judgement:
Civil Appeal No. 32 of 1969.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated November 19, 1968 of the Punjab and Haryana High Court in Election Petition No. 14 of 1968.
H.L. Sibal, Ram Sarup, S.C. Mahanta, K.C. Sharma and J.C. Talwar, for the appellant.
Naunit Lal, for respondent No. 1. 887 The Judgment of the Court was delivered by Ray, J.
This is an appeal against the judgment and order dated 19 November, 1968 of the High Court of Punjab & Haryana at Chandigarh dismissing the election petition of the appellant.
The appellant contested the Assembly seat from Ellenabad Constituency in the District of Hissar in the mid term election held in May, 1968.
The appellant challenged the election of Lalchand, the first respondent.
The other defeated candidate in the election was the second respondent Prithvi Raj.
The appellant obtained 15,485 votes.
The successful candidate Lalchand secured 20,816 votes and Prithvi Raj obtained 5,726 votes.
The polling was on 14 May, 1968.
The results were announced on 16 May, 1968.
At the hearing of the appeal counsel on behalf of the appellant canvassed three grounds.
First, that the poster being Exhibit P.W. 1/1 was against the personal character of the appellant and therefore constituted a corrupt practice within the meaning of sub section (4) of section 123 of the Representation of the People Act, 1951 (hereinafter referred to as the Act).
Secondly, the religious head Sat Guru.
Jagjit Singh of the Namdhari sect issued an appeal and a farman and thereby the provisions contained in sub section (2) of section 123 of the Act are attracted.
Thirdly, the respondent Lalchand is guilty of corrupt practice of bribery by having given Rs. 20,000/ in cash to Prithvi Raj to contest the election.
I shall at the outset deal with the second and the third grounds.
Counsel on behalf of the appellant pressed allegations contained in sub paragraphs (b) and (d) of paragraph 10 of the petition which were to the effect that Sat Guru Jagjit Singh issued a farman on or about 20 April, 1968 to the effect that it was the Guru 's desire that all followers should oppose the appellant who.
was the son of Choudhury Devi Lal an enemy of Namdhari Guru.
Further, if any of the followers did not obey the farman they would stand ex communicated and their 'Prasad ' would not be accepted in the Gurdwaras and that they would be spiritually censured by naming them as traitors of Dharma and befallen persons in Sabha 's of Namdharis.
In sub paragraph (d) of paragraph 10 of the petition it was alleged that on 21 April, 1968 the followers of Namdhari sect were called to Sant Nagar where, a big Dewan of Namdharis was convened and Sat Guru Jagjit Singh made a speech there that he had taken a vow to defeat the appellant because he was the son of Choudhury Devi Lal whose family was an avowed enemy of Namdhari sect and that it should be treated as a vow by every Namdhari.
888 The respondent Lalchand denied that there was any meeting and further denied that there was any farman.
The appellant, it may be stated,, did not adduce any documentary evidence in support of the allegations.
The appellant 's entire case was based on oral evidence.
The appellant relied on the oral testimony of P.W. 29 and P.W. 30.
P.W. 29 Ram Dayal was formerly a member of the Punjab Legislative Assembly.
Ram Dayal was formerly a member of the Congress Committee.
He resigned from the Congress and contested the seat as an independent candidate against Choudhury Devi Lal and won the election in the year 1957.
An election petition was filed by Choudhury Devi Lal against the witness Ram Dayal.
Ram Dayal was eventually unseated as a result of the decision of this Court.
The witness Ram Dayal helped the respondent Lalchand in the election of 1967 and also.
in the mid term 'election in the month of May, 1968.
The witness Ram Dayal spoke of the Sat Guru Maharaj having exhorted the Namdharis to vote for Lalchand and warned them about the consequences if they failed to do so.
The witness also spoke of the meeting at Rania village on 28 April, 1968.
It is indeed strange and significant that Ram Dayal who.
supported respondent Lalchand and also.
attended meetings on his behalf came and gave evidence in favour of the appellant about the utterances of Sat Guru Jagjit Singh of the Namdhari sect.
It is extremely unsafe and hazardous to rely on the uncorroborated and isolated oral testimony of such a person.
P.W. 30 Parma Nand Sharma spoke of the meeting at Sant Nagar on 21 April, 1968 and said that Guru Jagjit Singh spoke at the meeting and proclaimed that it was the.
duty of every Namdhari to vote for respondent Lalchand and any one who violated the said Guru 's direction would be ex communicated from the Panth.
In cross examination the witness Parma Nand Sharma said that he came to give evidence in favour of the Congress because he was summoned to.
appear as a witness and therefore he spoke the truth.
It is obvious that when one speaks truth one does not proclaim it.
It is obvious that the witness in view of his antecedents wanted to sound truthful because he came forward to give evidence in favour of the appellant.
On behalf of the appellant reliance was placed on Exhibit P.W. 24/2 to show that there was a meeting on 21 April, 1968.
The appellant relied on the dairy entry of Gurbhajan Singh being Exhibit P.W. 24/2 beating the date 21 April 1968 in support of the contention that there was intrinsic evidence in the dairy entry, that there was a meeting on 21 April, 1968 where Sat Guru Jagjit Singh spoke, and the said entry is in the following terms : "Asa Di war was recited at Sh.
Jiwan Nagar.
He (Sant Sahiba Singh) remained there for the whole day.
889 He listened for some time difficulties of the Singhs who had collected there from outside, at 7 p.m. he appeared before the Sadh Sangat assembled at Muharanwali Dharamsala Santnagar and made an appeal to the audience to cast their votes in favour of Ch.
Lalchand independent candidate of Ellenabad Constituency and return him as successful candidate.
Then he came back to Jiwannagar".
The diary entry is to the effect that the Sat Guru Jagjit Singh appeared before the Sant Nagar Assembly.
The diary entry does not mention about any alleged utterance by Sat Guru Jagjit Singh at the said meeting.
Exhibits P.W. 24/1 and P.W. 24/2 are two pamphlets containing articles.
Counsel for the appellant relied on the pamphlets to prove that the meeting was held where Sat Guru Jagjit Singh spoke.
Both the articles were published after the election had been held on 16 May, 1968.
These articles suffer from the vice of counting into existence under deliberate motive.
We are unable to accept the oral evidence that there was any meeting on 21 April, 1968 as alleged by the appellant and that Sat Guru Jagjit Singh spoke at the meeting, to cast votes in favour of respondent Lalchand under threat of divine displeasure and spiritual censure.
Counsel on behalf of the appellant contended that respondent Lalchand was guilty of offences under section 123(1) of the Act by having given Rs. 20,000/ in cash to respondent Prithvi Raj to contest the election.
There is no documentary evidence insupport of the allegation.
The oral evidence is that of P.W. 11, P.W. 12 and P.W. 13.
Kanshi Ram, P.W. 11 said that he was Kumhar and there was a meeting of the Kumhars on 30 March, 1968.
It was decided that a Kumhar should be made a member of the Legislative Assembly.
He also said that the Kumhars decided at the said meeting to put up respondent Prithvi Raj as a candidate.
Kanshi Ram 's further evidence was that Bawa Bit Singh paid Rs. 20,000/ to Prithvi Raj for election expenses.
Kanshi Ram said that the payment was in the presence of respondent Lalchand.
Jot Ram, P.W. 12 said that he was a Kumhar and his evidence was also that Bava Bir Singh paid Rs. 20,000 to Prithvi Raj in the presence of Lalchand.
Rawat, P.W. 13 who was also a Kumhar said that Bawa Bir Singh paid Rs. 20,000/ to Prithvi Raj in the presence of Lalchand.
