circum stances of the case, the parties will bear their own costs in this Court.
P.H.P. C.A. 1826 of 1968 and 132 of 1969 dismissed.
C.A. No. 2310 of 1968 allowed.
(1) ; (2) A.I.R. 1970 Kerala 241.

summary:
Satindra Nath Raha and Uma Shankar Shastri were trav elling by a bus owned by Gupta of M.P. Speedways Company.
They were travelling from Bhind to Gwalior.
On the high way, a bus owned by Bhuta came from the opposite direc tion.
On account of negligence of drivers of both the buses there was a head on collision of the two buses, as a conse quence of which Raha and Shastri sustained fatal injuries to which they succumbed on the same day in the hospital.
Widow of Raha claimed a compensation of Rs. 3,00,000/ under section 110A of the Motor Vehicles Act and Mrs. Shastri claimed a sum of Rs. 1.20,000/ as compensation.
The Claims Tribunal decreed the claim of Mrs. Raha to the extent of Rs. 60,000/ and of Mrs. Shastri to the extent of Rs. 40,000/ .
The compensation awarded to Mrs. Raha is on the basis of the salary which Mr. Raha would have earned upto the age of 55 years after deducting half the salary.
The quantum awarded by the Tribunal was upheld by the High Court.
Gupta and Mrs. Raha field the present appeals in this Court.
Gupta contended that the compensation awarded was very excessive and Mrs. Raha contended that the compensation granted was grossly inadequate and should be enhanced.
Allowing the appeal filed by Mrs. Raha and dismissing the appeal filed by Gupta, HELD: 1.
The contention of Gupta that he should not be made liable to pay the compensation since no negligence was alleged against the driver Ram Swarup negatived.
Although the plaint is loosely drafted but it clearly contains the relief of compensation against Gupta and Ram Swarup, the driver.
Pleadings have to be interpreted not with formalis tic rigour but with latitude or awareness of low legal literacy of poor people.
The Claims Tribunal and the High Court overlooked two important and vital considerations.
Firstly the increments which Mr. Raha would have earned while reaching the maximum of his grade long before his retirement and secondly the pensionary benefits which he would have obtained had he retired.
It would be reasonable to expect that if the deceased had not died due to the accident he would have lived at least upto the age of 65 years.
The Court, therefore, enhanced the compensation of Rs. 60,000/ to Rs. 1,00,000/ .
[948 F, G, 949A B, 950A B] 2.
It is unfortunate that section 95(2)(d) of the Motor Vehicles Act restricts the liability of the Insurance Compa nies to Rs. 2,000/ only in case of a third party.
The court suggested that the Legislature should increase the liability of the Insurance company.
The court observed that it was anamolous that if a passenger dies in a plane acci dent he gets the compensation of Rs. 1 lac and a person who dies in the road accident should get only Rs. 2,000/ .
[946 D E] 3.
Expressing its concern for the need for creating no fault liability by a suitable legislation, the Court ob served: The time is ripe for serious consideration of creating no fault liability.
Having regard to the directive princi ples of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nation alisation of bus transport, the law of 945 torts based on no fault needs reforms.
Where the social need of the hour requires that precious human lives lost in motor accidents leaving a trial of .economic disaster in the shape of their unprovided for families call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation particularly through Insurance Companies.
Our .country can iII afford the loss of a precious life when we are building a progres sive society and if any person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the indus try or occupation concerned.
Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind.
In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by property evaluating the precious life of a citizen in its true per spective rather than devaluating human lives on the basis of an artificial mathematical formula.
[916 C 950 D F]


judgement:
Appeal No. 126 of 1976.
(Appeal by Special leave from the Judgment and Order dated the 11th October, 1974 of the Rajasthan High Court in D.B. Special Appeal No. 111 of 1974) L.N. Sinha, Sol.
and Suresh Sethi, for the appellant.
C.K. Garg, S.S. Khanduja and C.L. Sahu, for respondent.
966 The Judgment of the Court was delivered by BEG, C.J.
The Official Liquidator attached to the High Court of Rajasthan, in charge of the liquidation of Golcha Properties (Pvt.) Ltd., (hereinafter referred to as 'Golcha Company '), has come up in appeal to this Court by special leave against a judgment and order of a Division Bench of that High Court, passed on a Special Appeal from the judg ment and order of a single Judge of that Court.
