judgement:
: Criminal Appeal No. 20 of 1975.
Appeal by Special Leave from the Judgment and order dated 15/16 11 1973 of the Gujarat High Court in Crl.
A. No. 22/73.
J. L. Nain, M. N. Shroff for the Appellants.
H. section Marwah, Amicus Curiae for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated November 15/16, 1973, of the High Court of Gujarat.
The material facts are as under: On June 23, 1973, a Police Sub Inspector made a report to the District Superintendent of Police, Rajkot, to the effect that the premises known as Rajkot Yuvak Sahakar Mandal situated at Mochhi 393 Bazar Road, near Krishna Cinema, Rajkot was used as a common gaming house and gambling was going on therein.
The Deputy Superintendent of Police, after making an inquiry, was satisfied about the contents of the report and he issued a warrant under Section 6 of the Bombay Prevention of Gambling Act (hereinafter referred to as the Act) and sent it to the Police Sub Inspector, Rajkot, for execution in accordance with law.
The Sub Inspector then reached the aforesaid B: premises in the early hours of June 24, 1973 at 4 a.m.
He found 10 persons, including the respondent herein, in the premises.
They had all gathered there for the purpose of gambling, and gambling was actually going on by play of cards, and tokens of various designs, which were used to indicate the different points, were also found there.
All the ten persons were arrested in respect of offences under Sections 4 and S of the Act.
The instruments of gaming were also seized.
On the following morning at 7 a.m., the petitioner and his companions submitted an application to the Police Sub Inspector, who was the first respondent before the High Court, requesting him to enlarge them on bail.
The Sub Inspector did not consider their bail applications, nor did he pass any order thereon.
At about noon, however, the respondents were produced before the Magistrate, who released them on bail.
The Sub Inspector did not consider their bail applications and release them on bail because he was prohibited from doing so by a Circular order issued by Shri P. H. Jethwa, District Superintendent of Police, Rajkot, directing all the Police Sub Inspectors not to release persons arrested in respect of offences under Sections 4 and S of the Act on bail, because in the Form of the warrant prescribed under Section 6 of the Act, it is mentioned that the arrested persons should be produced before the Magistrate.
The Circular order further directed that the arrested persons under the Act should be produced before the Magistrate.
The Circular further warned that if any Police officer violated these directions, he would expose himself to disciplinary action.
This Circular order (exhibit B) was impugned by a writ petition under Article 226 of the Constitution before the High Court.
Two main contentions were raised before the High Court.
First, that offences under Sections 4 and S of the Act are cognizable and bailable.
Consequently, under Section 496 of the Code of Criminal Procedure, 1898, the Police officer arresting the respondents was duty.
bound to enlarge them on bail.
The impugned Circular, being contrary to the statutory provisions, is illegal and ultra vires.
Second, the impugned Circular is violative of Article 14 of the Constitution, inasmuch as it discriminates between persons similarly situated.
The second ground was not pressed before the High Court 394 The first contention prevailed with the High Court.
In conclusion, it held that the Police officer had the power o} the authority to enlarge the arrested persons on bail.
Its reason was as under: "When the legislature empowers an officer to delegate any authority to do certain acts to another it necessarily implies that , the original authority can do such acts itself.
Consequently, when the Commissioner of Police and certain other officers mentioned in Section 6 are authorised to issue special warrant for search of the premises where gambling is going on, for the seizure of the articles therein or take into custody and bring before the court such persons who may be found therein, such officers can themselves do such acts.
" Referring to Section 4(1) (f) of the Code of Criminal Procedure the High Court observed that the words "a police officer" in that provision which defines a cognizable offence, do not mean "each and every" police officer.
It is sufficient if the power to arrest without warrant is limited by the provisions of law to a class of police officers and the offences in such cases fall within the purview of clause (f) of sub section (1) of Section 4 of the Code.
Since under Section 6 of the Act, the Police Commissioner and certain other officers, mentioned therein, have the power and authority to arrest persons accused of having committed the offences under Sections 4 and S of the Act with out warrant the said offences are cognizable.
Support for this reasoning was sought from a decision of this Court in Union of India vs I.C. Lala, etc.
The High Court further held that the provisions of Section 6 merely provide a limited exemption from the provisions of the Code of Criminal Procedure, in so far as they limit the class of Police officers who are competent to investigate the offences and to arrest without a warrant.
The mere fact that certain restrictions are placed as to the Police officers who are competent to investigate the offence would not make the offence any the less than cognizable.
It, also, referred to several decisions of the Bombay High Court, including the one Emperor vs Raghunath decided by a division Bench consisting of Beaumont, C.J. and Broom field, J., wherein it was held that an offence under Section 4 of the Act is non cognizable.
The High Court did not follow this decision because, in its view, it had ignored an earlier decision which covered the point which the court had decided, and the earlier decision was contrary to it.
With this reasoning, the High Court came to the conclusion that offences under Sections 4 and 5, being cognizable and 395 bailable, the commissioner of Police and the officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release accused on bail under the provisions of Section 496 of the Code of Criminal Procedure.
They derive their power to grant bail from the statute.
The impugned order therefore, cannot be sustained because it runs counter to the statutory provisions which authorise the police officers mentioned in Section 6 to grant bail.
Nobody has appeared on behalf of the respondent, despite notice, to oppose this appeal.
Shri H. section Marwah, however, has been kind enough to assist the Court as amicus Curiae on behalf of the respondents.
Since the case was decided by the High Court on the basis of the first contention in favour of the respondent, herein, and the High Court did not go into the constitutional validity of the impugned order, we will confine the discussion to the first point, on the basis of which, the High Court has invalidated the impugned order.
We will assume for our purpose that Section 6 of the Act does not offend Article 14 of the Constitution.
Section 6 runs as under: "6(1).
It shall be lawful for a Police officer (i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub Inspector and either empowered by a general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and (ii) elsewhere not below the rank of Sub Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Additional, Assistant or Deputy Superintendent of Police, and (iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the official Gazette specify in this behalf, not below the rank of a Sub Inspector and empowered by general order in writing issued by the district Magistrate.
(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming house: H (b) to search all parts of the house, room or place which he shall have so entered, when he shall have reason 396 to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not, (c) to.
take into custody and bring before a Magistrate all such persons; (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein: Provided that no officer shall be authorised by special warrant unless the Commissioner of Police, the Magistrate, the District or Additional or Assistant or Deputy Superintendent of Police concerned is satisfied, upon making such inquiry as he may think necessary, that there are good grounds to suspect the said house, room or place to be used as a common gaming house.
" From a plain reading of Section 6(1), it is clear that subject to the conditions of 'the proviso, a Commissioner of Police may empower by a general order or authorise by special warrant a police officer not below the rank of a sub Inspector, to do any of the acts and things enumerated in sub clauses (a) to (d) of that sub section, including the act of arresting a person found gambling or present in a common gaming house.
It follows therefrom, by necessary implication, that the Commissioner of Police can personally do any of the aforesaid acts and things which he could authorise any other police officer of the requisite rank to do.
The primary repository of the plenary power to do he aforesaid acts and things, constituted under sub clause (i), is the Commissioner of Police.
The sub clause only enables him to employ his subordinate police officer(s), not below the authorised rank of a Sub Inspector to execute his general order or special warrant to arrest for offences under Sections 4 and 5 of the Act.
It will be noted further that even under sub clause (iii), in an area notified by the Government.
any police officer not below the rank of a Sub Inspector empowered by the District Magistrate under a general order in writing can arrest a person found gambling or present in a common gaming house, without a warrant from a Magistrate.
In short, Section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer.
It is in the light of the above analysis of Section 6(1) that we have to determine whether the offences under Sections 4 and 5 of the Act are recognizable offences '.
Section 4(1)(f) of that Code of Criminal Procedure, 1898, defines "cognizable offence" to mean an offence for, and 'cognizable case ' to mean a case "in which a police officer, within 397 or without the Presidency towns may, in accordance with the Second Schedule or under other law for the time being in force, arrest without warrant".
There was a divergence of judicial opinion in regard to the connotation of the words "a police officer" used in the above definition.
One line of decisions, led by Deodhar Singh case, took the view that 1 these words in Section 4(1) do not necessarily mean "any and every" police officer.
It is sufficient to bring an offence within the definition of a 'cognizable offence ' if the power to arrest without a warrant is vested under the law in a police officer of a particular class only.