The gist of the offence under sub section (1) of section '23 of the Act is that there has to be 'a gift by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification; to any person with the object of inducting a person to stand or not to stand as.
a candidate at the election.
890 The elements required to constitute an offence are first, that the gift has to be by a candidate or his agent or by any other person.
Secondly, the gift is to be with the consent of the candidate or his election agent and the third important element is that the gratification is to.
be made with the object, directly or indirectly, of inducing a person to stand or not to stand in the election.
In the present case, there is No. evidence to hold that any gift was made by the candidate or his agent or by any other person with the consent of the candidate, namely, the respondent Lalchand.
Secondly, there is no evidence that gratification was made with the object of inducing the respondent Prithvi Raj to stand or not to stand as a candidate.
Counsel on behalf of the appellant contended that respondent Lalchand was guilty of 'corrupt practices as mentioned in subsection (4) of section 123 of the Act.
The four elements in subsection (4) are, first, that there has to be a publication by the candidate or his agent or by any other person with the consent of the candidate of any statement of fact.
The second element is that the statement of fact is false and a candidate or his agent or any other person either believes it to be false or does not believe to be true.
Thirdly, the publications is in relation to the personal character and conduct of any candidate.
Fourthly, the statement is reasonably calculated to prejudice the prospects of that candidate 's election.
P.W. 35, Lachhman Das was the Manager, Kwality Art Printers.
He spoke of a poster which was printed in his Press.
He identified the Exhibit P.W. 1/1 as a copy of the poster which was printed in his Press.
He said that Exhibit P.W. 34/2 was a manuscript of Exhibit P.W. 1/1.
He further said that the pamphlet was printed on the asking of Lalchand who was identified by the witnesses Muni Lal Azad and Jai Gopal Verma.
Lachhman Das said that Muni Lal Azad and Jai Gopal Verma signed the manuscript Exhibit P.W. 34/2 in his presence.
, The further evidence was that 10,000 co.pies of the poster were printed in the said Press.
It was suggested in cross examination that the poster was printed after 14 May, 1968.
P.W. 36 Jai Gopal Verma identified Exhibit P.W. 34/2 as a manuscript of the poster and further said that the witnesses identified Lalchand.
Jai Gopal Verma proved his signature on Exhibit P.W. 34/2.
Jai Gopal Verma said that Lalchand accompanied him to the Kwality Art Printers.
Jai Gopal Verma further identified the signature of Muni Lal Azad.
It was also suggested to Jai Gopal Verma that the poster was printed after 14 May, 1968.
Muni Lal Azad, P.W. 37 said that he accompanied Jai Gopal Verma to Kwality Art Printers along with respondent Lalchand.
He admitted his signature on Exhibit P.W. 34/2.
891 Counsel on behalf of the respondent Lalchand contended that Lachhman Das was neither the Printer nor the Publisher and that Lachhman Das joined the Press in the month of April, 1968.
Lachhman Das was a disinterested person.
He sent a copy of the poster to.
the Chief Electoral Officer.
The letter to the Chief Electoral Officer Exhibit P.W. 34/1 was in a sealed cover.
It was opened in this Court.
It was proved by Muni Lal Jain, Accountant in the office of the Chief Electoral Officer.
He proved that Exhibit P.W. 34/1 was the letter received from Kwality Art Printers on 2 May, 1968.
The witness Muni Lal Jain further proved the receipt of said letter in the office of the Chief Electoral Officer, on 2 May, 1968.
Muni Lal Jain identified the signatures of the clerks Jagmohan Saran Verma and D.N. Arora on Exhibit P.W. 34/1.
Muni Lal jain proved Exhibit P.W. 34/2 and Exhibit P.W. 34/3 which were the enclosures received along with Exhibit P.W. 34/ '1.
Counsel on behalf of the respondent Lalchand Contended that the rubber stamp of the Chief Electoral Office bore the date 22 May, 1968 and there was intrinsic evidence to show that the first digit 2 was smudged with carbon ink.
This argument cannot be accepted because of the dominant reason that no such suggestion was made to the witness from the Electoral Office or any other witness on behalf of the appellant.
If such a case had been made, the appellant would have had an opportunity of dealing with it.
Counsel on behalf of the respondent Lalchand contended that the receipt book and the bill register book of the Press were not produce.d.
Lachhman Das, the Accountant of Kwality Art Printers was not asked to produce either the receipt book or the bill book.
There was some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P.W. 34/2 was genuine or not.
Ratan Lal Aggarwal, P.W. 58 said that the signature of the respondent Lalchand on Exhibit P.W. 34/2 was a genuine signature.
The respOndent 's 'witness No. 2, A.S. Kapoor said that the signature of Lalchand of Exhibit P.W. 34/2 was not the same as the.
admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P.W. 34/2 was "the work of a person who was well skilled in the art of traced forgery".
It is rare for two experts to agree in cases of disputed signature.
The Court has to arrive at the conclusion in the light of the entire evidence.
Jai Gopal Verma said that Lalchand appended his signature in his presence.
That portion of the evidence of Jai Gopal Verma was not impeached in cross examination.
Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and 892 Jai Gopal Verma.
This portion of the evidence of Lachhman Das was also not challenged in cross examination.
The poster on which the appellant relied is Exhibit P.W. 1/1.
Exhibit P.W. 1/1 is as follows: "Appeal to the Voters of the Ellenabad Vidhan Sabha Constituency.
Election (Rising Sun) Symbol Brothers: Just after one year election is being held.
I hope will get more support from public than before.
Because you have seen the 'Adlu Badlu ' policy of Ch.
Partap Singh son of Ch.
Devi Dayal, Ch.
Devi Lal has put up the second son as a candidate because of this fear.
The deeds of Om Prakash are well known to the public.
Under the auspices of his father Ch.
Devi Lal, he had been indulging in smuggling and today he is asking for votes in the name of his father.
I hope the people will show the face of defeat to such an obnoxious person.
My election symbol is rising sun, put stamp only on that.
Yours LAL CHAND KHOD, Ellenabad Constituency".
Ganga Dhar Sharma, P.W. 31, said that a memorandum of appeal in favour of respondent Lalchand was printed.
He spoke of Exhibit.
P.W. 34/1.
The appeal which was published and distributed is Exhibit P.W. 34/2 which is the same as Exhibit P.W. 1/1.
This appeal leaves No. room for doubt that there were allegations against the personal character and conduct of the appellant Om Prakash who was described as "having been ' indulging in smuggling".
In the said appeal, it was further said that the appellant was an obnoxious person.
Various witnesses, P.Ws. 14, 16, 18, 19, 21, 23, 29, 30 and 31 gave evidence of the distribution and publication of the appeal.
They identified Exhibit P.W. 24/1 which is the same as Exhibit P.W. 34/2 and the evidence of distribution and publication is overwhelming.
The evidence in the present case established beyond any measure of doubt first that Exhibit P.W. 1/1 which is the same as Exhibit P.W. 34/2 was published, secondly, that Lalchand got the same printed and published, thirdly, that the statement 893 was in relation to the personal character and conduct of the appellant, fourthly, the statement is false and fifthly, the same was calculated to prejudice the prospects of the appellant 's election.
For these reasons we are of opinion that the appeal is to be accepted on the ground that respondent Lalchand is guilty of corrupt practice under section 123(4) of the Act.
The appeal is 'allowed with costs throughout and the election of the respondent Lalchand is declared void '.
G.C. Appeal allowed.

summary/full:
The first respondent was the winning candidate from an assembly constituency in Hissar District of Haryana State at the mid term election held in May, 1968.