On peti tions presented on 4th July 1966 and 30th July 1966 by the creditors of Golcha Company, the High Court had made a compulsory winding up order on 10th May 1968; and, on that very date, the appellant was appointed liquidator of the Golcha company.
The Dharti Dhan (Pvt.) Ltd., (hereinafter referred to as the 'Dhan Company '), with its registered office at Bombay, was said to be one of the debtors of the Golcha Company to the extent of Rs. 11,69,043/together with interest and commission which was said to be still due on 1st August 1969.
Agreements dated 25.6.66 and 17.1.67 between the two companies regulated the method of repayment by annual instalments of Rs. 2,50,000/ according to the appellant.
As the respondent, Dhan Company, is said to have defaulted in the payment of two of its instalments, a claim under section 446(2) of the Companies Act (hereinafter referred to as 'the Act ') for the recovery of a sum of Rs. 5,00,000/ was made before the Company Judge of the High Court of Rajasthan by the appellant.
On 20th September 1969, the Registrar of Companies in Maharashtra had to file a winding up petition against the respondent Dhan Company in the Bombay High Court.
The Company Judge in the Bombay High Court on 3rd January, 1970, directed advertisement of the winding up petition.
The respondent Dhan Company appealed against the decision of the Company Judge and obtained an order, dated 3rd February, 1970, from a Division Bench staying the operation of the order for advertisement of the winding up petition.
An appeal against that order is said be still pending so .that a stay of those proceedings operates.
After obtaining an order of stay of the proceedings against it in the Bombay High Court, the Dhan Company made an application under section 442(b) of the Act in the Rajasthan High Court for stay of proceedings against it section 446(2) on the ground that a compulsory winding up petition was pending against it in the Bombay High Court.
The object of the respondent Dhan Company appeared to be to obtain an indefi nite stay of proceedings againsts it in both High Courts.
If this is a correct inference, as it appears to us to be, the stay application under section 442(b) of the Companies Act would not be a bona fide one.
It looks more like an abuse of the process of the Court.
It is, therefore, not surprising that the learned Company Judge: of the Rajasthan High Court rejected the Dhan Company 's application under section 442(b) of the Act on 9th May 1974.
It is, however, somewhat sur prising that a Division Bench of that High Court should have allowed an appeal from the judgment of the Company Judge and ordered stay of proceedings under section 446(2) of the Act against the respondent Dhan Company, even though this was subjected to the 967 condition that "the appellant Company produces the entire documentary evidence inclusive of account books, vouchers, files and other documents and papers in its possession or power relating to the claim in question, as it may desire to produce or the Official Liquidator desires to summon or as the learned Company Judge may direct in his discretion and also produces a list of witnesses that the appellant company may desire to examine in its defence in respect of the claim in question along with an affidavit of what each witness is likely to depose".
Thus, the Division Bench had, while making the stay order, attempted to safeguard the interests of the Golcha Company by making an order which, in the opinion of the Division Bench, would prevent valuable evi dence from being lost due to either the death or the fading memory of a witness or other causes.
Learned Solicitor General, appearing for the appellant, Official Liquidator of the Golcha Company, gave up the objection, taken in the special leave petition, to the maintainability of an appeal to a Division Bench from the order of the Company Judge in view of the provision of section 483 of the Act, which lays down: "483.
Appeals from any order made or decision given in the matter of the winding up of a company by the Court shall lie to the same Court to which, in the same manner in which and subject to the same conditions under which, appeals lie from any order.
or decision of the Court in cases within its ordinary jurisdiction".
The Solicitor General, however, submits that, on merits, the order of the learned Company Judge, dismissing the applica tion of the Dhan Company for stay of proceedings under section 442(b) of the ' Act, deserves to be restored as no grounds for interference with the proper exercise of his discretion by the learned Company Judge existed at all.
We highly appreciate the brevity of this submission, after the Solici tor General had, very rightly and properly, ' conceded that he could not urge that the Division Bench had not jurisdic tion to hearthe appeal before it.
No effective answer could be given to the Solicitor General 's submission by the learned counsel for the respondent.
We will, however, deal with the strenuous arguments advanced on behalf of the respondent even if it be to disclose how untenable they are.
Firstly, learned counsel for the respondent contends that the power to stay proceedings, contained in section 442(b) of the Act, is bound to be exercised when certain condi tions, said to be found in the case before us, are ful filled.
