judgement:
ivil Appeal No. 3482 of 1987.
From the Judgment and Order dated 10.3.1983 of the High Court of Gujarat in Special Civil Application No. 1294 of 1977 S.K. Dholakia, P.C. Kapur and R.C. Bhatia for the Appellant.
A. Subba Rao, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the judgment of the High Court of Gujarat in Special Civil Application No. 1294 of 1977 under Article 226 of the Con stitution of India.
The Government of India Ministry of Foreign Trade an nounced through public notice No. 196 ITC(PN)/69 dated 8th December, 1969 a scheme for registration of contracts in volving deliveries extending over a period of not less than 12 months for cash assistance, hereinafter referred to as 'the scheme '.
The Government decided to extend the scope of the scheme as was announced by letter No. 12 (22/67EAC) dated 4th February, 1970, hereinafter referred to as 'the 1970 scheme ', stating inter alia, in paragraph 3 that the registered exporter of export products under a contract involving deliveries extending over a period of not less than 12 months, registered by the banks in terms of para graph 3 of the public notice dated 8th December, 1969 will be eligible for claiming cash assistance at the same per centage as was prevailing on the date of the Firm contract so registered provided that the bank attested invoice which is normally produced for the purpose 'of claiming cash assistance, bears a further attestation from the negotiating bank to the effect that exports effected in this invoice is against a contract registered with them giving the Registra tion number and date.
If during the currency of the regis tered contract the rate of 505 cash assistance is reduced by Government, the higher rate of cash assistance existing on the date of the Firm contract would be admissible on exports under the said contract.
If, on the other hand there is an increase in the rate of cash assistance percentage during the currency of the registered contract, exports made during the contract would not normal ly be eligible for the benefit of the increased rate; in special cases where the operation of this rule is likely to affect an exporter adversely, Government would be prepared to consider the matter on merits.
It was also stated in paragraph 5 that the registered exporter would be entitled to claim cash assistance as and when the exports are made against the registered contracts and the application would be submitted to the disbursing authority in accordance with the policy and procedure announced from time to time by that Ministry.
By letter No. 12(4)72 EAC dated 20th April, 1972 on the subject of Amendment No. 53 the cash assistance scheme on export of engineering goods was modified to the effect that an additional cash assistance of 5% of the f.o.b. value will be allowed on all exports made to North American and South American countries and to New Zealand and these facilities of normal cash assistance and additional cash assistance will be allowed on exports effected during the period from 1.4.1972 to 30.9.72, the later date being included.
By letter No. 12(13)/73 EAC dated 16th June, 1973 referring to Amendment No. 59 it was announced that cash assistance on transmission towers will be made admissible on exports thereof made during the period from Ist October 1974 upto and including 31st March, 1973 at the rate of 25% of the f.o.b. value.
The appellant is a company registered or deemed to be registered under the for exporting Line Towers Galvanised; Mild Steel Towers, hereinafter called 'Transmission Towers ', (Item No. A. 27.1) by entering into contracts with the National Electricity Board of the State of Malaysia, a public utility service of Malaysian Govern ment, briefly called 'the N.E.B. ' which had invited a global tender in October 1971 for design, fabrication and supply of Transmission Towers, and the appellant 's tender submitted on January 29, 1972 was accepted by them, and pursuance thereto a contract was entered into on May 17, 1972.
The said con tract was duly registered with the Central Bank of India, Lal Darwaza, Ahemdabad on May 30, 1972 and was allotted registration No. 50/1.
Subsequently, the NE.B. having needed more Transmission Towers more contracts entered into and the same were registered as follows: 506 section No. Date of Offer Date of acceptance Date of regis tration of the offer of the contract with the bank.
1 2 3 4 1.
29.1.1972 17.5.1972 30.5.1972 2A. 29.1.1972 20.6.1972 26.7.1972 2B. 31.8.1972 27.10.1972 13.11.1972 3.
28.4.1973 5.6.1973 15.6.1973 (Telex 31.5.1973) In respect of the exports made pursuant to two of the afore said contracts, namely No. 1 and 2(A), the respondents paid to the appellants a cash assistance of Rs.3,48,555 but refused to pay the claimed amount of Rs.4,10,784.93p in respect of the exports made pursuant to the other two con tracts and instead demanded refund of aforesaid Rs.3,48,555 already received by the appellant.
By letter dated 10.3.1975 to the appellant the Controller of Imports and Exports informed that the exports made during the extended delivery period of the contract were not covered under the provisions of paras 56 64 of Part B of Import Trade Control Policy Volume II, April 1972 March 1973 and as such no cash assist ance could be granted on exports made after March, 1974.
The Deputy Chief Controller of Imports and Exports rejecting the appellant 's appeal vide his letter dated 30.6.1976 informed the appellant that the benefit of regis tration on export in execution of the supplementary contract was additional quantity at increased rates and could not be allowed under Government Policy.
The appellant 's second appeal was also rejected by the Chief Controller of Imports and Exports vide his letter dated 8th January, 1977 stating that after execution of the supplementary order there was increase in quantity of goods to be supplied as well as price as on the date of execution of the supplementary order, and the import policy did not provide for protection of benefits under the scheme for registration of contracts on the cases where there was increase in the value of con tract.
The appellant 's review petition was also rejected by letter dated 19th July 1977 stating that as per provision of the policy contained in the relevant Policy Book, if there was an increase in the value of contract on account of price escalation clause or renegotiation on the ground of increase in prices of raw materials, protection to registered con tract was not available.
507 The appellants thereafter moved an application under Article 226 of the Constitution of India in the Gujarat High Court which partly allowed the petition restraining the respondents from enforcing the demand for the refund of the amount already paid by way of cash assistance and rejecting the appellant 's claim in so far as the contracts entered into in the context of the offers made subsequent to April 1972 because the cash assistance declared as on April 1, 1972 and thereafter was in terms made available upto a specific date.
The exports under the two concerned contracts namely No. 2 B and 3 were admittedly made after July 1974, though in case of contract No. 2 B the date of offer was 31.8.1972 and the date of acceptance was 27.10.1972 and the date of registration 13.11.1972, and in the case of contract No. 3 date of offer was 28.4.1973 and date of acceptance of 5.6. 1973 and date of registration was 15.6.1973.
Learned counsel for the appellant, Mr. S.K. Dholakia, first, submits, that the appellants are entitled to cash assistance in respect of these two contracts also inasmuch as the scheme of registration of contracts for cash assist ance dated 8th December, 1969 as also that of 4th February, 1970 were not time bound and did not prescribe any period for export to be eligible under the scheme; that it was only the subsequent scheme that prescribed a period; and that the appellant exported TransmissiOn Towers pursuant to the contracts entered into during the earlier period but due to increased demand subsequent supplementary contracts had to be entered into, and for price escalation and other diffi culties actual exports were delayed.
He relies on Section 1, Part B of Import Control Policy Volume II April 1972March 1973, "Import Policy for Registered Exporters, Registration of Export Contracts," contained in paragraph 56 64 thereof.
Secondly, the learned counsel submits that cash assistance scheme of 1969 as well as that of February 1970 were based on the Government 's policy of long term assistance to ex porters and it was with that end in view that the scheme of registration of contracts with the banks was introduced.
Relying on paragraph 3 of the 1970 scheme, he emphasises that it was the date of the Firm contract which was to be reckoned and not the date of export of the products.
Relying on paragraph 6 of the scheme he submits that it envisaged contracts involving deliveries extending over a period of not less than 12 months and contracts for export were to be registered by the banks in the manner prescribed.
As regard the Government 's policy of assisting the exports for the purpose of augmenting foreign exchange earnings of the country he submits that the deprivation of cash assistance to the exporter who registered their contracts would defeat the very purpose of the scheme.
508 Mr. C.V. Subba Rao learned counsel for the respondents demurs submitting that it could not be said that once the contracts were registered cash assistance would be available irrespective of the date of the exports.
We are inclined to agree with this submission.
Paragraph 10 of the scheme dated 4th February, 1970 reads: "Cash assistance is sometimes announced upto a specified date.
Exports effected after the specified date even though the contract has been got registered in terms of the provision of this letter will not be eligible for cash assistance.
" This paragraph made it quite clear that exports effected after the specified date would not be eligible for cash assistance, Consistently with this paragraph in the subse quent schemes the periods were prescribed.
The amended scheme dated 20th April 1972 prescribed the period from 1.4.1972 to 30.9.1972 and the amended scheme dated 16th June 1973 applicable to this case, prescribed the period from Ist October, 1972 upto and including 3 Ist March, 1973.