The appellant who was one of the losing candidates filed an election petition urging the following grounds in its support: (1) that the poster Exhibit PWI was against the personal character of the appellant and therefore constituted a corrupt practice within the meaning of section 123(4) of the Representation ore the People Act, 1951; (2) That the religious head of the Namdhari sect issued an appeal and a farman and therefore the provisions contained in section 123(2) were attracted; (3) That the first respondent was guilty of corrupt practice of bribery by having given Rs. 20,000 in cash to one of the candidates for contesting the election.
The petition was dismissed by the High Court.
In appeal this Court found that the allegations in grounds Nos.
(2) and (3) aforesaid were not proved by the evidence on record.
Allowing the petition on ground No. (1), HELD: (i) The evidence in the present case established first that Exhibit PWI/1 was published, secondly that respondent No. 1 got the same printed and published, thirdly that the statement therein to the effect that the appellant was indulging in smuggling and was an obnoxious person was in relation to the personal character and conduct ore the appellant, fourthly that the statement was false, and fifthly that the same was calculated to prejudice the prospects of the appellant 's election.
The appeal therefore had to be accepted on the ground that respondent No. 1 was guilty of corrupt practice under section 123(4) of the Act.
[892 H893 B] (ii) It is rare for two.
experts to.
agree in cases of disputed signature.
The Court has to arrive at the conclusion in the light of the entire evidence.
The signature of respondent No. 1 on the manuscript of Exhibit PWI/I was sufficiently proved by the evidence of witnesses.
[891 (G H]


judgement:
ivil Appeal No. 850 of 1966.
870 Appeal by special leave from the judgment and decree dated March 5, 1965 of the Bombay High Court in First Appeal No. of 1963.
section Sorabli, Bhuvanesh Kumari and J.B. Dadachanji, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave fro.m the judgment of the.
Bombay High Court dated March 5, 1965 in Appeal No. 415 of 1963.
Shalkh Hassan Ibrahim (hereinafter referred to as the missing seaman) was employed as a deck hand, a seaman of category II on the ship sections "Dwarka" which is owned by the British India Steam Navigation Company Limited of which the appellant is the Agent.
The Medical Log Book of the shop shows that on December 13, 1961 the missing seaman complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically.
The Medical Officer on board the ship prescribed some tablets for the missing seaman and he reported fit for work on the next day.
On December 15, 1961, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets.
The official Log Book of the ship shows that on December 16, 1961 when the ship was in the Persian Gulf the missing seaman was seen near the bridge of the ship at about 2.30 a.m.
He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed.
At 6.15 a.m. he was found missing and a search was undertaken.
At 7.35 a.m. a radio message was sent by the Master of the ship.
saying: "One seaman missing between Khoramshahr and Ashar STOP May be in river STOP All ships please keep look out".
The ship arrived alongside Ashar Jetty at 8 a.m. when a representative of Messrs Gray, Mackenzie & Co. Ltd., who are the agents for the British India Steanm Navigation Co. Ltd., in the Persian Gulf was informed that the said seaman was missing.
The representative in turn passed on the information to the local police and the Port authorities.
The last entry in the log book shows that at 4 p.m. an inquiry was held on board the ship by the local police and the British Consul General.
On a suggestion made by the latter, the personal effects of the missing seaman were checked and sealed by the Consulate authorities for being deposited with the Shipping Master, Bombay.
On February 20, 1962 the respondent filed an application under section 3 of the Workmen 's Compensation Act (Central Act 18 of 1923) (hereinafter referred to as the Act) claiming compensation of Rs. 4,810/ for the death of his son, the missing seaman, which 871 according to him, occurred on account of a personal injury caused by an accident arising out of and in the course of his employment.
The appellant put in a written statement on April 26, 1962 and disputed the respondent 's claim on the ground that there was nothing to show that the seaman was in fact dead, that the death, if any, was not caused in the course of the employment, that in any event the death could not be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with a suicidal death than with an accidental death.
But the appellant did not lead oral evidence at the trial of the claim.
The Additional Commissioner, however, inspected the ship on January 23, 1963.
By his judgment dated February 6, 1963 held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the missing seaman was caused by an accident which arose out of employment.
In the course of his judgment the Additional Commissioner observed as follows: "Now in the present case what is the evidence before me ? It is argued on behalf of applicant that I must presume that the man fell down accidentally.
From which place did he fall down ? How did he fall down ? At what time he fell down ? Why was he at the time at the place from which he fell down ? All these questions, it is impossible to answer.
Am I to decide them in favour of the applicant simply because his 'missing ' occurs in the course of his employment ? In my opinion there is absolutely no material before me to come to a conclusion and connect the man 's disappearance with an accident.
There are too many missing links.
Evidence does not show that it was a stormy night.
I had visited the ship, seen the position of the Bridge and deck and there was a bulwark more than 31/2 feet.
The man was not on duty.
Nobody saw him at the so called place of accident.
In these circumstances I am unable to draw any presumption or conclusion that the man is dead or that his death was due to an accident 'arising out of his employment.
Such a conclusion, presumption or inference would be only speculative and unwarranted by any principle of judicial assessment of evidence or permissible presumptions.
" The Additional Commissioner, however, negatived the contention of appellant that the death, if any, was caused by the seaman 's voluntary act.
The respondent preferred an appeal on April 17, 1963 to the High Court from the judgment of the Additional Commissioner dated February 6, 1963.
At the hearing of the appeal it was agreed that the appellant would pay to the 872 respondent a sum of Rs. 2,000/ as and by way of compensation in any event and irrespective of the result of the appeal.
The respondent agreed to accept the sum of Rs. 2,000/ .
But in view of the serious and important nature of the issues.
the High Court proceeded to decide the questions of law arising in the appeal.
By his judgment dated March 5, 1965 Chandrachud J., allowed the appeal and reversed the judgment of the Additional Commissioner and granted the application for compensation.
The view taken by Chandrachud J., was that the death of the seaman in this case must be held to have occurred on account of an accident which arose out of his employment.
The principal question that arises in this appeal is whether the accident arose in the course of employment and whether it arose out of employment within the meaning of 'section 3 of the Act which states: "(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable (i) the workman having been at the time thereof under the.
influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
To come within the Act the injury by accident must arise both out of and in the course.
of employment.
The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it.
" The words "arising out of employment" are understood to mean that "during the course.
of the employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable 873 to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment.
The expression "arising out of employment" is again not confined to the mere nature of the employment.
The expression applies to employment as such to its nature, its conditions, its obligations and its incidents.
If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises 'out of employment '.
To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.
In Lancashire and Yorkshire Railway Co. vs Highley(1) Lord Sumner laid down the following test for determining whether an accident "arose out of the employment": "There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance.
It is this: Was it part of the injured person 's employment to hazard, to suffer, or to do that which caused his injury ? If yea, the accident arose out of his employment.
If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment.
To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his.
employment, that the workman should have acted as he was.
acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
" In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment.
But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence.
Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference.
On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference.
It is of course impossible to.
lay down any rule as to the degree of (1) 874 proof which is sufficient to justify an inference being drawn, but ' the evidence must be such as would induce a reasonable man to draw it.
Lord Birkenhead L.C. in Lancaster vs Blackwell Colliery Co. Ltd., ( 1 ) observed: "If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant.
But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour." In cases of the unexplained drowning of seamen, the question has often arisen as to whether or not there was evidence to justify the inference drawn by the Arbitrator that the seaman met his death through accident arising out of and in the course of his employment.
The question was considered by the House of Lords in Kerr or Lendrum vs Ayr Steam Shipping Co. Ltd.(a) in which the steward of a ship, which was in harbour, was lying in his bunk, when he was told by the captain to prepare tea for the crew.
He was shortly afterwards missing, and the next day his dead body, dressed ' in his underclothes only, was found in the sea near the ship.
