judgement:
N: Criminal Appeal No. 615 of 1981.
356 Appeal by Special leave from the Judgment and Order dated the 6th May, 1981 of the Punjab & Haryana High Court in Criminal Revision No. 562 of 1979.
Uma Datta, T.C. Sharma and A.D. Malhotra for the Appellant.
R.N. Poddar for the Respondent.
This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court, dismissing Criminal Revision Case No. 562 of 1979 which was filed by the appellant against the judgment of the Additional Sessions Judge, Gurgaon who affirmed the judgment of the Chief Judicial Magistrate, Gurgaon sentencing the appellant to rigorous imprisonment for six months and a fine of Rs. 1,000 under section 16 (1) (c) of the as amended from time to time.
We dismissed the appeal and confirmed the conviction and sentence on 5.4.
1983 for reasons to be giving later.
We hereby give the reasons.
The charge against the appellant was that when the Food Inspector, Gurgaon, Sant Lal Anand (P.W.2) went to the appellant 's grocery shop at Farrukh Nagar at about 4 p.m. on 27.8.1976 he prevented P.W.2 from taking a sample of dhania from the stock kept for sale by slipping away from the shop under some pretext.
The case of prosecution was that when the Food Inspector (P.W.2) visited the appellant 's grocery shop accompanied by Dr. Aggarwal, Medical officer Incharge, Primary Health Centre, Farrukh Nagar (P.W.1) and Dr. Yadav, Chief Medical Officer (Health), Gurgaon (P.W.3).
The appellant was found to have stored 6 kgs.
of dhania for sale in his shop.
P.W. 2 disclosed his identity to the appellant and demanded a sample of the dhania for analysis and sought to serve the notice Ex P/B and tendered Rs. 4.80 as the price of 600 gms.
of dhania asked for.
The appellant went away from the shop under the pretext of passing urine without accepting the notice exhibit P/B or the sum of Rs. 4.80 tendered by P.W.2 and he did not come back to the shop though P.Ws. 1 to 3 waited there for about 11/2 hours.
There after P.W.2 took a sample from the shop in the absence of the appellant and prepared the spot memo exhibit P/A in the presence of P.Ws. 1 and 3 and subsequently filed the complaint exhibit P/C in the Court of the Chief Judicial Magistrate, Gurgaon against the appellant for contravention of s.16 (1) (c) of the Prevention of Food Adulteration as amended, by preventing him from taking a sample of the article of food.
After the examination of P.Ws. 1 to 3 a charge was framed against the appellant for the offence punishable under section 16 (1) (c) of the Act and he pleaded not guilty to the charge and claimed to be tried.
The prosecution relied on the evidence of P.Ws. 1 to 3 who deposed to the facts mentioned above.
The appellant stated when examined under section 313 Criminal Procedure Code, that he is running a cloth business at Delhi and had casually visited his father 's grocery shop at Farrukh Nagar on 27.8.1976 when P.Ws. 1 to 3 came there and he went to call his father Uggar Sain (D.W. 1) and came back to the shop alongwith D.W. 1 after about 6 or 7 minutes and that P.Ws. 1 to 3 had gone from the shop by that time.
The appellant examined his father as D.W. 1 in his defence.
The learned Chief Judicial Magistrate, Gurgaon who tried the case rejected the evidence of D.W. 1 as being interested and unreliable and accepted the evidence of P.Ws. 1 to 3 of whom P.W. 1, however, could not identity the appellant as the person who went away from the shop without accepting the notice and cash tendered by P.W 2 and found following judgment of the Punjab and Haryana High Court in Krisha Lal & Ors.
vs State of Haryana(1) that the appellant was guilty of having prevented the Food Inspector (P.W. 2) from taking a sample of the article of food by going away from the shop without accepting the notice and cash tendered by P.W. 2.
Accordingly, the learned Magistrate convicted the appellant and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000 under section 16 (1) (c) of the Act.
The conviction and sentence were confirmed on appeal by the learned Additional Sessions Judge, Gurgaon who found that the appellant was more than 18 years of age at the time of commission of the offence and was therefore not entitled to the benefit of section 360 Cr.
P.C. in view of section 20 AA of the Act according to which section 360 Cr.
P.C. is not applicable to the case of the accused who was more than 18 years of age at the time of commission of the offence.
