judgement:
ivil Appeal No. 1187 (NT) of 1976.
From the Judgment and order dated 22.7.75 of the Bombay High Court in ITR No. 95 of 1965.
Harish N. Salve and Mrs. A.K. Verma for the Appellants.
S.C. Manchanda, K.P. Bhatnagar and Ms. A. Subhashini for the Respondent.
550 The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been pre ferred against the judgment dated 22nd July, 1975 of the Bombay High Court in I.T. Ref.
No. 95 of 1%5 made under Section 66(1) of the Indian Income tax Act, 1922.
The as sessment year under reference was 1%1 62.
Chandrakant Manilal Shah was the Karta of a Hindu undi vided family (HUF) and the family was carrying on business of cloth.
Naresh Chandrakant, one of the sons of Chandrakant Manilal Shah, joined the business on a monthly salary of Rs. 100/ since about April 1959.
It was asserted that with effect from 1st November 1959 the business had been convert ed into a partnership between Chandrakant Manilal Shah as Karta of HUF and Naresh Chandrakant.
The deed of partnership executed in this behalf on 12th November, 1959 indicated that Naresh Chandrakant had been admitted as a working partner with effect from 1st November, 1959 having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by Chandrakant Manilal as the Kartas of the HUF.
An application was made for regis tration of the firm which was dismissed by the Income tax officer on the ground that there was no valid partnership.
The view taken by the Income tax officer was upheld in appeal by the Appellate Assistant Commissioner.
On further appeal, the Income tax Appellate Tribunal also came to the same conclusion that there was no valid partnership and the business consequently must be taken to continue in the hands of the joint family.
However, at the instance of the asses see the following question was referred by the Tribunal to the High Court for its opinion: Whether on the facts and in the circumstances of the case, there was a valid partnership under Annexure 'A ' between Shri Chandrakant, as the Karta of the HUF and Shri Naresh, a member of the family? The High Court by the judgment under appeal answered the aforesaid question in the negative, in favour of the Revenue and against the assessee.
In doing so, it relied on an earlier decision of that Court in Shah Prabhudas Gulabchand vs Commissioner of Income tax, Bombay, 119701 (77) ITR page 870.
It is against this judgment that the assessee has come up in appeal to this Court.
It has been urged by the learned counsel for the appel lants that the mere fact that Naresh Chandrakant had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership 551 but was contributing only his skill and labour, could not in law detract from a valid partnership being created.
Learned counsel for the respondent, on the other hand, contended that the view taken in this behalf by the Tribunal and the High Court was correct and was not only supported by the decision relied on by the High Court referred to above but also by another decision of the Gujarat High Court in Pitam berdas Bhikhabhai & Co. vs Commissioner of Income tax, Gujarat [1964] (53) ITR page 341.
Having heard learned counsel for the parties, we are inclined to agree with the submission made by learned coun sel for the appellants.
In our view, this contention derives full support from the view of the Judicial Committee of the Privy Council in Lachhman Das vs Commissioner of Income tax, Punjab [1948] (16) ITR page 35.
There the question which fell for consideration was: "Whether in the circumstances of this case, there could be a valid partnership between Lachhman Das as representing a Hindu undivided family on the one hand and Daulat Ram, a member of that undivided Hindu family in his individual capacity, on the other?" In other words, the question was the same as the one arising in the present case but for the difference in the factual background that, whereas in the ease before the Judicial Committee the member had brought in his separate capital, the member in the present case claims only to be a working partner.
Does this difference in facts make a dif ference in principle? That is the question.
In Lachhman Das, it had been urged before the High Court for the assessee that, when a Karta of a HUF could enter into a partnership with a stranger as held by the Privy Council in P.K.P.S. Pichappa Chettiar vs Chockalingam Pillai A.I.R. 1934 P.C. 192, there was no reason why a coparcener also could not enter into such a partnership by making contributions in his individual capacity from his separate funds.
This plea was repelled by the High Court on the ground that a coparcener could not be regarded as a stranger so long as he continued his connection with his undivided family in the capacity as a coparcener.
While reversing the judgment of the High Court, it was held by the Privy Coun cil: "After careful consideration, their Lordships cannot accept this vicw and on general princi ples they cannot find any sound reason to distinguish the case of a stranger from that of a coparcener who puts into the partnership what is admittedly 552 his separate property held in his individual capacity and unconnected with the family funds.
Whatever the view of a Hindu joint family and its property might have been at the early stages of its development, their Lord ships think that it is now firmly established that an individual coparcener, while remaining joint, can possess, enjoy and utilise, in any way he likes, property which was his individu al property, not acquired with the aid of or with any detriment to the joint family proper ty.
It follows from this that, to be able to utilise this property at his will, he must be accorded the freedom to enter into contractual relations with others, including his family, so long as it is represented in such transac tions by a definite personality like its manager.
In such a case he retains his share and interests in the property of the family, while he simultaneously enjoys the benefit of his separate property and the fruits of its investment.
To be able to do this, it is not necessary for him to separate himself from his family.
This must be dependent on other con siderations, and the result of a separate act evincing a clear intention to break away from the family.
The error of the Income tax Offi cer lay in his view that, before such a con tractual relationship can validly come into existence, the "natural family relationship must be brought to an end.
" This erroneous view appears to have coloured this and the subsequent decisions of the Income tax author ities.
In this view of the Hindu law, it is clear that if a stranger can enter into partnership, with reference to his own property, with a joint Hindu family through its Karta, there is no sound reason in their Lordships ' view to withhold such opportunity from a coparcener in respect of his separate and individual property.
The aforesaid view of the Privy Council was approved by this Court in Firm Bhagat Ram Mohanlal vs Commissioner of Excess Profits Tax, Nagpur [1956] (29) ITR page 521 but on the facts of that case it was held that the partnership set up in that case was not valid.
The above principle has been applied by several High Courts to uphold the validity of a partnership between the Karta of a HUF and an individual member of the family where the latter is taken in as a working partner.
In I.P. Munav alli vs Commissioner of Income tax, Mysore [1969] (74) ITR page 529, it was held by the Mysore High Court, after refer ring to 553 the decision of the Privy Council in the case of Lachhmandas (supra) and of this Court in the case of Bhagat Ram (supra): "So it is clear that the Supreme Court did not dissent from the opinion expressed by the Privy Council that "in respect of their separate or undivided property" the coparcen ers of a Hindu joint family, even though they had not become divided from one another and there had been no partition of the family properties could become partners of a firm of which the joint Hindu family represented by its karta is itself a partner.
If a partner by putting into the partnership by way of his capital his separate property or the property which he obtained at a partition on division and thus can become a partner with the family represented by its karta, it is difficult to understand how such a partnership cannot come into being and why a coparcener who continues to remain a member of the copar cenary cannot become a working partner of a firm of which he and the family represented by its karta are the partners.
In Lachhman Das 's case the coparcener placed at the disposal of the firm as his capital his separate property, and in the case of a working partner he con tributes his.
skill or labour or both as the case may be.