The ratio of Deodhar Singh 's case was followed by the Bombay High Court in Emperor vs Ismail and Emperor vs Abasbhai Abdul Hussain by the Nagpur Court in Nagarmal Jankiram, and by the Delhi High Court in Delhi Administration vs Parkash Chand & Ors.
A contrary view was taken by the Assam High Court in G. K. Apu vs Union of India; by the Allahabad High Court in State of U.P. vs Lal Bahadur & Ors.; by the Madhya Bharat High Court in Union of India vs Mahesh Chandra; and in some other decisions.
This conflict appears to have been set at rest by the decision of this Court in 1.
C. Lala 's case (ibid) which has expressly overruled the view taken by the Assam and Madhya Bharat High Courts.
We will notice Lala 's case, later.
It will suffice to say here that the view which has received the imprimatur of this Court, is that the expression "police officer" in Section 4(1)(f) of the Code does not necessarily mean "any and every" police officer, and an offence will still be a "cognizable offence" within this definition even if the power to arrest without warrant, for that offence is given by the statute to police officers of a particular rank or class.
In Queen Empress vs Deodhar Singh, under the Bengal Public Gaming Act II of 1867, the District Superintendent of Police (or the District Magistrate) was competent to arrest or by warrant to direct the arrest of persons found in a common gaming house.
The Question 398 was whether the offence under Section 4(1)(f) of the Bengal Act was cognizable.
This question turned on an interpretation of the expression "police officer" in the definition of 'cognizable offence ', and was answered in the affirmative, thus.: "Now, under the Gambling Act, it is not every Police officer who can arrest without a warrant.
It is only the District Superintendent of Police who can arrest or by warrant direct the arrest of persons gambling in a house.
The district Superintendent being a Police officer who may, under a law for the time being in force, viz., the Gambling Act, arrest without warrant.
We think that the requirements of clause (1) (f) of the above Sections are satisfied, and that the offence in question is, therefore, a 'cognizable offence '.
We cannot accept the contention that the words in that clause, 'a Police officer ' mean 'any and every ' Police officer.
It is sufficient if the Legislature has limited the power of arrest to any particular class of Police officers.
" If we may say so with respect, this is a correct exposition of the law on the point.
The ratio of Deodhar Singh 's case was followed by a Division Bench of the Bombay High Court (Marten and Madgavkar, JJ.) in Emperor vs Abasbhai Abdul Hussain (ibid).
The impugned judgment before us is also based on this decision.
These very provisions of the Bombay Prevention of Gambling Act came up for interpretation in re.
Naganmal Jankiram (ibid), and the same view was taken by Pollock J.
In Abasbhai 's case (ibid), a Sub Inspector got a warrant issued under Section 6 of the Bombay Prevention of Gambling Act, which authorised him to search certain premises.
In execution of that warrant the Sub Inspector raided a house and arrested three persons who were found therein.
The case was tried by the Magistrate concerned as a cognizable one.
At the trial at the stage of arguments, it was contended on behalf of the accused that offences under Sections 4 and 5 were non cognizable, and since the procedure of warrant case had been followed by the Magistrate, the trial was illegal.
The trial court accepted the argument and acquitted the accused.
In appeal before the High Court, it was agitated that the offence was a cognizable one.
The High Court reasoned and we think rightly that since under Section 6 of the Act the Commissioner of Police has power to issue special warrants of search and also to arrest, he is competent to do personally, what he may authorise others to do by special warrant.
It followed the dictum of Deodhar Singh 's case in regard to the interpretation of the words "a police officer" in the definition of "cognizable offence" given in the Code of Criminal Procedure.
On 399 these premises, the High Court held that offence s under Sections 4 and 5 are cognizable.
In Emperor vs Ismail (ibid), a Division Bench of the Bombay High Court, reaffirmed the dictum of Abasbhai 's case, that an offence punishable under Section 4 of the Act, is cognizable.
In Delhi Administration vs Parkash Chand & Ors., H. R. Khanna, J., following the dictum of the Calcutta High Court in Deodhar Singh 's case, and of Bombay High Court in Abasbhai 's case, held that offences under Sections 3 and 4 of Delhi Gambling Act are 'cognizable offences ' as Section S of the Delhi Act gives the Superintendent of Police power to arrest or authorise any officer of police, not below the rank of Sub Inspector, to arrest without a warrant.
It is argued on behalf of the appellant State that the ratio of the aforesaid decisions in Deodhar Singh 's case and Parkash Chand 's case is not applicable to offences under the Bombay Prevention of Gambling Act, because the Bengal Act and the Delhi Act expressly empower the Superintendent of Police either to arrest himself or direct arrest by another police officer of requisite rank, whereas in Section 6(1) of the Bombay Prevention of Gambling Act there are no express words giving an option, to the Commissioner of Police to effect arrest, personally.
We are unable to accept this argument.
The difference pointed out, is a distinction without a difference.
What was explicit in the Bengal Gambling Act and the Delhi Gambling Act, is implicit in Section 6(1) of the Bombay Prevention of Gambling Act.
It will now be appropriate to notice this Court 's decision in Union of India vs I. C. Lala.
In that case, two army officers and one business man were charged with the conspiracy of the offences punishable under Sections 120B and 420 of the Indian Penal Code, read with Section S(2) of the Prevention of Corruption Act.
The officer who investigated these offences was an Inspector of the Delhi Police Establishment.
Under Section SA of the Prevention of Corruption Act, before its amendment in 1974, no officer below the rank of Deputy Superintendent of Police could investigate an offence punishable under Sections 161, 165 and 165A of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, without the order of the Presidency Magistrate or a Magistrate of the First Class.
The question before the Court was.
whether sanction under Section 196A of the Code was necessary.
The answer to this question turned upon whether an offence under Section 5(2) of the Prevention of Corruption Act was non cognizable or cognizable.
The 400 High Court held that an offence under Section 5(2) of that Act was non cognizable because it was not an offence for which any police officer could arrest without a warrant.
The same argument which was canvassed before the High Court was repeated before this Court.
And it was contended that the words 'a police officer ' in Section 4(1) (f) of the Code mean 'any ' police officer.
This argument was repelled by this Court and it was held that such an approach could not be a criterion for deciding whether the offence is cognizable or non cognizable.
It was observed: "If we pursue the same line of argument and look at the definition of non cognizable offence in Section 4(1) (n) which defines non cognizable offence as an offence for which a police officer, within or without a Presidency town, may not arrest with.
out warrant, it might mean that as these are cases where a police officer of the rank of Dy.
Superintendent and above can arrest without warrant these are not non cognizable offences either How can there be a case which is neither cognizable nor non cognizable? It was sought to be argued that these offences would be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non cognizable when they are investigated by officers below the rank of Deputy Superintendents.
We fail to see how an offence would be cognizable in certain circumstances and non cognizable in certain other circumstances.
We do not consider that this is a reasonable interpretation to place.
" Once we hold that a Commissioner of Police who is competent to direct by issuing special warrant or general order, under Section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the principle enunciated by this Court in Lala 's case is immediately attracted in full force and there is no escape from the conclusion that offences under Sections 4 and S of the Bombay Prevention of Gambling Act are cognizable.
Such offences are admittedly bailable.
It follows as a necessary corollary therefrom, that the commissioner of Police or the police officer who is authorised by him to search, arrest and investigate such offences is under a legal obligation to release the accused on bail under the provisions of Section 496 of the Code.
The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting, from the statute and consequently, no executive instructions or administrative rules can abridge, or run counter to the statutory provisions of the Code.
Since the impugned order or 401 executive instructions are contrary to or inconsistent with the provisions of the Code and on a true construction, there is nothing in Section 6 or any other provision of the Act which takes away the right and power conferred by The Code on the police officer to grant bail to the person arrested by him for offences under Sections 4 and 5 of the Act, the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court.
In the result, the appeal fails and is dismissed.
Appeal dismissed.

summary/full:
A Sub Inspector of Police arrested the respondent for offences under sections 4 and 5 of the Bombay Prevention of Gambling Act on a warrant issued under section 6 of the Act by the Deputy Superintendent of Police.
The respondent 's application for release on bail was rejected by the Sub Inspector on the ground that a circular order issued by the District Superintendent of Police prohibited him from releasing on bail persons that were arrested in respect of offences under sections 4 and S of the Act.
He, however, produced the respondent before a Magistrate.