In other words, exports of Transmission Towers made after the pre scribed period would not be eligible to assistance under the prevalent scheme.
The word 'amendment ' would imply that the scheme of 1969 stood amended.
If that be so, there could arise no question of granting cash assistance to different exports under the original scheme and the prevalent amended scheme at the same time.
1n reply Mr. Dholakia submits that at different stages the respondents gave different reasons for refusing to pay cash assistance to the appellants.
However, in view of the unequivocal language of paragraph 10 of the 1970 scheme and clear prescription of the different periods during the subsequent amended schemes and the admitted facts that the export in respect of these two contracts were made only after July 1974, we see no reason to allow the appellant 's claim.
Whether the Government 's policy was conductive to maximisation of exports and foreign exchange earning is entirely a different matter.
In the result we find no merits in this appeal and it is accordingly rejected, leaving the parties to bear their own costs.

summary/full:
In 1969, the Govt.
of India announced, through public notice a scheme for registration of contracts involving deliveries extending over a period of not less than 12 months for cash assistance m respect of certain exports.
The scope of the scheme was extended in 1970, allowing cash assistance at the same percentage as was prevailing on the date of the firm contract so registered provided the invoice was attested by the Banks concerned.
It was also provided that even if the rate of cash assistance is reduced by Govt.
the higher rate that existed on the date of the Firm con tract would be admissible.
And in case of increase in the rate, exports made during the contract would normally be eligible for the benefit of the increased rate.
It was also made clear that if the rate is likely to affect an exporter adversely, Govt. would consider its matter on merits.
In 1972 the cash assistance scheme on export of engi neering goods was modified allowing additional cash assist ance of 5% of the f.o.b. value on all exports effected during 1.4.72 to 30.9.72 to certain countries.
It was fur ther announced that in respect of transmission towers ex ported from Ist Oct. 1972 till 31st March, 1973 cash assist ance would be at the rate of 25% of the f.o.b. value.
The appellant company entered into contracts with the National Electricity Board of Malaysia and in respect of some of the exports of transmission towers, the appellant received cash assistance and in respect of others, it was denied on the ground that the exports made during the ex tended delivery period of the contract were not covered under the Import Trade Control Policy and as such no cash assistance could be granted on exports made after March, 1974.
The appeal preferred by the appellant was rejected by the Deputy 502 503 Chief Controller of Imports and Exports on the ground that the benefit of registration on export in execution of the supplementary contract was additional quantity at increased rates and could not be allowed under Govt.
policy.
The second appeal was rejected by the Chief Controller of Im ports & Exports, stating that after execution of the supple mentary order there was increase in quantity of goods to be supplied as also price on the date of execution of the supplementary order and the import policy did not provide for protection of benefits where there was increase in the value of contract.
The review petition filed by the appel lant was also rejected.
Thereafter the appellant moved the High Court under Article 226 of the Constitution.
The High Court partly allowed the petition restraining the respondents from en forcing the demand for the refund of the cash assistance already paid and rejected the appellant 's claim in respect of contracts, entered into in the context of the offers made subsequent to April 1972, since the cash assistance declared as on April 1, 1972 and thereafter was in terms made avail able upto a specific date.
This appeal by special leave is against the High Court 's judgment.
On behalf of the appellant, it was contended that at different stages, the respondents gave different reasons for refusing to pay cash assistance.
Dismissing the appeal, HELD: 1.1 There could arise no question of granting cash assistance to different exports under the original scheme and the prevalent amended scheme at the same time.
[508E] 1.2 Paragraph 10 in the 1970 scheme made it quite clear that exports effected after the specified date would not be eligible for cash assistance.
Consistently with this para graph, in the subsequent schemes the periods were pre scribed.
The amended scheme dated 20th April, 1972 pre scribed the period from 1.4.72 to 30.9.72 and the amended scheme dated 16th June 1973 applicable to this case, pre scribed the period from 1st October 1972 upto and including 31st March 1973.
In other words, exports of Transmission Towers made after the prescribed period would not be eligi ble to assistance under the prevalent scheme.
The word 'amendment ' would imply that the scheme of 1969 stood amend ed.
[508C E] 504 1.3 In view of the unequivocal language of paragraph 10 of.
the 1970 scheme and clear prescription of the different periods during the subsequent amended schemes and the admit ted facts that the export in respect of these two contracts were made only after July 1974, there is no reason to allow the appellant 's claim.
Whether the Government 's policy was conducive to maximisation of exports and foreign exchange earning is entirely a different matter.
[508F G]


judgement:
vil Appeal No. 1294 (NT) of 1975.
From the Judgment and order dated 16.7.74 of the Bombay High Court in I.T. Reference No. 22 of 1965.
S.C. Manchanda, M.K. Sashidharan and Ms. A. Subhashini for the Appellant.
Harish.
N. Salve, Parveen Kumar and V. Gambhir for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the judgment of the Bombay High Court dated 16.7.1974 on a reference made under Section 66(1) of the Income Tax Act, 1922.
The year of assessment is 1951 52 corresponding to the accounting year ending 31.3.1951.
The question referred by the Tribunal to the High Court at the instance of the Revenue was: "Whether on the facts and in the circumstances of the case, the assessee company could not be held to be a company in which the public were substantially interested within the meaning of Explanation of section 23A(1) by reason of the fact that the shares of the company carrying not less than twenty five per cent of its voting power were not, in fact, freely trans ferable by holders to other members of the public for a large part of the previous year even though they were freely transferable as at the end of the previous year? " Initially the company was incorporated as a private limited company at Jaipur on 24.12.1942 and was known as Messrs Rajputana Investment Company Private Limited.
Under articles 4, 81 and 82 of the Articles of Association of the company there was restriction on the transfer of the shares of the Company by the shareholders to other 573 members of the public.
These articles were deleted at an extraordinary general meeting of the Company held on 26th March, 1951, and following the deletion, the restriction on transfer of shares was removed.
So was the limit of number of shareholders.
On the basis of the amendment the assessee claimed relief under section 23A(1) of the 1922 Act by pleading that all the statutory requirements were satisfied.
The income Tax Officer refused to accept the stand of the asses see on the ground that while the Explanation contained in section 23A(1) of the Act required that in course of the previous year the shares were freely transferable by the holders to other members of the public, the company came to satisfy the requirement only for four or five days of the year.
The Appellate Assistant Commissioner adopted the same view whereupon the assessee appealed to the Tribunal.
The Tribu nal accepted the stand of the assessee and allowed the appeal, whereupon at the instance of the Revenue the afore said question was referred and the case was stated to the High Court under section 66(1) of the 1922 Act.
The High Court found for the assessee and against the Revenue.
That has led to the present appeal by special leave.
As pointed out above, the short point for consideration in this appeal is as to whether the assessee satisfied the requirements of the Explanation to section 23A(1) of the Act so as to be entitled to the tax benefit.
This Court pointed out in the case of C.I.T.v.
Arco (P) Ltd., [19631 "Section 23A was enacted to prevent evasion of liability to pay super tax by shareholders of certain classes of companies taking advantage of the disparity between the rates of super tax payable by individuals and by the compa nies.
The rates of super tax applicable to companies being lower than the highest rates applicable to individual assessees, to prevent individual assessees from avoiding the higher incidence of super tax by the expedient of transferring to companies the sources of their income, and thereby securing instead of divi dends the benefit of the profits of the compa ny, the Legislature by Act XXI of 1930, as modified by Act VII of 1939, enacted a special provision in section 23A investing the Income tax Officer with power, in certain contingencies prescribed in the section to order that the undistributed balance of the assessable income reduced by the amount of taxes and the divi dends shall be deemed to have been distributed at the date of the general meeting.
" 574 The Explanation provided: "For the purpose of this sub section , a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty five per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by, the public (not including a company to which the provi sions of this sub section apply) and if any such shares have in the course of such previ ous year been the subject of dealings in any stock exchange in the taxable territories or are in fact freely transferable by the holders to other members of the public." The only question that has engaged the attention of the Tribunal and the High Court at the instance of the respec tive parties is as to whether the shares were freely trans ferable by the holders to other members of the public in the course of the previous year.
As we have already pointed out, the Income Tax Officer and the first appellate authority held that the terms in the Explanation required that the shares should have been freely transferable by the share holders to other members of the public at every point of time during the previous year and transferability should be established by actual transfer.
The Tribunal and the High Court took the view that it was not necessary that as a fact there should have been some transfer of such shares but transferability as an incidence should have been at every point of time during the whole of the previous year.
That being the short question on which this appeal can be effec tively disposed of, there is no necessity to refer to other aspects which had been canvassed at earlier stages.