The Criminal Revision Case filed by the appellant in the Punjab and Haryana High Court against the judgment of the learned Additional Sessions Judge, Gurgaon was dismissed by S.S. Dewan, J. who confirmed the conviction and sentence.
Hence, this appeal by special leave.
358 The prevention of Food Inspector from taking a sample of an article of food as authorised by the Act is an offence punishable under section 16 (1) (c) with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than on thousand rupees.
Mr. Uma Datta, appellant 's learned counsel invited our attention to paragraph 10 of the judgment of the learned Additional Sessions Judge, Gurgaon where it has been found that the Food Inspector (P.W. 2) had in fact taken a sample in the presence of P.Ws. 1 and 3.
But this must be noted that this was done after the appellant went away from the shop under the pretext of passing urine and did not return for about 1 1/2 hours, during which period P.Ws. 1 to 3 waited for him at the shop.
The finding of fact that the appellant went away from the shop under the pretext of passing urine when the Food Inspector (P.W. 2) tendered the notice exhibit P/B and the cash of Rs. 4.80 for purchasing a sample of dhania and did not return for about 1 1/2 hours, during which period P.Ws. 1 to 3 waited at the shop for him cannot be canvassed in this appeal.
The learned counsel for the appellant invited our attention to two decisions and submitted that the mere disappearance of the appellant from the shop after the sample was asked for by the Food Inspector without anything more did not amount to prevention of the Food Inspector from taking the sample.
The first of those decisions is of C.P. Sen, J of the Madhya Pradesh High Court in Jagannath vs State of Madhya Pradesh(1) where the facts found were that when the accused was taking 5 litres of milk in his kothi for sale the Food Inspector stopped him as he suspected the milk to be adulterated and asked him to accompany him to the Municipal office for taking a sample and that on reaching the Municipal office the accused bolted away leaving the kothi of milk, and the learned Judge held that the accused did not prevent the Food Inspector from taking a sample simply because he bolted away from the spot and that the Food Inspector was free to take the sample from the kothi of milk left behind by the accused even in the absence of the accused.
In holding so the learned Judge differed from the view taken in Municipal Board, Sambhal vs Jhamman Lal(2) where it has been held that the disappearance of the seller from the shop amounts to prevention of the Food Inspector from taking the sample and that over act on the part of the seller is not necessary to constitute an offence under section 16 (1) (b) of the Act as it then stood which corresponds to the present section 16 (1) (c).
The second decision 359 relied upon by the learned counsel of the appellant is of the Full Bench of the Rajasthan High Court in Narain Prasad vs State of Rajasthan & Anr.(1) where Shrimal, J., speaking for the bench has observed: "Thus the consensus of the opinion of almost all the High Court barring a few on the point is that section 16 (1) (b) of the Act makes a person liable to punishment, who prevents the Food Inspector from taking the sample as authorised by the Act.
Section 10 (1) (a) (i) gives the Inspector power to take sample of article of food from any person selling such article.
Sub sec.
(2) of Sec. 10 gives the Food Inspector power to enter any place where the article of food is exposed for sale.
Sub sec.
(4) of Sec.
10 provides for seizure of adulterated food.
The Inspector has also power to break open the door or any package in which the article of food is kept.
For all the purposes the Inspector has power to exercise the power of search and seizure of a police officer under the Crl.
The Food Inspector is also authorised to exercise powers of a police officer under Section 57 of the Code i.e. to arrest an offender, if he refuses to tell his name and residence.
Section 11 prescribes the procedure to be followed by the Food Inspector while taking sample.
Therefore, the Food Inspector can follow one of the two modes; one where the vendor co operates, the other when he refuses to co operate.
To prevent the Food Inspector from taking a sample, the accused must do something which makes it impossible for him to take the sample.
" The learned Judges of the Full Bench appear to have held that some overt act on the part of the seller apart from mere refusal to sell the article of food to the Food Inspector is necessary to constitute an offence of prevention of the Food Inspector from taking the sample.
On the other hand, Mr. R. N. Poddar, learned counsel appearing for the State of Haryana, invited our attention to two decisions and submitted that the conduct of the appellant in slipping 360 away from the shop when the Food Inspector disclosed his identity and asked for sale of a sample of dhania from his grocery shop, amounts to prevention of the Food Inspector from taking the sample as per the provisions of the Act.