D The High Court in the writ petition filed by the respondent upheld his contention that offences under sections 4 and S of the Act being cognizable and bailable, the Commissioner of Police and officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release the accused on bail under the provisions of section 496 of the Code of Criminal Procedure 1898 since the impugned order ran counter to the statutory provisions it was bad in law.
The High Court also held that since under section 6 of the Act the Police Commissioner and certain other officers mentioned therein have the power and authority to arrest persons accused of having committed offences under sections 4 and S of the Act without warrant, the offences are cognizable.
Dismissing the appeal, ^ HELD: (a) Since the Commissioner of Police, who is competent to direct by issuing special warrant or general order under section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the offences under sections 4 and S of the Act are cognizable.
Such offences are admittedly bailable.
[400 F G] (b) The Commissioner of Police or the Police officer who is authorised by him to search, arrest and investigate such offences, is under a legal obligation to release the accused on bail under the provisions of section 496 of the Code.
The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting from the statute and consequently no executive instructions or administrative rules can abridge or run counter to the statutory provisions of the Code.
Since the impugned order of executive instructions are contrary to or inconsistent with the provisions of the Code and 392 on a true construction, there is nothing in section 6 or any other provision of the Act which takes away the right and power conferred by the Code on the police officer to grant bail to the person arrested by him for offences under sections 4 and 5 of the Act the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court.
[400 G H] Union of India vs I. C. Lala etc., A.I.R. 1973 S.C. 2204=[1973] 3 SCR 818, 824 applied.
(a) Under Section 6(1) of the Act (subject to the conditions of the proviso) a Commissioner of Police may empower by a general order or authorise by special warrant a police officer not below the rank of a sub Inspector to do any of the acts and things enumerated in sub clauses (a) to (d) of that subsection, including the act of arresting a person found gambling or present in a common gaming house.
It follows therefrom, by necessary implication, that the Commissioner of Police can personally do any of the aforesaid acts and things which he could authorise any other police officer of the requisite rank to do.
The primary repository of the plenary power to do tho aforesaid acts and things, constituted under sub clause (i) is the Commissioner of Police.
The sub clause only enable him to employ his subordinate police officers not below the authorised rank of Sub Inspector to execute his general order or special warrant to arrest for offences under sections 4 and 5 of the Act.
In short section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer.
[396D F & G] (b) It is settled law that the expression "Police officer" used in the definition of cognizable offence in section 4(1)(f) of the Code of Criminal Procedure does not necessarily mean "any and every" police officer.
An offence will still be a cognizable offence within this definition even if the power to arrest without warrant for that offence is given by the statute to police officers of a particular rank or class only.
[398 C] Queen Empress vs Deodhar Singh ILR , 150 approved.


judgement:
: Special Leave Petition (Criminal) No. 950 of 1980.
From the Judgment and order dated 21 9 1979 of the Allahabad High Court in Crl.
A. No. 2305/74.
U. section Prasad for the Petitioner.
The Judgment of the Court was delivered by, KRlSHNA IYER, J.
This special Leave Petition relates to a conviction and sentence for an offence of rape.
The escalation of such crimes has reached proportions to a degree that exposes the pretensions of the nation 's spiritual leadership and celluloid censorship, puts to shame our ancient cultural heritage and humane claims and betrays a vulgar masculine outrage on human rights of which woman 's personal dignity is a sacred component.
We refuse special leave and briefly state a few reasons for doing so.
Draupadi, a middle aged Bal Sewika in a village welfare organization ' was sleeping in a girls ' school where she was allegedly raped by Rafiq, the petitioner, and three others.
The offence took place around 2.30 a.m. On August 22/23, 1971, and the next morning the victim related the incident to the Mukhiya Sewika of the village.
A report was made to the Police Station on August 23.
1971 at mid day.
The investigation that followed resulted in a charge sheet, a trial and, eventually, in a conviction based substantially on the testimony of the victim.
Although some of the witnesses.
tell tale fashion.
shifted their loyalties and betrayed the prosecution case, the trial court ' entered a finding of guilt against the appellant, giving the benefit of doubt to the other three obscurely.
A 7 year sentence of rigorous imprisonment was awarded as justly merited.
having regard to the circumstances.
The appeal carried to the High Court proved unsuccessful but, undaunted, he petitioner has sought leave to appeal to this Court.
Concurrent findings of fact ordinarily acquire a deterrent sanctity and tentative finality when challenged in this Court and we rarely invoke the special jurisdiction under article 136 of the Constitution which is meant mainly to correct manifest injustice or errors of law of great moment.
By these substantial canons the present petition for leave has not even a dog 's chance.
404 Counsel contended that there was absence of corroboration of the testimony of the prosecutrix, that there was absence of injuries on the person of the woman and so the conviction was unsustainable, tested on the touchstone of case law.
None of these submissions has any substance and we should, in the ordinary course, have desisted from making even a speaking order but counsel cited a decision of this Court in Pratap Misra & Ors.
vs State of Orissa and urged that absence cf injuries on the person of the victim was fatal to the prosecution and that corroborative evidence was an imperative component of judicial credence in rape cases.
We do not agree.
For one thing, Pratap Misra 's case (supra) laid down no inflexible axiom of law on either point.
The facts and circumstances often vary from case to case.
the crime situation and the myriad psychic factors, social conditions and people 's life styles may fluctuate, and so, rules of prudence relevant in one fact situation may be inept in another.
We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases.
Corroboration as a condition for judicial reliance on the testimony cf a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
Indeed, from place to place, from age to age.
from varying life styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny.
The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.
There are several "sacred cows" of the criminal law in Indo Anglian jurisprudence which are superstitious survivals and need to be re examined.
When rapists are revelling in their promiscuous pursuits and half of humankind womankind is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable.
In this case, the testimony has commanded acceptance from two courts.
When a woman is ravished what is inflicted is not merely physical injury.
but 'the deep sense of some deathless shame".
405 "A rape! a rape!. . . .
Yes, you have ravish 'd justice; Forced her to do your pleasure.
Hardly a sensitized judge who sees the conspectus of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against is veracity.
None we see in his case, and confirmation of the conviction by the courts below must, therefore, be a matter of course.
Judicial response to human rights cannot be blunted by legal bigotry.
The case before us occurred in 1971 and is drawing to a close in 1980.
What a pity ! Now that there is considerable public and parliamentary attention to the violent frequency of rape cases it is time that the court reminds the nation that deterrence comes more effectively from quick investigations, prompt prosecutions and urgent finality, including special rules of evidence and specialised agencies for trial.
Mechanical increase of punitive severity, without more, may yield poor dividends for women victims.
In Dr. Johnson 's time public hanging for pick pocketing was prevalent in England but as Dr. Johnson sardonically noted pick pockets were busy plying their trade among crowds gathered to see some pick pocket being publicly executed.
Dr. Johnson 's wit is our wisdom.
The strategy for a crime free society is not draconian severity in sentence but institutional sensitivity, processual celerity and prompt publicity among the concerned community.
"Lawlessness is abetted by a laggard, long lived, lacunose and legalistic litigative syndrome rather than by less harsh provisions in the Penal Code".
The focus must be on the evil, not its neighbourhood.
Counsel submitted that a 7 year sentence was too severe.
No, because, as we have stated earlier, rape for a woman is deathless shame and must be dealt with as the gravest crime against human dignity.
No interference on the score of culpability or quantum of punishment is called for in the circumstances.
We refuse special leave.
N.V.K. Petition dismissed.

dataset_name: IN-Abs

summary/full:
Indian Penal Code 1860, section 376 Evidence and proof Absence of injuries on prosecution Whether fatal to the prosecution Testimony of prosecutrix Corroboration whether necessary.
The petitioner was convicted on the charge of committing rape on a middle aged Bal Sewika in a village welfare organisation who was sleeping a girls school.
The trial Court imposed a sentence of 7 years ' rigorous imprisonment.
The High Court, confirmed the conviction and sentence.
In the Special Leave Petition to this Court it was contended on behalf of the petitioner relying on the decision of this Court in Pratap Mishra & Ors.
vs State of Orissa, A.I.R. 1977 S.C. 1307 that absence of injuries on the person of the victim was fatal tb the prosecution and that corroborating evidence was an imperative component of judicial credence in rape cases.
It was also submitted that the sentence of 7 years was too severe.
Dismissing the petition; ^ HELD: 1.
No interference on the score of culpability or quantum of punishment is called for.
1405 2.