Indisputably, until 26th of March, 1951, the shares were not freely transferable in view of the three provisions in the Articles and with the deletion of those, free transfera bility of the shares was acquired.
There has been no dispute before us that the requirement "if any such shares have been in the course of such previous year" would also apply to the last requirement "are in fact freely transferable by the holders to other members of the public".
The only conten tious aspect is as to whether "in the course of such previ ous year" would mean throughout the year or any part of it.
575 There is no direct authority indicating the true meaning of this requirement in the Explanation one way or the other.
The purpose of enacting section 23A, as pointed out in Afro 's case, was to control evasion of tax.
The Explanation has reference to the point of time at two places: the first one has been stated as "at the end of the previous year" and the second, which is in issue, is "in the course of such previous year".
Counsel for the Revenue has emphasised upon the feature that in the same Explanation reference to time has been expressed differently and if the legislative intention was not to distinguish and while stating "in the course of such previous year" it was intend ed to convey the idea of the last day of the previous year, there would have been no necessity of expressing the posi tion differently.
There is abundant authority to support the stand of the counsel for the Revenue that when the situation has been differently expressed the legislature must be taken to have intended to express a different intention. 'Course ' ordinarily conveys the meaning of a continuous progress from one point to the next in time or space and conveys the idea of a period of time; duration and not a fixed point of time.
"In the course of such previous year" would, therefore, refer to the period commencing with the beginning of the previous year and terminating with the end of the previous year.
If that be the meaning of the phrase "in the course of such previous year", it would necessarily mean that free transferability of the shares by the holders to other members of the public should be present throughout the previous year.
Admittedly that was not the position in this case as transferability was acquired only on 26th of March, 195 1.
We are of the view that the Tribunal and the High Court went wrong in holding that the conditions re quired by the Explanation were satisfied and the benefit under the section was available to the assessee.
The appeal is allowed.
The order of the High Court approving the view taken by the Appellate Tribunal is set aside and the question referred to the High Court is an swered thus: "On the facts and in the circumstances of the case, the assessee company could not be held to be a company in which the public were substantially interested within the meaning of the Explanation to section 23A(1) by reason of the fact that for a large part of the previous year the shares] 576 were not freely transferable though they were so transfer able at the end of the previous year." and against the assessee.
Parties are directed to bear their own costs throughout.
T.N.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Under articles 4, 81 and 82 of the Articles of Associa tion of the respondent assessee company there was restric tion on the transfer of the shares of the company by the shareholders to the other members of the public.
These articles were deleted at an extraordinary general meeting of the Company held on 26th March, 1951 and consequently the shares of the Company acquired free transferability.
For the accounting year ending 31st March, 1951 the assessee company claimed tax benefit u/s 23A(1) on the ground that by reason of the fact that its shares had acquired free transferabili ty 'in the course of the previous year ' the company had become 'a company in which public are substantially inter ested '.
The Income Tax Officer rejected the claim of the asses see company by holding that while Explanation to Section 23A(1) requires that the shares should have been freely transferable by the shareholders to the other members of the public at every point of time during the previous year and transferability should be established by actual transfer; the Company satisfied the requirement only for four or five days of the previous year.
571 On appeal the Appellate Assistant Commissioner affirmed the view taken by the Income Tax Officer.
The assessee company appealed to the ,Tribunal against the decision of the Appellate Assistant Commissioner.
The Tribunal accepted the contention of the assessee and allowed the appeal.
A reference under Section 66(1) of the Income Tax Act, 1922 was made to the High Court at the instance of the Revenue which approved the view taken by the Appellate Tribunal, and held that the conditions required by the Explanation to Section 23A(1) were satisfied and the benefit thereunder was available to the assessee company.
In the appeal by Special leave by the Revenue to this Court on the question: whether the assessee had satisfied the requirements of the Explanation to Section 23A(1) of the Act, and was entitled to the tax benefit claimed.
Allowing the appeal and setting aside the order of the High Court, HELD: 1.
The Tribunal and the High Court went wrong in holding that the conditions required by the Explanation to Section 23A(1) were satisfied and the benefit under the said section was available to the assessee.
[575F] 2.
The assessee company could not be held to be a compa ny in which the public were substantially interested within the meaning of the Explanation to Section 23A(1) by reason of the fact that for a large part of the previous year the shares were not freely transferable, though they were so transferable at the end of the previous year.
[574G1 3.
The word 'Course ' ordinarily conveys the meaning of a continuous progress from one point to the next in time or space and conveys the idea of a period of time; duration and not a fixed point of time.
The expression 'in the course of such previous year ' would refer to the period commencing with the beginning of the previous year, and terminating with the end of the previous year.
Therefore, it would necessarily mean that free transferability of the shares by the holders to other members of the public should be present throughout the previous year.
This was not the position in the instant case, as the transferability was acquired only on the 26th of March, 1951.
[575D F] 4.
The Explanation to Section 23A(1) has reference to the point of time at two places: the first one has been stated as 'at the end of the 572 previous year ' and the second is 'in the course of such previous year '.
When the situation has been differently expressed the legislature must be taken to have intended to express a different intention.
[575B D] C.I.T.v.
Arco (P) Ltd. , referred to.


judgement:
Appeal No. 150 of 1954.
Appeal from the judgment and decree dated March 21, 1950, of the Court of Judicial Commissioner at Ajmer in Civil First Appeal No. 13 of 1948, arising out of the judgment and decree dated March 30, 1948, of the Court of Sub Judge 1st Class, Ajmer, in Civil Suit No. I of 1947.
Tarachand Brijmohan Lal, for the appellant.
section section Deedwania and K. L. Mehta, for the respondents.
April 15.
The Judgment of the Court was delivered by SARKAR J.
This appeal arises out of a suit for the redemption of a mortgage dated August 1, 1899.
The property mortgaged was a four roomed shop with certain appurtenances, standing on a piece of land measuring 5 yards by 15 yards in Naya Bazar, Ajmere.
The mortgage was created by Purshottamdas who is now dead and was in favour of Dhanrupmal, a respondent in this appeal.
The mortgage instrument stated that the property had been usufructuarily mortgaged in lieu of Rs. 6,300 of which Rs. 5,750 had been left with the mortgagee to redeem a prior mortgage on the same and another property.
It also provided that on redemption of the prior mortgage, the possession of the shop would be taken over and retained by the mortgagee, Dhanrupmal, who would appropriate its rent in lieu of interest on the money advanced by him and the possession of the other property covered by the prior mortgage, being a share in a Kachery would be made over to the mortgagor, Purshottamdas.
The provisions in the mortgage instrument on which the present dispute turns were in these terms: 511 " I or my heirs will not be entitled to redeem the property for a period of 85 years.
After the expiry of 85 years we shall redeem it within a period of six months.
In case we do not redeem within a period of six months, then after the expiry of the stipulated period, 1, my heirs, and legal representatives shall have no claim over the mortgaged property, and the mortgagee shall have no claim to get the mortgage money and the lagat (i. e., repairs) expenses that may be due at the time of default.
In such e, case this very deed will be deemed to be a sale deed.
There will be no need of executing a fresh sale deed.
The expenses spent in repairs and new constructions will be paid along with the mortgage money at the time of redemption according to account produced by the mortgagee.
" The mortgagee, Dhanrupmal, duly redeemed the earlier mortgage and, went into possession of the shop while possession of the Kacheri was delivered to the mortgagor.
On April 12, 1939, Dhanrupmal assigned his rights under the mortgage to Motilal who died later, and whose estate is now represented by his sons, who are the other respondents in this appeal. 'The estate of Purshottamdas, the original mortgagor, is now represented by his son, the appellant.
On January 2, 1947, the appellant filed the suit in the Court of the Sub Judge, Ajmere, against the respondents.
The suit was contested by the sons of Motilal, the assignee of the mortgage, who are the only respondents appearing in this appeal and whom we shall hence, hereafter refer to as the respondents.
They said that the suit was premature as under the mortgage contract there was no right of redemption for eighty five years after the date of the mortgage, that is to say, till August 1, 1984.
The learned Sub Judge, purporting to follow a decision of the Judicial Commis sioner, Ajmere, to whom he was subordinate, held that the provision postponing redemption for eightyfive years was invalid as it amounted to a clog on the equity of redemption.
He, therefore, passed a preliminary decree for redemption.
On appeal, the learned Judicial Conmmissioner, Ajmere, held, that the decision 512 which the Sub Judge had purported to follow was, distinguishable.
He examined a large number of cases on the subject and came to the conclusion that the provision in question did not amount to a clog on the equity of redemption.
He, therefore, allowed the appeal and dismissed the appellant 's suit.