The first of those decisions is to H.C.P. Tripathi, J. in Mamchand vs State(1) where the learned Judge has observed: "The sample had to be taken in accordance with the provisions of the Act and Rules thereunder.
As soon as the owner of the milk disappeared from the scene the Food Inspector could not have obtained the sample as required under law.
By running away from the place the applicant did prevent the Food Inspector from taking sample as required under the Act though not from taking away the entire quantity of the milk which the Food Inspector could do in exercise of his powers under Section 10 (iv) of the Act.
In the case of Municipal Board, Sambhal vs Jhamman Lal (AIR 1961 AII.
103), it was held by a Division Bench of this Court that if a person selling article leaves the shop he prevents Food Inspector from taking sample as authorised by the Act.
In the instant case, the applicant left the milk, which he was exposing for sale, and thereby prevented the Food Inspector from taking its sample.
" A learned single Judge of the Madhya Pradesh High Court has taken a similar view in Habib Khan vs State of Madhya Pradesh.(2) In that case a milk vendor on being accosted by the Food Inspector kept his milk can in the canteen and bolted away, and it has been held that the milk vendor prevented the Food Inspector from taking the sample and thus committed an offence under section 16 (1) (b) of the Act as it stood than.
The learned Judge has observed in his judgment thus: "The power of taking the sample has been conferred on the Food Inspector so that he may prosecute the person found selling adulterated food stuff or found in possession thereof for the purposes of sale.
Now, if a person bolts away and thus his identity remains undis 361 closed, the whole purpose of the exercise of the power conferred under section 10 on the Food Inspector is defeated.
In such a case, it will have to be held that in bolting away the person prevented the effective exercise of the power by the Food Inspector.
If this is so, it is difficult to see how the same action on the part of a known person would make any difference.
If he bolts away, an additional burden will be cast on the Inspector if he decides to prosecute him for selling or keeping for sale adulterated food articles, to prove that the person who bolted away was the accused and that the article left by him was in his possession.
Witnesses may not be available at the nick of the time and here, again, the result would be the same.
This is why it is necessary to interpret the two expressions "prevents" and "in exercise of the powers under the Act" in the manner interpreted by the Allahabad High Court in Municipal Board, Sambhal vs Jhamman Lal (supra)", We are of the opinion that the view of the Allahabad High Court expressed in Municipal Board, Sambhal vs Jhaman Lal (supra) reiterated in Mamchand vs State referred to above and taken by the learned single Judge of Madhya Pradesh High Court in Habib Khan vs State of Madhya Pradesh (supra) and the Punjab and Haryana High Court in the judgment under appeal in this case is the correct view and that appellant in this case who bolted away from the shop under the pretext of passing urine when the Food Inspector (P.W. 2) went to his shop alongwith P.Ws. 1 and 3 and disclosed his identity and tendered the notice exhibit P/B and cash of Rs. 4.80 and asked for a sample of the dhania kept for sale in his grocery shop without accepting the notice and the cash prevented the Food Inspector (P.W. 2) from taking a sample in accordance with the provisions of the Act and the Rules made thereunder and that no other overt act is necessary on the facts of this case to constitute the offence for which the appellant has been convicted and sentenced and that he has been rightly convicted and sentenced by the Court below under section 16 (1) (c) of the Act.
We accordingly, dismiss the appeal and confirm the conviction of the appellant and the sentence awarded to him.
P.B.R. Appeal dismissed.

summary/full:
A Food Inspector visited the appellant 's grocery shop and demanded a sample of dhania for analysis.
Leaving the shop on a false pretext, the appellant did not return to the shop for quite a long time.
Thereupon after following the requisite procedure the Food Inspector took a sample of dhania in the absence of the appellant.
On a charge under Section 16(1)(c) of the that the appellant had prevented the Food Inspector from taking a sample of the article of food, the trial court convicted and sentenced him.
The conviction and sentence were affirmed on appeal.
The High Court dismissed his criminal revision petition.
In appeal to this Court it was contended that mere disappearance from the shop after the sample was demanded by the Food Inspector, without anything more, did not constitute an offence of prevention of the Food Inspector from taking a sample.
Dismissing the appeal.