The bulwarks were 3 feet 5 inches above the deck.
The steward was a sober man, but was subject to nausea.
Murder and suicide were negatived by the Arbitrator, who drew the inference that the deceased left his bunk, went on deck, and accidentally fell overboard and was drowned.
He accordingly held that the accident arose out of and in the course of his employment as steward.
The Court of Sessions reversed his decision on the ground that there was no evidence to support it.
The House of Lords (Earl Lorebum, Lord Shaw of Dunfermline and Lord Parmoor, Lord Dunedin and Lord Atkinson dissenting), however, upheld the decision of the Arbitrator on the ground that, although upon the evidence it was open to him to have taken a different view, his conclusion was such as a reasonable man could reach.
"I should state my main proposition thus," said Lord Shaw of Dunfermline, "that we in this House are not considering whether we would have come to the same conclusion upon the facts stated as that at which the (1) 1918 W.C. Rep. 345.
(2) [1195] A.C. 217.
875 learned Arbitrator has arrived.
Our duty is a very different, a strikingly different one.
It is to consider whether the Arbitrator appointed to be the judge of the facts, and having the advantage of hearing and seeing the witnesses, has come to a conclusion which could not have been reached by a reasonable man." Lord Parmoor said: I wish to express no opinion either way on the reasonableness of the finding in itself as long as it is possible finding for a reasonable man," whilst Earl Loreburn observed that they should regard these awards in a very broad way and constantly remember that they were not the tribunal to decide." In the case of unexplained drowning of seamen, the English Court of Appeal have drawn some very fine distinctions.
In Bender vs Owners of S.S. "Zent"(1) the chief cook on board a steamship fell overboard and was drowned while the ship was on the high seas.
He was seen at 5.25 a.m. looking over the side; 5.30 a.m. was his usual time for turning out; and he was last seen at 5.35 a.m. going aft.
The weather was line at the time, it was daylight, the ship was steady, and there was no suggestion that the duties of the deceased would lead him into any danger.
There was a 4 ft. rail and bulwark all round the ship and there was no evidence to show how the deceased had fallen overboard.
The County Court Judge drew the inference that his death was caused by an accident arising out of and in the course of his employment, but the Court of Appeal held that there was no evidence to warrant such inference, Cozens Hardy, M.R. pointing out that, although it was conceivable that he might have been engaged on some ship 's work, it was equally conceivable that he had been larking or had committed suicide.
Bender 's case(1) was followed in Marshall vs Owners of S.S. "Wild Rose(2) where an engineer came on board his vessel, which was laying in a harbour basin, shortly after 10 p.m. Steam had to be got up by midnight.
He went below and took off his clothes, except his trousers, shirt and socks.
It was a very hot night, and he subsequently came out of his berth, saying that he was going on deck for a breath of fresh air.
Next morning his dead body was found at the side of the vessel, just under the place where the men usually sat.
It was held by the Court of Appeal, reversing the County Court Judge, that there was no legitimate ground for drawing the inference that the engineer died from an accident ,arising out of his employment.
Farwell, L.J. said: "If an ordinary sailor is a member of the watch and is on duty during the night and disappears, the in ference might fairly be drawn that he died from an acci (1) (2) [1909] 2 K.B. 46.
876 dent arising out of his employment.
But if, on the other hand, he was not a member of the watch, and was down below and came up on deck when he was not required for the purpose of any duty to be performed on deck, and disappeared without our knowing anything else, it seems to me that there is absolutely nothing from which any Court could draw the inference that he died from an accident arising out of his employment." This decision was upheld by the House of Lords by a majority of one (Lord Loreburn, L.C. and Lord James of Hereford dissenting) Lord Shaw of Dunfermline saying: "The facts in every case may leave here and there a hiatus which only inference can fill.
But in the present case, my Lords., the name of inference may be apt to be given to what is pure conjecture.
What did the sailor Marshall do when he left his berth and went on deck ? Nobody knows.
All is conjecture.
Did he jump overboard, walk overboard, or fall overboard ? One can infer nothing, all is conjecture.
Was there an accident at all, or how and why did the deceased unhappily meet his fate ?.
There can be, in my view, nothing dignified with the name of an inference on this subject, but again only conjecture.
" But in Rice vs Owner of Ship "Swansea Vale" (1) where the deceased was a "seaman" in the strict sense of the term that is to say, one whose duty it was to work on deck and not a ship is cook, 'as in Bender 's case, nor an engineer as in Marshall 's case, a different conclusion was arrived at.
In that case the chief officer of a vessel, who was on duty on deck, disappeared from the ship in broad daylight.
No. one saw him fall overboard, but there was evidence that not long before he had complained of headache and giddiness.
It was held, (Buckley, L.J. dissenting) that there was evidence from which the Court might infer that he fell overboard from an accident arising out of and in the course of his employment.
The cases of Bender and Marshall were distinguished, as in those cases the men 's duties were below deck and at the time they lost their lives they had certainly no duties which called them on the deck.
In the House of Lords, Lord Lorebum, L.C. having discussed the various things that might have happened, said: "The other alternatives were suicide or murder.
If you weigh the probabilities one way or the other, the probabilities are distinctly greater that this man perished through an accident arising out of and in the course of his employment.
" (1) 877 In Gatton vs Limerick Steamship Co.(1) a night watchman on board a vessel, whose hours of duty were from 7 p.m. to 7 a.m. when he awoke the crew, was last seen on board at 6 a.m. but on that morning he did not awake the crew.
His cap was.
found on the deck, and his body was found in the harbour some months afterwards.
The County Judge held that it was not proved that the accident arose "out of ' his employment and the Court of Appeal on the ground that this was a finding of fact with evidence to support it, refused to interfere.
Holmes, L.J., however, stated that the County Court Judge might have arrived at a different conclusion of fact, whilst Cherry, L.J., said that, if he had been the Arbitrator, he would have found that the deceased had met with his death by accident arising out of and in the course ' of his employment.
In another similar case Rourke vs Mold & Co. (2) a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was not afterwards seen.
The night was rough, the sea choppy but the vessel was steady.
The flying deck was.
protected by a rail.
There was no evidence as to how the man met his death and in spite of the presumption against suicide the County Court Judge was unable to draw the inference that the death was due to accident.
It was held by the Court of Appeal that in the circumstances the conclusion of the County Court Judge was right.
At p. 321 of the Report O 'Brien, L.C. said: "In this case we cannot interfere with the finding of the County Court Judge.
The post of duty of the deceased was at the wheel and to steer a certain course until ordered to change it, but nobody knows how the man disappeared, or how he came to leave his post.
It is conceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim compensation on the ground that his death was due to an accident arising out of and in the course of the employment; but the onus of proof is on the applicant.
That onus is not discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard, although the natural inference would be that he was not, and that we should then draw the conclusion that the accident arose out of and in the course of the employment.
" In Simpson V.L.M. & section Railway Co.(3) Lord Tomlin reviewed all the previous authorities and stated the principle as follows: " . from these passages to which I have referred I think this rule may be deduced for application to (1) (2) [1917] 2 It.
Rep. 318 at 321.
(3) 878 that class of case which may be called unexplained accident cases namely, that where me evidence establishes that in the course of his employment the workman properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment.
Such a rule so stated seems to me to be consistent with all the previous decisions of your Lordships ' House including Marshall vs Owners of S.S. Wild Rose(1) where there was some evidence from Which it could be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position.
" In the same case Lord Thankerton expressed the principle in similar language.
Lord Thankerton said at p. 371 of the Report: " . the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment." In a later case in the House of Lords, Rosen vs
S.S. "Querous" :(Owners) Lord Buckmaster explained that in that passage in Lord Thankerton 's speech in Simpson 's case(2) the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was traveling and in the later case in the House of Lords the ship on which the workman was employed.