From this decision the appeal to this Court arises.
It is admitted that the case is governed by the Transfer of Property Act.
Under section 60 of that Act, at any time after the principal money has become due, the mortgagor has a right on payment or tender of the mortgage money to require the mortgagee to reconvey the mortgage property to him.
The right conferred by this section has been called the right to redeem and the appellant sought to enforce this right by his suit.
Under this section, however, that right can be exercised only after the mortgage money has become due.
In Bakhtawai Begum vs HusainiKhanam (1), also the same view was expressed in these words: " Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period.
" Now, in the present case the term of the mortgage is eighty five years and there is no ' stipulation entitling the mortgagor to redeem during that term.
That term has not yet expired.
The respondents, therefore, contend that the suit is premature and liable to be dismissed.
The appellant 's answer to this contention is that the covenant creating the long term of eightyfive years for the mortgage, taken along with the provision that the mortgagor must redeem within a period of six months thereafter or not at all and the other terms of the mortgage and also the circumstances of the case, is really a clog on the equity of redemption and is therefore invalid.
He contends that, in the result the mortgage money had been due all along and the suit was not premature.
(1) (1913) L.R. 41 I.A. 84, 89.
513 The rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagor 's right to redeem shall neither be taken away nor be limited by any contract between the parties.
The principle behind the rule was expressed by Lindley M. R. in Santley vs Wilde (1) in these words: " The principle is this: a mortgage is a conveyance of land or an assignment of chattles as a security for the payment of a debt or the discharge of some other obligation for which it is given.
This is the idea of a mortgage: and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding.
That, in my opinion, is the law.
Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by_ a clog or fetter on the equity of redemption and is therefore void.
It follows from this, that "once a mortgage always a mortgage ".
The right of redemption, therefore, cannot be taken away.
The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortoage.
One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained.
It plainly takes away altogether, the mortgagor 's right to redeem the mortgage after the specified period.
This is not permissible, for " once a mortgage always a mortgage " and therefore always redeemable.
The same result also follows from section 60 of the Transfer of Property Act.
So it was said in Mohammad Sher Khan vs Seth Swami Dayal (2) : "An anomalous mortgage enabling a mortgagee after a lapse of time and in the absence of redemption to enter and take the rents in satisfaction of the interest.
would be perfectly valid if it did not also hinder an (1) (2) (1921) L.R. 49 1,A. 60, 65.
514 existing right to redeem.
But it is this that the present mortgage undoubtedly purports to effect.
It is expressly stated to be for five years, and after that,period the principal money became payable.
This, under section 60 of the Transfer of Property Act, is the event on which the mortgagor had a right on payment of the mortgage money to redeem.
The section is unqualified in its terms, and contains no saving provision as other sections do in favour of contracts to the contrary.
Their lordships therefore see no sufficient reason for withholding from the words of the section their full force and effect.
" Under the section, once 'the right to redeem has.
arisen it cannot be taken away.
The mortgagor 's right to redeem must be deemed to continue even after the period of six months has expired and the attempt to confine that right to that period must fail.
The term in the mortgage instrument providing that the mortgage can be redeemed only within the six months and not thereafter must be held period of to be invalid and ignored.
The learned Judicial Commissioner took the same view and this has not been challenged in this appeal on behalf of the respondents.
With this term however this case is not really con cerned.
Learned advocate for the appellant directed his attack on the term in the instrument of mortgage that it will not be redeemable for eighty five years.
He contended that this term amounts to a clog on the equity of redemption.
We wish to observe here that the learned advocate did not contend that the invalidity, as we have earlier held, of the term taking away the right to redeem the mortgage after the period of six months makes the term fixing the period of the mortgage at eighty five years invalid.
This latter term stands quite apart.
It only fixes the time when the principal sum is to become due, that is, when the right to redeem will accrue and has, therefore, nothing to do with a term which provides when that right will be lost.
The invalidity of one does not make the other also invalid.
The term providing that the right to redeem will arise after eightyfive years does not, of course, take 515 away the mortgagor 's right to redeem and is not, therefore, in that sense, a clog on the equity of redemption.
It does, however prevent accrual of the right to redeem for the period mentioned.
Is it then, in so far as it prevents the right to redeem from accruing for a time, a clog ? As we have already said, the right to redeem does not arise till the principal money becomes due.
When the principal sum is to become due must of course depend on the contract between the parties.
In the present case the parties have agreed that the right to redeem will arise eightyfive years after the date of the mortgage, that is to say, the principal money will then become due.
The appellant says that he should be relieved from this bargain that he has made.
This is the contention that has to be examined.
The rule against clogs on the equity of redemption no doubt involves that the Courts have the power to relieve a party from his bar 'gain.
If he has agreed to forfeit wholly his right to redeem in certain circumstances, that agreement will be avoided.
But the Courts have gone beyond this.
They have also relieved mortgagors from bargains whereby the right to redeem has not been taken away but restricted.
The question is the term now under consideration such that a Court will exercise its power to grant relief against it ? That depends on the extent of this power.
It is a power evolved in the early English Courts of Equity for a special reason.
All through the ages the reason has remained constant and the Court 's power is therefore limited by that reason.
The extent of this power has, therefore, to be ascertained by having regard to its origin.
It will be enough for this purpose to refer to two authorities on this question.
In a very early case, namely, Vermon vs Bethell Earl of Northington L. C. said, " This court, as a court of conscience, is very jealous of persons taking securities for a loan, and converting such securities into purchases.
And therefore I take it to be an established rule, that a mortgagee can never provide at the time of making the (1) ; , 113; ; ,839.
516 loan for any event or condition on which the equity of redemption shall be discharged, and the conveyance absolute.
And there is great reason and justice in this rule, for necessitous men are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the crafty may impose upon them.
" In comparatively recent times Viscount Haldane L. C.repeated the same view when he said in G. and C. Kreglinger vs New Patagonia Meat and Cold Storage Company Ltd. (1): This jurisdiction was merely a special application of a more general power to relieve against penalties and to could them into mere securities.
The case of the common law mortgage of land was indeed a gross one.
The land was conveyed to the creditor upon the condition that if the money he had advanced to the feoffor was repaid on a date and at a place named, the fee simple would revest in the latter, but that if the condition was not strictly and literally fulfilled he should lose the land forever.
What made the hardship on the debtor a glaring one was that the debt still remained unpaid and could be recovered from the feoffor notwithstanding that he had actually forfeited the land to the mortgagee.
Equity, therefore, at an early date began to relieve against what was virtually a penalty by compelling the creditor to use his legal title as a mere security.
My Lords, this was the origin of the jurisdiction which we are now considering, and it is important to bear that origin in mind.
For the end to accomplish which the jurisdiction has been evolved ought to govern and limit its exercise by equity judges.
That end has always been to ascertain, by patrol evidence if need be, the real nature and substance of the transaction, and if it turned out to be in truth one of mortgage simply, to place it on that footing.
It was, in ordinary cases, only where there was conduct which the Court of Chancery regarded as unconscientious that it interfered with freedom of contract.
The lending of money, on mortgage or otherwise, was looked 517 on with suspicion, and the court was on the alert to discover want of conscience in the terms imposed by lenders.
" The reason then justifying the Court 's power to relieve a mortgagor from the effects of his bargain is its want of conscience.
Putting it in more familiar language the Court 's jurisdiction to relieve a mortgagor from his bargain depends on whether it was obtained by taking advantage of any difficulty or embarrassment that he might have been in when he borrowed the moneys on the mortgage.
Was the mortgagor oppressed ? Was he imposed upon ? If he was, then he may be entitled to relief.
We then have to see if there was anything unconscionable in the agreement that the mortgage would not be redeemed for eightyfive years.
Is it oppressive ? Was he forced to agree to it because of his difficulties ? Now this question is essentially one of fact and has to be decided on the circumstances of each case.
It would be wholly unprofitable in enquiring into this question to examine the large number of reported cases on the subject, for each turns on its own facts.
First then, does the length of the term and in this case it is long enough being eightyfive years itself lead to the conclusion that it was an oppressive term ? In our view, it does not do so.
It is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive.
We do not desire to say anything on that question in this case.
We think it enough to say that we have nothing here to show that the length of the term was in any way dis advantagous to the mortgagor.
It is quite conceivable that it was to his advantage.
The suit for redemption was brought over forty seven years after the date of the mortgage.
It seems to us impossible that if the term was oppressive, that was not realised much earlier and the suit brought within a short time of the mortgage.
The learned Judicial Commissioner felt that the respondents ' contention that the suit had been brought as the price of landed property had gone up after the war, was 66 518 justified.