^ HELD: The appellant had been rightly convicted and sentenced under section 161(1) (c) of the Act.
The appellant 's disappearance from the shop for a long time, amounted to prevention of the Food Inspector from taking a sample in accordance with the provisions of the Act and the Rules.
No other overt act is necessary to constitute the offence.
[361 F H] Municipal Board.
Sambhal vs Jhaman Lal, AIR 1961 All.
103; Mam Chand vs State, ; Habib Khan vs State of Madhya Pradesh, , approved.
Jagannath vs State of Madhya Pradesh, 1977 Crl.
L.J. 974; Narain Prasad vs State of Rajasthan, AIR overruled.


judgement:
ivil Appeal No. 357 of 1957.
Appeal by special leave from the judgment and order dated February 28, 1956, of the Allahabad High Court (Lucknow Bench) in Misc.
Case No. 4 of 1955 and Civil Revision No. 189 of 1955, arising out of the order dated August 6, 1955 of the Civil Judge, Sitapur in Suit No. 16 of 1953.
Vidya Sagar, for the appellant.
Iqbal Ahmad, section N. Andley and Rameshwar Nath, for the respondent.
January 22.
The following Judgment of the Court was delivered by SARKAR J.
The respondent, a scheduled bank, sued the appellant in the court of the Civil Judge, Sitapore in Uttar Pradesh, for the recovery of money due under an instrument of mortgage.
The appellant contested the suit on several grounds one of which was that he was entitled to relief under the Uttar Pradesh Zamindar 's Debt Reduction Act (U.P. XV of 1953) which reduced the amount recoverable on a debt as defined in it.
Now a debt was defined in the Act in these terms: 2(f): "debt" means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of July, 1952 or a debt due to (i) the Central Government or Government of any State ; (ii) a local authority; (iii) a scheduled bank; (iv) a co operative society; and 1152 (v) a waqf, trust or endowment for a charitable or religious purpose only.
(vi) a person, where the debt was advanced on his behalf by the Court of Wards to a ward.
As the respondent was a scheduled bank the debt due to it from the appellant was not a debt within this definition and consequently, no relief would appear to be available to the appellant under the Act in respect of that debt.
The appellant, however, contended that the definition in so far as it excluded certain debts offended article 14 of the Constitution in as much as it made an arbitrary distinction between several classes of debtors and denied the excluded debtors, the equal protection of the law and that hence that portion of the definition which excluded certain debts was invalid and should be struck out and the rest of the definition should be left as operative.
If the appellant 's contention was justified, the definition would have to run as follows: "debt" means an advance in cash or in coin and includes any transaction which is in substance a debt, and would then include the debt due by the appellant to the respondent.
If this was the correct position, then the appellant would be entitled to all the reliefs granted by the Act.
This defence, therefore, raised a question as to the validity of a provision in the Act.
So the appellant made an application to the Civil Judge, Sitapur, under the proviso to section 113 of the Code of Civil Procedure asking him to state a case for the opinion of the High Court at Allahabad to which he was subordinate as to the invalidity of the impugned portion of the definition.
That proviso is in these terms: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by 1153 the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.
The learned Civil Judge took the view that the impugned portion of the definition infringed article 14 of the Constitution as it made an arbitrary distinction between several classes of debtors and was therefore invalid, but he held that it was not necessary for the disposal of the case to decide such question of invalidity because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest and the appellant would, therefore, be in any event left without the protection of the Act.
In this view of the matter he held that the proviso to section 113 of the Code did not apply and dismissed the application under it.
The appellant then made an application to the High Court at Allahabad for a revision of the order of the learned Civil Judge.
He at the same time made another application to the High Court under article 228 of the Constitution.
That article is in these terms: If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may (a) either dispose of the case itself, or (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.
The appellant in the latter application prayed that the High Court might be pleased to withdraw the case and either dispose it of itself, or determine the question of the validity of the defintion of debt in the Act and return the case to the court of the Civil Judge, 1154 Sitapur, for final disposal in accordance with such determination.
The High Court disposed of both the applications by one judgment.
It held that there was no dispute as to the constitutional principle which was clear, namely, that every citizen was entitled to the equal protection of the laws and that any enactment which infringed that principle, is to that extent void, and that the only dispute was whether the impugned portion of the definition of a " debt " in the Act was severable from the rest and that was not a question of the interpretation of any provision of the Constitution but one of the construction of the Act itself.