If the partnership is permissible in one case, it would be difficult.to assign any reason for reaching the conclusion that it is not permissible in the other." In Ramchand Nawalrai vs Commissioner of Income tax, M.P. 119811 (130) ITR page 826, it was held by the Madhya Pradesh High Court as hereunder: "it will be clear from the facts of the case of Firm Bhagat Ram Mohanlal that the question whether a coparcen er can enter into a valid partnership with the karta of his family by contributing merely skill and labour did not arise for decision.
The only question in the case was whether the individual members of a HUF can, without contributing anything, become members of a partnership constituted between the karta and strangers.
This question had necessarily to be answered in the negative on the settled view that when a karta enters into a partnership with strangers it is the karta alone who becomes the partner.
The observations of the Supreme Court that (p.526): "If members of a coparcenary are to be 554 regarded as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the mem bers can at the same time be both coparceners and partners", as contained in the passage quoted above, must be limited to the facts on which Firm Bhagat Ram Mohanlal 's case was decided.
The Supreme Court in the same passage referred to the decision of the Privy Council in Lachhrnandas ' case and did not disapprove of it.
If a coparcener by contrib Uting his separate property can enter into a valid partnership with the karta of his fami ly, as held by the Privy Council in Lachhman das ' case, there seems no valid reason why a coparcener cannot, by contributing merely his skill and labour, enter into a partnership with the karta.
If the former does not cut at the root of the notion of the joint Hindu family, the latter also does not.
Even in the case of the former, the partnership property will consist of the contribution made by the karta from the coparcenary property and the contribution made by the coparcener of his individual property Both taken together would become partnership property in which all the partners would have interest in proportion to their share in the joint venture of the busi ness of partnership (Narayanappa vs Bhaskara Knshnappa; , , 1304 (para 5).
If in such a situation the coparcener entering into the partnership can be a partner in relation to coparcenary property contributed for the partnership business, there can be no difficulty in holding that the same result would follow when the coparcener entering into a partnership only contributes his skill and labour.
In the former case, as stated by the Privy Council in Lachhmandas ' case , the coparcener entering into the partnership, retains his share and interest in the family property while simultaneously enjoying the benefit of his separate property and the fruits of its investment.
In the same way, it can be said that in the latter case the coparcener retains his share and interest in the property of the family while simultane ously enjoying the benefits of his skill and labour which he contributes as consideration for formation of the partnership and for sharing profits.
Learned standing counsel for the department further sub 555 mitted that as the profits earned by a part nership in which the contribution of capital is only of joint family funds from the side of the karta would ensure to the benefit of the entire joint family being earned with the help of the joint family funds, a coparcener who only contributes his skill and labour for becoming a partner cannot claim any share in the profits as his separate property and, therefore, there cannot be any valid partner ship.
Learned counsel in this connection relied upon the case of V. D. Dhanwatey vs CIT Dhanwatey 's case has to be read along with the case of CIT vs D.C. Shah In Dhanwatey 's case [19681 (68) ITR 365 (SC) a karta of a HUF who entered into a partnership was paid a salary from the partnership and it was held that the salary income was the income of the HUF.
The basis of the decision was that the salary was paid because of the investments of the assets of the family in the partnership business and there was a real and sufficient connection between the investments from the joint family funds and the remuneration paid to the karta.
In Shah 's case also the karta entered into a part nership and was paid remuneration.
But as the remuneration was paid for the specific acts of management done by the karta resting on his personal qualification and not because he represented.
the HUF, it was held that the remuneration was his individual income.
Apply ing the same principle, if a coparcener be comes a working partner in a partnership with the karta and gets a share in profits in consideration of the skill and labour contrib uted by him, his share in the profits would be his separate property for the profits coming to his share would be directly related to his skill and labour and not to be investments of the joint family funds in the business.
The question, however, whether a coparcener enter ing into a partnership with the karta does really contribute any labour or skill for the management of the partnership business in which he is given a share in profits is a question of fact which will have to be deter mined in the light of the circumstances of each case.
In case it is found that there is no real contribution of skill or labour by the coparcener for sharing the profits, the part nership will be held to be unreal and ficti tious but that is an entirely different thing from saying that there cannot at all be a valid partnership between the karta and a coparcener when the latter only con 556 tributes his skill and labour and is merely a working partner.
In our opinion, the argument that as the capital investment in the partner ship is only of the funds of the undivided family, there cannot be any partnership, cannot be accepted.
The conclusion reached by us is fully support ed by a decision of the Mysore High Court in I.P.Munavalli vs CIT , with which we respectfully agree.
The Bombay High Court in Shah Prabhudas Gulabchand vs CIT took a contrary view.
With great respect and for the reasons give above, we are unable to agree with In Commissioner of Income tax, Lucknow vs Gupta Brothers , the Alla habad High Court took the same view when it said : "The observations of the Privy Council that a partnership can be, formed with a junior member by the karta qua his separate property is by way of illustration of a particular eventuality when the separate property consti tutes consideration for the induction of a junior member into the partnership.
It cannot be read as being exhaustive of cases where consideration may take other forms.
Now, as labour and skill would also be consideration as contemplatedby the Contract Act, a valid partnership had come into existence, which ought to have been registered.
" Learned counsel for the respondent has laid considerable emphasis on two points.
Firstly, it was urged that Hindu Law does not recognise any contract among the coparceners inter se except in two cases, namely, where there is a partial partition and where a coparcener has separate property and brings in such separate property as capital towards consid eration for becoming a partner.
While elaborating the first point, it has been urged that if, even in a case where there is neither partial partition nor any separate property is brought in by the coparcener as consideration for the part nership it is held that a valid partnership can still come into existence, it would create an anomalous situation inasmuch as such coparcener would be having an interest in the coparcenary property both as a coparcener and partner.
Reliance in.
this behalf has been placed on the following observations made in the case of Bhagat Ram Mohanlal (supra): "If members of a coparcenary are to be regard ed as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would 557 cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the members can at the same time be both coparceners and part ners.
The second point emphasised by learned counsel for the respondent is that skill and labour cannot be treated as property.
It must be confessed that the observations made in ' the case of Bhagat Ram Mohanlal (supra) relied upon do appear to support the contention of the Revenue.
In the case of Firm Bhagat Ram Mohan Lal vs 'CEPT[1956] (29) I.T.R. 521 (S.C.), a partnership had been entered into in 1940 between Mohan Lal (M) and two outsiders (R&G), M admittedly representing a HUF consisting of himself and his two brothers Chotelal (C) and Bansilal (B).
In 1944, the HUF got divided and, conse quently, the firm was reconstituted with five partners viz. the two outsiders (R&G), M, C and B. This, according to the Revenue, had resulted in a "change in the persons carrying on the business" leading to certain consequences adverse to the assesses in the context of the Excess Profits Tax Act.
The firm attempted to get over the difficulty in two ways: (a) It was contended that, even initially, in 1940, the firm must be considered as having been constituted with all the five persons, R, G, M, C and B, as partners; in other words when M entered into the partnership on behalf of the HUF, the consequence was that not only he but his two undivided brothers B & C also became partners in the firm in their individu al capacity; and (b) It was suggested that when M entered into the partnership agreement in 1940, all the three coparceners M, C & B, could be regarded as having entered into the contract as kartas of (i.e, representing) the HUF.
Both these contentions were negatived.
