judgement:
Appeal No. 999 of 1966.
Appeal by Special Leave from the judgment and order dated July 7, 1965 of the Mysore High Court in Regular Appeal No. 37 of 1958.
K. N. Bhat, for the appellants.
Rameshwor Nath and Swaranji Ahuja, for the respondents Nos. 1 to 6.
The Judgment of the Court was delivered by Hegde J.
This is an appeal by special leave.
Defendants 34 and 35 in the suit are the appellants.
The suit from which this 385 appeal arises is a suit for partition under the Madras Aliyasantana.
Act, 1949 (Madras Act IX of 1949) (which will hereinafter IV referred to as the Act).
The two questions that arise for decision in this appeal are ' (1) whether under the, award decree Exh.
A 2, the kutumba (family), of the plaintiffs and the defendants stood partitioned and (2) if ' the answer to the first question is in the negative whether the said ,award decree comes Within the scope of section 36(6) of the Act.
The plaintiffs and the defendants were governed by the aliyasantana law of inheritance.
It is a matriarchal system of law.
One ' Pammadi was the prepositor of the family.
She had two daughters by name Pammakke and Dejappe and three sons viz.
Kanthu Hegde, Monu Hegde and Manjappa Hegde.
After the death of Pammadi, differences arose in the family.
Hence all the major members of the family excepting one Brahamiah referred those disputes to the arbitration of four arbitrators by means of a mutdhallika dated December 14, 1886.
By the time this mutchallika was executed, two of the sons of Pamadi, Kanthu Hegde and Monu Hegde had died.
At that time, in the kutumba there were only two santhathi kavaru viz. Pammakke and Dejappe and one nissanthathi kavaru namely Manjappa Hegde in existence (reference to santhathi kavaru and nissanthathi kavaru is as defined in the Act).
The arbitrators divided the kutumba properties into two parts; one part was allotted to the share of Pammakkes Kavaru and the other part to Dejappes Kavaru and Manjappa Hegde.
Manjappa Hegde was clubbed alongwith the kavaru of Dejappe (reference to kavaru is as defined in the Act).
On June 14, 1953, all the members of the kavaru of Pammakke brought a suit for partition of the suit properties under section 35 of the Act.
The appellants and some other members of the kavaru of Dejappe resisted the suit mainly On the ground that the kutumba had been partitioned under exhibit A 2.
They contended that, the said document either evidences a partition or at any rate the, arrangement made thereunder is a deemed Partition coming within the scope of section 36(6) of the Act.
The trial court came to the conclusion on that under the Award in question the.
kutumba properties were partitioned.
Alternatively it held that exhibit A 2 is covered by section 36(6).
In appeal a Division Bench 'of the High Court of, Mysore reversed the judgment and decree of the trial court.
It held that exhibit A 2 does not evidence a partition.
It, further came to the conclusion that the same is not covered by section 16(6) as exhibit A 2 was an award decree and not a mere award.
Dissatisfied with the judgment of the High Court, defendants 34 and 35 have brought this appeal.
The findings of the High Court as regards the true nature of exhibit A 2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt.
Before proceeding to consider the contentions 386 of the parties, it is necessary to refer, in brief, to the customary aliyasantana law.
Under that law inheritance is traced through the female line.
Under that law, as interpreted by courts partition was impermissible except with the consent of all the adult members of the family.
The senior most member of the family be it a male or a female was a Yejman or Yejmanthi of the family.
With the passage of time, the members of the aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable.
In order to mitigate these difficulties, three types of arrangements came to be made, in those kutumbas.
By and large the Yejman or Yejmanthi of the family made maintenance allotments (maintenance under the aliyasantana is a mode of participation in the family properties).
This, type of arrangement was purely temporary in character.
It was open to the Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements for their maintenance.
Another type of arrangement that came to be made was permanent arrangement for maintenance.
This was ordinarily done, on kavaru basis.
Under this arrangement, jointness of the family was kept intact but arrangement was made for separate living and separate management of kutumba properties on a permanent basis.
Such arrangements ordinarily were not capable of being disturbed except with the consent of all the adult members of the kutumba.
Lastly there are few cases of partition with the consent or concurrence of all the adult members of the kutumba.
Hence when the Act came into force in addition to joint living by the members of kutumbas as, aforementioned types of arrangements were in existence in various kutumbas.
Under section 35 of the Act power was given to avarus, santhsthi or nissanthathi to claim at partition but those permanent arrangements which came within the scope of section 36(6) were deemed to be partitions despite the fact that under those arrangements the jointness of the kutumba was kept intact.
In Gummanna Shetty and ors.
vs Nagaveniamma(1), this Court while dealing with an arrangement in a aliyasantana family entered into in the year 1900 observed "In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasanthana law of inheritance had no right to claim partition of the joint family properties but by a family arrangement entered into with the, consent of all its members, the properties could be divided and separately enjoyed.