Concurrent findings of fact ordinarily acquire a deterrent sanctity and tentative finality when challenged in this Court.
The special jurisdiction under Article 136 of the Constitution which is meant mainly to correct manifest injustice or errors of law of great moment cannot be invoked in the instant case.
[403 H] 3.(i) The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people 's life styles may fluctuate, and so, rules of prudence relevant in one fact situation may be inept in another.
The argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases cannot be accepted.
[404 D] (ii) Pratap Misra 's case laid down no inflexible axiom of law on either point.
[404 C] 4.
Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
[404 E] 403 In the instant case the testimony of the prosecutrix has commanded acceptance from two courts.
A sensitized judge who sees the conspectus of circumstances in its totality hardly rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity.
There is none in this case.
The confirmation of the conviction by the Courts below must therefore, be a matter of course.
[404H, 405B]


judgement:
iminal Appeal No. 86 of 1954.
Appeal under Article 134(1)(C ) of the Constitution of India from the judgment and order dated the 27th May 1954 of the Calcutta High Court in Criminal Appeal No. 158 of 1953.
640 Sukumar Ghose for the appellant D. N. Mukerjee for P. K. Bose for respondent No. 1.
K. L. Arora for respondent No. 2. 1956.
September 5.
The Judgment of the Court was delivered by BHAGWATI J.
The Appellant was charged under Section 411, Indian Penal Code with Dishonestly receiving or retaining in his possession one Hillman Car number WBD 4514 bearing Engine and Chassis No. A1178482 WSO knowing, or having reason to believe the same to be stolen property.
The learned Presidency Magistrate, Calcutta, convicted him of this offence and sentenced him to rigorous imprisonment for 2 years.
The Appellant took an appeal to the High Court at Calcutta and a Division Bench of the High Court constituted by Mr. Justice Jyoti Prokash Mitter and Mr. Justice Sisir Kumar Sen dismissed the appeal confirming the conviction and sentence passed upon him.
The Appellant filed a peti tion for leave to appeal to this Court and that petition according to what we are told is the practice obtaining in the Calcutta High Court came before a Division Bench differently constituted a Bench constituted by the learned Chief Justice and Mr. Justice section C. Lahiri.
This Bench allowed the petition and ordered that a certificate for leave to appeal under article 134(1)(c) of the Constitution may be drawn up.
In an elaborate judgment the learned Chief Justice observed: "In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact".
After discussing in detail the various circumstances in the case which did not meet with his approval, he wound up by saying: "In my view it is impossible not to feel in this case that there has not been as full and fair a trial as I ought to have been held.
In the circumstances, it appears to me that the petitioner is entitled to have 641 his case further considered and since such further consideration can only be given by the Supreme Court, I would grant the certificate prayed for".
Contrary to what we had in the previous case before us, viz., Criminal Appeal No. 146 of 1956 (Om Prakash vs The State of Uttar Pradesh), where no reasons were given as to why the Court exercised its discretion in granting the certificate, in this judgment we have an elaborate discussion as to why such discretion was being exercised.
by the Court.
The reasoning, however, does not, appeal to us.
Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having 'been held we are of the opinion that he bad no jurisdiction to grant a certificate under article 134 (1) (c) in a case where admittedly in his opinion the question involved was one of fact where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further consideration of the case of the Appellant on facts.
The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial could not be any justification for granting a certificate under article 134(1) (c) and converting this Court into a Court of Appeal on facts.
No High Court has the jurisdiction to pass on mere questions of fact for further consideration by this Court under the relevant articles of the Constitution.
We no doubt possess that power and in proper cases have exercised it under article 136(1).
If there has been a gross miscarriage of justice or a departure from legal procedure such as vitiates the whole trial we would certainly intervene and we would also intervene if even the findings of fact were such as were shocking to our judicial conscience and grant in such cases special leave to appeal under article 136(1).
That is, how ' ever, a special jurisdiction which we can exercise under article 136(1), but no High Court can arrogate that function to itself and pass on to us a matter which in its view is purely one involving questions of fact, because it finds itself helpless to redress the grievance.
In such a case, the High Court should 83 642 refuse to give a certificate under article 134(1)(c) and ask the parties to approach us invoking our special jurisdiction under article 136(1) of the Constitution.
We are, therefore, of the opinion that the discretion that was so elaborately exercised by the Calcutta High Court in this case was wrongly exercised.
The certificate purporting to have been granted under article 134(1)(c) was no certificate at all and it does not avail the appellant before us.
Following our decisions in Narsingh and another vs The State of Uttar Pradesh(1), Baladin & Others vs The State of Uttar Pradesh(2) and Sunder Singh vs The State of Uttar Pradesh(3), Mr. Sukumar Ghose for the appellant urged that this was a fit case where we should exercise our discretion and grant the appellant special leave to appeal under article 136(1) of the Constitution.
He pointed out that even though the appellant had led no evidence in defence there were on the record of the case certain documents which if taken as proved would have been sufficient to demolish the prosecution case.
These were commented upon by the learned Chief Justice in the judgment which he delivered when certificate for leave to appeal under article 134(1) (c) was grunted by him.
These documents, it was urged, went to show that sometime before the car in question was stolen, an application had been made by the appellant to the police authorities in Chandarnagore for registration of Hillman Minx 1951 Model car which bore the same number on the engine, chassis and tin plate as the car in question and on that application, investigation had been made by the A.S.I. police, who made his report, the contents of which would go to establish the case which was put forward by the appellant in his defence.
It is no doubt true that the prosecution has got to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence.
If the prosecution succeeds in establishing its case, the conviction would follow, but if the prosecution fails to discharge the burden which lies upon it to prove the charge which (1) ; (2) A.I. R. (3) A.I.R. 1956 S.C. 411.
643 has been framed against the accused he is entitled to an acquittal.
In this case both the Courts below held that the prosecution bad proved its case by the evidence of the witnesses who were called including the motor expert, who on applying chemicals discovered on the engine the very number which was the number on the stolen car.
On this state of the evidence, it was the bounden duty of the appellant if he wanted to prove his defence to adduce evidence in support of his contentions and if he did not do so, he had only to thank himself for it.
The prosecution could not be blamed for that lacuna and if both the Courts below went on the record as it stood and came, to the conclusion, finding it as a fact, that the prosecution had established its case, it could not be urged, as was sought to be done in the judgment delivered by the learned Chief Justice in the petition for leave to appeal to this Court, that evidence, if forthcoming, would have demolished the case of the prosecution.
If those who represented the appellant did not take counsel within themselves and put forward the defence as they should have done, there was no blame on the prosecution nor on the learned Presidency Magistrate who tried the case and came to the conclusion adverse to the appellant.
Whatever sentiment appears to have been imported in the Matter has been simply out of place and even if one may have a lurking suspicion at the back of his mind and might feel that there has not been a full and fair trial as ought to have been held, that is no justification for going behind the concurrent findings of fact reached by both the Courts below to the effect that the prosecution had succeeded in establishing the guilt of the appellant.
We see nothing in this case to warrant an interference under article 136(1) of the Constitution.
This application will, therefore, be rejected and the appeal will stand dismissed.
Bail bond cancelled and the appellant to surrender his bail.

summary/full:
The High Court has no jurisdiction to grant certificate under article 134(1)(c) of the Constitution on mere question of fact, and is not justified in passing on such question to the Supreme Court for further consideration, thus converting the , Supreme Court into a Court of Appeal on facts.
No doubt the Supreme Court, in case of gross miscarriage of justice or departure from legal procedure such as vitiates the whole trial, possesses the power and has special jurisdiction to intervene under article 136(1) of this Constitution and also if the findings of fact were such as were shocking to judicial conscience; but no High Court can arrogate that function to itself because it finds itself helpless to redress the grievance.
Certificate granted on mere question of fact would be no certificate at all; High Court should refuse such certificates under article 134(1)(c) and should ask the parties to approach the Supreme Court to invoke its special jurisdiction under article 136(1) of the Constitution.
The accused and not the prosecution is to be blamed for the lacuna in the defence in not adducing evidence in support of his contentious, which if forthcoming would have demolished the case of the prosecution.
Narsingh and another vs The State of Uttar Pradesh, ([1955] 1 S.C.R. 238), Baladin & Others vs The State of Uttar Pradesh, (A.I.R. and Sunder Singh vs The State of Uttar Pradesh, (A.I.R. , referred to.


judgement:
N: Criminal Appeal Nos.