So far as the first contention was concerned, the Court observed that it could be disposed of as being an afterthought opposed to the factual findings in the case.
However, the Court proceeded to observe that it was difficult to visualise a situation, which the appellants contended for, of a HUF entering into a partnership with strangers through its karta and the junior members of the family also becoming its partners in their personal capacity.
After referring to Lachman Das (supra) and Sunder Singh Majithia vs CIT where divided members of a family were held competent to carry on the erstwhile joint family business in partnership, the Court pointed out: 558 "But in the present case, the basis of the partnership agreement of 1940 is that the family was joint and that Mohanlal was its karta and that he entered into the partnership as karta on behalf of the joint family.
It is difficult to reconcile this position with that of Chotelal and Bansilal being also partners in the firm in their individ ual capacity, which can only be in respect of their separate or divided property. ' (Emphasis supplied).
This was followed by the observations on which Sri Manchanda, learned counsel for the Revenue has placed con siderable reliance.
Similarly, so far as contention (b) was concerned, the Court observed that "even if such a conten tion could be raised consistently with the principles of Hindu LAW ', it was in the teeth of the pleadings in the case and so could not be allowed to be raised.
These passages no doubt suggest that, in the Court 's view, an undivided member of a HUF cannot be a partner along with the karta of the family, except where he furnishes capital in the form of property belonging to him in his individual right or ob tained by him on a partition of the family and that the Court left open the question whether more than one member of a HUF can represent the family in a partnership with outsid ers.
It will be apparent that this Court had rejected both contentions of the assessee as being an afterthought or contrary to the factual findings in the case.
This was sufficient to dispose of the case.
However, the further expressions of opinion, coming from such an eminent Judge as Venkatarama Ayyar, J., are entitled to the greatest weight and respect.
We, however, think that the scope of these observations, made in the context of the special facts and circumstances of the case, has been magnified by the learned counsel for the Revenue.
We may observe, at the outset, that his basic postulate that, under the Hindu Law, there can be no contract inter se between the undivided members of the family is basically incorrect.
This Court has recognised the validity of such contract in various situations.
For in stance, an undivided member of a HUF (including its karta) can be employed by the HUF for looking after the family business and paid a remuneration therefor: vide, Jitmal Bhuramal vs CIT ( S C ) and Jugal Iri shore Baitleo Sahai vs CIT [1967] ( 63 ) ITR 238 S.C. Again on the second contention which was left open, subsequent decisions of this Court have held that it is open to more than one member of a HUF to represent the family in partner ship with strangers.
In Commissioner of Income tax vs Sir Hukumchand Mannalal and Co. , it was 559 held by this Court: "The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger.
A member of a Hindu undivided family has the same liberty of contract as any other individual: it is re stricted only in the manner and to the extent provided by the Indian Contract Act.
Partner ship is under section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivid ed family." This position has also been recognised in Ratanchand Darbarilal vs Commissioner of Income Tax In that case, there were two firms, one at Katni and one at Satna, constituted by two members of an undivided family with others.
The question posed however was whether the Satna firm could be treated as an independent unit of assessment.
This Court held that it was a question of fact on which the Tribunal 's findings were conclusive.
In this view, it left unanswered, as academic, the following ques tion on which the Commissioner had sought a reference: "Whether, on the facts and in the circum stances of the case, the Appellate Tribunal was justified in directing that the firm owning the Satna business should be registered in spite of the fact that the members of the two HUFs entered as partners inter se without their effecting in the first instance a sever ance of joint status by partitioning either partially or totally, the assets of the re spective HUFs?" However, in the course of its judgment, the Court observed: "The High Court obviously fell into an error in proceeding on the footing that, without a partition or a partial partition,.
some of the members belonging to the Hindu undivided family could not constitute themselves into a partnership firm.
We do not think this view is correct in law.
It is a well settled proposi tion applicable to Hindu Law that members of the joint family and even coparceners can, without disturbing the status of a joint family or the coparcenary, acquire separate property or run independent business for themselves.
" 560 Turning now to the specific observations on which reliance has been placed, we do not think that they should be read as permitting a partnership between the karta of a HUF and its individual member only when he brings in some capital but not otherwise.
In the context in which they were made, it is seen that they were only limited to point out that there was no claim before the Court, as in Lachmandas or Majithia that the other member had brought in any sepa rate or divided.
property as capital.
On the contrary, the claim was that the coparceners of the HUF other than the karta, who was the co nominee partner, should be regarded as partners, though they had not entered into any such agree ment and had placed neither capital nor services at the disposal of the firm.
It was this claim that was held un tenable.
Much more significance cannot be read into these observations for, if construed too strictly and in the manner suggested, they will militate against the possibility of a valid partnership being formed in two classes of cases about which there can be no doubt.
The first is where an undivided member seeks to become a partner by furnishing capital which has been held permissible in Lachmandas and approved in Firm Bhagat Ram Mohanlal itself.
The other is the case of a partnership firm on which more than one part ner represents a HUF, the validity of which has been upheld in the cases referred to earlier.
The observations cannot, therefore, be read as precluding altogether a claim by an undivided member of a HUF that he has in fact agreed to become a partner along with the karta for genuine and valid reasons.
In our view, the Allahabad, Madhya Pradesh and Mysore decisions rightly held that the observations in Finn Bhagat Ram Mohanlal do not militate against the formation of a valid partnership in such cases.
This takes us on to the second point made by Sri Man chanda that, though an undivided member can, by contributing separate capital, enter into a partnership with the karta qua the family business, he cannot do so by offering as his contribution to the firm not material capital but only his labour and skill.
With regard to this submission made by the learned counsel for the respondent that skill and labour cannot be equated with property, it may not be out of place to refer to some earlier history.
As has been stated in Mulla 's Hindu Law, before the commencement of the (hereinafter referred to as the Act) it was settled law that income earned by a member of a joint family by the practice of a profession or occupation requiring special training was joint family property if such training was imparted at the expense of joint family proper ty.
This being so, if such a member of a joint family were to enter into a partnership with the karta of the family to carry on business, the fruits even of his skill and labour would have been property of the joint 561 family and the very purpose of entering into a partnership namely having a share of his own in the profits of the business would have been defeated.
In this state of law if an agreement was reached between such member of the joint family and the karta that out of the profits of the business a defined share will be payable to and be the separate property of such member, the agreement would have been illegal.
Indeed such a member would have been getting a separate share in the profits of the business without making any contribution of his own.
However, an almost complete transformation in the legal position was brought about by the Act.
Sections 2 and 3 of the Act which are relevant in this behalf read as hereunder: "2.
In this Act, unless there is anything repugnant in the subject or context, (a) 'acquirer" means a member of a Hindu undivided family, who acquires gains of learn ing; (b) "gains of learning" means all acquisitions of property made substantially by means of learning, whether such acquisitions be made before or after the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning; and (c) ' "learning" means education, whether elementary, technical scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or avocation in life.
Notwithstanding any custom, rule or inter pretation of the Hindu law, no gains of learn ing shall be held not to be the exclusive and separate property of the acquirer merely by reason of (a) his learning having been, in whole or in part imparted to him by any member living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any member thereof, or (b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof.