In such families, ' an arrangement for separate, possession and enjoyment without actual disruption of the family was common.
An arrangement for separate enjoyment did (1) ; 387 not effect a disruption of the family, unless it completely extinguished the community of interest in the family properties.
" Analysing the scope of section 36(6), this Court, approving the decision of the Madras High Court in Kaveri vs Ganga Ratna(1) held that the following, conditions should be satisfied before a document can be considered as coming within the scope of section 36(6) 1.
there is a registered family settlement or award; 2.
all the major members of the kutumba are parties to it; 3.
the whole of the kutumba properties have been or were intended or purport to have been distributed under it; and 4.
the, distribution is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity.
There is no difficulty about temporary arrangements for maintenance.
These arrangements could not come in the way of effecting partition in a kutumba.
Similarly if the jointness of the kutumba had been disrupted, there is no question of claiming any partition as there is no kutumba in existence.
The application of section 36(6) arises only when the case does not fall either under the first category or the second.
In construing karars (agreements) evidencing permanent arrangements, we must bear in mind the ordinary principles of construction of documents.
The first is that the whole document must be read and construed.
The court must have regard to the declared object of the document which is often contained in the preamble but the title given to a document is not conclusive.
It is observed in Mr. Sundara Ayyar 's Malabar Law that "arrangements for maintenance will not ordinarily be viewed as permanent arrangements though it is not impossible that there should be such arrangements.
Divisions for enjoyment short of partition that are sometimes entered into are of this character.
" The characteristics of such documents were considered exhau stively by Somayya, J. in Ammalu Amma vs Vasu Menon (2 Therein the learned judge observed : "No doubt it may not be common but if on a reading of the entire document, there are clauses which are entirely inconsistent with an out and out partition, the Courts are bound to construe the document as a maintenance arrangement even though it is stated to be a permanent arrangement.
" (1) (2) A.I.R. (31) 388 Bearing in mind the principles enunciated by a long chain of decisions, we shall first examine whether exhibit A 2 can be considered as a document affecting partition.
In considering that question we have to primarily see whether in exhibit A 2, there are clauses which are entirely inconsistent with an out and out partition.
exhibit A 2 came to be rendered on the strength of a mutchallika executed by most of the members of the kutumba in favour of three arbitrators on December 14, 1886, for slip 2 because of the dispute that had arisen in the family about the enjoyment of the kutumba properties.
It is also clear from that mutchallika that some members of the family had serious complaints against the Yejman of the family, Adu Hegde.
The mutchallika authorised the arbitrators to decide the disputes that had arisen "in accordance with our "Aliyasanthana Kattu", in a manner which you deem fit".
"Aliyasantana kattu ' i.e. Aliyasantana law of inheritance did not provide, as mentioned earlier, for compulsory partition.
The arbitrators undoubtedly came to the conclusion that it was difficult for the large family to live together.
It is also clear from the award that the parties had agreed to "enjoy kutumba properties by living separately".
They had also agreed for the separation (vingada) of the kutumba properties.
As per the authority given to the arbitrators, the arbitrators were not required to divide kutumba properties on kavaru basis.
They could have put together, some members of one kavaru with some members of another Kavaru.
But the arbitrators thought "that if the members of two Kavarus are mixed together, in future the properties would be spent, on account of mutual disputes existing between them, and that unless the responsibility of income and loss in the Kavaru is pinned on the Kavaru having more members, to some extent ', all the members will not bestow labour properly.
" That was the reason why they divided the properties prima rily between two kavarus.
It is true that the arbitrators divided the family debts into two parts and each kavaru was asked to discharge the then existing debts from out of the income of the properties that were allotted to its shares.
But at the same time Adu Hegde continued to be the Yejman of the entire kutumba.
Members of each kavaru were prohibited from incurring debts on behalf of the kutumba.
Further till the existing debts were discharged, the members of Pammakke kavaru were asked to "show accounts in respect of their income and expenditure" to Adull Hegde.
A 2 further says that "the members of the kutumba should live in different houses, by bestowing labour and without quarreling with each other as proper arrangements were made for the maintenance of the kutumba without disrupting its oneness".
From this clause it is clear that the kutumba was not disrupted.
The document further provides "both the kavarus should together 389 conduct "Havyas Kavyas" and auspicious functions".
The fore going clauses clearly show that exhibit A 2 did not disrupt the kutumba though undoubtedly it "made provision for the separate living of the Kavarus, and for the separate enjoyment of the properties allotted to them.
For these reasons we are in agreement with the High Court that exhibit A 2, does not evidence a partition.