We are not prepared to say that he was wrong in this view.
We cannot also ignore, as appears from a large number of reported decisions, that it is not uncommon in various parts of India to have long term mortgages.
Then we find that the property was subject to a prior mortgage.
We are not aware what the term of that mortgage was ' But we find that mortgage included another property which became freed from it as a result of the mortgage in suit.
This would show that the mortgagee under this mortgage Was not putting any pressure on the mortgagor.
That conclusion also receives support from the fact that the mortgage money under the present mortgage was more than that under the earlier mortgage but the mortgagee in the present case was satisfied with a smaller security.
Again, no complaint is made that the interest charged, which was to be measured by the rent of the property, was in any manner high.
All these, to our mind, indicate that the mortgagee had not taken any unfair advantage of his position as the lender, nor that the mortgagor was under any financial embarrassment.
It is said that the mortgage instrument itself indicates that the bargain is hard, for, while the mortgagor cannot redeem for eighty five years, the mortgagee is free to demand payment of his dues at any time he likes ' This contention is plainly fallacious.
; There is nothing in the mortgage instrument permitting the mortgagee to demand any money, and it is well settled that the mortgagee 's right to enforce the mortgage and the mortgagor 's right to redeem are co extensive.
Then it is said that under the deed the mortgagee can spend any amount on repairs to the mortgage property and in putting up new constructions there and the mortgagor could only redeem after paying the expenses for these.
We are unable to agree that such is the effect of the mortgage instrument.
We cannot lose sight of the fact that the mortgaged shop and the area of the land on which it stood were very small.
It was not possible to spend a large.
sum on repairs or construction there.
Furthermore, having agreed to 85 years as the term of the mortgage, the parties must 519 have imagined that during this long period repairs and constructions would become necessary.
It is only such necessary repairs as are contemplated by the instrument and we do not consider that it is hard on the mortgagor to have to pay for such repairs and construction when he redeems the property and gets the benefit of the repairs and construction.
Neither do we think that there is anything in the contention that under the document the mortgagor was bound to accept whatever was shown in the mortgagee 's account as having been spent on the repairs and con struction.
That is not, in our view, the effect of the relevant clause which reads, " The expenses spent in repairs and new constructions will be paid. according to the account produced by the mortgagee.
" All that it means is that in claiming moneys on account of repairs and construction the mortgagee will have to show from his account that he spent these moneys.
It is really a safeguard for the mortgagor.
It was also said that all the terms in the deed were for the benefit of the mortgagee and that showed that the bargain was a hard one.
We do not think that all the terms were for the benefit of the mortgagee, or that what there was in the instrument was for his benefit and indicated that the mortgagee had forced a hard bargain on the mortgagor.
We have earlier said how the bargain appears to us to have been fair and one as between parties dealing with each other on equal footing.
We have no evidence in this case of the circumstances existing at the date of the mortgage as to the pecuniary condition of the mortgagor or as to anything else from which we may come to the conclusion that the mortgagee had taken advantage of the difficulties of the mortgagor and imposed a hard bargain on him.
It was said that the fact that the property was subject to a prior mortgage at the date of the mortgage in suit indicates the impecunious position of the mortgagor.
We are unable to agree with this contention.
Every debtor is not necessarily impecunious.
The mortgagor certainly derived this advantage from that mortgage that he was able to free from the earlier mortgage the kacheri and he has been in enjoyment of it ever since.
520 That, to our mind, indicates that the bargain had been freely made, There was nothing else to which our attention was directed as showing that the bargain was hard.
We, therefore, think that the bargain was a reasonable one and the eighty five years term of the mortgage should be enforced.
We then come to the conclusion that the suit was premature and ' must fail.
In the result we dismiss this appeal with costs.
Appeal dismissed.

summary/full:
The rule against clogs on the equity of redemption embodied in section 60 of the Transfer of Property Act empowers the Court not only to relieve a mortgagor of a bargain whereby in certain circumstances his right to redeem the mortgage is wholly taken away, but also where that right is restricted.
The extent of this latter power is, however, limited by the reason that gave rise to it, namely, the unconscionable nature of the bargain, which, to a court of equity, would afford sufficient ground for relieving the mortgagor of his burden, and its exercise must, therefore, depend on whether the bargain, in the facts and circumstances of any particular case, was one imposed on the mortgagor by taking advantage of his difficult and impecunious position at the time when lie borrowed the money.
Vermon vs Bethell, ; ; and D. and C. Kreglinger vs New Patagonia Meat and Cold Storage Company, Ltd., , relied on.
Santley vs Wilde, (1913) L. R. 41 I. A. 84 and Mohammad Sher Khan vs Seth Swami Dayal, (1912) L. R. 49 I. A. 60, refer red to.
Consequently, in a suit, for redemption where the mortgage deed, by two distinct and independent terms provided that (1) the mortgage shall not be redeemed for eightyfive years and (2) that it could be redeemed only after that period and within six months thereafter, failing which the mortgagor would cease to have any claim on the mortgaged property and the mortgage deed would be deemed to be a deed of sale in favour of the mortgagee, and it was clearly evident from the facts and circumstances of the case that the bargain was quite fair and one as between parties dealing with each other on an equal footing : Held, that the term providing for a period of eightyfive years was not a clog on the equity of redemption, and the mere length of the period could not by itself lead to an inference that the bar.
gain was in any way oppressive or unreasonable.
The term was enforceable in law and the suit for redemption, filed before the expiry of the period was premature.
Held, further, that the term that on the failure of the mortgagor to redeem within the specified period of six months, he 65 510 would lose his right to do so and the mortgage deed was to be deemed to be a deed of sale in favour of the mortgagee, was clearly a clog on the equity of redemption and as such invalid but its invalidity could not in any way affect the validity of the other term as to the period of the mortgage, that stood clearly apart.


judgement:
: Criminal Appeal Nos. 486 to 489 of 1984.
From the Judgment and Order dated 5.4.1984 of the Bombay High Court in Criminal Revision Application No. 166/83 and Criminal Revision No. 234 of 1983 respectively.
M.C. Bhandare, A.M. Khanwilkar and Mrs. H. Wahi for the Appellants.
S.B. Bhasme and R.A. Gupta for the Respondents.
K. JAGANNATHA SHETTY, J.
These four appeals, by leave, arise out of the common judgment of Bombay High Court dated April 5, 1984 in Criminal Revision Applications 166 and 234 of 1983.
Criminal Appeal Nos. 486 and 487 of 1984 have been preferred by an Organisation called "Stree Atyachaar Virodhi Parishad".
It is an association committed to prevent atroci ties on women.
Criminal Appeal Nos. 488 and 489 of 1984 are by the State of Maharashtra.
563 The case relates to the death of a newly married girl called Chanda.
On June 15, 1981, Chanda was married to Ramesh.
The eider brother of Ramesh is called Dilip and Nathumal is their father.
The marriage of Ramesh and Chanda took place at Nerparsopant, District Yavatmal.
On the next day of the marriage, the bride and groom returned to the house of the latter at Arvi.
On June 19, 1981, they had gone to Amravati to have prayers in the Devi Tampie.
They came back in the same evening.
The day follow ing was a fateful day.
At about 2.30 PM on June 20, 1981, Chanda was seen with flames on the first floor of the resi dential building, with frantically crying for help.
That attracted some of the neighbours from the ground floor.
They rushed to rescue Chanda.
Three of them are: Bhanrao, Ballu alias Nandu and Ramdas.
They extinguished the flame which was practically engulfing Chanda.
The inmates in the house, however, did not render any such help.
Dilip who was on the first floor was seen coming down the stairs.
Shortly, thereafter two doctors came and the police also arrived.
Chanda was taken to Ervin Hospital at Amravati in an uncon scious condition.
She died in the hospital at about 9.00 pm on the same day.
Before the death, her dying declaration was said to have been recorded by the Executive Magistrate.
It was stated therein that when she was preparing tea in the kitchen, her saree caught fire accidentally and consequently she received the burn injuries.
The parents of Chanda were informed of the death.
They suspected foul play by the in laws of Chanda.
They lodged a report at Amravati Police Station complaining that Chanda 's death might have been the outcome of tension due to demand of dowry.
The Crime Branch of the CID investigated the case and charge sheeted Dilip and Nathumal under sec.
306 read with sec.34 IPC.
It was alleged that the Chanda has commit ted suicide by burning herself and Dilip and Nathumal abet ted her.
An investigation of the case revealed that Chanda had hostile atmosphere soon after her marriage.
She was not treated well in her husband 's house.
Vijay, her brother and Mani Chand, father have given statements that the in laws demanded unreasonable dowry which could not be complied with.