The High Court also held that even if any question of the interpretation of the Constitution arose, a determination of that question was not necessary for the dispogal of the case.
In this view of the matter the High Court dismissed the application in revision and also that under article 228.
From this judgment the present appeal has been filed.
It seems clear to us that the question raised by the appellant in this case comes within the proviso to section 113 of the Code as also article 228 of the Constitution.
The question contemplated by the proviso to section 113 of the Code is as to the validity of an Act or of a provision in it while article 228 of the Constitution has in view a question as to the interpretation of the Constitution.
Now the question raised in the present case is as to the validity of a provision in the Zamindar 's Debt Reduction Act.
This question is, however, also a question as to the interpretation of the Constitution, for the validity of the provision is challenged on the ground that it contravenes an article of the Constitution.
The point that really arises in this appeal is whether it is necessary for the disposal of the case to decide the question of the validity of a portion of the definition of a debt in the Act .
All other conditions necessary for an order being made under the proviso to section 113 of the Code or article 228 of the Constitution exist and as to this there is no serious dispute.
It is 1155 not necessary for us therefore to discuss these conditions.
The courts below held that in either view of the question of the validity of the impugned portion of the definition of a debt, the appellant would be without, the remedy which he sought, because that portion of the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of the case.
We are unable to agree with this view.
The question of the validity of the definition in so far as it excluded certain debts having been raised and pressed by the appellant, it had to be decided by the court.
Without a decision of that question the case could not be disposed of.
The fact that in the view of the court the impugned part of the% definition was not severable from the rest and there ' fore in any view of the question as to the validity of the impugned part, the appellant would not get any relief, did not alter the position.
The question as to the severability of the impugned part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid.
It could not be said that as the impugned part was not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part.
We, therefore, hold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case.
This appeal is hence allowed.
The High Court will withdraw the case and either dispose it of itself or determine the question of the validity of the definition of a debt in the Zamindar 's Debt Reduction Act and return the case to the Civil Judge, Sitapur, for disposal in accordance with its determination of the ' question.
The appellant will get the costs of this appeal.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent, a scheduled bank, sued the appellant for recovery of money under a mortgage.
The appellant claimed reduction of the debt under the Uttar Pradesh Zamindari Debt Reduction Act, 1953.
An advance or debt due to a scheduled bank was excluded from the definition of "debt" given in the Act.
The appellant contended that the definition in so far as it excluded certain debts offended article 14 Of the Constitution as it made an arbitrary distinction between several classes of debtors.
The appellant applied to the court under the proviso to section 113 of the Code of Civil Procedure praying that a case be stated for the opinion of the High Court as to the validity of the impugned portion of the definition.
The Court rejected the application.
The appellant made an application in revision to the High Court and also an application under article 228 of the Constitution for withdrawing the case for a decision of the question of the validity of the definition.
The High Court dismissed the applications.
The Courts below held that in either view of the question as to the validity of the impugned portion of the definition, the appellant would be left without the remedy which he sought, because that portion of the definition was not severable from the rest and the whole definition would have to be excluded and therefore it was not necessary to decide that question to dispose of the case 1151 Held, that the question raised by the appellant came both within the proviso to section 113 of the Code and article 228 Of the Constitution.
The question whether the impugned part of the definition contravened article 14 was a question as to the interpretation of the Constitution and that question must be decided first.
The question of severability could arise only after that question had been decided and the impugned part held invalid.


judgement:
etition (Criminal) No. 1632 of 1981.
476 Under article 32 of the Constitution of India.
S.K Jain for the Petitioner.
The Judgment of the Court was delivered by SEN, J.
This petition under article 32 of the Constitution is clearly not maintainable and must be dismissed but in view of the growing trend of filing such frivolous applications, we deem it necessary to state the reasons therefor.
It appears that the petitioner along with two others was arraigned before the Sessions Judge of Alwar in Sessions Trial No. 110 of 1976 for having committed an alleged offence punishable under section 302 of the Indian Penal Code, alternatively, under section 302 read with section 34 of the Code.