" 562 As seen above, the definition of the term "learning" is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity "to pursue any trade, industry, profession or avocation in life.
" The dictionary meaning of "skill", inter alia, is: "the familiar knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physi cal or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fall within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo real and incorporeal etc.
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity.
This capacity is in its very nature an individual achievement and normally varies from individual to individual.
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit.
This benefit accrues in favour of the individual possessing and utilising the capacity.
Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual.
The nature of consideration will depend on the nature of the contract between the two individuals.
As is well known, the aim of business is earning of profit.
When an individual contrib utes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm namely to earn prof it.
The same purpose is, undoubtedly, achieved also when an individual in place of cash asset contributes his skill and labour in consideration of a share in the profits of the firm.
Just like a cash asset, the mental and physical capac ity generated by the skill and labour of an individual is possessed by or is a possession of such individual.
Indeed, skill and labour are by themselves possessions.
"Any posses sion" is one of the dictionary meanings of the word 'proper ty '.
In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an indi vidual and indeed the skill and labour by themselves would be the property of the individual possessing them.
They are certainly assets of that individual and there seems to be no reason why they cannot be contributed as a consideration for earning profit in the business of a partnership firm.
They certainly are not the properties of the HUF but are the separate properties of the individual concerned.
To hold to the contrary, we may observe, would also be incompatible with the practical, economic and social reali ties of present day living.
We no longer live in an age when every member of a HUF considered it his duty to place his personal skill and labour at the services of the family with no quid pro quo except the right to share ultimately, on a partition, in its general prosperity.
Today, where an undi vided member of a family 563 qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise else where and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business, unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits.
Suppose a family is running a business in the manufacture of cloth and one of its members becomes a tex tile expert, there is nothing wrong in the family remunerat ing him by a share of profits for his expert services over and above his general share in the family properties.
Like wise, a HUF may start running a diagnostic laboratory or a nursing home banking on the services of its undivided mem bers who may have qualified as nurses and doctors and prom ising them a share of profits of the 'business ' by way of remuneration.
This will, of course, have to be the subject matter of an agreement between them but, where there is such an agreement, it cannot be characterised as invalid.
It is certainly illogical to hold that an undivided member of the family can qualify for a share of profits in the family business by offering moneys either his own or those de rived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowl edge for making the family business more prosperous.
For the reasons discussed above, we have reached the conclusion that the decisions referred to above which sup port the contentions of learned counsel for the appellants lay down the correct legal position.
The two decisions relied on by the learned counsel for the respondent in the cases of Pitamberdas Bhikhabhai and Co. and Shah Prabhudas Gulabchand of the Gujarat and Bombay High Courts respective ly turned on their particular facts and, if read as laying down a contrary rule, do not lay down good law.
In this view of the matter, it cannot be said that when a coparcener enters into a partnership with the karta of a HUF and con tributes only his skill and labour, no contribution of any separate asset belonging to such parruer is made to meet the requirement of a valid partnership.
Reverting to the facts of the instant case it is noteworthy that it is not the case of the Revenue that the partnership between Chandrakant Manilal Shah as karta of HUF and Naresh Chandrakant was fictitious or invalid on any other ground.
Consequently, the judgment of the High Court cannot be sustained.
In view of the foregoing discussion, this appeal suc ceeds and is allowed.
The judgment of the High Court is set aside and the question referred to the High Court is an swered in the affirmative, in favour of the assessee and against the Revenue.
In the circumstances of the case, however, there shall be no order as to costs.
N.P.V, Appeal allowed.

summary/full:
The business being carried on by a HUF, of which the first appellant was the Karta, was converted into a partnership between the first appellant and one of his sons, who had earlier joined the business on monthly remuneration.
The deed of partnership executed in that behalf indicated that the son had been admitted as a working partner, having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by the first appellant as the Karta of the HUF.
An 547 application made for registration of the firm was dismissed by the Income tax Officer on the ground that there was no valid partnership.
This was upheld in appeal by the Appel late Tribunal.
However, at the instance of the assessee the matter was referred to the High Court for its opinion.
The High Court also held that there was no valid partnership.
In the appeal before this Court, on behalf of the asses seeappellants, it was contended that the mere fact that the son had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership but was contributing only his skill and labour, could not in law detract from a valid partnership being created.
On behalf of the respondent Revenue it was contended that Hindu Law did not recognise any contract among the coparceners inter se except in two cases, namely, where there was a partial partition and where a coparcener had separate property and brought in such separate property as capital towards consideration for becoming a partner and that skill and labour could not be treated as property.
Allowing the appeal by the assessee appellants, this Court, HELD: 1.1 It cannot be said that when a coparcener enters into a partnership with a karta of a HUF and contrib utes only his skill and labour, no contribution of any separate asset belonging to such partner is made to meet the requirement of a valid partnership.
The aim of business is earning of profit.
When an individual contributes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm, namely, to earn profit.
The same purpose is, undoubt edly, achieved also when an individual, in place of cash asset, contributes his skill and labour in consideration of a share in the profits of the firm.
[562 D E] 1.3 Just like a cash asset, the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual.
Indeed, skill and labour are by themselves possessions.
"Any possession" is one of the dictionary meaning of the word 'property '.
In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an individual and indeed the skill and 548 labour by themselves would be the property of the individ ual possessing them.
They are certainly assets of that individual and there is no reason why they cannot be con tributed as a consideration for earning profit in the busi ness of a partnership.
They certainly are not the properties of the HUF, but are separate properties of the individual concerned.
To hold to the contrary, would also be incompati ble with the practical, economic and social realities of present day living.
[562 E G] 1.4 Where an undivided member of a family qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise elsewhere and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits.
This, of course, will have to be the subject matter of an agreement between the HUF and the member, but where there is such an agreement, it cannot be characterised as invalid.
[562 H, 563 A B,C] 1.5 It is, therefore, illogical to hold that an undi vided member of the family can qualify for a share of prof its in the family business by offering moneys either his own or those derived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowledge for making the family business more prosper ous.
[563 C D] 1.6 In the instant case, it is not the case of Revenue that the partnership between the first appellant as karta of HUF and his son was fictitious or invalid on any other ground.
Hence, the judgment of the High Court cannot be sustained.
[563 F G] I.P. Munavalli vs Commissioner of Income Tax, Mysore, [1969] 74 ITR page 529; Ramchand Nawalrai vs Commissioner of Income Tax, M.P. [1981] 130 ITR page 826; Commissioner of Income Tex; Lucknow vs Gupta Brothers, ; approved.
Shah Prabhudas Gulabchand vs Cornmissioner of Income Tax; Bombay, [1970] 77 ITR page 870; Pitamberdas Bhikhabhai page 341; disapproved.
Lachman Das vs Commissioner of Income tax, Punjab, [ 1948] 16 ITR I 35; P.K.P.S. Pichappa Chettiar vs Chockalin gam Pillai, A.I.R. 1934 P.C. 192; 549 Finn Bhagat Ram Mohanlal vs Commissioner of Excess profits Tax; Nagpur, [1956] 29 ITR page 521; Jitmal Bhuramal vs CIT, ; and Jugal Kishore Baldeo Sahai vs CIT, [ 19671 S.C.; Commissioner of Income tax vs Sir Hukumchand Mannalal and Co., ; and Ratanchand Darbarilal vs Commissioner of Income Tax, ; referred to.