The same principle applies in Indian law as the language of section 3 of the Indian Act is identical with section 1 of the English Workmen 's Compensation Act of 1925.
What are the facts found in the present case ? Shaikh Hassan Ibrahim was employed as a deck hand, a seaman of category II on the ship.
The medical log book of the ship showed that on (1) (2) 879 December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically.
The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day.
On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets.
The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.30 a.m.
He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed.
At 6.15 a.m. he was found missing and a search was undertaken.
The dead body, however, was not found either on that day or later on.
The evidence does not show that it was a stormy night.
The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 31/2 feet.
Nobody saw the missing seaman at the 'so called place of accident.
The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his.
employment.
In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it.
For these reasons we hold that this appeal must be allowed and the judgment of the Bombay High Court dated March 5, 1965 must set be aside.
R.K.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
S who was employed as a deck hand on a ship was found missing on board.
The respondent filed an application under section 3 of the Workmen 's Compensation Act claiming compensation for the death of S which according to him occurred on account of a personal injury caused by an accident arising out of and in the course of employment.
The Additional Commissioner held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the seaman was caused by an accident which arose out of employment.
The High Court reversed the judgment of the Additional Commissioner.
In appeal to this Court, HELD: The Additional Commissioner did not commit any error of law in reaching his findings and the High Court was not justified in reversing them.
To come within the Act the injury by accident must arise both out of and in the course of employment.
The words "in the course of employment" mean in the course of work which the workman is employed to do and which is incidental to it.
The words "arising out of the employment" are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered.
The expression is not confined to the mere nature of the employment but applies to the employment as such to its nature, its conditions, its obligations and its incidents.
[872 H] Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference.
On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand he may draw an inference from the proved facts so long as it is a legitimate inference.
The evidence must be such as would induce a reasonable man to draw the inference.
[873 H] Lancashire and Yorkshire Railway Co. vs Highley, , Lancaster vs Blackwell Colliery Co. Ltd. 1918 W.C. Rep. 345, Kerr or Lendrum vs Ayr Steam Shipping Ca.
Ltd. , Bender vs Owners of S.S. "Zeni" [1909] '2 K.B. 41, Marshall vs Owners of S.S. "Wild Rose", , Rice vs Owners of Ship "Swansea Vale", [1912] A.C. 238, Gatton vs Limerick Steamship Co. , Rourke vs Hold & Co. [1917] 2 Ir.
Rep. 318 at 321 and Simpson vs L.M. & section Railway Co. , referred


judgement:
Criminal Appeal No. 141 of 1967.
Appeal from the judgment and order dated July 21, 1967 of the Kerala High Court in Criminal Appeal No. 109 of 1966.
865 A.S.R. Chari, A. section Nambiar and K.R. Nambiar, for the appellant.
V.K. Krishna Menon and ' M.R.K. Pillar, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
In this appeal by certificate the only point that arises is whether the cash memo, exhibit D1, issued by the seller to the appellant contains a warranty within r. 12A of the rules framed under the (Act 37 of 1954), hereinafter referred to as the Act.
The Magistrate, who tried the complaint, held that exhibit D1 was a proper warranty and it fell within the proviso to r. 12A.
The High Court on appeal held to the contrary.
The relevant facts are these.
The appellant is a Rice & General Merchant and holds a wholesaler 's licence.
It was alleged in the complaint that the appellant had stored and exposed for sale and sold compounded asafoetida which was found ' to have been adulterated by wheat starch and tapioca starch and that non permitted orange coaltar dye was present.
The report of the Public Analyst to Government, Trivandrum, was relied on.
in this connection.
The appellant appeared as a witness and he stated that he purchased asafoetida from L.T. Alakesan and Brothers, received it in enclosed packets in bags and sold it in bags.
He received invoice which reads as follows: "Lt. T. Alhakesan & Brothers, Asafoetida Merchants, Veliamadom Sri K. Ranganatha Reddier, Kottarakara Rate: 6.00 Particulars: C.S.T. Rs. 2.
One case of Asafoetida Misky bag 30 Rs. 180/ The quality is up to the mark.
C.S.T. Rs. 3.60 Rs. 183.60 Rupees one hundred and eighty three and N.P. sixty only.
One case (1d) (Id) 1/4/64 (Sd.) 147542 18/5/64" He further stated that "it is written on the packet as "Extra Superior" in English and as "Compounded misky full of quality and flavour" in Tamil." The relevant statutory provisions are: 866 The "section 14.
Manufacturers, distributors and dealers to give warranty.
No manufacturer, distributor or dealer of any article food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor." "section 19(2).
A vendor shah not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proved (a) that he purchased the article of food (i) in a case where a license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
" The Prevention of Food Adulteration Rules, 1955 "Rule 12 A. Warranty Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI A: Provided that no warranty in such form shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor.
Explanation.
The term "trader ' shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer.
" We are not concerned with the question whether rule 12A is contrary to the provisions of the Act.
We take it that it is valid and if the appellant 's case falls within the proviso he is entitled 'to acquittal.
867 It was contended before us on behalf of the respondent that the warranty must state expressly that the food mentioned in the cash memo was the same in nature, substance and quality as demanded by the vendor, and if these words did not exist in the cash memo, the proviso would not apply.
We are unable to accede to this contention.
It may be that if the warranty is not contained in a label or cash memo the warranty must be in Form VI A, which uses these words: "We hereby certify that the food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor.
" But we do not decide this as it is not necessary to do so.
In our view when the proviso expressly says that no warranty in such form shall be necessary in certain eventualities it would be rewriting the rule to hold that nevertheless the same things must exist in the label or the cash memo.
It seems to us that if the words in the warranty can reasonably be interpreted to have the s_nine effect as certifying "the nature, substance and quality" of an article of food, the warranty will fall within the proviso.
The Act is of wide application and millions of small traders have to comply with the provisions of the Act and the Rules.
The learned counsel for the State says that if they are not able to comply with the provisions they should stop carrying on their trade.
But if the object underlying the Act can be achieved, without disorganising the trade, by giving a reasonable interpretation to Rule 12A, it is our duty to do so.
A number of English cases were referred to us, but we do not find it necessary to refer to them as they interpret the Sale of Food & Drugs Act, 1875, and the later Food & Drugs Act, 1955.
The language of the relevant sections dealing with defences is different and warranties employing different words have been interpreted.
But they do at least show this that trade can be carried on and the object of the Act is not defeated even if traders use ordinary language of the trade or popular language in warranties.
Coming now to the language used in the cash memo it seems to us that the words "quality is up to the mark" mean that the quality of the article is up to the standard required by the Act and the vendee.
Quality in this context would include nature and substance because the name of the article is given in the cash memo.
It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman.
Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured 868 that the article is not adulterated.
The offence, if any, has been committed by the seller and not the appellant.
There was some argument before as to the difference in the meaning of the words "nature, substance and quality".
It was pointed out that section 14 only uses two words "nature and quality" and not substance.
But it is not necessary to express our views on this point.
Reference was made to the case of Baburally vs Corporation of Calcutta(1).
This Court held that the words on the label and the so called cash memo in that case did not contain the requisite warranty.
But we are unable to see how that case assists either the appellant or the State.
In the result the appeal is allowed, judgment of the High Court set aside and that of the Magistrate restored.
The appellant 's bail bond shall be treated as cancelled.
R.K.P.S. Appeal allowed.

summary/full:
It was alleged in a complaint against the appellant, who held a wholesaler 's license, that he had stored and sold compounded asafoetida which was found to have been adulterated.
