judgement:
Appeal No. 219 of 1954.
On appeal from the Judgment and Order dated the 4th day of April 1952 of the Madras High Court in Civil Miscellaneous Petition No. 8302 of 1950.
V. K. T. Chari, Advocate General of Madras (R. Ganapathy Iyer and P. G. Gokhale, with him) for the appellant.
R. Kesava lyengar, (M. section K. Iyengar, with him) for the respondent.
October 21.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal raises a question of considerable importance as to the rights of holders of darmila or post settlement inams of portions of a village under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), hereinafter referred to as the Act.
The subject matter of this appeal is an one sixteenth share in the village of Karuppur situated within the ambit of the Zamindari of Ramanatha puram.
The holders of this ancient Zamindari were, during the 18th Century, the virtual rulers of that part of South India, and were known as Sethupathis or the Lords of Rameswaram and the adjacent isles and seas.
In 1757 Muthu Vijaya Ragunatha, the then Rajah of Ramanathapuram, made a grant of the whole of the village of Karuppur to a number of persons for various charitable purposes.
In 1802, the estate was permanently settled, and an istimrari sanad was issued in favour of the Rajah.
Before that date, the donees under the grant of 1757 representing an one sixteenth share had abandoned the village, and in consequence, the inam had eo extanti been resumed.
At the permanent settlement, this one sixteenth part was included in the assets of the 909 Zamindari, and taken into account in fixing the peishkush thereon.
Subsequent to the permanent settlement, on some date which does not appear on the record, Rani Mangaleswari, the then holder of the Zamindari, made a fresh grant of the one sixteenth part which had been resumed, to the inamdars who held the remaining 15/16th portion of the village under the grant of 1757.
On 31 12 1863 the Inam Commissioner confirmed the grant of 1757, and issued an inam certificate in respect of the 15/16th portion of the village.
The position, therefore, when the Act was passed was that while a 15/16th portion was held by the inamdars under a pre settlement grant confirmed by the British Government, the remaining one sixteenth portion was held under post settlement grant made by the proprietor of the estate.
The Act came into force on 19 4 1949.
Under section 1(4) of the Act, certain sections thereof were to come into force at once and the other sections on such date as the Government might by notification appoint in respect of any zamindari, under tenure, or inam estate.
In exercise of the powers conferred by this section, the appellant issued a notification on 22 8 1949 bringing the Act into force as regards the Ramanathapuram estate from 7 9 1949.
Among the villages mentioned as comprised in the Zamindari was "Karuppur (part)" described as an under tenure.
It is common ground that the part referred to in this notification is the one sixteenth part, which forms the subject matter of this appeal.
The respondent who represents the holders of this inam filed the application out of which the present appeal arises, under article 226 of the Constitution for a writ of certiorari quashing the notification dated 22 8 1949 as ultra vires.
The ground of attack was that under section 1 (3) of the Act, the State had power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act 1908 (Madras Act I of 1908), and that the part of the village of Karuppur included in the notification was not an estate as defined in that section.
Section 3(2) of Act I of 1908, so far as is material, is as follows; 910 "Estate" means (a) any permanently settled estate or temporarily settled zamindari; (b) any portion of such permanently settled estate or temporarily settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; (d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.
* * * * (e) any portion consisting of one or more villages of any of the estates specified above in clauses.
(a), (b) and (c) which is held on a permanent under tenure".
The contention of the respondent was that as the grant in question related only to a fraction of a village, it could not be notified as an under tenure, as under section 3 (2) (e) an under tenure would be an estate only if it related to a whole village or villages.
The appellant conceded that the inam in question was not an under tenure as defined in section 3 (2) (e), as it comprised only part of a village, but contended that even though it was not in itself an estate, it was, nevertheless, part of the Zamindari of Ramanathapuram, being a post settlement grant of portion of a village comprised therein, and that when that estate was notified, the entirety of it including the inam in question must vest in the Government under section (b) of the Act.
The respondent demurred to this contention.
In addition, he raised the further contention that even if post settlement minor inams were within the operation of the Act, they would be protected by section 20 of the Act, which runs as follows: "20(1) In cases not governed by sections IS and 19, where, before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, 911 mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government: Provided that the transaction was not void or illegal under any law in force at the time: Provided further that any such right created on or after the 1st day of July 1945 shall not be enforceable against the Government, unless it was created for a period not exceeding one year: Provided also that where such right was created for a period exceeding one year, unless it relates to the private land of the landholder within the meaning of section 3, clause (10), of the Estates Land Act, the Government may, if, in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof".
The argument of the respondent was that a post settlement minor inam would be a right in land created by a landholder falling within section 20, that the notification of the estate under section 1(3) would not ipso facto divest the inamdar of his title to the lands, and that he would be entitled to hold them subject to any action that might properly be taken by the State under section 20.
The learned Judges of the Madras High Court agreed with the appellant that post settlement minor inams fell within the operation of the Act; but they accepted the contention of the respondent that they were governed by section 20 of the Act.
As it was common ground that the State had not proceeded under that section, they held that the notification was ultra vires, and accordingly quashed the same in so far as it related to the inam forming part of Ka ruppur village.
The appellant applied to the High Court for leave to appeal to this Court against this decision, and though the value of the subject matter was far below the appealable limit, the learned Judges granted a certificate under article 133(1)(c) on the 912 ground that the question involved was one of great public importance.
That is how the appeal comes before us.
Two questions arise for decision in this appeal: (1) Are post settlement minor inams within the operation of Madras Act XXVI of 1948? (2) If they are, are they governed by section 20 of the Act? On the first question, the appellant does not contend that the inam in question is in itself an estate as defined in section 3(2) of the Madras Estates Land Act and liable as such to be notified under the Act.
His contention is that when the Zamindari of Ramanathapuram was notified and there is no dispute that it was validly notified, as it was a permanently settled estate falling within section 3(2) (a) of the Madras Estates Land Act minor post settlement inams of lands within the Zamindari would vest in the State as part of the Zamindari under section 3(b) of the Act.
Section 3(b) is, omitting what is not material, as follows: "With effect on and from the notified date and save as otherwise expressly provided in this Act. . . . the entire estate.
shall stand transferred to the Government and vest in them, free of all encumbrances".
The point for decision is whether post settlement minor inams are parts of the estate out of which they were granted.
If they are, then they will vest in the Government under section 3(b).
If they are not, they will remain unaffected by the notification of the parent estate.
The status of holders of these inams had been the subject of considerable divergence of judicial opinion in the Madras High Court.
To appreciate this, reference must be made to the following definition of 'landholder ' in section 3(5) of the Madras Estates Land Act: "Landholder" means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent 913 Court or of any provision of law".
Leaving out the inclusive portion of the definition as not relevant to the present question, it will be seen that owners of parts of an estate would also be landholders.
The question then arose for decision whether darmila minor inamdars were landholders as defined in section 3 (5) of the Estates Land Act.
If they were.
, the tenants would acquire occupancy rights under section 6, and proceedings against them could be taken only in the revenue courts and not in the civil courts, and in general, the rights and obligations of the inamdar and the tenants would be governed by the provisions of the Madras Estates Land Act.
One view was that as the inamdars had to pay quit rent or jodi to the grantors, their status could not be that of owners and therefore they could not be said to own parts of an estate.
The contrary view was that the inamdars were in substance owners of the lands granted to them, and that the liability to make a fixed annual payment did not detract from their character as owners, and they would be landholders owning parts of an estate.
In view of this conflict of opinion, the question was referred to the decision of a Full Bench in Brahmayya vs Achiraju(1), which held by a majority that minor darmila inamdars were landholders as defined in section 3(5) of the Estates Land Act.