The definition of the term "learning" under Section 2 of the is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity 'to pursue any trade, industry, profession of vocation in life".
The dic tionary meaning of "skill" inter alia, is: "the familiar 'knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physical or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fail within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo real and incorporeal etc.
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity.
This capacity is in its very nature an individual achievement and normally varies from individual to individual.
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit.
This benefit accrues in favour of the individual possessing and utilising the capacity.
Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual.
The nature of consideration will depend on the nature of the contract between the two individuals.
[562 A D] Mulla 's Hindu Law, referred to.


judgement:
minal Appeal No. 141 of 1958.
Appeal by special leave from the judgment and order dated November 28, 1957, of the Madhya Pradesh High Court in Criminal Revision No. 78 of 1957, arising out of the judgment and order dated August 21, 1957, of the Court of Special Judge at Gwalior in File No. 2/57 Special Case.
G. C. Mathur and R. H. Dhebar, for the appellant.
The respondent did not appear.
February 3.
The Judgment of the Court was delivered by SUBBA RAO, J.
This is an appeal by special leave against the, Judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special Judge, Indore, to order the Deputy Superintendent of Police to carry on the investigation afresh.
The facts are simple.
One Shri Mohinder Nath Bhalla was the manager of Daisy Sewing Machine Co. Ltd., Bhopal.
On January 11, 1955, between 12 and 1 p. m., he contacted the Sub Inspector of Police, Special Police Establishment, Gwalior, and gave him the following information: The company had opened their stall in the Gwalior Mela and he (Shri Bhalla) had to book empty wooden cases of machine and machine parts from Gwalior Mela, to Now Delhi.
When lie went to the station to enquire for booking the said cases, the Station Master demanded annas ten for each case as illegal gratification, but he did not agree to it.
Subsequently, the Assistant Station Master agreed to accept annas eight for each case and asked him to bring the wooden cases between 2 and 4 p. m. on the same day, i.e., January 11, 1955.
On this allegation lie requested the police to take action " to stop the said sort of 204 corruption ".
The police officer went along with the informant to his stall at Gwalior Mela and saw the twenty wooden cases twelve big and eight small ready for booking.
The said Shri Bhalla gave the police officer a typed complaint signed by him and duly attested by two witnesses.
With the assistance of the police officer, a trap was laid.
The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses.
The said rupee notes were given to Shri Bhalla in the presence of the witnesses.
Shri Bhalla was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could overhear the conversation and also see the Assistant Station Master taking the bribe.
He was also told that on his giving a signal, the police would come on the scene.
The plan was carried out in detail as agreed.
The Assistant Station Master, after some bargaining, took the bribe, and after the act of bribery was completed, Shri Bhalla gave the prearranged signal.
The Sub Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of witnesses and asked him to produce the money taken by him as bribe.
The Assistant Station Master, when questioned by the Sub Inspector, gave him his name and also produced the notes which he had kept in his pocket.
The police officer took those notes and counted them.
The numbers on those notes tallied with those noted in the memorandum.
He then searched the person of the Assistant Station Master and secured the articles found on him.
He also searched the person of Shri Bhalla and took from his shirt two currency notes, which he did not give to the Assistant Station Master, as the bargain was struck at a smaller amount, and secured the same.
The numbers of those notes also tallied with the corresponding numbers noted in the memorandum.
Thereafter, a memorandum of the articles recovered was prepared in the presence of the witnesses and was duly attested by them.
The forwarding note, together with the record copy of the 205 R/R prepared in respect of the booking of the twenty wooden cases to New Delhi, was taken possession of and another memorandum was prepared in regard to them.
An inventory of the twenty wooden cases lying on the platform near the weighing machine as booked by the Assistant Station Master was also prepared and the same was attested by the witnesses.
The Sub Inspector, having regard to the aforesaid facts, came to the conclusion that the facts disclosed offences punishable under sections 120 B and 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947), had been committed by the Assistant Station Master, Shri Mubarak Ali, and the pointsman, Shri Mool Chand, of Golakamandir railway station.
On the same day he sent a report of the aforesaid facts to the Special Police Establishment Office, Madhya Bharat.
The office registered it on January 14, 1955, in its register.
Seven days thereafter, on January 21, 1955, the Sub Inspector filed an application before the Additional District Magistrate (Judicial), Gwalior, asking for permission to investigate the offence under the aforesaid sections.
The record does not disclose what further steps were taken by the Sub Inspector after he obtained the said permission from the Additional District Magistrate.
On October 1, 1955, a charge sheet was filed before the Special Judge, Anti Corruption, Indore.
It appears from the record that soon after the case was taken up for trial, the respondent filed objections questioning, inter alia, the validity of the order of the Additional District Magistrate giving permission to the Sub Inspector to make the investigation.
But the scope of the objections is not clear as they have not been placed before us.
It appears that the Special Judge intended to take evidence on the question of delegation of power of investigation, but the prosecution applied for adjournment on the ground that an appeal had been filed in the High Court against a similar order directing the prosecution to give evidence on the said question and the same was pending there.
The learned Special Judge, though inclined not to give the adjournment, made an order giving an adjournment 206 of three weeks on December 3, 1955, on the ground that " the Special Police Establishment Office might not have any grievance on that account ".
We do not know what transpired between December 3, 1955, and the date of disposal of the objections by the Special Judge, i. e., August 21, 1957.
On August 21, 1957, the learned Special Judge made an order discharging Shri Mool Chand, the pointsman, and charging Shri Mubarak Ali, the Assistant Station Master, under section 161 of the Indian Penal Code.
By the said order the learned Judge, presumably an officer different from the one who gave the adjournment in 1955, disallowed the objection of the accused on the ground that on the date when the Magistrate gave the sanction, there were many papers in connection with a case against the accused, on observing which the Magi strate could have satisfied himself whether there was a prima facie case or not against the accused and that there was no reason to believe that at the time of giving the sanction, the Magistrate did not peruse the papers.
The accused preferred a Revision against the said order to the High Court of Madhya Pradesh.
The High Court came to the conclusion that the Sub Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for authorising the officer of a lower rank to conduct the investigation but had given the permission as a mere matter of routine.
In the result, the High Court set aside the order of the Special Judge with a direction that in order to rectify the defects and cure the illegality he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file ".
The State, preferred the present appeal against the said order of the High Court.
Learned Counsel, appearing for the State, raised before us two points: (i) the High Court was not justified in holding that the Magistrate gave the permission as a mere matter of routine without satisfying himself as to the advisability of giving such permission; (ii) the High Court was wrong in holding 207 that the investigation started ten days prior to the obtaining of permission of the Magistrate by the Sub Inspector.
To appreciate the first contention, it is necessary to set out some of the relevant provisions of The Prevention of Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act.
Section 3 (as it stood before the Prevention of Corruption (Amendment) Act, 1955 (50 of 1955): "An offence punishable under section 161 or section 165 or section 165A of the Indian Penal Code (Act 45 of 1860) shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898 (Act 5 of 1898), notwithstanding anything to the contrary contained therein ".