606 and 607 of 1979.
From the Judgment and order dated 19 1 1979 of the Gujarat High Court in Criminal Revision Nos.
485 486/77.
V. B. Patel and section C. Patel for the Appellant.
G. J. L. Nain, Girish Chander and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal .
Appeals Nos. 606 and 607 of 1979 both of which are directed against a judgment of a Division Bench of the High Court of Gujarat dated the 19th January 1979 upholding the conviction recorded against and 442 the sentences imposed upon the three appellants under section 22A of the Minimum Wages Act (hereinafter called the Act) in each of two cases by a Judicial Magistrate at Morvi.
Some of the facts leading to the prosecution of the appellants are not in dispute and may be shortly stated.
Appellant No. 3 is the Morvi Vegetable Products Ltd., a limited company carrying on the business of manufacture and sale of vegetable oil and vanaspati in Morvi.
Appellant No. 1 is the Managing Director and appellant No. 2 the Secretary of appellant No. 3 which is hereinafter referred to as the company.
On May 2, 1973 Kumari J. G. Mukhi, who is a Government Labour officer cum Minimum Wages Inspector, visited the Company 's establishment and found that the following documents which, according to her, the Company was bound to maintain in compliance with the provisions of section 18 of the Act read with the relevant rules of the Gujarat Minimum Wages Rules, 1961, had not been maintained by it.
(a) Muster Roll in Form V as contemplated by rule 26(5).
(b) Wage Register in Form IV A as required by rule 26(]).
(c) Attendance cards in form V D as provided by rule 26(B).
(d) Wage slip in form IV B prescribed by rule 26(2).
In consequence, two complaints were filed against the appellants by N. H. Dave, Labour officer cum Minimum Wages Inspector.
Rajkot in the court of the trial Magistrate, each praying that the appellants be convicted and sentenced for an offence under section 22A of the Act.
One of the complaints was in respect of the contravention of rules 26(1) and 26(S) while the other embraced that of rules 26(2) and 26 B. They were registered as Criminal Cases Nos. 674 and 675 of 1973 respectively.
At the trial the appellants pleaded not guilty.
Their defence consisted mainly of the following pleas: (a) Different types of industries are covered by the Act but the Company does not run any such industry and is, therefore.
not liable for any contravention of the Act or the rules framed thereunder.
According to the prosecution the factory run by the Company is an oil mill, an industry which is certainly covered by the Act.
However, the Company is running a mill which manufactures vanaspati and vanaspati is not an oil but is vegetable ghee.
Oil extraction is no doubt 443 a major operation carried on by the Company but that operation is merely incidental to the preparation of vanaspati.
No separate licence for the oil expelling machinery used by the Company has been obtained from the State Government nor has sales tax been paid on the oil extractor by the Company.
Vanaspati is manufactured by subjecting oil to the processes of neutralization, bleaching, deodorisation, hardening, hydrogenation, etc.
and is a product quite different from oil.
(b) The Company does not carry on the business of sale of the oil manufactured by it except as an operation incidental to the manufacture of vanaspati, e.g., when there is a breakdown of the machinery used for converting oil into vanaspati or when oil become surplus on account of a shift in the Government policy in regard to the percentage of oil to be , consumed by the Company.
In spite of the sale of oil, therefore, the Company remains a vanaspati manufacturer and cannot be considered to be running an oil mill.
(c) Under section 5 of the Act committees were appointed by the Government from time to time to hold inquiries and advise it in respect of fixation or revision of minimum rates of wages for employees in various industries.
No representative of the vanaspati industry was taken on any of these committees nor was any questionnaire issued to any of the manufacturers of vanaspati, with the result that the Company was not bound by the recommendations of those committees or decisions taken in pursuance thereof by the Government.
(d) In respect of oil mills rates of minimum wages were fixed under the Act by the Government for three types of employees, namely, skilled, semi skilled and unskilled.
Apart from these a vanaspati manufacturer has to arrange for the services of other types of employees which shows that a vanaspati manufacturing mill is different from an oil mill.
After the trial the learned Magistrate repelled all the pleas taken up by the appellants in his judgment dated October 13, 1975.
His findings were as follows: (i) The Company no doubt manufactured oil from oil seeds and subjected the same to further processes in order to produce .
vanaspati.
However, the Company was selling not only the vanaspati manufactured by it but also oil and refined oil as such in addition to oil cakes and de oiled cakes, which was being done not merely in exigencies pleaded by the Company but in the regular course of business.
444 (ii) One of the committees appointed by the Government under section S of the Act had issued a questionnaire to the Company itself before making recommendations regarding fixation and revision of minimum wages for various kinds of employees working in an oil mill and it was not, therefore, open to the Company to contend that no opportunity was given to it to be heard in relation to such fixation and revision.
(iii) The Company was an oil mill within the meaning of that expression as used in item S of Part I of the Schedule to the Act and the Act, therefore, is applicable to it.
It was in these premises that the learned Magistrate convicted the three appellants, in both the cases tried by him, of an offence under section 22 A of the Act.
The sentence imposed in consequence was a fine of Rs. 50 on each of the appellants in each case.
The appellants filed before the Sessions Court two applications for revision of the order of the learned Magistrate, one pertaining to each case.
Those applications where transferred by the High Court to Its own file for reasons which are not relevant for the purpose of these appeals.
The pleas raised before the learned Magistrate were reiterated on behalf of the appellants at the argument stage in the High Court but were again repelled with the result that both the applications were dismissed by the impugned judgment.
The High Court took into consideration various provisions of the Act and came to the conclusion that the same would apply to the Company only if it could be held to be running an oil mill and thus falling within the ambit of item S aforesaid.
In holding that the factory run by the Company was such a mill the High Court made the following points: (a) Vanaspati is nothing but hydrogenated vegetable oil and, therefore, only vegetable oil which has been subjected to certain processes.
It remains an oil in, spite of those processes and is not essentially different therefrom.
(b) The finding arrived at by the learned Magistrate that oil ', refined oil, oil cakes and de oiled cakes were being sold by the Company not merely as an operation incidental to the business of manufacturing vanaspati but in the regular course of business is a finding of fact and cannot be called in question.
in revision.
Part of the mill is, therefore, in any case, an oil mill.
(c) The Company was issued a questionnaire in its capacity as an oil mill by the committee appointed by the Government.
445 It cannot, therefore, urge that it had no opportunity to pre A sent its case before the committee which made recommendations in regard to fixation and revision of minimum wages.
A survey of the various relevant provisions of the Act may be useful at this stage.
Section 2 contains definitions.
Clause (e) of that section defines an 'employer ' as a person who employs one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under the Act.
According to clause (g) of the same section a 'scheduled employment ' means any employment specified in the Schedule to the Act or any process or branch of work forming part of such employment.
The Schedule is in two parts.
Part I enumerates various employment.
Item S of that part reads: "Employment in any oil mill" Section 5 lays down procedure for the fixation and revision of mini mum rates of wages in respect of any scheduled employment by the Government which is authorised to appoint as many committees or subcommittee as it considers necessary to hold inquiries and advise it in respect of such fixation or revision.
Section 9 deals with the com position of the aforesaid committees and reads thus: "Each of the committees, sub committees and the Advisory Board shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one third of its total number of members: one of such independent persons shall be appointed the chairman by the appropriate Government.
The following corollaries are immediately deducible from the provisions of the Act above noted: (i) For an employer to be covered by the Act the following conditions must be fulfilled: (a) he must be employing one or more employees in any scheduled employment; (b) minimum rates of wages for such scheduled employment must have been fixed under the Act, and (c) if a committee has been appointed by the Government under section S in respect of such scheduled employment it must consist of persons representing employers and employees in the scheduled, employment who shall be equal in number.
446 (ii) Employment in an oil mill is a scheduled employment.
It is not disputed that the company is not covered by any of the items enumerated in Part I of the Schedule to the Act.
except item section The most important point to be determined in the case.
there fore.
is whether employment in a vanaspati manufacturing concern would fall within the ambit of item S of part I of the Schedule to the Act.
i.e., whether it is an employment in an oil mill or not.
The only argument advanced on behalf of the appellants in this connection is, as it was before the two courts below, that vanaspati is a form of ghee which is not an oil; and this contention we find to be without force.
Vanaspati, in our opinion, is essentially an oil although it is a different kind of oil than that oil (be it rapeseed oil, cotton seed oil, ground nut oil, soya bean oil or any other oil) which forms its basic ingredient.