This decision was based both on the ground that the inamdars were in the position of owners of parts of an estate and that they were also persons entitled to collect rent, within the inclusive portion of the definition.
In Narayanaraju vs Suryanarayudu(2), the question whether the grantee of a portion of a village subsequent to the settlement was a landholder as defined in section 3(5) came up for decision before the Privy Council.
After reviewing the authorities and the conflicting views expressed therein, the Board agreed with the opinion expressed by the majority of the learned Judges in Brahmayya vs Achiraju (1), and held that the grantee of a post settlement minor inam would be a landholder on both the grounds mentioned in their (1) Mad. 716.
(2) [1939] 66 I.A. 278. 914 judgments.
They discarded "the doctrine that so long as the zamindar reserves any interest, however insignificant, the permanent grantee from him cannot be the owner", and observed that the words "part of the estate" occurring in the definition must be given their prima facie meaning.
The Board felt greater difficulty in accepting the view that the inamdar was a landholder entitled to collect rent within the inclusive portion of the definition.
But they expressed themselves satisfied on either ground that "the Full Bench decision of 1922 represents a careful and reasonable solution of a stubborn ambiguity in the Act, and that it ought not now to be overruled having regard to the time which has elapsed and to the character of the interests affected thereby".
Thus, it was settled law in Madras at the time when Act XXVI of 1948 was passed that minor darmila inamdars were owners of parts of an estate.
Construing section 3(b) in the light of the law as then accepted, when a notified estate vests in its entirety in the State under that provision, a minor darmila inam which forms part of it must also vest in it.
Sri R. Kesava lyengar, learned counsel for the respondent, argued that decisions on section 3(5) of 'the Madras Estates Land Act on the meaning of the word 'landholder ' as defined therein, could not be usefully referred to for construing the true scope of section 3(b) of Act XXVI of 1948, as the definition in the Madras Estates Land Act was only for pur poses of settling the rights of landlords and tenants, and would be irrelevant for determining the rights of the inamdar as against the State.
But the ground of ,the decision in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) is that the grantee of the inam is in the position of an owner of the part of the estate granted to him, and that would be relevant when the controversy is as to his true status, whether the dispute is between the landlord and the tenant or between the inamdar and the State.
If the inamdar is owner in relation to his tenants, it would be illogical to hold that he is not that, in relation to (1) Mad. 716.
(2) [1939] 66 I.A. 278.
915 the State.
The question is, in our opinion, concluded by section 2(8) of Act XXVI of 1948 which defines a landholder as including a darmila inamdar, and that is a statutory recognition of the doctrine laid down in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) that darmila inamdars are owners ,of parts of an estate.
The result then is that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar, and when the estate is notified under section 1 (4) of the Act, the inam will vest in the State under section 3(b).
It is next argued for the,, respondent that the Act ,makes no provision for award of compensation to minor darmila inamdars and that as a statute is not to be construed as taking away the proper" of any person unless there is a provision for payment of compensation therefor,, these.
inams should be held to be outside the operation of the Act Reference was made in this connection to section 45 of the Act under which the compensation payable in respect of an impartible estate and Ramanathapuram is one is to be apportioned after payment of debts among the members of the family.
It is said that under this section the respondent would have no right to share in it.
This contention is clearly erroneous.
The material provisions relating to the award of compensation ,are sections 25, 27, 37 and 44.
Under section 25, the compensation is to be determined for the estate as a whole and not separately for each of the interests therein.
Section 27 lays down bow the basic income in the case of zamindaris is to be fixed.
Under section 27(i), it has to include one third of the gross annual ryotwari demand in respect of all lands in the estate and under section 27(iv) "one third of the average net annual miscellaneous revenue derived from all other sources in the estate specified in section 3 (b) ".
Thus, the income from the lands comprised in the minor inam which is a part of the estate is included in the total income of the zamindari.
Under section (1) Mad. 716.
(2) (1939] 66 I.A. 278.
116 916 37, the compensation payable in respect of an estate is calculated in terms of the basic income on the scale prescribed therein.
Section 44 enacts that the Tribunal is to "apportion this compensation among the principal landholder ' and any other persons whose rights or interests in the estate stand transferred to the Government under section 3(b)".
There cannot be any doubt on these provisions that the darmila minor inamdar is a person who is entitled to claim compensation for the transfer of his portion of the estate to the Government.
Then comes section 45 on which the respondent bases his contention.
That applies only to the distribution of the compensation determined under section 44 as payable to the principal landholder, when he is the holder of an impartible estate.
It leaves untouched the rights of minor darmila inamdars to claim compensation under section 44.
The contention of the respondent that the Act provides no compensation to them, and that they should therefore be held to fall outside the Act must accordingly be rejected.
(2)That brings us on to the second question whether a post settlement minor inam is a right in land created by a landholder within the intendment of section 20 of the Act.
At the very outset, it seems somewhat inconsistent to hold that a darmila minor inam is part of an estate, and also that it is governed by section 20.
If it is part of an estate, it must automatically vest in the Government under section 3(b).
But if it falls within section 20, the title to it will continue to stand in the inamdar with a right in the Government to take action under the third proviso, subject to the conditions laid down therein.
It was argued for the respondent that section 3 operates on its own terms only "save as otherwise expressly provided herein", and that section 20 was such a provision.
It is somewhat difficult to follow this argument, because if section 20 applied to darmila minor inams, then they could never fall within the operation of section 3(b).
And how is this result to be reconciled with the conclusion that they are parts of 917 the estate, and that the inamdar is a landholder for purposes of the Act? But it is argued for the respondent that the words "rights in land created by landlord" are of the widest import and would take in darmila minor inams.
The point for decision is whether this contention is correct.
We start with this that a darinila minor inamdar is a landholder as defined in section 2,(8) of the Act, and he is that, by reason of his being the owner of a part of the estate.
Can such a person be held to be one who has obtained a right in the land from the landholder within section 20? The Act makes a clear distinction between estates held by landholders and rights and interests held by other persons in or over estates.
Section 3(b) enacts that when there is a notification under section 1(4), the entire estate shall stand transferred to the Government and vest in it.
We have held that the part of the estate belonging to a darmila inamdar would vest in the Government.
Section 3(c) provides that on notification all rights in or over the estate shall cease and terminate.
Section 3(b) and section 3(c) deal with two distinct matters which may respectively be described in broad terms as ownership of the estate and rights in or over estate not amounting to ownership, and these two categories are mutually exclusive.
Now, turning to section 20, it protects rights in land by way of lease or otherwise created by the landholder before the notified date.
In this context, and having regard to the distinction between estates under section 3(b) and rights over estates under section 3(c), the rights mentioned in section 20 can only refer to the rights dealt with in section 3(c), and not to ownership which is within section 3(b).
When, therefore, the transaction for which protection is claimed under section 20 is one which vests ownership of the estate or a portion thereof in the transferee, it will fall outside the section.
In other words, section 20 has no application to transactions by which a person becomes a landholder by reason of ownership of even a part of the estate being transferred to him, and that being the character of a, darmila minor inam it is not pro 918 tected by section 20.
There are also indications in the language of section 20 pointing to the same conclusion.
Section 20(2) provides that the persons whose rights are terminated under the proviso to section 20(1) shall be entitled to compensation having regard to the value of the right which is terminated and the unexpired portion of the period for which the right is created.
These words are more appropriate to connote rights which are to be exercised for specified periods, such as lease or contract for the exploitation of mines or forests for a term than "ownership of the estate".
There is one other consideration, which lends support to this conclusion.
The object of the Act was to establish direct relationship between the State and the tillers of the soil, and to abolish all intermediate tenures.