Section 4. " (1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code (Act 45 of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate ".
The Act was passed, as the preamble indicates, to make more effective provisions for the prevention of bribery and corruption among public servants.
It introduced a definition of the offence of criminal misconduct in discharging an official duty and new rules of presumption against accused in the case of the said offence.
But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gained, section 5A was inserted in the Act to protect the public servants against harassment and victimization.
If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to 208 discharge their duties free from false, frivolous and malicious accusations.
To achieve this object, sections 5A and 6 introduced the following two safeguards: (1) no police officer below the rank (a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police, (b) in the presidency town of Bombay, of a superintendent of police and (c) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub section
(2) of section 5 of the Act, without the order of a presidency magistrate or a magistrate of the first class, as the case may be, or make any arrest therefor without a warrant see section 5A; (2) no court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under section 5(2) of the Act, alleged to have been committed by a public servant, except with the previous sanction, of the appropriate Government see section 6.
These statutory safeguards must be strictly complied with, for they were conceived in public interests and were provided as a against frivolous and vexatious prosecutions.
While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an additional guarantee in the case of police officers below that rank, namely, the previous order of a presidency magistrate or a magistrate of the first class, as the case may be.
The magistrate 's status gives assurance to the bonafide8 of the investigation.
In such circumstances, it is self evident that a magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at that stage.
He must also be satisfied that there is sufficient reason, owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation.
This Court in H. N. Rishbud and Inder Singh vs The State of Delhi (1) emphasised the necessity to adhere strictly to the provisions of section 5A of the Act.
Jagannadhadas, J., who delivered the judgment of the Court, observed at p. 1159: (1) ; 209 " When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognisable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank.
Having regard therefore to the peremptory language of subsection (4) of section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory ".
After adverting to the argument advanced on behalf of the State,learned Judge closed the discussion thus at p. 1162: "We are, therefore clear in our opinion that section 5(4) and provisoto section 3 of the Act and the corresponding section 5 A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted inviolation thereof bears the stamp of illegality".
This Court again considered the scope of section 6 of the Act in Biswabhusan Naik vs The State of Orissa (1).
One of the questions raised there was that the sanction given by the Government was invalid.
In rejecting that contention Bose, J., observed at p. 95 : " The judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, but the principles apply here.
It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering.
The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an (1)[1955] 1 S.C.R. 92. 27 210 omission to do so is not fatal so long as the facts can be, and are provided in some other way ".
While the former decision emphasises the importance of the protection given by the Act to public servants against harassment, the latter decision points out the desirability of giving all the necessary facts in an order giving sanction the same applies to an order of a Magistrate and also the necessity of proof aliunde of the said facts in case the facts are not disclosed in the sanction.
Applying the said two principles, we must hold that in a case where an officer other than the designated officer, seeks to make an investigation, he should get, the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission.
For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case.
In the present case, though objection was taken by the accused at the earliest stage in 1955 on the ground that the order giving permission was invalid no attempt was made by the prosecution, though years have elapsed between the date of the petition and that of the order of the Sessions Judge, to adduce any evidence to support the contention that the Magistrate gave the permission to the Sub Inspector only after satisfying himself on the advisability of doing so on the material placed before him.
The only material that was placed before the Sessions Judge was the application filed by the Sub Inspector before the Magistrate seeking the said permission and the order made by him thereon.
In that application the Sub Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under section 5 A of the Act.
On that application, the Magistrate passed the order " permission given ".
Neither the application 211 nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission.
Ex facie, it appears to us, just like it appeared to the High Court, that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section.
A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate.
But the learned Judge of the High Court rightly did not accede to that belated request.
We, therefore, without any hesitation, agree with the High Court that the provisions of section 5A of the Act have not been strictly complied with in this case.
In this view no other question arises for consideration.
But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that permission of the Magistrate was obtained ten days after the investigation was started was wrong, it would be as well that we considered the argument briefly.
Section 4(1) of the Code of Criminal Procedure defines " investigation as to include all the proceedings under that Code for the collection of evidence conducted by the police officer or other persons other than a Magistrate who is authorised by the Magistrate in this behalf.
Chapter XIV of the Code prescribes the procedure for investigation.
Investigation starts after the police officer receives information in regard to an offence.
Under the Code " investigation consists generally of the following steps: (i) proceeding to the spot; (ii) ascertainment of the facts and circumstances of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if 212 the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173."See H. N. Rishbud and Inder Singh vs The State of Delhi (1).
From the narration of facts given supra, it would be seen that in the present case Shri Bhalla gave information to the Sub Inspector on January 11, 1955, as regards the attempt by the Station Master as well as the Assistant Station Master to take bribe from him.
Under section 5 of the Act, attempt to obtain from any person for himself or for any other person any gratification is in itself an offence and therefore the information certainly related to an offence.
Thereafter, the Sub Inspector, after assisting Shri Bhalla to trap the accused, came on the scene, questioned the accused, searched his person and recovered the marked notes and other articles from him ; he searched the person of the informant and recovered the other notes marked but not given to the accused ; he took possession of the twenty wooden boxes intended to be booked and the forwarding note together with the record copy of the R/R; he got prepared relevant memoranda for the aforesaid recoveries and got them duly attested by witnesses; and thereafter on the basis of his investigation he sent a report to the Special Police Establishment Office, Indore.
We do not know on the material placed before us what further things he did in the matter of investigation between the 14th and 21st when be obtained the permission of the District Magistrate.
In the circumstances, we must hold, agreeing with the High Court that the investigation in this case was started by the Sub Inspector on the 11th, i.e., ten days prior to his obtaining permission of the Magistrate.
The appeal fails and is dismissed.
Appeal dismissed.
(1)[1955] 1 S.C.R. 1150.

dataset_name: IN-Abs

summary/full:
Section 5A of the Prevention of Corruption Act, 1947, pro vided: " No police officer below the rank of a deputy Superintendent shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under section 5(2) of the Act without the order of a magistrate of the first class . . ".
(1) (1880) L.R. 7 I.A. 107.
26 202 On January 11, 1955, B, the manager of a company, gave information to the Sub Inspector of Police, Special Police Establishment, that the respondent, an Assistant Station Master, was demanding a bribe for sending the goods belonging to the company by rail.
The Sub Inspector, after assisting B to trap the respondent, came on the scene, questioned the latter, searched his person and recovered the marked notes and other articles from him.
The Sub Inspector filed an application before the District Magistrate, stating that he had been deputed to investigate the case and the permission might be given to him to do so under section 5A of the Act.
On the application the Magistrate passed the order "permission given.
" Neither the application nor the order made thereon disclosed that any material was placed before the Magistrate on the basis of which he gave permission.
A charge sheet was filed before the Special judge.
The respondent filed objections questioning, inter alia, the validity of the Magistrate giving permission to the Sub Inspector to make the investigation.
The Special judge disallowed the objection.
On revision, the High Court set aside the order of the Special judge with a direction that " in order to rectify the defects and cure the illegality " he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remained pending on his file.
The State preferred an appeal against the order of the High Court by special leave: Held, that the statutory safeguards under section 5A of the Prevention of Corruption Act must strictly be complied with for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecutions.
A Magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at the stage of granting permission.
He must also be satisfied that there is sufficient reason owing to the exigencies of the administrative convenience to entrust a subordinate officer with the investigation.
Where an officer other than the designated officer seeks to make an investigation, he should get order of a Magistrate empowering him to do so before he proceeds to investigate, and it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving permission.
Where objection is taken by the accused that the order giving permission was invalid, the prosecution, at the earliest opportunity, must adduce evidence to support the contention that the Magistrate gave the permission only after having satisfied himself on the advisability of doing so on the material placed before him.
H. N. Rishbud & Inder Singh vs State of Delhi, ; and Viswabhusan Naik vs The State of Orissa, ; , relied on.
203 Held, further, that an investigation starts after the police officer receives information in regard to an offence, and that as under section 5 Of the Act attempt to obtain from any person any gratification is in itself an offence, any steps taken by the Sub Inspector after the information was given to him amounted to investigation.


judgement:
(Criminal)No.
1339 of 1991.
(Under Article 32 of the Constitution of India).
R.K: Jain, A. Mariarputham, Ms. Aruna Mathut, Udai Lalit, Shankar C. Ghosh and Ms. Chanchal Ganguli for the Petitioner.
The Judgment of the Court was delivered by K.N. SINGH, J.
Smt.
Shashi Nayar wife of Raj Gopal Nayar who has been awarded death sentence for offence under Sec tion 302 of the Indian Penal Code [ 'IPC ' for short] has approached this Court by means of this petition under Arti cle 32 of the Constitution challenging the constitutional validity of death penalty.
Raj Goapal Nayar, the petitioner 's husband was tried for offence under Section 302, IPC for having killed his father and step brother.
The Sessions Judge by his judgment and order dated 24.4.1986 convicted Raj Gopal Nayar and awarded sentence of death.
On appeal, the High Court confirmed the death penalty and dismissed Raj Gopal 's appeal against the order of the Sessions Judge.
Raj Gopal thereafter filed a special leave petition before this Court challenging the judgment and order of the Sessions Judge and the High Court, but the special leave petition was also dismissed by this Court.
Review petition filed by him was also dismissed.
Consequently, his conviction and the sentence of death stood confirmed by all the courts.
Thereupon, he filed mercy petitions before the Governor of Jammu & Kashmir and the President of India, but the same were rejected. 'He chal lenged the order of the President of India rejecting the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution, but the same was also dismissed.
Another writ petition under Article 226 of the Constitution was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him but the same was also rejected.
As the legal proceedings before the court failed, he was to be hanged on 26.10.1991.
Shashi Nayar, the petitioner, thereupon filed the present petition under Article 32 of the Constitution before this Court challenging the validity of the capital punishment with a prayer for the quashing of the sentence awarded to Raj Gopal Nayar.
The petition was entertained by a Division Bench on 25.10.1991 and the matter was referred to the Constitution Bench for consideration, and meanwhile the execution of the condemned prisoner was stayed.
Mr. Ravi K. jain, learned counsel for the petitioner made the following submissions: 106 (1) Capital punishment is violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life.
(2) Capital punishment does not serve any social purpose and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterrent effect.
(3) The penalty of death sentence has a dehumanising effect on the close relations of the victims and it deprives them of their fundamental rights under Article 21 of the Constitution, to a meaningful life.
(4) The execution of capital punishment by hanging is barbaric and dehumanising.
This should be substituted by d some other decent and less painful method in executing the sentence.
The questions raised by Shri Jain have already been consid ered by this Court in detail on more than one occasion.
In Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20 and in Bachan Singh vs State of Punjab, , this Court has on a detailed consideration, held that the capital punishment does not violate Article 21 of the Constitution.
In Bachan Singh 's case (supra), the court considered all the questions raised in this petition except question No.4, and the majority judgment rejected the same by a detailed rea soned order.
Since we fully agree with those reasons, we do not consider it necessary to reiterate the same.
Learned counsel further urged that the view taken in Jagmohan Singh 's and Bachan Singh 's cases (supra) is incor rect and it requires reconsideration by a larger Bench.
He, therefore, requested us to refer the matter to a larger Bench as the question relates to the life of a citizen.
He urged that the award of death penalty is a serious matter as it deprives a citizen of his life in violation of Article 21 of the Constitution and as such the court should consider the matter again.
We are fully conscious of the effect of the award of capital punishment.
But we are of the opinion that the capital punishment as provided by the law is to be awarded in rarest of the rare cases as held by this Court.
The procedure established by law for awarding the death penalty is reasonable and it does not in any way violate the mandate of Article 21 of the Constitution.
Since we agree with the view taken by the majority in Bachan Singh 's and Jagmohan Singh 's cases (supra), we do not find any valid ground to refer the matter to a larger Bench.
Learned coun sel urged that the majority opinion in Bachan Singh 's case (supra) was founded upon the 35th Report of the Law Commis sion submitted in 1967, which summarises the recommendations in the following words: 107 "Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the coun try, to the vastness of its area, to the diversity of its population and to the para mount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment." Shri Jain urged that the above Report indicates that in 1967 the Law Commission was of the opinion that the country should not take the risk of experimenting abolition of capital punishment.
However, since then much water has flown.
Further, there is no empirical study before the Court to show that the situation which prevailed in 1967 is still continuing.
Hence, the Court should reconsider the matter.
We do not find any merit in this submission.
The death penalty has a deterrent effect and it does serve a social purpose.
The majority opinion in Bachan Singh 's case (supra) held that having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it.
No material has been placed before us to show that the view taken in Bachan Singh 's case(supra) requires reconsideration.
Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most in opportune time to reconsider the law on the subject.
Hence the request for referring the matter to a larger Bench is rejected.
As regards the method of execution of the capital pun ishment by hanging, this Court considered the same in detail in Deena alias Deen Dayal & Ors.
etc., vs Union of India & Ors. etc.
, [1983] 4 SCC 645 and held that hanging by neck was a scientific and one of the least pain ful methods of execution of the death sentence.
We find no justification for taking a different view.
Shri Jain, howev er, brought to our notice that a learned Judge of this Court while sitting during vacation had issued notice to the State on the question as to whether the execution by hanging is a cruel and unusual procedure.
Hence, he urged that we should entertain this petition and reconsider the question.
Since the question of the mode of execution of capital punishment has already been considered in detail by this Court m Deen Dayal 's case (supra), we do not find any good reason to take a different view.
The question of reasonableness in the award of the capital punishment to Raj Gopal Nayar has been considered by the High Court and this 108 A Court at various stages and consistently it has been answered against the prisoner.
Hence the petition fails and is accordingly dismissed.
Interim relief order dated 25.10.
1991 is vacated.
V.P.R. Petition dismissed.

summary/full:
The petitioner 's husband was tried under Section 302, IPC for having killed his father and step brother.
The Sessions Judge convicted awarding sentence of death.
On appeal, the High Court confirmed the death penalty against which a special leave petition before this Court was filed and same was also dismissed.
The Review Petition filed by him was also dismissed.
His mercy petitions filed before the Governor of Jammu & Kashmir and the President of India, were rejected.