By his finding and sentence dated April 21, 1977 the learned Sessions Judge convicted the petitioner and his two associates for having committed the murder of the deceased Jharia in furtherance of their common intention under section 302 read with section 34 and sentenced each of them to undergo imprisonment for life, while recording their acquittal under section 302.
On appeal, a Division Bench of the Rajasthan High Court (Jaipur Bench) in Criminal Appeal No. 219 of 1977 by judgment dated July 3, 1980 maintained the conviction of the petitioner under section 302 read with s.34 but acquitted his two associates giving them the benefit of doubt.
Dissatisfied with the judgment of the High Court, the petitioner applied to this Court for grant of special leave under article 136 of the Constitution.
The special leave petition was dismissed by this Court on February, 23, 1981.
An application for review was also dismissed on November 19, 1981.
Thereafter, the petitioner filed this petition under article 32 assailing his conviction and sentence.
The petitioner seeks the issuance of a writ of mandamus directing the State of Rajasthan to forbear from giving effect to the judgment and sentence passed by the learned Sessions Judge as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition.
He further seeks a declaration that his conviction under section 302 read with section 34 by the High Court was illegal and therefore his detention in jail was without the authority of law and in violation of article 21 read with articles 14 and 19 of the Constitution.
477 The petitioner contends that in view of the decisions of this Court in Krishna Govind Patil vs State of Maharashtra(1), Maina Singh vs State of Rojasthan(2) and Piara Sinnh vs State of Punjab(3), his conviction under section 302 read with section 34 was illegal as he had been charged with two other named persons who have been acquitted by the High Court and therefore he cannot be convicted of an offence punishable under section 302 read with section 302 read with section 34.
Upon this basis, the contention is that the petitioner has been deprived of his life and liberty without the authority of law in violation of article 21 read with articles 14 and 19 of the Constitution.
It is represented to us that the contention based upon the decisions of this Court had been advanced during the course of the hearing of the special leave petition, but both the special leave petition and the application for review have been dismissed and therefore the petitioner has no other remedy except to approach this Court for appropriate writ, direction or order under article 32 of the Constitution.
We fail to appreciate the propriety of asking for a declaration n in there proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 of the India Penal Code is illegal, particularly when this Court has declined to grant special leave under article 136.
Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19.
When a special leave petition is assigned to the learned Judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32.
Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned Judges constituting the Bench are not amenable to the writ jurisdiction of this Court.
In Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat,(4) this Court laid down that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been 478 chosen as exhausted, it would not be a proper and sound exercise of discretion to grant relief the other set of proceedings in respect of the same order of the Subordinate Court.
In that case, the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure 1908, but a learned Single Judge dismissed the revision.
Thereupon, the respondent moved the High Court by a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court.
A Division Bench of the High Court held that in spite of the dismissal of the revision petition, it could interfere under articles 226 and 227 on a proper case being made out, and after going into the merits of the case, it granted relief to the respondent.
On appeal to this Court, the contention was that the High Court could not have interfered under articles 226 and 227.
That contention of the appellant prevailed and the judgment of the Division Bench of the High Court was set aside.
It was observed: "The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions.
" There is no reason why the same principle should not equally apply to proceedings under article 32 of the Constitution which are initiated after the Court has declined to interfere under article 136.
For these reasons, the writ petition fails and is dismissed.
H.L.C. Petition dismissed.

summary/full:
The petitioner and his two associates were convicted and sentenced under section 302 read with section 34, I.P.C. On appeal, the High Court maintained the conviction of the petitioner but acquitted his associates giving them the benefit of doubt.
The Petitioner applied to this Court for grant of special leave to appeal under article 136 but the same was dismissed.
By this petition under article 32 the petitioner sought issuance of a writ of mandamus directing the State to forbear from giving effect to the judgment and sentence passed by the trial court as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal and therefore his detention in jail was in violation of article 21 read with articles 14 and 19.
Dismissing the petition, ^ HELD: The propriety of asking for a declaration in these proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 I.P.C. is illegal, particularly when this Court has declined to grant special leave under article 136 cannot be appreciated.
Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19.
When a special leave petition is assigned to the learned judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32.
Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned judges constituting the Bench are not amenable to the writ jurisdiction of this Court.
[470 D F] Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat, ; , referred to.


judgement:
Tax Reference Case No. 4 of 1978.