In Madras, the rights and obligations of intermediate tenure holders were regulated by the Madras Estates Land Act, and under that Act the intermediaries consisted not merely of the holders of the estates as defined in section 3(2) of that Act but also holders of post settlement minor inams as settled by decisions of the highest authority.
If the purpose of the Act is to be fully achieved, it would be necessary to abolish not merely estates as defined in section 3(2) of the Madras Estates Land Act but also darmila minor inams.
But if the contention of the respondent is to be accepted, it is only the estates mentioned in section 3(2) that will, on notification, vest in the Government and not the minor inams.
These will continue to be held by the inamdars under section 20 until they are terminated in accordance with the proviso therein, and survive as islets in the landscape even after the parent estates have dis appeared from the scene.
The legislation must to this extent be held to have failed to achieve its purpose.
And this is not all.
If the contention of the respondent is correct, then the minor inamdars will not merely be unaffected by the Act but will actually be better off for it.
Under section 3(a) of the Act, the Madras Estates Land Act stands repealed on and from the notified date, and as it is by virtue of this 919 Act that the tenants became entitled to occupancy rights, the inamdars would, on notification, be free to eject tenants, and settle their own terms with them.
We cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverse of what were intended.
On the other hand, the contention of the appellant that minor inams fall outside section 20 and would vest straightaway in the State under section 3(b) will have the effect of extinguishing the rights of the inamdars, and enabling the State to issue ryotwari pattas to the tenants in occupation.
We prefer to accept this contention, as it fully effectuates the intention of the legislature.
In the result, we must hold that the one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the Government under section 3(b) of the Act, and that the only right of the inamdars is to share in the compensation under the terms of the Act.
The petition of the respondent in so far as it relates to this inam must be dismissed.
This appeal is accordingly allowed, and in accordance with the terms of the certificate granting leave, the appellant will pay the costs of the respondent in this Court.
The parties will bear their own costs in the court below.

summary/full:
At the time of passing of the Madras Estates (Abolition and Conversion into Ryotwari) Act (Madras Act XXVI of 1948), a 15/16th portion of village Karuppur situated within the Zamindari of Ramanathapuram was hold by the inamdars under a pre settlement grant confirmed by the British Government, the estate being permanently settled in 1802.
The remaining one sixteenth portion was held by the holders of darmila or post settlement inams made by the proprietor of the estate.
In exercise of the powers conferred by section 1(4) of the Madras Act XXVI of 1948 the State of Madras issued a notification dated 22nd August 1949 bringing the Act into force as regards the Ramanathapuram estate from 7th September 1949, the latter Zamindari including one sixteenth part of Haruppur village.
The respondent the holder of the one sixteenth inam contended that under section 1(3) of the Madras Act XXVI of 1948 the State of Madras bad power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act I of 1908 and that one sixteenth part of the village of Karuppur included in the notification was not an estate as defined in that section and the notification was therefore ultra vires.
Held (repelling the contention) that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar and when the estate is notified under section 1(4) of the Madras Act XXVI of 1948 the inam will vest in the State under section 3(b) of the Madras Act XXVI of 1948 and therefore one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the State.
Under the provisions of the Madras Act XXVI of 1948 the darmila minor inamdar is entitled to claim compensation for the transfer of his portion of the estate to the Government.
115 908 Darmila minor inam is not protected by section 20 of the Act.
Brahmayya vs Achiraju ([1922] I.L.R. and Nara yanaraju vs Suryanarayudu ([1939] 66 I.A. 278), referred to.


judgement:
Civil Appeal No. 1643 of 1968.
(From the Judgment and Order dated 19 8 1965 of the Allahabad High Court in CiVil Misc.
Writ No. 5475/64).
A.K. Sen and E.C. Agarwala, for the appellants M/s. J.P. Goyal & Pal Singh, for respondents Nos. 1 7.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the order of Allahabad High Court whereby that Court dismissed in limine the writ petition filed by the appellants, seeking a writ of certiorari to quash the order dated June 15, 1964 of the Settlement officer and the order dated September 17, 1964 of the Deputy Director of Consolidation of Holdings.
The dispute between the parties relates to khata No. 50.
The appellants raised objection before the consolida tion authorities on the ground that they along with the respondents were joint tenants in Khatas Nos. 150, 369 and 391.
The Consolidation Officer rejected the claims of the appellants in respect of khatas Nos. 369 and 391.
He, howev er, held that the appellants were joint tenants along with the respondents in khata.
No. 150.
The respondents went up in appeal against the order of the Consolidation Officer in so far as had held that the appellants were joint tenants in khata No. 150 Cross objections were filed by the appellants in respect of the disallowance of their objection regarding khata Nos. 369 and 391.
The 637 cross objections of the appellants were dismissed by the Settlement Officer on the ground that they were barred by time.
So far as khata No. 150 is concerned, the Settlement Officer held that the appellants were not joint tenants in that khata.
The appeal filed by the respondents was conse quently allowed and the objection filed by the appellants before the Consolidation Officer was dismissed in toro.
The order of the Settlement Officer in this respect is dated June 15, 1964.
The appellants then went up in revision, but the revision was dismissed by the Deputy Director of Consolidation as per order dated September 17, 1964.
The appellants thereafter filed the writ petition for a writ of certiorari to quash the orders dated June 15, 1964 and September 17, 1964.
The said petition, as stated above, was dismissed.
We have heard Mr. Sen on behalf of the appellants and Mr. Goyal behalf of the respondents and are of the opinion that there is no merit in this appeal.
The question with which we are concerned is whether the appellants are joint tenants in khata No. 150 along with the respondents.
In this respect we find that the Settlement Officer examined the entries in the revenue records.
It was found that so far as the land in dispute is concerned, it was held in Fasli 1280 by Hriday Singh, who was the common ancestor of the parties.
In 1307 Fasli, Himmat Singh, an 'ancestor of the appellants and Suraj Mall, an ancestor of the respondents, jointly held that land.
Subsequent to that, the land in dispute was held exclusively by the respondents and their ancestors.
The Settlement Officer inferred from these circnmstances that subsequent to 1307 Fasli, there was some partition between the parties or some other arrangement similar to partition, as a result of which the land in dispute 'fell to the share of the respondents.
As this finding of the Settlement Officer is essentially a finding of fact and was arrived at after consideration of the relevant entries in the revenue records, the same cannot be interfered with in a writ petition.
It may be that some other view, and what according to Mr. Sen was a better view, could have been arrived at on the facts, but the position in law is clear that the High Court in a writ petition cannot interfere with a finding of fact as long as that finding is based upon the relevant circumstances and is not shown to be perverse.
We find no such infirmity in the finding arrived at by the Settlement Officer.
The finding was not also interfered with when the appellants went up in revision before the Deputy Director of Consolidation.
The High Court in the circumstances cannot be said to be in error in dismissing the writ petition in limine.
We may add that Mr. Goyal during the course of arguments has not disputed the proposition that the respondents are not entitled to any share in the land which is exclusively held by the appellants and is recorded exclusively in their.
names in the revenue records of 1346 Fasli.
As a result of the above, the appeal fails and ' is dismissed, but in the circumstances with no order as to costs.
S.R. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
The appellants raised an objection be.fore the consoli dation authorities claiming joint tenancy with the respond ents in respect of khatas 150, 369 and 391, which was re jected except in respect of khata 150.
The respondents filed an appeal against the orders relating to khata 150.
The appellants filed cross appeals in respect of khata 369 and 391 and cross objection in respect of khata No. 150.
The Settlement Officer rejected the cross appeals as time barred and allowed the respondents ' appeal holding that the appellants were not joint tenants in khata No. 150.