This submission rests on a misapprehension of the object of section 44 2 which lays down: "442.
At any time after the presentation of a winding up petition and before a winding up order has been made, the company, or any creditor or contributory, may (a) where any suit or proceeding against the company is pending in the Supreme Court or in any High Court, apply 968 to the Court in which the suit or proceeding is pending for a stay of proceedings therein; and (b) where any suit or proceeding is pending against the company in any other court, apply to the Court having jurisdic tion to wind up the company, to restrain further proceedings in the suit or proceeding; and the Court to which application is so made may stay or restrain the proceedings accordingly on such terms as it thinks fit".
The clear object of the section is that claims in suits in and proceeding pending elsewhere which have a bearing on the company 's liabilities, may be stayed only until the winding up order is made, because, after the winding up order has been passed, section 446 begins to.
operate so as to.
automatically transfer with certain exceptions proceed ings against the company being wound up to.
the Court exer cising the.
jurisdiction to wind it up.
Section 446 reads: "446.(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Court and subject to such terms as the Court may impose.
(2) The Court which is winding up the company shall, notwithstanding anything con tained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a) any suit or proceeding by or against the company; (b) any claim made by or against the compa ny (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company; whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such applica tion has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.
969 (3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court.
(4) Nothing in sub section (1) or sub section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court".
Sections 442 and 446 of the Act have to be read together.
It is only where the object of the two sections, when read together, is served by a stay order that the stay order could be justified.
That object is to expeditiously decide and dispose of pending claims in the course of winding up proceedings.
A stay is not to be granted if the object of applying for it appears to be, as it does in the case before us, merely to delay adjudication on a claim, and, thereby to defeat justice.
In other words, a stay order, under sec tion 442,cannot be made mechanically, or, as a matter of course, on showing fulfilment of some fixed and prescribed conditions.
It can only be made judiciously upon an exami nation of the totality of the facts which very from case to case.
It follows that the order to be passed must be discretionary and the power to pass it must, therefore, be directory and not mandatory.
In other words the word" used before "stay" in section 442 of the Act really means may and not "must" or "shall" in such a context.
In fact it is quite accurate to say that the word "may" by itself, acquires the meaning ' of "must" or "shall" sometimes.
This word however, always signifies a conferment of power.
That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises.
In other words, it is the context which can attach the obligation to the power compel ling its exercise in a certain way.
The context, both legal and factual, may impart to the power that obligatoriness.
Thus, the question to be determined in such cases always is,whether the power conferred by the use of the word "may" has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed conditions, to be shown by evi dence, a particular kind of order must be made.
If the statute leaves no room for discretion the power has to be exercised in the manner indicated by the other legal provi sions which provide the legal context.
Even then the facts must establish that the legal conditions are fulfilled: A power is exercised even when the Court rejects an applica tion to exercise it in the particular way in which the applicant desires it to be exercised.
Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary.
It is not the conferment of a power which the word "may" indicates that annexes any obligation to its exercise but the legal and factual context of it.
This, as we 970 understand it, was the principal laid down in the case cited before us: Frederic.
Guilder Julius vs The Right Rev. The Lord Bishop of Oxford; The Rev. Thomas Thellusson Carter.
(1) Dr. Julius, in the case mentioned above, had made an application to the Bishop of Oxford against the Rector of a parish, asking the Bishop to issue a commission under the Church Discipline Act to enquire against certain unautho rised deviations from the ritual in a Church by the.
Rector.
The relevant statute merely conferred a power by laying down that "it shall be lawful" to issue a commission.
The Courts of Queens Bench and of Appeal in England had differed on the question whether a mandamus from the Court could go to the Bishop commanding him to.
issue a commission for the purpose of making the enquiry.
The House of Lords held that the power to issue the commission was not coupled with a duty to exercise it in every case although there may be cases where duties towards members of the public to exercise a power may also be coupled with a duty to exercise it in a particular way on fulfilment of certain specified conditions.
The statute considered there had not specified those condi tions.
Hence, it was a bare power to issue or not to issue the commission.
Lord Blackburn said: (at p. 241 ): "I do not think the words 'it shall be lawful ' are in themselves ambiguous at all.
They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exer cise it for the benefit of those who have that right, when required on their behalf.
Where there is such a duty, it is not inaccu rate to say that the words conferring the power are equivalent to saying that the donee must exercise it.
It by no means fol lows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it: that depends on the nature of the duty and the position of the donee".