Even at the wedding ceremony, it seems, that they behaved badly on the payment of insufficient dowry.
After the marriage, when Vijay came to take his sister back home as per custom, he was not even permitted to meet her.
Kamala Bai, the maid servant accompanying Chanda was also sent back.
She has also 564 given detailed version about the unfavourable atmosphere around Chanda.
In addition to the statements of witnesses, there is a report of the Chemical Analyser and post mortem report.
These indicate that the death of Chanda could not be by accidental fire.
The trial court after considering all the facts and circumstances appearing on record and after heating the counsel for accused and Public Prosecutor was of priraa facie opinion that it was not a suicide but homicidal death.
Accordingly, the charge under sec.
302 IPC was framed against Dilip.
Nathumal, however, was discharged holding that the allegations against him do not justify the framing of any charge.
There were two revision applications before the High Court of Bombay.
The State filed a revision challenging the validity of discharge of Nathumal.
Dilip on his part ques tioned the correctness of the charge framed against him and demanded his discharge also.
The High Court dismissed the revision preferred by the State while accepting the revision of Dilip.
The High Court was of opinion that the charge under sec.
302 against Dilip was misconceived and there is not even a case against him to frame charge under sec.
306 IPC.
He was accordingly discharged.
The primary question for consideration before us, is whether the High Court was justified in interfering with the charge framed by the trial court against Dilip? The next question to be considered is whether it is necessary to put Nathumal also on trial with the material on record.
We have perused the judgments of the courts below and heard counsel on both sides.
We gave our anxious considera tion to the material on record.
Section 227 of the Code of Criminal Procedure having beating on the contentions urged for the parties, provides: "227.
Discharge If, upon considera tion of the record of the case and the docu ments submitted therewith, and after hearing the submissions of the accused and the prose cution in this behalf, the judge considers that there is no sufficient ground for pro ceeding against the accused, he shall dis charge the accused and record his reasons for so doing.
" 565 Section 228 requires the judge to frame charge if he consider that there is ground for presuming that the accused has committed the offence.
The interaction of these two sections has already been the subject matter of considera tion by this Court.
In State of Bihar vs Ramesh Singh, ; , Untwalia, J., while explaining the scope of the said sections observed (at 259): "Reading the two provisions together in juxta pesition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecu tor proposes to adduce are not to be meticu lously judged.
Nor is any weight to be at tached to the probable defence of the accused.
It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not.
The standard finding regarding the guilt or other wise of the accused is not exactly to be applied at the stage of deciding the matter under sec.
227 or sec.
228 of the Code.
At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.
But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.
" In Union of India vs Prafulla Kumar Samal & Anr., ; at 234 35, Fazal Ali, J., summarised some of the principles: "(1) That the Judge while consider ing the question of flaming the charges under sec.
227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out.
(2) Where the material placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in 566 framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdic tion under the present Code is a senior and experienced Judge cannot act merely as a Post Officer or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.
This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
" These two decisions do not lay down different princi ples.
Prafulla Kumar case has only reiterated what has been stated in Ramesh Singh case.
In fact, sec.
227 itself con tains enough guidelines as to the scope of enquiry for the purpose of discharging an accused.
It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused".
The 'ground ' in the context is not a ground for conviction, but a ground for putting the accused on trial.
It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge.
The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material.
Nor it is necessary to delve deep into various aspects.
All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime.
No more need be enquired into.
So much is, we think, established law.
To be fair to the accused, we have examined the material on record and also perused the statements of some of the witnesses.
From the report of the Chemical Analyser, it will be seen that kero sene residue was found on each and every garment of the deceased.
The post mortem report also indicates, 567 besides burn injuries, that Chanda had sustained contusions on the back shoulders.
According to the doctor who conducted the postmortem, those contusions might have been caused with the blunt rounded object.
The learned Judge of the High Court has not adverted to these facts although the conten tion of the Public Prosecutor in this regard has been no ticed.
Not merely that, the events that proceeded the death of Chanda did not receive any consideration.
The statements of brother and father of Chanda and also that of Kamala Bai the maid servant of Chanda have been ignored.
The conduct of Dilip which was highlighted in the context and circumstances, was brushed aside with little significance.
It is said that Dilip was coming down from the staircase when Chanda was crying for help.
The manner in which he went on at that time, if true, did not bring him credit.
The High Court, however, said: "That the accused was passive is neither here nor there.
It all depends upon the mental response and reaction of an indi vidual whether he faces the risk and attempt to extinguish the flames or quietly watches the incident.
By no interpretation could it be stretched to show that the accused either actively committed the act of burning or ac tively aided the commission of suicide.
" Counsel for the State was very critical of the attitude adopted by the High Court in dealing with the case.
His criticism to some extent is not unjustified.
It may not be out of place to mention that "dowry" which is a deep rooted social evil appears to be the cause of ever so many unfortunate death of young ladies.
It is an offence brutal and barbaric.
It is generally committed inside the house and more often with a circumstance to give an impres sion that it was a suicidal death.
There will be all round attempt to cover up such offence by the family members rather than to expose it.
The Government has come forward with legislations from time to time to protect women and to punish those who commit attrocities on them.
In 1961 the Dowry Prohibition Act (Act 28 of 196 1) was passed prohibit ing the taking or giving dowry.
By the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) Chapter XX A was introduced in the Penal Code with sec.
498 A creating a new offence of cruelty.
It provides for punishment to husband or his relatives if they harass a woman with a view to coerce her to meet any unlawful demand for property.
Section 174 of the Criminal Procedure Code was also amended to secure post mortem in 568 case of suicide or death of a woman within seven years of her marriage.
Section 113 A has been introduced in the Evidence Act, 1872 raising presumption of cruelty as defined under sec.
498 A IPC against the husband or his relatives if the wife commits suicide within a period of seven years from the date of her marriage.
These provisions reflect the anxiety of the representatives of our people to deal firmly the menace of dowry deaths.
Again, there are sweeping changes made in the Dowry Prohibition (Amendment) Act, 1984.
A new offence called 'Dowry death ' has been created by introducing sec.
304 B in the Penal Code.
It raised presump tion of culpability against the husband or relative hitherto unknown to our jurisprudence.
It provides that where the death of a woman is caused by any bums or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called 'dowry death '.
The section also provides hat such husband or relative shall be deemed to have caused her death and shall be pun ished with imprisonment for a minimum of seven years but which may extend to life imprisonment.
We are referring to these provisions not that they are attracted to the present case.
It is only to emphasize that it is not enough if the legal order with sanction alone moves forward for protection of women and preservation of societal values.
The criminal justice system must equally respond to the needs and notions of the society.
The inves tigating agency must display a live concern and sharpen their wits.
They must penetrate into every dark corner and collect all the evidence.
The Court must also display great er sensitivity to criminality and avoid on all counts "soft justice".
In the instant case the trial court has considered every material on record in support of the charge framed.
The trial court has also given reasons why a charge under sec.
302 IPC is warranted against Dilip even though the police charge sheeted him under sec.
306 IPC.
The High Court has gone on a tangent mainly relying on the dying declaration as if it has been conclusively proved to be the true and faith ful version of the deceased.
Apart from that, we are unable to compromise ourselves with the approach made and the opinion expressed by the High Court in respect of many of the matters.
We wish to add a word regarding interference by the High court against a charge framed by the Sessions Court.
Section 227 which 569 confers power to discharge an accused was designed to pre vent harassment to an innocent person by the arduous trial or the ordeal of prosecution.
How that intention is to be achieved is reasonably clear in the section itself.
The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials.
Be sides, he has the assistance of counsel for the accused and Public Prosecutor.
He is required to hear both sides before framing any charge against the accused or for discharging him.
If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course.
Self restraint on the part of the High Court should be the rule unless there is a glaring injustice stares the Court in the face.
The opinion on any matter may differ depending upon the person who views it.
There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial.
It would be better for the High Court to allow the trial to proceed.
The counsel for the State was equally critical upon the discharge of Nathumal.
It was argued that Nathumal being the manager of the family ought to have taken care of Chanda and without his connivance, none would have demanded dowry and put Chanda on fire.
It is true that it is his obligation as manager of the family to protect Chanda and safeguard her rights.
We have no doubt that he has failed to perform his moral obligation.
But that by itself without anything more is not sufficient to frame a charge against him.
We, there fore, agree with the discretion exercised by the trial court and leave it at that.
In the result and for the reasons stated, we allow the criminal appeals to the extent indicated only as against Dilip.
We set aside the order of the High Court and restore that of the trial court.