Since the revision before the Deputy Director of Consolidation failed, the appellants filed a writ petition for a writ of certiorari, which was dismissed in limine.
Dismissing the appeal by certificate, the Court, HELD: The position in law is clear that the High Court in a writ petition cannot interfere with a finding of fact as long as that finding is based upon the relevant circum stances and is not shown to be perverse.
In the instant case, the finding of the Settlement Officer is essentially .a finding of fact and was arrived at after consideration of the relevant entries in the revenue re cords; the finding was not also interfered with in revision and the.
same cannot be interfered with in a writ petition.
[637F G]


judgement:
: Criminal Appeal No. 254 of 1976 (Appeal by Special Leave from the Judgment and Order dated 8 12 1975 of the Gujarat High Court in Crl Appeal No. 557 of 1976).
L.C. Goyal for the Appellant.
G.A. Shah and Miss Radha Rangaswamy for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Judicial summitry, when the subject of dispute is re appraisal of evidence even on the sophisticat ed ground of misappreciation, has to submit itself to cer tain self restraining rules of 627 processual symmetry.
The trial Court directly sees the witnesses testify and tests their veracity in the raw.
The appellate Court, enjoying co extensive power of examination, exercises it circumspectly, looks for errors of probative appraisal, oversight or omission in the record and makes a better judgment on the totality of materials in the light of established rules of criminal jurisprudence.
As the case ascends higher, forensic review is more rarefied.
Such being the restrictive approach, the Supreme Court cannot be persuaded, without stultifying the system of our judicature, to go over the ground of reading the evidence and interpret ing it anew so as to uphold that which appeals to it among possible alternative views.
If there is perversity, miscarriage of justice, shocking misreading or gross misap plication of the rules, procedural and substantive, we interfere without hesitation.
Of course, other exceptional circumstances also may invoke our review jurisdiction.
These prefatory observations have become necessary since, usually appellants, hopefully slurring over these jurisdic tional limitations, argue the whole way before us as if the entire evidence is at large for de novo 'examination.
Such a procedure has been attempted in the present case and, for reasons just mentioned, we arc disinclined to rip open the depositions to re discover whether the evidence is reliable or not.
A single survivor figures as the appellant before us, from among four persons who were tried by the Sessions Court, Baroda, for .offences punishable under sections 302 read with section 34 IPC and section 135 of the Bombay Police Act.
Accused 3 and 4 secured acquittal before the Sessions Court and accused 2 won his appeal before the High Court.
Concurrent findings of guilt notwithstanding, the first accused has secured special leave by jail appeal.
Shri L.C. Goyal, appearing as amicus curiae, has urged before us that the appellant is entitled to acquittal like the re.st of the accused.
The few facts, to explain why we make short shrift of this case, may be narrated.
The murderous episode, preceded some days earlier by a minor incident, which took place on February 7, 1974at about 10.30 p.m.
The deceased Vasant and his friends were returning from the side of a cinema house, Krishna Talkies.
Sitting on the footpath and in keeping with the hour and the compa ny, the group took hot drinks, the deceased having consumed considerable potions.
The drunk was led by his comrades towards his house when a bunch of persons including the .four accused confronted them.
A tipsy altercation often sparks the plug of tantrums and violence.
Here the prosecution version is that accused No. 1 Baba and the deceased Vasant began the brawl with a heated verbal ex change, followed by mutual fisting but climaxed by the l st accused planting his knife on the left chest of the victim.
The others too joined in the attack, accused 2 with knife and accused 3 with fist.
The last man only shouted to incite them into giving blows.
Hardly had the victim Vasant fallen when the accused assailants took to their heels.
The injured was shortly hospitalised but soon succumbed to his wounds.
Eye witnesses testified, medical evidence was adduced and the homicide brought beyond reasonable doubt.
628 The trial court had framed charges with offences under section 302 read with section 34 IPC.
The post mortem certificate revealed two transverse incised wounds penetrating the chest cavity.
There were quite a few other incised wounds in less lethal parts of the anatomy.
However, in the opinion of the doctor all the injuries were antemortal and the chest wounds were sufficient in the ordinary course of nature to cause death.
The deceased passed away due to shock and haemorrhage caused by the stab wounds, especially on the chest.
Both the courts below have affirmed in substance the case set forth by the prosecution about the occurrence.
Concurrent findings of fact carry considerable weight at the Supreme Court level that to shake our credence is too demanding a forensic exercise.
Shri Goyal persistently drew us into the details of testimony to persuade us into a contrary conclusion from that recorded by the trial Court and, after due examination, approved by the High Court.
While the murder is the tragedy, the discovery of the murderer beyond doubt is the judicial function.
So much so, the essential enquiry turned on who the culprits were.
The learned Sessions Judge absolved accused nos.
3 and '4 of the offences on the score of absence of reliable evidence on record as regards any part played by accused nos.
3 and 4 '.
Nevertheless, he held accused nos.
1 and 2 to be guilty of jointly murdering Vasant taking the view that they 'had taken under and unfair advantage of the fact that the deceased was unarmed, and had acted in a cruel manner by inflicting 7 or '8 injuries with knives '.
The sentence that followed however was rigorous imprisonment for life on the ameliorative circumstance that the attackers had acted in the heat of passion.
The High Court,.
in fair discharge of its appellate function, sedulously studied the evidence bearing on the murder and the murderers.
Hardly any flaw in appreciation has emerged from the argument of the counsel for the appellant, in regard to the truth of the occurrence and nothing short of grave mistakes or palpable omissions can induce us to dissent from this finding.
Even so the High Court has been at great pains to screen the testimony with reference to their credibility, motivation and proba bility so that their finding may not be faulty on the score of insufficient evidence of involvement of any of the two accused.
Such a searching scrutiny yielded fruitful result for the second accused and he drew the dividend of acquittal at; the High Court level on account of mistakes of the 'might have been ' category.
We express no opinion as to whether every dubious 'maybe ' or passing hesitancy can be exalted to the level of 'reasonable doubt ' in criminal jurisprudence.
The conviction of the guilty is as much part of the administration of justice as the acquittal of the innocent.
The judicial art takes no sides where the truth is in fair measure manifest.
Anyway, accused No. 2 having been acquitted, we are concerned with the solitary, appel lant before us.
Counsel Shri Goyal pressed upon us what he regarded as a surefire contention that if there was no specific evidence of the appellant having inflicted the fatal stab on the chest he was entitled to share the 629 acquittal with the rest even if there was abundant proof of several persons including him having set upon the deceased and killed him using lethal weapons.
In the present case more than one knife was used, more than., one man was in the attacking party and more than one incised wound was inflict ed.
While we can make short work of the submission by holding, as we d9, that there is clear testimony that the chest stab which was fatal in the ordinary course was the handiwork of the appellant, we make the legal position clear that when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal.
When people ' play with knives and lives, the circumstance that one man 's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder.
Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively.
Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication.
(See Amir Hussain vs State of U.P. C), Maina Singh vs State of Rajasthan(2).
Lord Sumner 's classic legal shothand for constructive criminal liability, expressed in the Miltonic verse 'They also serve who only stand and wait ' a Jortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some spletting hostile heads, some spilling drops of blood.
Guilt goes with community of intent coupled with participatory presence or operation.
No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.
Counsel also argued that since three out of the four accused have secured acquittal the invocation of section 34 is impermis sible.
The flaw this submission is obvious.
The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack.
The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpa bility for the crime is inescapable.
Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants.
Therefore it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision.
We therefore hold that the appeal deserves to be and is hereby dismissed.