The principle laid down above has been followed consist ently by this Court whenever it has been contended that the word "may" carries with it the obligation to exercise a power in a particular manner or direction.
In such a case, it is always the purpose of the power which has to be exam ined in order to determine the scope of the discretion conferred upon the donee of the power.
If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner.
This is the principle we deduce from the cases of this Court cited before us: Bhaiya Punjalal Bhagwandin vs (1) 5 A.C. 214.
971 Dave Bhagwatprasad Prabhuprasad,(1) State of Uttar Pradesh vs Jogendra Singh,(2) Sardar Govindrao & Ors.
vs State of M.P.,(3)) Shri A. C.Aggarwal.
Sub Divisional Magistrate, Delhi & Anr, vs Smt.
Ram Kali etc.
,(4) Bashira vs State of U.P.,(5) and Prakash Chand Agarwal & Ors. vs M/s. Hindustan Steel Ltd.(6) In the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised.
The question whether it should, on the facts of a particular case, be exercised or not 'will have to be examined and then decided by the Court to which the application is made.
If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act, can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts.
That would be the position not because the word "may" itself must be equated with "shall" but because judicial power has necessarily to be exercised justly, properly, and reasonably to enforce the principle that fights created must be enforced.
In the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the Court where the winding up proceeding is taking place.
That is the object of the provisions.
On facts disclosed in this case, we find that the application seems to have been made with the object of delaying deci sions on claims made.
In such a case, there could be no doubt that the application should be rejected outright as the learned Company Judge did.
Secondly, an attempt was made to urge that the power to grant or not to grant or to grant a stay upon certain condi tions, assuming the power to be discretionary, is to be exercised by the Courts in which that discretion is vested, this Court should not interfere with the exercise of discre tion by the Division Bench to which an appeal from the order of the Company Judge lay.
The effective answer to this contention is that, where the learned Company Judge had himself exercised his discretion on a correct appreciation of the object of the provisions of sections 442 and 446 of the Act, even though he did not state the object or refer to all the facts, the Appellate Court should not have interfered by granting a conditional stay without giving sufficient reasons to over ride the discretion of the learned Company Judge to refuse stay.
We think that a question of general (1) [19631 3 S.C.R. 312.
(2) ; (3) ; (4) [1968] 1 S.C.R. 205.
(5) (6) 14 206SCI/77 972 principle arises in this case which has to be clarified so that an interference by this Court under Article 136 of the Constitution, in order to vindicate a correct principle and to meet the ends of justice, is called for.
Thirdly, learned counsel for the respondent submitted that the order under appeal before us is not final so that we need not interfere under article 136 of the Constitution for this reason.
It is true that, this Court does not, as a rule, interfere with interlocutory orders.
It is not necessary for us to embark on this occasion on a discussion of the meaning of a "final" order.
That is certainly a question fraught with difficulties.
It is sufficient for us to observe that our powers of interference under article 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this Court generally applies in considering whether it should interfere under article 136 of the Constitution with it.
We think that we have indicated sufficiently why, despite the fact that an order staying proceedings under section 442(b) of the Act may not, strictly speaking, be final, yet, a question of general principle of wide application, as to the circumstances in which an apparently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit case for interference under Article 136 of the Constitution.
Consequently, we allow this appeal and set aside the judgment and order of the Division Bench and restore that of the learned Company Judge.
The parties will bear their own costs.
S.R. Appeal allowed.

summary:
The Company Judge in t.he Bombay High Court directed on 3 1 1970 advertisement of the winding up petition fried by the Registrar of Companies in Maharashtra against the respondent company, one of the debtors of the Golcha company to the extent of Rs. 11,69,043/ .
The respondent company appealed against the decision of the Company Judge and obtained an order dated 3rd February, 1970, from a Divi sion Bench staying the operation of the order of advertise ment of the winding up petition.
As the respondent company defaulted in the payment of two of its instalments, as agreed to between the Golcha company and the respondent company by agreements dated 25th June 1966 and 17th January 1967, the Official Liquidator of the Golcha company made a claim under section 446(2) of the Companies Act for the recovery of a sum of Rs. 5 lac before the Company Judge of the High Court of Rajasthan.
The respondent company after obtaining an order of stay of the proceedings against it in the Bombay High Court made, another application under section 442(b) of the Companies Act in the Rajasthan High Court for staying of proceeding against it under s 446 (2) made by the appellant on the ground that a compulsory winding up petition was pending against it in the Bombay High Court.