It was the appellant 's case that he had purchased the asafoetida from a distributor in enclosed packets and that the cash memo furnished to him by the distributor stated inter alia that "quality is upto the mark".
It was therefore contended on his behalf that the case fell within the proviso to Rule 12 A of the Prevention of Food Adulteration Rules, 1955, framed under Act 37 of 1954 in that no warranty in a prescribed form was necessary as the cash memo contained a warranty that the food contained in the package was the same in nature, substance and quality as demanded by the appellant.
Although the Trial Court upheld the appellant 's contention, the High Court on appeal held to the contrary.
In the appeal to this Court it was respondent 's contention that the warranty must state expressly that the food mentioned in the cash memo was the same in nature, substance and quality as demanded by the vendor and if these words did not exist in the cash memo, the proviso would not apply.
HELD: Allowing the appeal: The words "quality is upto the mark" in the cash memo meant that the quality of the article was upto the standard required by the Act and the vendee.
Quality in this context would include nature and substance because the name of the article was given in the cash memo.
The cash memo was the document using the language of a tradesman.
Any tradesman who was assured that the quality of the article was upto the mark would 'readily conclude that he was being assured the article was not adulterated.
[867 H] When the proviso to Rule 12 A expressly says that no warranty in the prescribed form shall be necessary in certain eventualities, it would be rewriting the rule to hold that nevertheless the same things must exist in the label or the cash memo.
If the words used in the warranty can reasonably be interpreted to have the same effect as certifying "the nature, substance and quality" of an article of food, the warranty wilt fail within the proviso.
[867 D]


judgement:
Criminal Appeals Nos. 160) and 171 of 1967.
Appeals by special leave from the judgment and order dated May 12, 1967 of the Orissa High Court in Criminal Appeal No. '194 of 1965.
S.N. Anand, for the appellants (in Cr.A. No. 160 of 67).
R.K. Garg, S.C.Agarwal, D.P. Singh, Sumitra Chakravarty and Uma Dutt, for the appellants (in Cr.A. No. ' 171 of 1967).
V.C. Mahajan and R.N. Sachthey, for the respondent (in Cr.A. No. 160 of 1967).
The Judgment of the Court was delivered by Mitter, J.
These two appeals by special leave are from one judgment of the High Court of Orissa hearing an appeal from an order of acquittal of 31 persons accused on charges under as. 147, 323 and 325 of the Indian Penal Code for being members of an unlawful assembly and having voluntarily caused hurt and inter alia a grievous one by dislocating a tooth by means of a knife like thing of one Jagabandhu Behera, the appellant before the High Court.
The incident is alleged to have happened on October 4, 1963 at about 11 a.m. in village Anantapur in course of which the accused persons are said to.
have assaulted Jagabandhu Behera with lathis and sharp instruments.
The motive for the crime was said to be enmity arising out of Gram panchayat election and previous litigation between Jagabandhu Behera and Khetrabasi Samal, one of the said 31 persons.
The first information report was lodged at 5 p.m. by one Maguni Charan Biswal who however was not examined at the trial.
In this report ten persons were stated to have taken part in assaulting and hurting Jagabandhu.
More than six weeks thereafter Jagabandhu filed a complaint before a Magistrate in which he named 31 persons including those against whom the first information report had been lodged as his assailants.
The complainant stated therein that he had been assaulted so mercilessly as to render him unconscious and he recovered consciousness in Anantapur Dispensary where he was treated by a doctor.
From there he was taken to a hospital in Cuttack and was lodged there till November 18, 1962.
The Magistrate 'examined the complainant on the same day and directed another Magistrate of the First Class to inquire and report.
On January 23, 1963 after getting the report of such inquiry and hearing the person against whom the complaint was made on their protest petition, the Magistrate held "that there was a prima facie case against the accused persons under sections 147/ 323 I.P.C. except the first ten accused persons as per the complaint petition since they had already been sent for trial in 882 G.R. No. 1943 of 1962".
He took cognizance against accused persons from serial Nos.
11 to 31 as per the complaint petition under sections 147/323 I.P.C. The G.R. case had already been started on the basis of the first information report.
On July 12, 1963 the complainant Jagabandhu Behera filed a petition to club the complaint case along with the analogous G.R. case and after giving a hearing to both parties the Magistrate passed an order on 15th July 1963 to the effect that the two cases were to be clubbed together and provisions of section 252 Cr.
P.C. were to be followed.
The proceedings went on for an inordinately long time and ultimately on August 23, 1965 the trying Magistrate delivered a judgment acquitting all the accused.
Jagabandhu Behera filed an appeal to the High Court under section 417(3) of the Code of Criminal Procedure and the grounds urged in support of such appeal were substantially based on the.
alleged failure of the Magistrate to take a proper view of the evidence.
Before the High Court, a point was taken on behalf of the respondents challenging the maintainability of the appeal as against accused 1 to 10 against whom cognizance was taken on the police report.
Among these ten persons are the appellants in the two appeals to this Court.
It was urged that as these ten persons had figured as accused in G.R. Case No. 1943 of 1962 an appeal against their acquittal would not lie at the instance of the complainant under section 417(3) but would only be maintainable if preferred under section 417(1) by the State Government.
It was also contended that mere clubbing together of the two cases, the G.R. case and the complainant 's case, for joint trial would not change the character thereof so as to convert the G.R. case into a complaint case.
The High Court over ruled this objection mainly on the ground that section 239 Cr.
P.C. allowed the trial of a number of persons whether accused of the same offence or of different offences if these were committed in the course of the same transaction.
The High Court then considered the merits of the appeal, examined the evidence of the prosecution witnesses and took the view that the testimony of prosecution witnesses 1, 2 and 5 who claimed to have witnessed the incident themselves had been discarded by the Magistrate on extraneous considerations.
Sifting the evidence for itself the High Court held that seven of the accused i.e. the appellants to this Court were guilty of some of the charges framed against them and passed sentences ranging from three months to six months in different cases after setting aside the acquittal.
It was contended before us on behalf of the appellants that the appeal to the High Court was incompetent and in our view this contention must be accepted.
There were two separate cases 883 of which cognizance ' was taken separately.
One was started on the basis of a police report while the other was on the complaint of Jagabandhu Behera.
As the accused in both the cases were said to have committed the offences.
in the. course.
of the same transaction, the cases were clubbed together for the purpose of trial and such a course was clearly permissible under section 239 Cr.
That did not however alter the nature of the cases so as to affect their appealability under section 417.
The two cases retained their individuality except for the convenience of the trial.
If the cases had ended in conviction they would have had to be separately recorded.
The first ten accused would have had to appeal from their conviction and sentence in the G.R. case and similarly the remaining accused from the complaint case.
If the State. did not think it proper to direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal in the G.R. case it might have been open to the complainant to.
invoke the powers of the High Court under section 439 of the ' Code if proper grounds; for revision were present.
Counsel for the respondents.
argued that this was a case where we should not allow the appeal on the ground that the High Court had gone wrong in exercising its powers under section 417(3) of the Code but should send the matter back to the High Court for disposal according to law including the powers under section 439 of the Code.
It was said that Jagabandhu Behera had been beaten up.
by a number of persons in a public place in broad day light and although there might be infirmities in the evidence adduced on behalf of the prosecution and contradictory statements made by some of the prosecution witnesses, we should not put an end to the proceedings here but send the matter back to the High Court for proper disposal.
In our view, the law does not permit such a course to be adopted on the facts of this case.
The powers of the High Court under section 439 Cr.
P.C. although wide are subject to certain limitations.
Section 439 (4) expressly provides that the section shall not be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.
This Court has had to.
examine the jurisdiction of the High Court under this section on several occasions.