We appreciate the unsuccessful but industrious enthusiasm of Shri L.C. Goyal who has served as amicus curiae.
Before parting with this case we may draw attention to a sociological thought.
There is evidence in the case of high spirits and consumption of alcohol.
Intoxicating beverages subvert sobriety and (1) A.I.R. 1975 Sc7 2211.
(2) ; 630 the drinking habit which begins with enjoyment of exuberance escalates into consumption of intemperate potions by tempt ing degrees ultimately holding the bacchanalian votary captive.
The deleterious nexus between alcohol and violent crime is fairly obvious and these days, when drunken delicts and delinquencies are alarmingly on the increase, the State must be doubly concerned to control intoxicating liquors as part of the strategy of defusing crime explosion and as proof of bearing true faith and allegiance to article 47 of the Directive Principles of State Policy.
MR Appeal dis missed.

summary/full:
Four persons were tried by the Sessions COurt for of fences punishable under section 302 read with section 34 I.P.C. and section 135 of the Bombay Police Act.
Two of the accused were acquitted by the Sessions Court and one by the High Court, having been given the benefit of doubt of identity.
The appellant contended before this Court that there was no specific evidence of his having inflicted the fatal stab, and also that since three out of the four accused were acquitted the invocation of section 34 was impermissible.
The findings on the reliability of evidence were also ques tioned.
Dismissing the appeal, the Court HELD: (1) When a murderous assault by many bands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal.
The cir cumstance that one man 's stab fails on a less or more vul nerable part of the person of the victim is of no conse quence to fix the guilt for murder.
section 34 I.P.C. fixes constructive liability in case of community of intent cou pled with participatory presence or operation, and even if some of several accused are acquitted but the participating presence of a plurality of assailants is proved, the con joint culpability for the crime is inescapable.
[629B D, F] Amir Hussain vs State of U.P.A.I.R. , Maina Singh vs Stare of Rajasthan, A.ER.
Classic legal sbortband for constructive criminal liability by Lord Sumner referred to.
(2) Only if there is perversity, miscarriage of justice, shocking misreading or gross misapplication of the rules, procedural and substantive, or other exceptional circum stances, the review jurisdiction of the Supreme Court may be invoked.
[627A C]


judgement:
: Criminal Appeal No. 291 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 19 1 1971 of the Allahabad High Court in Crl.
Case No. 412/ 70).
D.P. Uniyal and O.P. Rana, for the Appellant.
S.N. Singh, for the Respondent.
617 The Judgment of the Court was delivered by KRISHNA IYER, J.
Some cases, apparently innocent on their face and this appeal is one such may harbour beneath the surface profoundry disturbing problems concerning freedoms, the unfettered enjoyment of which is the foundation for a democracy to flourish.
The present appeal, by special leave, relates.
to the forfeiture of a book captioned 'Ramayan: A True Reading ' in English and its translation in Hindi, by the late political figure and leader of the Rationalist Movement, Periyar EVR, of Tamii Nadu, by an order of the State Government of Uttar Pradesh, purporting to be passed under section 99A of the Code of Criminal Procedure.
In the view of the appellantgovernment this book was sacrilegiously, outrageously objectionable, being 'deliberately and maliciously intended to outrage the religious feelings of a class of citizens of India, viz., Hindus by insulting their religion and religious beliefs and the publication whereof is punishable under section 295A IPC '.
This notification contained an appendix setting out in tabular form the particulars of the relevant pages and lines in the English and Hindi versions which, presumably, were the materials which were regarded as scandalizing.
Thereupon an 'application was made by the respondent who was the publisher, under section 99C of the Code, to the High Court which, by its special Bench, allowed the application and quashed the notification.
The aggrieved State has ap pealed to this Court, by special leave.
and counsel for the appellant has urged before us that the Government notifica tion does not suffer from the vice which, according to the High Court, invalidated it and that the impugned book makes a foul assault on the sacred sentiments of the vast Hindu population of the State since the author anthematised in unvarnished language the great incarnations like Sree Rama and disdainfully defiled the divinely epic figures like Sita and Janaka all of whom are worshipped or venerated by the Hindu commonalty.
Sidestepping this issue the High Court, by majority judgment, struck down the order on the short ground that 'the State Government did not state the grounds of its opinion as required in section 99A o[ the Code.
For that reason alone the petition has to be allowed and the order of forfeiture set aside in Court '.
The anatomy of section 99A falls to be studied at the thresh old so that the pathology, if any, of the impugned order may be discovered.
Shorn of phraseological redundancies (from the point raised in this case) the pertinent components of the provision, empowering forfeiture of materials manifest ing written expression by citizens, are threefold, as flow from a reproduction of the relevant parts: "99 A(1) Where (a) any newspaper, or book . or (b) any document, wherever printed, appears to the 'State Government to contain any . or any matter which promotes or is intended to promote feelings of enmity or hatred between different 618 classes of the citizens of India or which is delib erately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under section 124 A or Sec tion 153 A or Section 295 A of the Indian Penal Code, the State Government may, by notification in the official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government. " The triple facets of a valid order therefore are: (i) that the book or document contains any matter; (ii) such matter promotes or is intended to promote feelings of ' enmity or hatred between different classes of the citizens.
of India; and (iii) a statement of the grounds of Government 's opinion.
Thereupon the State Government may, by notifica tion, declare every copy of the issue containing such matter to be forfeited.
Does the present notification fulfil the third requisite of legal viability or is it still born, being mortally wounded by absence of the statement of grounds ? The High Court holding this vital ingredient missing, has voided the order, but Sri Uniyal, counsel for the State, submits that though there is no express enunciation of the grounds for ' Government 's opinion, the appendix makes up for it.
He argues that the numbers of the pages and lines of the of fending publication supply both the 'matter ' and the 'grounds ', the latter being so patent that the.
omission is inconsequential.
More explicitly, the contention is that a mere reference to the matter, sufficiently particularised, functionally supplies, by implicit reading or necessary implication, the legal requirement of statement of grounds.
The office of furnishing the reason or foundation for the governmental conclusion is substantially, though not formal ly, fulfilled where the appendix, an integral part of the order, sets out self speaking materials.
When the grounds are self evident, silence is whispered speech and the law does not demand their separate spelling out as a ritualistic formality.
The counter contention is that express condi tions for barricading the fundamental freedoms of expression designedly imposed by the Code cannot be whittled down by the convenient doctrine of implication, the right being too basic to be manecled without strict and manifest compli ance with the specific stipulations of the provision.
After.
all fundamental rights are fundamental in a free Republic, except in times of national emergency, where rigorous restraints, constitutionally sanctioned, are clamped down.
We are dealing with the Criminal Procedure Code and Penal Code and these laws operate at all times.
We have therefore to interpret the law in such a manner that liberties have plenary play, subject of course to the secu rity needs of the nation, as set out in the Constitution and the laws.
619 Even so, counsel for the appellant contends that the references in the forfeited book, as indicated in the appen dix to the order, are so loudly repulsive and malevolently calumnous of Sree Rama, Sita and Janaka that the court must vicariously visualize the outraged feelings of the Hindus of Uttar Pradesh and hold that the grounds are written in the order in invisible ink.
When we assess the worth of this submission we have to notice (a) the constitutional per spective, i.e., whether the basic freedoms are sought to be legally handcuffed; and (b) the existence of alternative possibilities of popular understanding of the prescribed publication which necessitate some statement of the circum stances and the reasons which induced the government in the given conditions of ethos and otherwise to reach the opinion it has recorded.
The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society.
It has no direct concern with the faiths of the people but iS deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offensive Publications as to provoke or outrage groups into possible violent action.