He chal lenged the order of the President of india rejecting the mercy petition before this Court in a writ petition under Article 32 of the Constitution, which was also dismissed.
Another writ petition under Article 226 of the Constitu tion was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him.
The High Court dis missed the same.
The husband of this petitioner, the condemned prisoner, was to be hanged on 26.10.1991.
The petitioner, filed the present petition under Article 32 of the Constitution challenging the validity of the capital punishment 104 with a prayer for the quashing of the sentence awarded to her husband.
The petition was entertained by a Division Bench on 25.10.91 and the matter was referred to the Constitution Bench for consideration staying the execution of the condem ned prisoner.
Petitioner contended that capital punishment was violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life; that capital punishment did not serve any social purpose and the barbaric penalty of death should not be awarded to any person as it had no deterrent effect; that the penalty of death sentence had a dehumanising effect on the close rela tions of the victims and it deprived them of their fundamen tal rights under Article 21 of the Constitution, to a mean ingful life; that the execution of capital punishment by hanging was barbaric and dehumanising and it should be substituted by some other decent and less painful method in executing the sentence.
Dismissing the petition, this Court, HELD: 1.
The capital punishment as provided by the law is to be awarded in rarest of the rare cases.
The procedure established by law for awarding the death penalty is reason able and it does not in any way violate the mandate of Article 21 of the Constitution.
Hanging by neck was a scien tific and one of the least painful methods of execution of the death sentence.
[106 G, 107 F] 2.
The death penalty has a deterrent effect and it does serve a social purpose, having regard to the social condi tions in our country the stage was not ripe for taking a risk of abolishing it.
[107 C D] 3.
A judicial notice can be taken of the fact that the law and order situation in the country has not only not improvided since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most inopportune time to reconsider the law on the subject.
[107 E] Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20; Bachan Singh vs State of Punjab, ; Deena alias Deen Dayal & Ors.
vs Union of India & Ors. etc.
, [1983] 4 SCC 645, referred to. 105


judgement:
N: Criminal Appeal No. 664 of 1990.
From the Judgement and Order dated 13.3.1990 of the Andhra Pradesh High Court in Criminal Revision Case No. 532 of 1989.
K. Ramkumar for the Appellant.
B. Kanta Rao for the Respondent.
The Judgment of the Court was delivered by FATIMA BEEVI, J.
The appellant and the respondent got 906 married according to Hindu rites and customs on June 30, 1983.
They lived together until the appellant started complaining of desertion and ill treatment.
She moved the court for maintenance by an application under Section 125 of the Code of Criminal Procedure.
Though the claim was resisted on the ground that the appellant is not the legally wedded wife of the respondent who had earlier married one Veeramma, the learned magistrate awarded a monthly maintenance of Rs.400 holding that the first marriage has not been proved.
The order was, however, set aside by the High Court in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant.
We have granted special leave to appeal against the order of the High Court.
We have been taken through the pleadings and the evidence by the learned counsel for the appellant for the purpose of satisfying that the High Court had no material before it for arriving at the finding that there was a valid marriage between Veeramma and the respondent on the day the respondent married the appellant.
It is pointed out that the appellant had nowhere admitted the subsistence of a valid marriage which would render her marriage illegal.
The appellant stated in her petition that one year after her marriage, she came to know that respondent married Veeramma and lived with her in Hyderabad and soon thereafter Veeramma started living along with the appellant and the respondent and, thus extra marital relationship of the respondent with Veeramma has disrupted her family life.
In fact, the respondent had in his counter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between Veeramma and the respondent when both were children and the appellant is only his kept mistress.
The respondent has, however, clearly admitted that he married the appellant according to Hindu rites.
When that marriage is repudiated as void on account of the subsistence of an earlier marriage, the respondent was bound to prove that he married Veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him.
As rightly pointed out by the learned counsel for the appellant, there is no clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised.
In the absence of such an admission, the statement that the respondent is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity.
The High Court has referred to exhibit R 12 and R 13 relied on 907 by the respondent to prove that he was already married.
exhibit R 12 is the insurance policy issued On 5. 12. 1975 where the name of the nominee is shown as Veeramma indicating that she is the wife of the respondent.
exhibit R 13 is the family identity card issued by the Road Transport Corporation where the respondent was working in 1977.
These documents are issued on the basis of what the respondent himself had stated.
The entries are not conclusive of the subsistence a valid marriage between the respondent and Veeramma.
If they had been living together as husband and wife even without performing a ceremonial marriage, and the respondent represented that Veeramma was his wife, it is possible that such entries would come into existence.
Therefore, these documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised.
Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution.
It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage.
The term wife ' in Section 15 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife ' consistent with the objective.
However, under the law a second wife whose marriage is void an account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision.
Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Cr.
P.C., for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children.
We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue.
The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant.
We are, therefore, unable to agree that the appellant is not entitled to maintenance.
908 We find that there is no dispute that the appellant was married to the respondent in the customary form.
They lived together as husband and wife and of late the respondent had neglected to maintain her.
The respondent has no case that the appellant has means to maintain herself or that the amount she has claimed is not commensurate with the means of the respondent.
The learned magistrate was, therefore, justified in awarding an amount of Rs.400 per mensem towards the maintenance of the appellant.
That order of the magistrate has to be restored.
In the result, we allow the appeal, set aside the order of the High Court and restore that of the trial court.
T. N. A. Appeal allowed.

summary/full:
The appellant wife filed an application for maintenance against respondent husband under section 125 of the Code of Criminal procedure, 1973.
The respondent contested the application on the ground that appellant was not his legally wedded wife since their marriage was void on account of subsistence of respondent 's earlier marriage.
The Magistrate awarded a monthly maintenance of Rs. 400 to the wife by holding that the respondent has not proved his first marrige.
The order of the magistrate was set aside by the High Court in revision accepting the respodent 's plea that his first marriage was subsisting when the respodent married the appellant.
In appeal to this court it was contented on behalf of the respodent that the High Court had no material before it for arriving at the finding that there was an earlier valid marriage on the date respondent married the appellant.
Allowing the appeal, this Court.
HELD:1 Section 125 of the code of Criminal Procedure is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution.
it provides a speedy remedy for the supply of food,clothing and shelter to the deserted wife.
The term "wife" includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term "Wife" consistent with the objective.
However,under the law a second wife whose marriage is void on account of the survival of the first marriage is 905 not a legally wedded wife and is,therefore,not entitled to maintenance under this provision.
Therefore, the law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary from lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is ameasure of social justice intended to protect women and children.
Accordingly, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court should insist on strict proof of the earlier marriage.
[907D H] 2.
The respondent has not discharged the heavy burden by tendering strict proof of the fact in issue.
He clearly admitted his marriage with the appellant acording to Hindu rites.
But there is no clear admission of his earlier marriage to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised.
In the absence of such an admission, the statement that the respondent was living with another woman as husband and wife cannot persuade was court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity.
[906C H] 3.
The nomination in the Insurance Policy and Entry in the Identity Card, referred to by the High Court are not conclusive of the subsistence of a valid marriage between the respondent and his earlier wife.
The High Court has failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appeallant.
Accordingly the order of the High Court is set aside and the order of the Magistrate is restored.
[907B C]