Tax Reference Under Section 257 of the Income Tax Act, 1961 made by the Income Tax Appellate Tribunal, Bombay (Bench 'C ').
D. V. Patel, T. A. Ramachandran & Miss A. Subhashini for the Appellant.
The Judgment of the Court was delivered by PATHAKJ, J.
The Judgment of the Court was delivered by PATHAKJ.
J.
In this tax reference made under section 257 of the income Tax Act, 1961, we are called upon to express our opinion on the following question of law: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in confirming the order of the Appellate Assistant Commissioner that the loss suffered by the assessee was not a loss incurred in a speculative transaction within the meaning of Sec. 43 (5) of the Income tax Act, 1961 ?" The assessee, M/s Shantilal Pvt. Ltd., Bombay, is a private limited company.
In the assessment proceedings for the assessment year 1971 72 it claimed a sum of Rs. 1,50,000 paid by it as damages to M/s Medical Service Centre as a business loss.
During the previous year relevant to the said assessment year the assessee had contracted to sell 200 Kilograms of Folic Acid USP at the rate of Rs. 440 per Kilogram to M/s. Medical Service Centre and the delivery was to be effected on or before November 1, 1969, within about three months of the date of entering into the contract.
The 472 case of the assessee is that as the price of the commodity rose very sharply to as high as Rs. 2,000 per Kilogram during the period when the delivery was to be effected, the assessee was unable to fulfil the contract, giving rise to a dispute in regard to the payment of compensation between the parties.
The dispute was referred to arbitration and by an award dated August 25,1970 the arbitrator directed the assessee to pay Rs. 1,50,000 as compensation to M/s. Medical Service Centre.
A consent decree in terms of the award was made by the High Court.
In the assessment proceedings, the Income Tax officer rejected the claim of the assessee that the payment of compensation was a business loss.
He found that the transaction was a speculative transactions as defined by Sub section
(5) of section 43.
Income Tax Act, 1961.
The Appellate Assistant Commissioner allowed the assessee 's appeal on the view that the payment made by it represented a settlement of damages on breach of the contract, which was distinct from a settlement of the contract.
Accordingly, he found that the loss must be regarded as a business loss and not as a speculation loss.
The Income Tax officer 's appeal was dismissed by the Income Tax Appellate Tribunal by its order dated February 18, 1976.
The Commissioner of Income Tax applied in reference for a decision on the question of law set out earlier, and in view of an apparent conflict between different High Courts on the point the Tribunal has made this reference.
There is no doubt that the arbitration award granting compensation to M/s. Medical Service Centre proceeds on the footing that there was a breach of contract.
The Tribunal took the view that the award of damages for breach of a contract did not bring the transaction within the definition of "speculative transaction" set forth in sub section
(5) of section 43, Income Tax Act, 1961.
In this, the Tribunal found support in the view expressed by the Calcutta High Court in Commissioner of Income Tax, West Bengal vs Pioneer Trading Company Private Ltd.,(1) Daulatram Rawatmull vs Commissioner of Income Tax (Central), Calcutta(2) and by the Mysore High Court in Bhandari Rajmal Kushalroj vs Commissioner of Income tax, Mysore,(9) which they preferred to the view expressed by the Madras High Court in R. Chinnaswami Chettiar vs Commissioner of Income 473 Tax, Madras.,(1) P.L. KN.
Meenakshi Achi vs Commissioner of Income Tax, Madras(a) and A. Muthukumara Pillai vs Commis sioner of Income Tax, Madras.(3) on cereful consideration of the matter we are of opinion that the Tribunal is right.
Sub section
(5) of section 43 defines "speculative transaction" to mean: "a transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips . " Is a contract for purchase or sale of any commodity settled when no actual delivery or transfer of the commodity is effected, and instead compensation is awarded under and arbitration award as damages for breach of the contract ? A contract can be said to be settled if instead of effecting the delivery or transfer of the commodity envisaged by the contract the promisee, in terms of section 63 of the Contract Act, accepts instead of it any satisfaction which he thinks fit.
It is quite another matter where instead of such acceptance the parties raise a dispute an d no agreement can be reached for a discharge of the contract.