Essentially, good government necessitates peace and security and whoever violates by bombs or books societal tranquillity will become target of legal interdict by the State.
We propose to view the issue before us both from the textual angle and from the larger standpoint and are led to the conclusion, by an interaction of both, that the High Court was not wrong and the appeal must fail.
The various High Courts in India have had occasion to consider this question but have come to divergent conclusions.
as will presently appear.
A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi penal consequences also ensue.
The imperial authors of the Criminal Procedure Code have drawn up section 99A with concern for the subject and cautionary man dates to government.
The power can be exercised only in the manner and according to the procedure laid down by the law.
Explicitly the section compels the government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and, quite impor tantly, to state the grounds of its opinion.
We are con cerned with the last ingredient.
When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied.
you do not state a thing when you are expressively silent about it.
To state 'is to declare or to set forth especially in a precise, formal or authoritative manner; to say (something), especially in an emphatic way to assert ' (Random House Dictionary).
The conclusion is inescapable 8 1234SCI/76 620 that a formal authoritative setting forth of the grounds is statutorily mandatory.
If you laze and omit, the law visits the order with voidness and this the State Government must realize especially because forefeiture of a book for a penal offence is a serious matter, not a routine act to be executed with unconcern or indifference.
The wages of neglect is invalidity, going by the text of the Code.
These considerations are magnified in importance when we regard the changeover from the Raj to the Republic and the higher value assigned to the great rights of the people.
Where there is a statutory duty to speak, silence is lethal sin for a good reason disclosed by the scheme of the fasciculus.
of sections.
For section 99C enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order and affirms or upsets it.
The Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are altogether left out what is the Court to examine ? And, by this omission, careless or calculated, the valu able right of appeal to the Court is defeated.
A construc tion of the section, fraught with such pernicious conse quence and tampering with the basic structure of the statu tory remedy, must be frowned upon by the Court if the liber ty to publish is to be restricted only to the limited extent the law allows.
This reasoning is reinforced by Harnam Das vs State of U.P.(1) wherein this Court observed: "What then is to happen when the Government did not state the grounds of its opinion ? In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all.
If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government.
This, as already stated, the High Court has no power tO do under section 99 D.
It seems clear to us, therefore, that in such a case the High Court must set aside the order under section 99 D, for it cannot then be satisfied that the grounds given by the Government justified the order.
You cannot be satisfied about a thing which you do not know.
" We do not mean to say that the grounds or reasons link ing the primary facts with the forfeiter 's opinion must be stated at learned length.
That depends.
In some cases, a laconic statement may be enough, in others a longer ratioc ination may be proper but never laches to the degree of taciturnity.
An order may be brief but not a blank.
This conclusion establishes a constitutional rapport between the penal section 99A and the fundamental right article 19.
To relieve the State from the duty to state grounds of forfeiture, in the face of the words of section 99A, is to permit raptorial opportunity for use of such power over people 's guaranteed liberty.
Why do we say so ? Surely, security of the State and peace of society demand restrictions on indi vidual rights and we are the slaves of the law that we may be free.
(1) ; , 1666.
621 The fighting faith of our founding fathers respected Mills ' famous statement and Voltaire 's inspired assertion.
We quote: "If all mankind minus one were of one opin ion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." (Mill in his essay 'on Liberty ', pp. 19 20: Thinker 's Library ed.
, Watts) "I disapprove of what you say, but I will defend to the death your right to.
say it." (Attributed to Voltaire in S.G. Tallentyre, The Friends of Voltaire, 1907) Rights and responsibilities 'are a complex system and the framers of our COnstitution, aware of the grammar of anarchy; wrote down reasonable restrictions on libertarian exercise of free doms.
Dr. Ambedkar, in the Constituent Assembly, argued that it is incorrect to say that fundamental rights are absolute and quoted from Gitlow vs New York two self speaking passages: "It is a fundamental principle, long estab lished, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever.
one may choose, or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." X X X X X "That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, invite to crime or dis turb the public peace, is not open to question . . " Section 99A of the Code, construed in this candescent constitutional conspectus, bears out our interpretation.
In the interests of public order and public peace, public power comes into play not because the heterodox few must be suppressed to placate the orthodox many but because every one 's cranium must be saved from mayhem before his cerebrum can have chance to simmer.
Hatred, outrage and like feel ings of large groups may have crypto violent proneness and the State, in its well grounded judgment, may prefer to stop the circulation of the book to preserve safety and peace in society.
No enlightened State, would use this power to suppress advanced economic views, radical rational criti cisms or fearless exposure of primitive obscurantism but ordered security is a constitutional value wisely to 622 be safeguarded if progressives and regressives are to peace fully coexist.
This is the spirit of section 99A of the Code.
The actual exercise will depend not on doctrinnaire logic but practical wisdom.
While the American theory of clear and present danger as the basis of restriction on fundamen tal rights does not necessarily apply in India, the illumi nating observations of Holmes J., serve to educate the administrator and Judge.
In Scheneck vs U.S.(1) Holmes J drove home the true test: "We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights.
But the character of every act depends upon the circumstances in which it is done.
The law 's stringent protection of free speech, would not protect a man in falsely shouting 'fire ' in a theatre, and causing panic.
It does not even protect a man from an injunction against uttering words that may have all the effect of force.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.
It is a question of proximity and degree.
" Developing this theory in a famous passage in Abrains vs U.S.(2) he said: "Persecution, for the expression of opinions, seems to me perfectly logical.
If you have no doubt of your pre mises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ulti mate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the compe tition of the market; and that truth is the only ground upon which their wishes safely can be carried out.
That at any rate, is the theory of our Constitution.
It is an experiment, as all life is an experiment.
" Again in Bowmen vs Secular Society Ltd.,(2) Lord Summer underscored the dynamism of liberty and safety at once luminous and, elegant, in a purple passage: (1) (1918)249 U.S.47.52=63 L.E.d.470.473 474.
(2) ; , 629=63 L. ed.
1173, 1180.
(3) , 466 7. 623 "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault.
In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before.
In the present day reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed by methods not scandalous.
Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise.
The fact that opinion grounded on experience has moved one way does not in law pre clude the possibility of its moving on fresh expe riences in the other; nor does it bind succeeding generations, when conditions have again changed.
After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact.
I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion. which prevents us from varying their application to the particular circumstances of our time ni accordance with that experience.
" Such is our constitutional scheme, such the jurispruden tial dynamics and philosophical underpinnings of freedom and restraint, a delicate area of fine confluence of law and politics which judges by duty have to deal with.
The journey 's end has now arrived.
Government has the power and responsibility to preserve societal peace and to forfeit publications which endanger it.
But what is thereby prevented is freedom of expression, that promoter of the permanent interests of human progress.
Therefore, the law (section 99A) fixes the mind of the Administration to the obliga tion to reflect on the need to restrict and to state the grounds which ignite its action.
To fall here is to fault the order.
That is about all.
Before concluding, we clarify that we express no view on the merits of the book or its provocative vitriol.
It depends on a complex of factors.
What offends a primitive people may be laughable for progressive communities.
What is outrageous heresay for one religion or sect or country or time may be untouchably holy for another.
Some primitive people may still be outraged by the admonition of Swami Vivekananda : 'Our religion is in the kitchen, our 624 God is the cooking pot, and our religion is don 't touch me, I am holy ' (quoted at p. 339 by Jawaharlal Nehru in Discov ery of India).
The rule of human advance is free thought and expression but the survival of society enjoins reasonable curbs where public interest calls for it.
The balance is struck by governmental wisdom overseen by judicial review.
We speak not of emergency situations nor of constitutionally sanctified special prescriptions but of ordinary times and of ordinary laws.