Oil will remain oil if it retains its essential properties and merely because it has been subjected to certain processes would not convert it into a different substance.
In other words, although certain additions have been made to and operations carried out on oil, it will still be classified as oil unless it.
, essential characteristics have undergone a change so that it would be a misnomer to call it oil as understood in ordinary parlance.
The word 'oil ' i.: not defined in the Act and therefore.
its dictionary meaning may well be pressed into service for interpreting the term 'oil mill '.
According to Webster 's Third New International Dictionary (1966 edition) the word 'oil ' has different connotations in different situations but in the context of item .
5 aforesaid the meaning to be given to it would be: "any of various substances that typically are unctuous viscous combustible liquids or solids easily liquefiable on warming and are not miscible with water but are soluble in ether, naphtha, and often alcohol and other organic solvents, that leave a greasy not necessarily permanent stain (as on paper or cloth), that may be of animal, vegetable, mineral, or synthetic origin, and that are used according to their types chiefly as lubricants, fuels and illuminates as food.
in soap and candles, and in perfumes and flavouring materials".
All the ingredients of this meaning are fully satisfied in the case of hydrogenated vegetable oil.
We may specially point out that even solids easily liquefiable on warming fall within the meaning given by Webster.
Now the various processes, namely, neutralization, bleaching, deodorisation, hardening and hydrogenation to which oil is subjected for being converted into vanaspati leave its basic characteristics untouched, i.e, it remains a cooking medium with vegetable fat as its main ingredient.
Neutralisation, bleaching and deodorisation 447 are merely refining processes so that the colour, the odour and foreign A substances are removed from it before it is hydrogenated and hardened and even the two processes last mentioned allow the oil to retain whose characteristics.
Even ghee, for that matter, is nothing but a form of oil although it is obtained from animal fat, being a derivative from milk.
It may be of use to mention that in Persian language ghee is known as 'raughan zard ', i.e., yellow oil, and it does not need an expert to point out that the viscosity of ghee depends upon the weather because with the rising temperature during summer months it turns into liquid while the cold of December and January solidifies, it.
Nonetheless it remains an oil and it makes no difference that it is called ghee in ordinary parlance.
The word is merely a different name for an oil which is not derived from vegetables.
From that point of view the term 'vegetable ghee ' is a contradiction in terms, ghee being essentially an animal fat.
The reason why i has come to be called vegetable ghee appears to be that in its finished form it resembles ghee in appearance and viscosity and is also considered a more respectable form of cooking medium when so called, thus catering to the psychological satisfaction of the consumer.
We pointedly asked learned counsel for the appellants if he could indicate any difference between vegetable oil and vanaspati which would essentially distinguish the former from the latter, either in physical or chemical properties or in food value.
No such difference was indicated and all that he said was that vanaspati would normally be available in solid state and had the appearance of ghee rather than that of any oil.
This, in our view, is a superficial difference which does not at all go to the root of the matter.
Accordingly we hold that vanaspati must be regarded as an oil for the purpose of the aforesaid item 5 in spite of all the processes to which the oil forming its base has been subjected in order to convert it into the finished product.
Although the finding just above arrived at obviates the necessity of our determining the question whether the Company would be an oil mill even if vanaspati were not considered to be an oil, we have every reason to answer that question in the affirmative in view of the finding arrived at by the learned Magistrate that the Company sells oil in its unhydrogenated form not only when the exigencies pointed out by it arise but also otherwise and in the regular course of business.
That finding being a finding of fact is no longer open to challenge; and that being so, the operation of sale of oil as such would make the Company an oil mill even if the bulk of the oil produced by it is converted into vanaspati and sold in that form The reason is obvious.
It is not the case of the Company that the proportion 448 Of sales of oil to those of vanaspati is so low that the former should be ignored.
In this situation a sizeable part of the activities of the Company must be field to be connected with running an oil mill and the Company, therefore would be liable to be classified as such to that extent even though it also carries on business other than that of selling oil.
The grouse of the Company that the provisions of sections 5 and 9 have not been complied with has for its basis the assumption that it is not an oil mill an assumption which must be held to be ill founded in view of the foregoing discussion and the classification of the company with reference to item S in Part I of the Schedule to the Act.
It is not disputed that if the Company is to be regarded as an oil mill, sections S and 9 do not come to its rescue because representatives of oil mills did man the committee appointed by the Government for fixing the minimum rates of wages in respect of employment in an oil mill and that the Company itself (as well as other oil mills) was invited through a questionnaire to submit their views and thus were given the opportunity to be heard in relation to the fixation of such wages.
The only other contention raised on behalf of the appellants was that while the relevant notification issued by the Government has fixed rates of wages in respect of skilled, semi skilled and unskilled employees working in oil mills, the Company employs other types of workers in connection with the process of hydrogenation of vegetable oil and that such workers do not form the subject matter of the committee 's deliberations or the Government 's attention.
This contention is also without substance.
We asked the learned counsel for the appellants to point out which of the employees of the Company fell outside the three categories just above specified and he was unable to name any.
(obviously the said three categories exhaust the types of workers which would be employed in any undertaking, barring of course specialists and technical experts who admittedly do not fall within the category of employees embraced by the Act.
It is not disputed that if the Company is an oil mill it is guilty of all the contraventions of which it has been convicted.
Nor has any argument been advanced to the effect that the sentences awarded are excessive.
In he result, therefore, both the appeals fail and are dismissed S.R. Appeals dismissed.

summary/full:
The appellants were convicted and sentenced for two offences under Section 22A of the Minimum Wages Act for contravention of rules 26(1), 26(2), 26(5) and 26B of the Gujarat Minimum Wages Rules, 1961.
The sentence imposed in consequence was a fine of Rs. 50 on each of the appellants in each case.
The trial court as well as the High Court took into consideration various provisions of the Act and came to the conclusion that the appellant 's mill fell within the ambit of Item 5 of Part I of Schedule to the said Act.
Dismissing the appeal by special leave, the Court ^ HELD: (1) The appellant 's Company would be an oil mill within the meaning of Item 5 of Part I of the Schedule to the Act.
[448 C] (2) The various provisions of the Minimum Wages Act make it clear: (i) For an employer to be covered by the Act three conditions must be fulfilled; [445F] (a) he must be employing one or more employees in any scheduled employment; [445 G] (b) minimum rates of wages for such scheduled employment must have been fixed under the Act; and [445 G] (c) if a committee has been appointed by the Government under Section 5 in respect of such scheduled employment it must consist of persons representing employers and employees in the scheduled employment who shall be equal in number.
[445 H] (ii) Employment in an oil mill is a scheduled employment.
[446 A] In the instant case it cannot be said that these conditions are not satisfied.
[446 A] (3) Vanaspati is essentially an oil although it is a different kind of oil other than that oil (be it rapeseed oil, cotton seed oil, ground nut oil, soya bean oil or any other oil) which forms its basic ingredient.
Oil will remain oil if it retains its essential properties and merely because it has been subjected to certain processes would not convert it into a different substance.
In other words, although certain additions have been made to and operations carried out on oil, it will still be classified as oil unless its essential characteristics have undergone a change so that it would be a misnomer to call it oil as understood in ordinary parlance.
No doubt, the word 'oil ' is not defined in the Act.
Taking the dictionary meaning for interpreting the term 'oil mill ', in this case it is clear that hydrogenated vegetable oil falls within the said term.
[446 C G] 441 The various processes, namely, neutralization, bleaching, deodorisation, hardening and hydrogenation to which oil is subjected for being converted into vanaspati leave its basic characteristics untouched, that is, it remains a cooling medium with vegetable fat as its main ingredient.
Neutralisation, bleaching and deodorisation are merely refining processes so that the colour, the odour and foreign substances are removed from it before it is hydrogenated and hardened and even the two processes last mentioned allow the oil to retain those characteristics.
Even ghee, for that matter, is nothing but a form of oil although it is obtained from animal fat, being a derivative from milk.
Whether it liquefies in summer and solidifies in winter, nonetheless, ghee remains an oil and it makes no difference that it is called ghee in ordinary parlance.
The word ii merely a different name for an oil which is not derived from vegetables.
From that point of view the term 'vegetable ghee ' is a contradiction in terms, ghee being essentially an animal fat.
The reason why it has come to be called vegetable ghee is that in its finished form it resembles ghee in appearance and by viscosity and is also considered a more respectable form of cooking medium when so called, thus catering to the psychological satisfaction of the consumer.