There is a breach of the contract and by virtue of section 73 of the Contract Act the party suffering by such breach becomes entitled to receive from the party who broke the contract compensation for any loss or damage caused to him thereby.
There is no reason why the sense conveyed by the law relating to contracts should not be imported into the definition of "speculative transaction".
The award of damages for breach of a contract is not the same thing as a party to the contract accepting satisfaction of the contract otherwise than in accordance with the original terms thereof.
It may be that in a general sense the layman would understand that the contract must be regarded as settled when damages are paid by way of compensation for its breach.
What is really settled by the award of such damages and their acceptance by the aggrieved party is the dispute between the parties.
The law, however, speaks of a settlement of the contract, and a contract is settled when it is either performed or the promisee dispenses with or remits, wholly or in part, the performance of the promise made to him or accepts instead of it any satisfaction which he thinks fit.
We are concerned with the sense of the law, and it is 474 that sense which must prevail in sub section
(5) of section 43.
Accordingly, we hold that a transaction cannot be described as a "speculative transaction" within the meaning of sub section
(5) of section 43, Income Tax Act, 1961 where there is a breach of the contract and on a dispute between the parties damages are awarded as compensation by an arbitration award.
We are unable to endorse the view to the contrary taken by the Madras High Court in R. Chinnaswami Chettiar(supra) and approve of the view taken by the Calcutta High Court in Pioneer Trading Company Private Ltd. (supra) and by the Mysore High Court in Bhandari Rajmal Kushalra; (supra).
The decisions of the Madras High Court in P. L. K. N. Meenakshi Achi (supra) and A. Muthukumara Pillai (supra) are not apposite and are not concerned with the point before us.
Our attention was invited by learned counsel for the Revenue to the decision of this Court in Devenport o. P. Ltd. vs Commissioner of Income Tax, West Bengal II(1) but this point did not arise there either.
Accordingly, we answer the question referred in the affirmative, in favour of the assessee and against the Revenue.
There is no order as to costs.
H.S.K. Question answered in affirmative.

summary/full:
The respondent assessee claimed that a sum of Rs. 1,50,000 paid by them as compensation for being unable to fulfil a contract was a business loss.
The Income tax officer rejected the claim on the ground that the transaction was a speculative transaction as defined by sub section (5) of section 43 of the Income tax Act, 1961.
The Appellate Assistant Commissioner held that the loss was a business loss and not a speculative loss on the view that the payment made represented a settlement of damages on breach of the contract, which was distinct from a settlement of the contract.
The Income Tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner.
On the request of the Commissioner of Income tax the Appellate Tribunal has referred the question whether the loss suffered by the assessee was not a loss in a speculative transaction within the meaning of section 43(5) of the Income tax Act, 1961.
Answering the question in the affirmative, ^ HELD: A transaction cannot be described as a "speculative trans action" within the meaning of sub section
(5) of section 43 where there is a breach of the contract and on a dispute between the parties damages are awarded as compensation by an arbitration award.
[474 A B] Sub section
(5) of section 43 speaks of the settlement of a contract.
A contract can be said to be settled if instead of effecting the delivery or transfer of the commodity envisaged by the contract the promisee, in terms of section 63 of the Contract Act, accepts instead of it any satisfaction which he thinks fit.
It is quite another matter where instead of such acceptance the parties raise a dispute and no agreement can be reached for a discharge of the contract.
There is a breach of the contract and by virtue of section 73 of the Contract Act the party suffering by such breach becomes entitled to receive from the party who broke the contract compensation for any loss or damage caused to him thereby.
There is no reason why the sense conveyed by the law relating to contracts should not be imported into the definition of "speculative transaction" What 471 is really settled by the award of such damages and their acceptance by the aggrieved party is the dispute between the parties.
[473 A, C G] Commissioner of Income Tax, West Bengal vs Pioneer Trading Company Private Ltd., ; Bhandari Rajmal Kushiraj vs Commissioner of Income Tax, Mysore, approved.
R. Chinnaswami Chettiar vs Commissioner of Income Tax, Madras, overruled.
P.L. KN.
Meenakshi Achi vs Commissioner of Income Tax, Madras, ; A. Muthukumara Pillai vs Commissioner of Income Tax, Madras, and Devenport & Co. P. Ltd. vs Commissioner of Income Tax, West Bengal 11, not relevant to the point raised.