A parting thought which we put to appellant 's counsel may be stated here.
If the State Government, judging by current circumstances, feels impelled to invoke section 99A against the book in question it is free to do so, subject of course to fulfilment of the requirement to state the grounds of its opinion and the operation of section 99C of the Code.
Our detailed discussion disposes of the question of law and resolves the conflict immanent or apparent in the rul ings of the various High Courts ranged against each other.
They are: Arun Ranjan Ghose vs The State of West Bengal(1); and Jwalamukhi vs State of A.P. (2) which support the view propounded by the appellant; and Mohammad Khalid vs Chief Commissioner(3); China Annamalai vs State(4) and Bennet Coleman & Co. Ltd vs State of J & K(5) which held with the Allahabad judgment under appeal.
Perhaps there is no need to discuss the ratio in each of the above cases as the rival points of view have been already covered in the earlier part of this judgment.
The possible invocation of the powers under section 99A of the Code of Criminal Procedure by various State Governments on several occasions induces us to enter a caveat.
Basic unity amidst diversity notwithstanding, India is a land of cultural contrarities, co existence of many religions and anti religions, rationalism and bigotry, primitive cults and materialist doctrines.
The compulsions of history and geography and the assault of modern science on the retreat ing forces of medieval ways a mosaic like tapestry of lovely and unlovely strands have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life.
Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture.
From Galileo and Darwin, ThOreau and Ruskin to Karl Marx, H.G. Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements avoiding for a moment great Indians from Manu to Nehru.
Even today, here and there, diehards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them.
(1)I.L.R. (2) I.L.R. (3) AIR 1968 Delhi 18 (F.B.).
(4) AIR 1971 Madras 448 (FB).
(5) 625 A well known Mao thought aptly expresses the liberalist approach to divergent schools of philosophy: "Letting a hundred flowers blossom and a hundred schools of thought contend is the policy for promoting the progress of the arts and sciences.
" Haroll Laski, who influenced many Indian progres sives, in his 'A Grammar of Politics ' states a lasting truth: "There is never sufficient certitude in social matters to make it desirable for any govern ment to denounce it in the name of the State.
American experience of the last few years has made it painfully clear that there will never be present in constituted authority a sufficient nicety of discrimination to make R certain that the opinion attacked is one reasonably certain to give rise to present disorder.
" x x x x x x "It is no answer to this view to urge that it is the coronation of disorder.
If views which imply violence have a sufficient hold upon the State to disturb its foundations, there is some thing radically wrong with the habits of that State.
" x x x x x x x "Almost always there are rare cases in which persecution has proved successful the result of free expression is such a mitigation of the condi tion attacked as to justify its use; almost always, ' also, to prohibit free speech is to drive the agitation underground.
What made Voltaire dangerous to France was not his election to the Academy, but his voyage to England.
Lenin was infinitely more dangerous to.
Czarist Russia in Switzerland than he would have been in the Dume.
Freedom of speech, in fact, with the freedom of assembly therein implied, is at once the kathersis of discontent and the condition of necessary re form.
A government can always learn more from the criticism of its opponents than from the eulogy of its supporters.
To stifle that criticism is at least ultimately to prepare its own destruction.
" A note of circumspection.
In the current context of constitutionally proclaimed emergency, the laws have perforce to act in the narrow limits inscribed in the Emergency provisions and this decision relates to the pre Emergency legal order.
We dismiss the appeal.

summary/full:
The appellant Government passed an order under Section 99 A of the Cr.
P.C., for the forfeiture of a book entitled 'Ramayan: A true Reading ' in English and its translation in Hindi, by Periyar EVR, of Tamil Nadu, on the ground that the book intended to outrage the religious feelings of a class of citizens of India, namely, the Hindus.
Thereupon, an application was made by the respondent publisher of the book.
under Section 99 C of the Code to the High Court, which by its special Bench, allowed the application and quashed the notification on the ground that the State Gov ernment had failed to state the grounds of its opinion as required in Section 99 A of the Code.
The appellant contended that a specific statement of grounds by the Government, is not a mandatory requirement under Section 99 A of the Cr.
P.C., & that it can be made by implication.
Dismissing the appeal, the Court HELD: To relieve the State from the duty to state grounds of forfeiture, is to permit raptorial opportunity for use of such power over people 's guaranteed liberty.
Section 99 A says that you must state the ground and it is no answer to say that they need not be stated because they are implied.
An order may be brief but not a blank.
A formal authoritative setting forth of the grounds is statu torily mandatory.
Section 99 C .enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order.
The Court cannot make a roving enquiry beyond the grounds sefforth in the order and if the grounds are altogether left out, the valuable right of appeal to the Court is defeated.
[610G H, 620B C, G H] Harnam Das vs State of U.P.A.I.R. , 1666 dictum applied.
Scheneck vs
U.S. ; , 527_ 63 L.ed.
470, 473 474: Abrams vs U.S. ; , 629=63 Led.
1173, 1180; Bowmen vs Secular Society Ltd. , 466 7; Arun Ranjan Ghosh vs State of West Bengal (I.L.R. , Jwalamukhi vs State of A.P. (I.L.R. referred to.
Mohammad Khalid vs Chief Commissioner (A.I.R. 1968 Delhi 18 FB) Chinna Annamalai vs State (A.I.R. 1971 Madras 448 F.B.), Bennet Coleman & Co. vs State of J & K (1974 J & K .L.R. 591) approved.


judgement:
vil Appeal No. 1838 of 1969.
Writ Petition Nos.
483 487 of 1974 (From the Judgment and Order dated 2nd August 1968 of the Madras High Court in Writ Petition No. 416/67).
632 Civil Appeal No. 608 of 1973 (From the Judgment and Order dated 11th April 1972 of the Madras High Court in Tax Case No. 44/72).
K.S. Ramamurthi, V. Nataraj, C. Natarajan and D.N. Gupta for the appellant/petitioners.
S.T. Desai for RR.
1 & 2 in CA 1838/69 and Writ petitions.
A. V. Rangam and Miss A. Subhashini, for respondents in CA 608/73.
S.N. Prasad, R.N. Sachthey and Girish Chandra, for R. 3 in CA 1838 of 1969 and Writ petitions.
D.N. Mukherjee, G.S. Chatterjee and D.P. Mukherjee, for respondent No. 4 in writ petitions.
S.C. Manchanda and O.P. Rana, for respondent No. 5 in Writ petitions.
M.C. Bhandare and M.N. Shroff, for respondent No. 6 in Writ petitions.
The Judgment of, the Court was delivered by RAY, C.J. These two appeals by certificate and the writ petitions turn on the question whether the contract for sale of goods was an inter State sale or an intra State sale.
The appellant is a company having its registered office at Calcutta. 'There are branches at Bombay, Delhi, Madras and Lucknow.
The main factory is at Madras.
In order to appreciate the real controversy it is neces sary to refer to the facts of one of the Civil Appeals as a pattern of transaction.
In Civil Appeal No. 1838 of 1969 Asha Metal Works of Bombay referred to as the Bombay buyer wrote to the Bombay branch of the appellant asking for lowest quotation of certain goods.
The Madras branch which has the principal factctory there for manufacture of goods was written to by the Bombay branch.
The Madras branch wrote to the Bombay branch quoting the prices F.O.R. Madras.
The Bombay branch then wrote to the Bombay buyer that the ' price was F.O.R. Madras and delivery would be ex works Madras.
The Bombay buyer thereupon placed the order with the Bombay branch.
On these facts counsel for the appellant contended that the sale was at Bombay inasmuch as the Bombay buyer placed the firm order at Bombay, payment was to be made at Bombay, railway receipt was in the name of the Bombay branch and the goods were to be delivered at Bombay.