The appeals against Nathumal are dismissed.
His discharge is confirmed.
We direct the court to proceed with the trial expeditiously.
Before parting with the case, we must place on record the useful service rendered by 'Stri Atyachar Virodhi Pari shad ' in this case.
It is a social welfare organisation.
It has come up to this Court spending its own money by prefer ring the appeals.
We very much appreciate the object of the organisation and the assistance rendered P.S.S. Appeals allowed partly.

summary/full:
The deceased was seen in flames on the first floor of her in laws house crying for help within five days of her marriage with the younger brother of the respondent.
While neighbours rushed to her rescue and extinguished the flames, the inmates of the house did not render any such help.
The respondent who was on the first floor was seen coming down the stairs.
The deceased succumbed to the burn injuries in the hospital on the same day.
In her dying declaration recorded by the Executive Magistrate, she stated that when she was preparing tea in the kitchen her saree caught fire accidently.
The parents of the deceased suspected foul play by her in laws and lodged a report with the police.
An investiga tion.of the case revealed that the deceased had met hostile atmosphere soon after her marriage.
The parents gave state ments that the in laws demanded unreasonable dowry which could not be complied with and that at the wedding ceremony they had behaved badly on the payment of insufficient dowry.
Her brother who had gone to bring her back home was not permitted to meet her.
The maid servant sent along with her was also sent back.
The respondent and his father were charge sheeted under section 306 read with section 34 I.P.C.
The trial court came to a prima facie conclusion that it was not a suicide but homici dal death.
Accordingly, a charge under section 302 I.P.C. was framed against the respondent.
The respondent 's father was, however, discharged.
561 The High Court dismissed the revision petition of the State against the respondent 's father.
Wile accepting the respondent 's revision it took the view that the fact that the accused was passive was of no consequence that it all depends upon the mental response and reaction of an individ ual whether he faces the risk and attempts to extinguish the flames or quietly watches the incident, that it does not show that the accused actively committed the act of burning or actively added the commission of suicide, and held that the charge under section 302 against him was not made out, and there was not even a case against him to frame charge under section 306 I.P.C.
The appellant, a social welfare organisation and the State preferred appeals to the Supreme Court.
On the question: Whether the High Court was justified in interfering with the charge framed by the trial court against the respondent, and whether it was necessary to put his father also on trial with the material on record.
Partly allowing the criminal appeals, HELD: 1.
The High Court was not justified in interfering with the charge framed by the trial court against the re spondent accused.
The trial court had considered every material on record in support of the charge framed.
It had also given reasons why a charge under section 302 I.P.C. was warranted against the respondent even though the police had charge sheeted him under section 306 I.P.C. Section 227 Cr.
P.C. which confers power to discharge an accused was designed to pre vent harassment to an innocent person by the arduous trial or the ordeal of prosecution.
The power has been entrusted to the Sessions Judge who brings to hear his knowledge and experience in criminal trials.
If he after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course.
State of Bihar vs Ramesh Singh, ; and Union of India vs Prafulla Kumar Samal & Anr., ; at 234 35, referred to.
Self restraint on the part of the High Court should he the rule unless there is glaring injustice staring the Court in the face.
In the 562 instant case, it had discharged the respondent mainly rely ing on the dying declaration as if it has been conclusively proved to be the true and faithful version of the deceased.
It did not advert to the report of the Chemical Analyser in which he found kerosene residue on each and every garment of the deceased, and the post mortem report which indicated that besides burn injuries the deceased had sustained contu sions on the back shoulders which might have been caused with a blunt round object.
The events that preceded the death of the deceased also did not receive any considera tion.
The statements of brother, father and the maid servant of the deceased have been ignored.
The respondent was seen coming down from the staircase when the deceased was crying for help.
The manner in which he went on at that time, if true, did not bring him credit.
The approach made by the High Court, therefore, cannot be accepted.
[569C; 566H; 567A C] 4.
Although it was the moral obligation of respondent 's father as manager of the family to protect the deceased and safeguard her life and he had failed to perform that obliga tion, that by itself without anything more is not sufficient to frame a charge against him.
The discretion exercised by the trial court in discharging him was, therefore, correct.
[569E]


judgement:
ivil Appeal No. 2984 of 1983.
From the Judgment and Order dated 19.5.1982 of the Patna High Court in Appellate Decree No. 275 of 1981.
554 Govind Mukhoty and K.N. Rai for the Appellant.
F.S. Nariman and Ranjit Kumar for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The question which arises in this appeal by special leave is whether the default by a tenant in payment of rent for the period before the Bihar Buildings (Lease, Rent and Eviction) Act, 1947 (hereinafter referred to as the Bihar Rent Act), was extended and became applicable, can be the basis for holding him a defaulter within the meaning of clause (d) of section 11(1) of the Bihar Rent Act, 1947 and, therefore, liable to be evicted.
The building in question is in Danapur Cantonment area near the town of Patna.
The appellant was inducted as a tenant therein by the owner one Janki Devi under a document of lease for a fixed period.
Since the deed was not executed in accordance with the requirements of law it remained inoperative.
After the period was over, Janki Devi institut ed a suit on 10.12.1968 for eviction of the appellant and for a decree for arrears of rent for the period May to August 1968, which was registered as Title Suit No. 3 17 of 1968.
The Bihar Rent Act was not then applicable to Danaput Cantonment.
During the pendency of the case on 14.2.1970 the provisions of the Bihar Rent Act were extended to this area.
Presumably in view of the fact that the lease deed could not be treated to be valid in the eye of law, a prayer for withdrawal of the relief for eviction was made by the plain tiff and was allowed with leave to file a fresh suit.
A decree for arrears of rent, however, was passed.
The present suit was filed on 28.5.1974 for eviction of the appellant on the grounds of bona .fide personal necessity and default in payment of rent for the periods May to July, October and November 1968, December 1969 to Febru ary 1970, and December 1973 to April 1974.
The trial court decreed the suit on both the grounds.
On appeal by the appellant, the learned Subordinate Judge reversed the find ing on the question of bona fide personal necessity but affirmed the decree on the ground of default.
The High Court has by the impugned judgment maintained the decree.
The appellant denied the allegation that he has defaulted in payment of rent.
The first appellate court on a consideration of the evidence held that the appellant did default in payment of rent for 555 May, June, July, October and November 1968, and December 1969 to February 1970, and on that basis decreed the suit.
It has been contended on behalf of the appellant that non payment of rent for the period before 14.2.1970 (when the Bihar Rent Act was not applicable to the Cantonment area) is not relevant, and since the rent of less than a month in February 1970 remained unpaid after the Bihar Rent Act was extended, it could not be legitimately made the basis for the decree of eviction.
The High Court agreed with the appellant that the Bihar Rent Act did not apply to the Cantonment area with retrospective effect, but proceeding further it said that in view of the decision in Kapur Chand Jain vs B.S. Grewal and others; , , it must be held that the Act, although prospective in its application, takes into account the default in payment of rent of the earlier period.
There is no manner of doubt that the Act was applied to the area concerned on 14.2.1970 with prospective effect.
The question whether the Legislature intended to include previous default of the tenant in payment of rent within the grounds for eviction has to be answered by construing the language of the relevant provisions in the Bihar Rent Act.
Although in Kapur Chand 's case (supra) a similar dispute was raised, it is not permissible to apply the decision irre spective of the difference in language of the two statutes.
It is true that section 9 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Punjab Act) which was relevant in the reported case also dealt with the grounds for eviction of a tenant, but there was clear indi cation in the section that the grounds for eviction included the earlier default also.
The relevant portion of the sec tion, as quoted in the judgment, reads as follows: "9(1) Notwithstanding anything contained in any other law for the time being in force, no land owner shall be competent to eject a tenant except when such tenant: (i) is a tenant on the area reserved under this Act or is a tenant of a small landowner; or (ii) fails to pay rent regularly without sufficient cause; or (iii) is in arrears of rent at the commence ment of this Act; or 556 Explanation For the purposes of clause (iii), a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execu tion of decree or order, directing him to pay such arrears of rent.
" It will be seen that clause (iii) in unambiguous terms refers to the arrears of rent for the period before the commencement of the Punjab Act.
Dr. Y.S. Chitale, learned counsel for the landlord Respondent, contended that the judgment of this Court rested on the interpretation of clause (ii) of section 9(1) of the Punjab Act which did not contain any words similar to those in clause (iii).
Strongly relying on the following observation: "In our opinion, the conduct of the tenant prior to the coming into force of the new section can be taken into account.
No doubt a statute must be applied prospectively.
But a statute is not applied retrospectively because a part of the requisite for its action is drawn from a moment of time prior to its passing.