Thus vanaspati must be regarded as an oil for the purpose of Item S in Part I of the Schedule to the Act in spite of the processes to which the oil forming its base has been subjected in order to convert it into the finished product.
[446H, 447A D; F] Further, in the instant case: (1) there is a clear finding of fact which is no longer open to challenge, that the company sells oil as such and also oil cakes which brings the Company within the meaning of an oil mill (2) the Company being an oil mill and oil Mills having been represented on the Committee formed by the Government and opportunity having been afforded to the appellants by that committee to represent their case.
Sections 5 and 9 of the Act are not applicable, and (3) the three categories, namely, skilled, semi skilled and unskilled employees exhaust the types of workers which would be employed in any undertaking (barring of course specialists and technical experts who admittedly do not fall within the category of employees embraced by the Act) and minimum wages were fixed for all those three categories.
The appellants ' contention therefore, that for any of the provisions of the Act were contravened is thus not tenable.
[447 G H, 448 D, E F]


judgement:
Civil Appeal No. 1390/1978.
Appeal by special leave from the Judgment & Order, dated 26 3 1976 of the Punjab & Haryana High Court in Civil Writ Petition No 506/76.
Baldev Raj in person.
U.R. Lalit and Miss A. Subhashini for the Respondent.
432 The Judgment of the Court was delivered by KRISHNA IYER, J.
The appellant, an Accounts Officer compulsorily retired betimes, appearing in person, has painstakingly and proficiently presented his case which calls for mercy, if not justice obsession with one 's own case and inability to see things in perspective are often a frailty of a party who spends the enormity and anguish of his superannuated leisure on the main pursuit of his litigative points, and this makes for prolixity and subjectivity of submissions, which are not the persuasive but the provocative part of the art of advocacy.
Even so, we have listened with sympathy to the studious orality and read with patience the manuscript arguments emanating from the appellant.
He was an Accounts officer since December 30, 1961, having been so promoted and appointed by the Comptroller and Auditor General of India (C & AG).
The story of his career was snapped when he was compulsorily retired 'in the public interest ' on August 27, 1975 under; F.R. 56(j)(i) by the Accountant General (A.G.).
Had he run his full course, his continuance until April 1980 would have been sure.
Finding himself an uneasy casualty when the easy axe of F.R. 56(j)(i) fell on him, the appellant challenged the premature retirement in the High Court only to be greeted with a dismissal in limine.
Here he has arrived by special leave and argued before us that his forced retirement is dubious and violative, in many ways, of F.R. 56(j)(i).
The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service.
But potential compulsory retirement under F.R. 56(j)(i) haunting the afternoon of official life injects an awesome uncertainty which makes even the honest afraid, the efficient tremble and almost everyone genuflect not a happy prospect for a civil servant too young to sit idle and too old to get a new job.
A jetsam has no option but to become driftwood or join the other profession where everyone, desirable and undesirable, has a chance.
We stress his deleterious latency of F.R. 56(j)(i) to underscore the unwitting harm to public interest it does in the name of public interest.
Judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim.
The grounds on which the order of retirement has been challenged by the appellant may be formulated immediately after quoting the rule itself: 56(j): Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is the public interest to do so have the absolute right to retire any 433 Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice.
(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years after he has attained the age of fifty years.
Note 1: Appropriate authority, means the authority which has the power to make substantive appointment to the post or service from which the Government servants is required or wants to retire.
A break down of the provision brings out the basic components.
The order to retire must be passed only by 'the appropriate authority '.
That authority must form the requisite opinion not subjective satisfaction but objective and bona fide and based on relevant material.
The requisite opinion is that the retirement of the victim is 'in public interest ' not personal, political or other interest but solely governed by the interest of public service.
The right to retire is not absolute, though so worded.
Absolute power is anathema under our constitutional order. 'Absolute ' merely means wide, not more.
Naked and arbitrary exercise of power is bad in law.
These essentials once grasped, the appellant 's submissions become self evident.
His principal contentions, not all the secondary details, alone need detain us.
His first challenge is to the competence of the Accountant General compulsorily to retire him because, according to the appellant, he is not the 'appropriate authority ' within the meaning of the rule.
The appointing authority who actually appointed the appellant was the C & AG, but the A.G. retired him on the assumption that he had the requisite power.
Article 311(1) insists that a civil servant shall not be dismissed or removed by an authority "subordinate to that by which he was appointed".
The appellant, by parity of reasoning, argues that the A.G., being subordinate to the C & AG, has no power to retire him.
The fallacy in the argument lies in the confusion between 'dismissal ' and 'compulsory retirement '.
The two cannot he equated and the constitutional bar cannot be operative.
Therefore, we have to find, on an independent enquiry, as to who is the appropriate authority under r. 56(j)(i).
Under Note 1 to F.R. 56, the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said rules.
From this Note, which is virtually a part of the rule, the respondents contend that the power of the appropriate authority in respect of 434 Accounts Officers like the appellant has been vested in the A.G. by Notification of the Ministry of Finance dated 29 11 1972.
Since the A.G. has been clothed, from that date, with power to appoint substantively Accounts Officers, he has become the appropriate authority for compulsory retirement even though the appellant Accounts Officer had been appointed by the & AG prior to 29 11 1972.
In the light of the note which is part of the rule, read with the notification delegating the power to the A.G., we see no flaw in the order impugned.
No doubt, ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered.
There, the specific provision in the Note to FR 56 must hold good and article 311 is not violated either.
Nor is there any discrimination, as contended for, because retirement is a category different from the punishments covered by article 311.
Who is the retiring authority on a given date? This is answered by the Note which, in substance, says that he who is empowered to appoint the Accounts officer is also the appropriate authority to retire compulsorily, on that date.
In this view, we cannot nullify the retirement of the appellant for want of competence.
This takes us to the meat of the matter, viz., whether the appellant was retired because and only because it was necessary in the public interest so to do.
It is an affirmative action, not a negative disposition, a positive conclusion, not a neutral attitude.
It is a terminal step to justify which the onus is on the Administration, not a matter where the victim must make out the contrary.
Security of tenure is the condition of efficiency of service.
The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow.
At the age of 50 when you have family responsibility and the sombre problems of one 's own life 's evening!, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by 'what will happen to me and my family? ' 'Where will I go if cashiered? ' How will I survive when I am too old to be newly employed and too young to be superannuated? ' These considerations become all the more important in departments where functional independence.
fearless scrutiny, and freedom to expose evil or error in high places is the task.
And the ombudsmanic tasks of the office or audit vested in the C & AG and the entire army of monitors and minions under him are too strategic for the nation 's financial health and discipline.
that immunity from subtle threats and oblique overawing is very much in public interest.
So it is that we must emphatically state that 435 under the guise of 'public interest ' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal.
To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected.
The exercise of power must be bona fide and promote public interest.
There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in.
public interest.
When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of 'public interest ' justifying forced retirement of the public servant.
Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations.
The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest.
We will consider this question to the extent disclosed by the record and in the light of the submissions made by both the parties.
The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by article 311 of the Constitution.
After all, administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies.
They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insufficient, unintelligent or dubious conduct impede the flow or promote stagnation, in a country where speed, sensitivity, probity.
and non irritative public relations and enthusiastic creativity are urgently needed but paper logged processes and callous cadres are the besetting sin of the Administration.
It is in public interest to retire a never do well, but to juggle with confidential reports when a man 's career is at stake is a confidence trick contrary to public interest.
Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making.
The appropriate authority, not the court, makes the decision, but, even.
so, a caveat is necessary to avoid misuse We are inclined to ignore the case that the appellant was retired because he had declined 'to proceed on leave forcibly in September 1974 '.
While it is reprehensible for Government or any in the higher 436 echelons to compel a civil servant to go on leave on pain of being suspended, retired or transferred to a far off place or indifferent post and the court may readily infer mala fides in the subsequent order if there is proof of antecedent pressure to take forced leave we cannot judge the legality of a compulsory retirement on suspicions and apprehensions invariably urged even by deserving victims.
Let us look at the facts from these broad lines of Law.
The A.G. has, in vindication of his action, submitted that "the impugned order of compulsory retirement was made by the Accountant General on the basis of the recommendations dated 23 8 1975 of the Reviewing Committee constituting the following officers: 1.
Accountant General 2.
Senior Deputy Accountant General (IC) 3.