In D. Stephens vs Nosibulla (1) it was pointed out (see at p. 291) that : "The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal against which the Government has a right of appeal under section 417.
It could be exercised only in exceptional cases where the interests of public justice ; 881 require interference.
for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice.
This jurisdiction is not ordinarily invoked or used merely because the lower court has take.n a wrong view of the law or misapprehension the evidence, on record".
Again in Logendranath Jha & Others vs Polailal Biswas(1) where the High Court had set aside an order of acquittal of the appellants by the Sessions Judge and directed their retrial, this Court (see at p. 681) said : "Though sub section (1) of section 439 authorises the High Court to exercise, in its, discretion, any of the powers conferred on a court of appeal by section 423, sub section (4) specifically excludes the power to 'convert a finding of acquittal into one.
of conviction '.
This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him.
By merely characterising the judgment of the trial court as 'perverse ' and 'lacking in perspective ', the High Court cannot reverse pure findings of fact based on the trial court 's appreciation of the evidence in the case".
In K. Chinnaswamy Reddy vs State of Andhra Pradesh(2).
The court proceeded to define the limits of the jurisdiction of the High Court under section 439 of the Criminal Procedure Code while setting aside an order of acquittal.
It was said: ": . . this jurisdiction should in our opinion be exercised by 'the High Court only m exceptional cases, when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.
It is not possible to.
lay down the criteria for determining such exceptional cases which would cover all contingencies.
We may however indicate some cases of this kind, which would in our opinion justify the.
High Court in interfering with a finding of acquittal in revision.
These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or wh ere the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked (1) (2) [1963] 3 S.C.R. 412, 418. 885 either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law".
It may be that a case not covered by any of the contingencies mentioned above may still arise.
But, where, as here, the appeal court (the High Court in tiffs case) has set aside the order of acquittal almost entirely on the ground that the Magistrate should not have disbelieved the three eye witnesses, viz., P.Ws. 1, 2 and 5, the case clearly falls within the contingencies mentioned in the above decision of this Court.
The High Court judgment does not show that the trial court shut out any evidence which the prosecution wanted to produce or admitted any in admissible evidence or overlooked any material evidence.
The Magistrate examined the evidence produced by the prosecution.
According to him, there was strong enmity between the two parties of Jagabandhu Behera and Khetrabasi Samall and although the incident was supposed to have: taken place in front of a large number of shops and before a large gathering, only one person from those shops, P.W. 5 who was a chance witness occasionally going to the place for the purpose of carrying on his business in fish, was examined by the prosecution and there was no explanation for not examining the other witnesses named in the complaint petition.
P.W. 1, one of the witnesses mentioned in the judgment of the High Court and relied on by it was the complainant 's father in law and as such a person interested in the success of the prosecution.
Relying on the testimony of the doctor who had examined Jagabandhu Behera, the Magistrate found himself unable tO accept the evidence of the prosecution witnesses to the effect that the injury to the tooth was caused by a sharp cutting instrument in which case other external injuries could not have been avoided.
The Magistrate was doubtful as to whether the accused persons had any hand in the commission of the crime and although the assault on Jagabandhu was a brutal one there was, according to the Magistrate, no proof beyond reasonable doubt that it was the accused persons who had committed it.
The High Court proceeded to reappraise the evidence of the witnesses and upset the finding of the Magistrate thereon on the ground that he "had not taken the trouble of sifting the grain from the chaff".
Clearly such a course is not permissible under section 439 of the Criminal Procedure Code.
Nor in our opinion the facts, and circumstances of this case warrant the ordering of a re trial by the High Court if it felt disposed to exercise powers under s 423 Cr.
P.C. expressly included in section 439.
Sending the ease back to the High Court can serve no useful purpose.
As the appeal to the High CoUrt was incompetent, we allow the appeals and direct the cancellation of their bail bonds.
V.P.S. Appeal allowed.

summary/full:
A first information report to the police was lodged against the appellants and some others ten persons in all, for having taken part in an assault and causing hurt to the victim of the assault.
On the police report, the Magistrate took cognizance of the case.
More than six were after the incident, the victim filed a complaint before the Magistrate naming thirty one persons (including the ten persons against whom the first in formation was given) as: his assailants, and the Magistrate took cognizance of the case against the other twenty one accused as a separate case.
On the application of the complainant (victim), the two.
cases, one on the police report and the other on the private complaint, were clubbed and tried together.
The Magistrate, on an examination of the evidence, held that there was no proof beyond reasonable doubt that the accused persons committed the assault and acquitted all of them.
The complainant then filed an appeal under section 417(3), Criminal Procedure Code, to the High Court.
The appellants, against whom cognizance of the case was taken on the police report, challenged the maintainability of the appeal on the ground that the appeal against their acquittal was maintainable only if preferred by the State Government under section 417(1).
The High Court overruled the objection, reappraised the evidence of the witnesses, upset the finding of the Magistrate and convicted the appellants.
In appeal to this Court, on the questions: (1 ) As to the maintainability of the appeal by the complainant; and (2) Whether the matter should be sent back to the High Court for disposal under section 439 of the Code, HELD: (1 ) Though the two.
cases could be clubbed together for convenience of trial under section 239 of the Code the nature and identity of the cases in relation to their appealability under section 417 were not altered.
In the case started against the appellants on the police report the appeal against acquittal could have been filed only by the State Government, and if No. such appeal was filed, the complainant could only invoke the revisional powers of the High Court under section 439 if proper grounds were present.
[883 A C] (2) The High Court can exercise its revisional powers under section 439 when invoked by a private complainant against an order of acquittal against which the State has a right of appeal under 'section 417, only in exceptional cases when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.
The present case however is one of mere appraisal of evidence.
In such a case the High Court under section 439, could not re examine the evidence or order a retrial.
Therefore, the case was no.t a fit one for sending back to the High Court.
[883 E F; 884 E G; 885 A. F H] D. Stephens vs Nosibolla, ; , Logendranath jha vs Polailal Biswas ; and K. Chinnaswamy Reddy vs State A. p.
; , 418, followed.


judgement:
: Criminal Appeal No. 163 of 1967.
Appeal by special leave from the judgment and order dated March 6, 1967 of the Madhya Pradesh High Court in Criminal Revision No. 159 of 1966.
G.L. Sanghi and P.C. Bhartari, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave arises out of the following facts.
Inspector Ahuja inspected the Municipal Council, Raipur, under the Motor Transport Workers Act, 1961 hereinafter referred to as the Act and found that 50 transport workers, including drivers, conductors, mechanics, etc., had been employed by the Council but the Council had not been registered as required under section 3(1) of the Act.
He filed a complaint before the Special Magistrate and Presiding Officer, Labour Court, who issued summons to the accused, namely, the Municipal Council and the Chief Municipal Officer, Municipal Council, Raipur.
The accused appeared by counsel and filed preliminary objections.
Be fore the Magistrate two.
points were taken: (1) that the Municipal Council was not a 'motor transport undertaking ' within section 2(g) of the Act, and (2) that the Council was exempt under section 38 of the Act insofar as it uses the vehicles for transporting sick or injured persons.
and for maintenance of public order, i.e., for transporting night soil and refuse of the town free of charges.
The Magistrate accepted these contentions and dismissed the complaint and discharged the accused persons.
The State of Madhya Pradesh filed a revision before the Sessions Judge, Raipur, who agreeing with the findings of the Magistrate, dismissed the revision.
The State then filed a revision under section 439, Cr.
P.C. Three points were debated before the High Court: (1) whether a revision lay under section 439, Cr.
The contention was that the accused had been acquitted and not discharged and, therefore, only a.n appeal under section 417.