The clause in question makes a par ticular conduct the ground for an application for eviction.
" It was urged that the Bihar Act contained similar provisions and the ratio in Kapur Chand 's case is fully applicable.
In view of vital difference in the language of the two Acts, we do not find ourselves in a position to accept the argument.
Having regard to the scheme of the Punjab Act and the language used therein specially the words mentioned in clause (iii) of section 9(1) it is apparent that the Act took into consideration the earlier default in payment of rent within the grounds for eviction.
There was no dispute in Kapur Chand 's case about the construction of the section.
The point which was raised before this Court was whether the past conduct of the tenant could be legitimately taken into account by the statute which was prospective in application.
And this point was answered in favour of the landlord.
In the case before us the appellant is not contending that the past conduct of a tenant cannot be taken into account by the Legislature if it so intends.
The question is whether such an intention can be spelled out from section 11(1)(d) of the Bihar Rent Act which reads as follows: 557 "11.
Eviction of tenants.
(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the and to those of section 12, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds: (d) where the amount of two months ' rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 13 ;" 7.
Dr. Chitale has streneously contended that even independent of the Bihar Rent Act the tenant appellant was under a duty to regularly pay the monthly rent by the corre sponding succeeding month, under the provisions of the Transfer of Property Act, and if he defaulted in due per formance of his duty he must be presumed to be made liable for eviction by the Legislature while enacting section 11(1)(d).
He emphasised that clause (d) was not saddling the tenant with a new duty which was not there earlier.
The Act intends to deprive the erring tenant negligent in payment of rent from its benefits and there is, therefore, no reason to hold that his earlier conduct is not to be taken into account.
The argument does not appear to be sound inasmuch as it ignores the following words towards the end of clause (d), quoted above, which appear to us to be very illuminating: ". or by not having been validly remitted or deposited in accordance with section 13;" 8.
Ordinarily where a tenant offers the rent which is refused by the landlord without any justifiable reason the tenant is held to have fully performed his duty.
Under the Bihar Rent Act, however, the position is a little different.
Even on the refusal by the landlord to accept rent lawfully offered by the tenant, the tenant is under a further duty as mentioned in section 13(1) to remit such rent by postal money order 558 to the landlord.
Where a bona fide doubt arises as to the person who is entitled to receive rent the tenant is permit ted by section 13(2) to deposit the rent in the prescribed man ner.
The latter part of section 11(1)(d), quoted above, deals with cases attracting section 13.
The result is that if a tenant has made a proper offer to pay the rent and the landlord has unreasonably refused to accept it, the tenant cannot escape the liability of eviction under clause (d) unless he proves that he had further remitted the rent by postal money order.
This position is fully settled.
If the situation is analysed in this light it will be seen that clause (d) can be held to apply only where section 13 of the Bihar Rent Act is attracted.
If section 13 cannot be applied to a particular situation, clause (d) also would not apply.
section 13 could not obviously be applicable before the Act was extended to the area in ques tion.
Consequently it must be held that the default for the earlier period cannot be the basis for a decree of eviction under section 11(1)(d).
Mr. F.S. Nariman, who also argued on behalf of the respondent, feebly suggested that the extension of the Bihar Rent Act to the Cantonment area may be held to be applicable with retrospective effect in view of sub sections (2) and (4) of section 3 of the .
Dr. Chitale also referred to the observa tion in paragraph 8 of the judgment in Smt.
Sant Kaur and another vs Ganesh Chaudhary, AIR 1949 Patna 137 on the question of retrospectivity.
We do not find any merit in the argument.
The language of the Bihar Rent Act is clear and does not admit any doubt about its prospective nature.
So far as section 3 of the Cantonments Act is concerned, sub section (2) merely permits the Central Government to extend any rent enactment from an earlier date subject to certain limita tions, and sub section (4) is irrelevant in the present context as its scope is limited to dealing with orders and decrees passed before the extension of a rent law to a Cantonment area.
When this was pointed out to Mr. Nariman, he did not further pursue with his argument, and Dr. Chitale in express terms conceded that the Bihar Rent Act could not be interpreted to have been extended to the Cantonment area with retrospective effect.
In that view, we need not detain ourselves further on this point.
Mr. Nariman lastly urged that the appellant also defaulted in payment of rent for December 1973 to April 1974, a period of five months, after the Act was applied to the cantonment area, and the impugned decree, therefore, should not be disturbed.
On behalf of the appellant it was suggested that in view of the finding in paragraph 12 of the judgment of the first appellate court it should be presumed that the 559 respondents ' case of default for the subsequent period was rejected.
We have been taken through the judgments of the first appellate court and the High Court and we find that the controversy with respect to the alleged default for the later period has been left undetermined.
Since the question is dependent on an appraisal of the evidence led by the parties, we are of the view that the case should be remitted to the first appellate court for the decision on the ques tion whether the plaintiff landlord has proved the defend ent tenant 's default in payment of rent for the period December 1973 to April 1974.
If the learned Subordinate Judge comes to the conclusion that the tenant did default within the meaning of section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Act, 1947 for two months or more during this period, he would decree the suit; otherwise the suit would be dismissed.
In the result, the appeal is allowed, the judgments of the High Court and the first appellate court are set aside and the case is remitted to the first appellate court for fresh decision in the light of the observations made above.
The costs shall follow the final result in the suit.
G.N. Appeal al lowed.

summary/full:
The appellant was inducted as a tenant in the building in question under a document of lease.
Since the deed was not executed in accordance with the requirements of law, it remained inoperative.
After the lease period the owner instituted a suit for eviction of the appellant and for a decree for arrears of rent.
During the pendency of the suit the provisions of the Bihar Rent Act were extended to the area, and as such the prayer for withdrawal of the relief for eviction was allowed with leave to file a fresh suit.
However, decree for arrears of rent was passed.
Thereafter a fresh suit was filed.
The Trial Court decreed the suit on both the grounds of personal necessity and default in pay ment of rent.
On appeal the Subordinate Judge reversed the finding on the question of bona fide personal necessity, but affirmed the decree on the ground of default.
The High Court, on appeal maintained the decree.
The present appeal by special leave, is against the High Court 's judgment.
On behalf of the appellant, it was contended that non payment of rent (when the Bihar Rent Act was not applicable to the area) is not relevant and so it could not be legiti mately made the basis for the decree of eviction.
It was submitted on behalf of the respondent that even independent of the Bihar Rent Act the appellant was under a duty to regularly pay the monthly rent and for the default, he must be presumed to be made liable for eviction under Section 11(1)(d) of the Act.
Allowing this appeal, HELD: 1.
There is no manner of doubt that the Act was applied to the area concerned on 14.2.1970 with prospective effect.
The ques 553 tion whether the Legislature intended to include previous default of the tenant in payment of rent within the grounds for eviction has to be answered by construing the language of the relevant provisions in the Bihar Rent Act.
[555C D] 2.
Ordinarily where a tenant offers the rent which is refused by the landlord without any justifiable reason the tenant is held to have fully performed his duty.
Under the Bihar Rent Act, however, the position is a little different.
Even on the refusal by the landlord to accept rent lawfully offered by the tenant, the tenant is under a further duty as mentioned in section 13(1) to remit such rent by postal money order to the landlord.
Where a bona fide doubt arises as to the person who is entitled to receive rent the tenant is permitted by section 13(2) to deposit the rent in the prescribed manner.
The latter part of section 11(1)(d), quoted above, deals with cases attracting section 13.
The result is that if a tenant has made a proper offer to pay the rent and the landlord has unreasonably refused to accept it, the tenant cannot escape the liability of eviction under clause (d) unless he proves that he had further remitted the rent by postal money order.
This position is fully settled.
If the situation is analysed in this light it will be seen that clause (d) can be held to apply only where section 13 of the Bihar Rent Act is attracted.
If section 13 cannot be applied to a particular situation, clause (d) also would not apply.
Section 13 could not obviously be applicable before the Act was extended to the area in ques tion.
Consequently it must be held that the default for the earlier period cannot be the basis for a decree of eviction under section 11(1)(d).
[557G H; 558A C] K.C. Jain vs
B.S. Grewal & Ors., ; distinguished.
Since the question is dependent on an appraisal of the evidence led by the parties, the case should be remitted to the first appellant court for the decision on the ques tion whether the landlord has proved the tenant 's default in payment of rent for the period from December 1973 to April 1974.
If the Subordinate Judge comes to the conclusion that the tenant did default within the meaning of section 11(1)(d) of the Act for two months or more during this period, he would decree the suit; otherwise the suit would be dismissed.
[559B C]