Senior Deputy Accountant General (Administration) Punjab 4.
Deputy Accountant General (Administration) Office of the Accountant General, Haryana.
The said Committee reviewed the service record of the appellant and found adverse entries in various confidential reports, and inter alia, held that the appellant was unable to perform his duty efficiently and effectively in the post held by him and recommended compulsory retirement under FR 56(j)(i).
The appellant was accordingly retired by the Accountant General on 27 8 1975".
We are not inclined to agree with the appellant that the Reviewing Committee is an illegal body and taking its recommendations into consideration vitiates the A.G. 's order.
On the other hand, it is clear that the decision to retire is surely that of the A.G., and the Reviewing Committee 's presence is persuasive, not decisive, and prevents the opinionatedness of one by the collective recommendations of a few.
Now we will enter the substantive dispute and search for the presence of public interest as the basis of the impugned order.
The A.G., Mr. Khanna has, in his affidavit in this court, sworn: In this connection I respectfully submit that the Petitioner 's work was found to be below average and that fact was noted by the appropriate authority in the confidential reports of the 437 petitioner as per details given below: ____________________________________________________________ Period of Adverse Remarks Date of Report Communication ____________________________________________________________ 1961 62 Yes.
An Average Officer.
Though he did try to tackle the arrears in the GAD section under his charge.
I was unhappy to observe that he was trying to shield those who shirked work.
I also noticed that while he was anxious to bring to my notice persons who did their duties well, he was willing to play down the lapse on their part, if any, without adequate justification.
5.12.1962 14.12.64 A mediocrity who should take more Adverse to interest in the work remarks 20.3.65 noted on 15.1.66 29.7.69 Industry and application.
Poor to 15.11.70 Ability to organise and manage Poor, sections competently.
Adverse remarks communica ted on May 1970.
General Assessment:An average officer who would do better if he showed more initiative and resourcefulness.
1.4.70 1.Technical ability:Below average to 3(a) Ability to organise and manage 9.12.70 sections competently.
Poor (b) Ability to control subrodi nates and get the best out of them.
Poor 10.
General Assessment:Below Adverse Average.
My remarks against remarks 1,3(a)(b) and 10 may be seen.
communica The performance of Shri ted, on Chaddha as the officer in 29th Sept. charge of the Account Current 1971.
sections was not upto the mark and consequently he had to be given a change.
This officer is definitely below average.
438 The aforementioned adverse remarks in the confidential reports of the petitioner were communicated in all the cases to the Petitioner and the Petitioner made representation which was rejected by the competent authority after due consideration.
At the time of the review of the retention of the petitioner and other accounts officers, a Committee consisting of Accountant General, Senior Deputy Accountant General (IC), Senior Deputy Accountant General, (Admn.), Office of the Accountant General, Haryana was constituted to review the cases of the Accounts officers for their retention, on their attaining the age of 50 years.
The said Committee was constituted on 23 8 1975.
The said Committee after careful assessment of the performance of the employees concerned depicted in their confidential reports found that the persons including the Petitioner who were not able to perform their duty efficiently and effectively in the posts held by them at that time and the Committee therefore recommended to retire the Petitioner among others under F.R 56(j)(i).
A copy of the minutes of the meeting held is annexed herewith as Annexure Y. The Reviewing Committee report runs thus: "The Committee after a careful assessment of the performance of the employees concerned as depicted in their confidential reports have come to the conclusion that the persons mentioned below are not able to perform efficiently and effectively the duties of the posts held by them.
(1) Shri Baldev Raj Chadda, Accounts Officer.
" A bare glance at the confidential reports of the appellant brings out the striking fact that they relate to 1961 62 to the end of 1970.
The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade, without let or hindrance.
What is far more significant is the further fact that the Reviewing Committee and the A.G. appear to have ignored entries in yearly/half yearly reports in the seventies.
The appellant states categorically: "A perusal of the extract from the Confidential reports would show that there were no adverse remarks in the Confidential Reports of the Appellant for the year 1971 72, 1972 73, 1973 74, 1974 75 and 1975 76 till the date of his retirement from service on 27 8 75." He further rightly points out that the stand of the A.G. before the High Court was that the impugned order was not grounded on the adverse entries: Since the adverse entries in the Confidential Reports of the petitioner were not, in terms, stated to be the ground for exer 439 cising the powers under F.R. 56(j), it was not necessary for the Respondent to deal with the various allegations levelled by the petitioner against the higher authorities in this regard.
We must read these materials against the further background set out by the appellant: If I was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action.
This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R. 56(j).
One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms.
A short cut may often be a wrong cut.
The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision.
Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law.
Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained.
Legality depends on regard or the totality of material facts viewed in a holistic perspective.
For these reasons, the order challenged is obviously bad and we quash it.
It is, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles.
The appellant has, by now, reached the age of superannuation in the normal course.
The result is that the consequence of any fresh order may only be financial.
It is for the A.G. to consider whether in the circumstances, a fresh evaluation for the purpose of compulsory retirement is called for.
We merely allow the appeal, quash the order of compulsory retirement and leave the law to take its course.
The appellant will be entitled to costs which we quantify at Rs. 2,000.
N.K.A. Appeal allowed.

summary/full:
The appellant, an accounts officer, was promoted and appointed by the Comptroller and Auditor General of India.
He was compulsorily retired on 27th August, 1975 in the public interest under F. R. Rule 56(j)(i) by the Accountant General.
The appellant challenged his pre mature retirement in the High Court by a Writ Petition which was dismissed in limine.
In his appeal by Special Leave, the appellant challenged the order of retirement and argued that (i) the Accountant General is not "appropriate authority" within the meaning of the rule and (ii) the retirement was not in the public interest.
The respondent contended that (i) the power of the appropriate authority in respect of accounts officers like the appellant was vested in the Auditor General by Notification of the Ministry of Finance dated 19 1 1972 and (ii) the impugned order of compulsory retirement was made by the Accountant General on the basis of the recommendations dated 23 8 1975 of the Reviewing Committee.
Allowing the appeal.
^ HELD: An officer with continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement cannot be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms.
The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision.
[439D E] Any order which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts bearing on the decision is bad in law.
Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained.
[429 F] The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service.
But potential compulsory retirement under F. R. 56 (j) (i) haunting the afternoon of official life injects an awesome uncertainty which makes even the honest afraid.
the efficient tremble and almost everyone genuflect, and is not a happy prospect for a Civil Servant too young to sit idle and too old to get a new job.
A jetsam has no option but to become driftwood or join the other profession where everyone, desirable and undesirable, has a chance.
This deleterious latency 431 of F.R. 56(j)(i) is stressed to underscore the unwitting harm to public interest it does in the name of public interest.
Judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim.
[432 E G] The order to retire must be passed only by the appropriate authority.
That authority must form the requisite opinion not subjective satisfaction hut objective and bona fide and based on relevant material.
The requisite opinion is that the retirement of the victim is in public interest not personal political or other interest but solely governed by the interest of public service.
The right to retire is not absolutely, though so worded.
[433 C D] Since the A.G. has been clothed, from 29 11 1972 with power to appoint substantively Accounts officers, he has become the appropriate authority for compulsory retirement even though the appellant had been appointed by the C & AG prior to 29 11 1972.
In the light of the note which is part of the rule, read with the notification delegating the power to the A.G., there is no flaw in the order impugned.
[434 A B] Ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered.
The specific provision in the Note to FR 56 must hold good and article 311 is not violated either.
Nor is there any discrimination, because retirement is a category different from the punishment covered by article 311.
[434C] Security of tenure is the condition of efficiency of service.
The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow At the age of 50, your experience, accomplishment and fulness of fitness become an asset to the Administration, if any only if you are not harried or worried.
These considerations become all the more important in departments where functional independence, fearless scrutiny, and freedom to expose evil or error in high places is the task.
And the Ombudsmanic tasks of the office of audit vested in the C & AG and the entire army of monitors and minions under him are too strategic for the nation 's financial health and discipline that immunity from subtle threats and oblique overawing is very much in public interest.
Under the guise of public interest if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace of public interest and must fail for unreasonableness, arbitrariness and disguised dismissal.
The exercise of power must be bona fide and promote public interest.
[434 F H, 435 A B] Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations.
Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies.
It is in public interest to retire a never do well, but to juggle with confidential reports when a man 's career is at stake is a confidence trick contrary to public interest.
Confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making.
[435D, E G]