P.C., lay; (2) that the Municipal Council does not fall within the definition of the expression "motor transport undertaking" in section 2(g); and (3) that the transport vehicles owned by the Municipal Council are exempt under section 38(1) of the Act.
917 The High Court overruled the preliminary objection and held that a revision lay under section 439, Cr. P.C., because the order passed by the Magistrate was an order of discharge and not of acquittal.
On the second point the High Court held that the Municipal Council fell within the definition of the expression "motor transport undertaking".
On tire third point the High Court held that the vehicles of the Municipal Council did not come within the exemption under section 38 of the Act.
The same points have been debated before us by the learned counsel.
Coming to the first point, we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal.
It is true that it is a summons case and no formal charge is necessary to be framed under section 242, Cr.
P.C., but even so.
here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were even stated to him.
Coming to the second point, it seems to us that the High Court was right in holding that the.
Municipal Council is a motor transport undertaking as defined in the Act.
It is necessary to set out the relevant definition in section 2 of the Act.
"2(g) 'motor transport undertaking ' means a motor transport undertaking engaged in carrying passengers or goods or both by.
road for hire or reward, and includes a private carrier; (n) all other words and expressions used but not defined in this Act and defined in the , shall have the meanings respectively assigned to them in that Act.
" The expression "private carrier" is defined in the , to mean "an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, of who.
uses the vehicle for any of the purposes specified in sub section (2) of section 42.
" A "transport vehicle" is defined in the , to mean "a public service vehicle or a goods vehicle," and a ":goods vehicle" is defined to mean "any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so.
constructed or adapted when used for the carriage of goods solely or in addition to passengers." "Goods" is defined as follows: "Goods" includes live stock, and anything (other than equipment ordinarily used with the vehicle) car 918 ried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.
" It seems to us that the accused fell within the definition of a "private cartier" inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property.
In this case we are not concerned with the second limb of the definition, and the authority cited by the learned counsel for the 'accused (Mohamed Zarful Islam vs Birendra Lall(1) which dealt with the second limb, is of no assistance to.
The main argument which the learned counsel urges is that the word "includes" in the definition of the expression "motor transport undertaking" helps him because this shows that it is only an undertaking of a commercial nature which was intended to be included within the definition of "motor transport undertaking".
He says that a Municipal Council is not carrying on any business but is carrying on statutory obligations imposed upon it and, therefore, a Municipal Council cannot be called an undertaking.
We are unable to accept this contention.
First, the Act provides for the welfare of motor transport workers and regulates the conditions of their work.
Such beneficial acts are not, as a rule, construed strictly.
Secondly, the words of the definition are plain and not susceptible of any reasonable limitation.
It seems to us that by using the word "includes" the.
Legislature undoubtedly intended to enlarge the meaning of the expression "motor transport undertaking".
The words "private carrier" have been given a specific meaning in the , and it is difficult to limit this specific meaning on any reasonable basis.
Further, section 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression "motor transport undertaking".
Relying on the decision of the House of Lords in Dilworth vs The Commissioner of Stamps(2) and the decision of the Madhya Pradesh High Court in State of Madhya Pradesh vs Mother Superior Convent School(3), the learned counsel contends that sometimes the legislature uses the word "includes" to mean "means and includes".
This is undoubtedly so but we are unable to appreciate how this would help the appellants.
(1) A.I.R. 1965 Bom.
(2) [1899] A.C. 99.
(3) A.I.R. 1958 M.P, 362.
919 The learned counsel also suggests that we should limit the meaning of the words "private carrier" in the same manner as the Madhya Pradesh High Court limited the meaning of the word "church" occurring in section 2(4) of the Madhya Pradesh Public Trust Act.
We are unable to see any analogy between the two definitions.
The definition there is quite different and the High Court was of the view that the scheme of the Act itself shows that what was intended was to regulate, not religious institutions but religious institutions impressed with the character of a public trust.
" Coming to the last point, we agree with the High Court that the words "public order" in section 38(1)(ii) do not include the maintenance of public health.
Section 38 reads: "38.
Exemptions. (1) Nothing contained in this Act shall apply to or in relation to any transport vehicle (i) used for the transport of sick or injured persons; (ii) used for any purpose connected with the security of India, or the.
security of a State, or the maintenance of public order . ".
The learned counsel relies on the decision of this Court Ramesh Thappar vs The State of Madras (1).
In Ratnesh Thappar 's case the question before this Court was.
"whether the impugned Act (Madras Maintenance of Public Order Act, 1949) in so far as it purports by section 9(1 a) to authorise the Provincial Government 'for the: purpose of securing the public safety or the maintenance of public order, to prohibit or regulate tie entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents ' is a law relating to any matter which undermines the security of or tends to overthrow the State.
" Patanjali Sastri, J., as he then was, observed: "Now 'Public Order ' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the government which they have established.
" Later he observed: " 'Public safety ' ordinarily means security of the public or their freedom from danger.
In that sense, anything which tends to prevent danger to public health may also be regarded as securing public safety." (1) ; 920 The learned counsel urges that "public order" includes "public safety" and the latter comprises "public health".
We see no force in this contention and Ramesh Thappar 's case(1) does not say so.
In our view "Public Order" in this context means public peace and tranquillity.
We agree with the High Court that the functions of the Municipal Council in carrying night soil and in distributing water do not fail within "maintenance of public order.
" In the result the appeal fails and is dismissed.
V.P.S. Appeal dismissed.

summary/full:
The appellant (Municipal Council) owned transport vehicles and used those vehicles for the maintenance of public health in the Municipality by transporting the night soil and refuse of the town, and by distributing water.
It employed 50 transport workers.
As it had not been registered as 'required under section 3(1) of the , a complaint was filed against it.
On receiving the summons, the Chief Municipal Officer appeared, and even before the particulars of the offence were stated to him, filed preliminary objections that the Municipal Council was not a 'motor transport undertaking ' and that the transport vehicles owned by the Council were exempt under section 38 of the Act.
The trial court dismissed the complaint and a revision to the Sessions Court was also dismissed.
A further revision to the High Court under section 439 Criminal Procedure Code, was allowed.
In appeal to this Court, it was contended that: (1) the case being a summons case the dismissal of the complaint was an order of acquittal and not one of discharge and hence, only an appeal lay under section 417, Cr.
P.C., and not a revision under section 439; (2) the appellant did not fail within the definition of the expression 'motor transport undertaking ' in section 2(g) of the Act; and (3) the transport vehicles owned by the appellant were exempt under section 38 of the Act, because, the transport vehicles were used for a purpose connected with the maintenance of 'public order '.
HELD: (i) Since the complaint was dismissed before anything was done it amounted to.
an order of discharge and not an acquittal, and so the revision was competent.
[917 C] (2) The expression 'motor transport undertaking ' in section 2(g) includes a 'private carrier ' as defined in the .
The: appellant fell within the definition of 'private carrier ' inasmuch as the appellant owned transport vehicles and used them solely for the carriage of goods.
It cannot be said that only an undertaking of a commercial nature was intended to be included within the definition of motor transport undertaking, because, (a) the is a beneficial Act and the Legislature intended to enlarge the meaning of the expression 'motor transport undertaking ' and so, the enactment should not be construed strictly; (b) the words of the definition are plain and are not susceptible of any limitation: and (e) section 38, which exempts certain transport vehicles proceeds on the basis that a private carrier carrying on activities which are not of a commercial character would also be included in the expression 'motor transport undertaking '.
[918 C F] 916 (3) The words 'public order ' in section 38 mean 'public peace and tranquility ' and do.
not include 'public health '.
Therefore, the exemption under section 38 is not attracted.
[920 A B] Ramesh Thappar vs State of Madras, ; , explained.