The Company Judge rejected the application under section 442(b) of the Act on 9 5 .1974.
But, the Division Bench of the Rajasthan High Court allowed the appeal against the stay order and ordered a conditional stay of proceedings section 446 (2) of the Act against the respondent company.
On appeal by special leave, the Court, HELD: (1) The clear object of section 442 is that claims in suits and proceedings pending elsewhere which have a bearing on the company 's liabilities may be stayed only until the winding up order is made, because, after the winding up order has been passed, section 446 begins to operate so as to automatically transfer with certain exceptions, proceedings against the company being wound up to the court exercising the jurisdiction to wind it up.
[968 B C] (2) Sections 442 and 446 of the Act have to be read together.
It is only where the object of the two sections, when read together, is served by a stay order that the stay order could be justified.
That object is to expeditiously decide and dispose of pending claims in the winding up proceedings.
A stay is not to be granted if the object of applying for it appears to be merely to delay adjudication on a claim, and, thereby, to defeat justice.
In other words, a stay order under section 442 cannot be made mechanically or, as a matter of course, on showing fulfilment of some fixed and prescribed conditions.
It can only be made judi ciously upon an examination of the totality of the facts which vary from case to case, It follows that the order to be passed must be discretionary and the power to pass it must, therefore, be directory and not mandatory.
[969 B D] (3) The word "may" used before stay section 442 of the Compa nies Act really means "may" and not "must" or "shall" in such a context.
In fact, it is not quite accurate to say that the word "may" by itself acquires the meaning of "must" or "shall" sometimes.
This word, however, always signifies a conferment of that power.
That power may, having regard to the context in which it occurs and the requirements contem plated for its exercise have annexed to it 965 an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exer cise it in that way arises.
In other words, it is the context which can attach the obligation to the power compel ling its exercise in a certain way.
The context both legal and factual may impart to the power that obligatoriness.
[969 D F] (4) Thus, the question to be determined in such cases always is whether the power conferred by the use of the word "may" has annexed to it an obligation, that, on the fulfil ment of certain legally prescribed conditions to be shown by evidence, a particular kind of order must be made.
In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discre tion conferred upon the donee of the power.
If the condi tions in which the power is to be exercised in particular cases are also specified by a statute, then, on the fulfil ment of those conditions, the power conferred becomes an nexed with a duty to exercise it in that manner.
[969 F 970 G H] Frederic Guilder Julius vs The Right Rev.
The Lord Bishop of Oxford: The Rev. Thomas Thelusson Carder 5 A.C. 214, quoted with approval.
Bhaiya Punjalal Bhagwandin vs Dave Bhagwat prasad Prab huprasad ; State of Uttar Pradesh vs Jogen dra Singh ; ; Sardar Govindrao & Ors.
vs State of M.P. ; ; Shri A. C. Aggarwal, Sub Division al Magistrate, Delhi & Anr.
vs Smt.
Ram Kali etc.
[1968] 1 SCR 205; Bashira vs State of U.P. and Pra kash Chand Agarwal & Ors.
vs M/s. Hindustan Steel Ltd. , applied.
(5) In section 442 of the Companies Act the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised.
The question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the applica tion is made.
If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act can only be carried out by a stay order, it could per haps be urged that an obligation to do so becomes annexed to it by proof of those facts.
That would be the position in case the word "may" itself must be equated with "shall", but because judicial power has necessarily to be exercised justly, properly and reasonably to enforce the principle that rights created must be enforced.
[971 B D] (6) In such cases, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding up proceeding is taking place.
That is the object of the provisions.
On facts disclosed, if it be found that the application has been made with the object of delaying decisions on claims made, the application should be rejected outright.
[971 D E] (7) In the instant case the object of the respondent company appears to be to obtain an indefinite stay of pro ceedings against it in both High Courts.
This being a correct inference, the stay application under section 442(b) of the Companies Act could not be a bona fide one, but an abuse of the processes of the court.
[966 F G] (8) It is true that the Supreme Court does not, as a rule interfere with interlocutory orders.
The powers of interference under article 136 of the Constitution by the Supreme Court are not confined to those in respect of final orders, although finality of an order is a test which the Supreme Court generally applies in considering whether it should interfere under article 136 of the Constitution with it.
[972 B D]