It was emphasised that there was no contract or privity between the Madras branch and the Bombay buyer but the privity was only with the Bombay branch.
633 The only question is whether the sale was an inter State sale or a sale at Bombay.
If the movement of the goods from Madras to Bombay was an incident of or occasioned by the sale itself it would be taxable under section 3(a) of the Central Sales Tax Act.
There was not and there could not be any contract of sale between the factory of the seller appellant at Madras branch and the Bombay branch of the appellant.
It is obvi ous that the Bombay branch is the agent of the seller appel lant.
The appellant could not be the buyer as well as the seller.
The contention of the appellant is that the goods were sent by the factory at Madras branch to the Bombay branch and thereafter the goods were sold by the Bombay branch to the Bombay buyer.
The sale as well as the movement of the goods from Madras to Bhandup at Bombay was a part of the same transac tion.
The movement of the goods from Madras to Bhandup was integrated with the contract of sale for the following reasons.
The Bombay branch received the Bombay buyer 's order and sent the same to the Madras branch factory.
When the Bombay buyer asked for quotation of prices the Bombay branch wrote to the Madras branch and gave all the specifi cations and stated that the 'goods were for the Bombay buyer.
The Madras branch in reply referred to the order of the Bombay buyer and gave particulars mentioning that the price was F.O.R. Madras.
The Bombay branch thereafter wrote to the Bombay buyer reproducing all the particulars, condi tions of sale and mode of despatch as stated by the,Madras branch and further stated that the goods would be manufac tured at the Madras branch factory.
It is important to note that all prices were shown F.O.R. Madras and it was further stated that all goods would be despatched at the risk of the Bombay buyer.
It is in this context that the Bombay buyer on 27 May, 1964 placed an order with the Bombay branch accepting all the terms and conditions.
The Bombay branch placed an indent order ad dressed to the Madras branch giving all the particulars and stated the buyer 's name as Asha Metal Works, Bombay and gave the customer 's order number and the date viz., 27 May, 1964.
The goods were to be invoiced to the Bombay branch and the goods were to be despatched F.O.R. Madras.
The Bombay branch wrote to the Bombay buyer on 28 August 1964 that they had received an invoice from the factory at the Madras 'branch that some of the goods against the order of the Bombay buyer were ready for despatch.
The Bombay branch asked the Bombay buyer to give the details of des patch and insurance instructions per return of post.
The Bombay branch thereafter wrote to the Madras branch factory stating "Please despatch the equipment covered by our above ' indent by goods train to Bhandup Railway Stastion freight to pay.
The Railway Receipt and other documents to be sent to us for disposal".
The Madras branch factory despatched the goods from Madras to Bombay by goods train and gave intima tion to the Bombay 'branch.
The goods were delivered to the Bombay buyer at Bhandup through clearing agents.
634 The goods were despatched from Madras at the risk of the buyer to Bombay.
The goods were insured and insurance charges were collected from the buyer at Bombay.
The freight charged from Madras to Bombay was borne by the buyer.
The movement of the goods from Madras was an inci dent of the contract of sale.
Counsel for the appellant contended that there was no privity between the Madras branch and the Bombay buyer but that the privity was only between the Madras branch and the Bombay branch.
It was also said that the Bombay branch was an independent and separate entity and the direct contract was between the Bombay branch and the Bombay buyer and the Madras factory were not parties to the contract.
The appellant has branches at different places.
The appellant company is one entity and it carries on business at different branches.
Branches have no independent and separate entity.
Branches are different agencies.
The contract of sale is between the appellant company and the Bombay buyer.
The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer at Bhand up, Bombay.
The railway receipt was in the name of the Bombay branch to secure payment against delivery.
There was no question of diverting the goods which were sent to the Bombay buyer.
When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter State sale.
It does not mater in which State the property in the goods passes.
What is decisive is whether the sale is one which occasions the movement of goods from one State another.
The inter State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the tract.
It is not necessary that the sale must precede the inter State move ment in order that the sale may be deemed to have occasioned ,such movement.
It is also not necesary for a sale to be deemed have taken place in the course of inter State trade or commerce, that the covenant regarding inter State move ment must be specified in the contract itself.
It will be enough if the movement is in pursuance and incidental to the contract of sale.
When a branch of a company forward a buyer 's ,order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be a sale between factory and its branch. ' If there is a conceivable link between the movement of the goods and the buyer 's contract, and if in the course of inter State move ment the goods move.
only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have been taken place in the course of inter State trade or commerce as such a sale or purchase occasioned the movement of the goods from one State to another.
The presence of an intermediary such as the seller 's own representative or branch office, who initiated the contract may not make the matter different.
Such an interception by a 635 known person on behalf of the seller in the delivery State and such person 's activities prior to or after the implemen tation of the contract may not alter the position.
The steps taken from the beginning to the end by the Bombay branch in co ordination with the Madras factory show that the Bombay branch was merely acting as the intermediary between the Madras factory and the buyer and that it was the Madras factory which pursuant to the covenant in the contract of sale caused the movement of the goods from Madras to Bombay.
The inter State movement of the goods was a result of the contract of sale and the fact that the contract emanated from correspondence which passed between the Bombay branch and the company could not make any differ ence.
For the foregoing reasons the appeals are dismissed.
The writ petitions are also dismissed.
There. will be no order as to costs.
It will be open to the appellant to apply for refund, if any, if permissible at law.
S.R. Appeals dismissed.

summary/full:
The appellant company having its registered office at Calcutta, with branches at Bombay, Delhi, Lucknow, has a principal factory Cum branch at Madras.
The registered office and the various branches are registered as dealers both under the Central Sales Tax Act and the local Sales Tax Acts.
The appellant company in respect of the assessment year 1965 66, did not include a sum of Rs. 21.88,540.41 in its turnover in the return filed under the Central Sales Tax Act on the ground that the turnover represented sales out side the State of Madras.
The said sale related to a Bombay buyer who placed the order with the Bombay branch of the appellant company after it was informed by the said branch in consultation with the Madras branch factory that the price was f.o.r.
Madras at the buyer 's risk and that the delivery would be ex works, Madras.
The Bombay buyer was also informed by the Bombay branch of all the particulars, condition of sale, the fact that the goods would be manufac tured at the Madras branch factory and would be supplied by the Madras Branch etc.
as advised by the Madras branch to the Bombay branch.
The respondent treated it as inter State sale under section 3(a) of the Central Sales Tax Act and issued a notice of demand whereupon the appellant filed an applica tion under article 226 of the Constitution in the Madras High Court praying for a writ of Prohibition restraining the respondents from taxing and/or including in the turnover for the purposes of assessment for the year 1965 66.
The said petition was dismissed.
Dismissing the appeals by certificate, the Court.
HELD: (1) When the movement of the goods from one State to another is an incident of the contract it is a sale in the course of inter State sale.
It does not matter in which State the property in the goods passes.
What is decisive is whether the sale is one which occasioned the movement of goods from one State to another. 'the inter State movement must be the result of a covenant, express or implied in the contract of sate or an incident of the contract.
It is not necessary that the sale must precede the inter State move ment in order that the sale may be deemed to have occasioned such movement.
It is also not necessary for a sale to be deemed to have taken place in the course of inter State trade or .commerce, that.the covenant regarding inter State movement must be specified in the contract itself.
It will be enough if the movement is in pursuance of 2nd incidental to the contract of sale.
[634D E] (2) Branches have no independent and separate entity.
Branches are different agencies.
In the instant case, the contract of sale is between the appellant company and the Bombay buyer.
[634C]