The terms of exhibit A 2 are not similar to those that came up for consideration before the Madras High Court in Appa and ors .
vs Kachai Bay van Kuti and ors.(1) or those that came up for decision by that High Court in Mudara and ors.
vs Muthu Hengsu(2).
Each document has to be construed on its own terms.
Tern is of any two documents rarely, if at all are identical.
Hence the construction placed on a particular document can hardly govern the construction of another document.
There is no dispute as regards the principles governing the construction of documents.
This takes us to the question whether exhibit A 2 is covered by section 36(6).
That section reads : "A registered family, settlement (by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among, absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award.
" Evidently the legislature wanted to deem certain deeds under which perpetual arrangement had been made in the past for the maintenance of all the kavarus of a kutumba as partitions.
The requirements of section 36(6), have been laid down by this Court as seen earlier in Gummann Shetty 's case (supra).
Therefore all that we have to see is whether the tests laid down by this Court in that decision are satisfied.
The High Court having come to the conclusion that the first test was not satisfied rejected the.conten tion of the plaintiffs that the deed exhibit A 2 comes within the scope of section 36(6).
It came to the conclusion that an award decree is not an award within the meaning of section 36(6).
In arriving at that conclusion, it relied on the decision of that Court in Parameshwari (3 ).
Hangsu and ors.
vs Venkappa Shetty and ors.
Parameshwari Hengsu 's case (supra) first came up for hearing before at Division Bench consisting of Sadasivayya and Mir Iqbal Husain JJ.
Sadasivayya J. held that the expression "award" in section 36(6) does not take in an award decree.
But lqbal Husain J. differed from that view and opined that the term "award" includes also an award dec ree.
In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to (1) A.I.R. 1932 Mad. 689.
(2) A.I.R. 1935 Mad. 33.
(3) 390 Somnath Iyer J.
That learned judge agreed with the view taken by Sadasivayya J.
The decision in Parameshwari Hengsu 's case (supra), was binding on the bench which heard this case.
Hence naturally that controversy was not again gone into by the High Court in this case.
The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsu 's case (supra).
He contended that the expression "award" in section 36(6) includes also an award decree.
lie urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of section 36(6).
In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsu 's case (supra), we must first examine the principle underlying section 36(6).
As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards.
That being the case one fails to understand why the legislature should be held to have excluded from the scope of section 36(6) award decrees while bringing within its scope awards.
Dealing with this aspect both Sadasivayya J. and Somnath Iyer J. opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring, to decrees in sub section
(6) thereby confining the scope of that sub section only to the registered family settlements and awards expressly mentioned therein.
If that be so, no court would be justified in equating an award to the decree passed on it." ' This reasoning appears to us to be fallacious.
It must be remembered the only decrees that could possibly have been included within the scope of section 3 6 (6) were award decrees.
We have earlier noticed that compulsory partition was not permissible under the aliyasantana law.
Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in aliyasantana kutumbas.
We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act.
We agree with those learned judges that the principle underlying section 36(6) was not to disturb the finality of arrangements made.
That very principle runs counter to the reasoning adopted by those learned judges.
If permanency of an arrangement is the principle underlying section 36(6) that permanency should be available in a larger measure to an award decree.
On the other hand if the view taken by those learned judges is correct, while section 36(6) provides permanency for some awards, no such permanency is available to any award decree.
Parties could enforce partition ignoring award decres while they are bound by awards.
This could hardly have 391 been the intention of, the legislature.
There is yet another compelling reason not to accept the majority view in Parameshwari Hengus 's case (supra).
After the coining into force of the , all awards had to be compulsorily made decrees of the courts if they were to have any force.
The Act came into force in 1949.
Many awards coming within the scope of section 36(6) would have been made between 1940 and 1949.
The legislature would not have denied to those awards the benefit of section 36(6).
The basis of every award decree is an award.
Evidently the legisla ture by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts.
Whether we consider the principle underlying section 36(6) or the language of section 36(6), we see no justification to exclude award decrees from the scope of section 36(6).
In our opinion Parameshwari Hengsu 's case (supra) in so far as it interpreted s, 36(6) has not been correctly decided.
But that conclusion of ours does not help the appellants.
One of the conditions that Ire necessary to be satisfied before a deed can be deemed to be a partition under section 36(6) is that it must be shown that all the major members of the kutumba were parties to it.
Admittedly Brahmiah did not _join the mutchallika A 1 on the strength of which exhibit A 2, was rendered.
In other words he was not a party to the award.
But it was said on behalf of the appellants the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under exhibit A 2.
A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement.
Herein we are dealing with a deemed partition and not an actual partition.
Before an arrangement can be deemed to, be a partition under section 36(6), all the conditions prescribed under that provision should be fully satisfied.
In such a case, substantial compliance with the provision is not sufficient.
As we are of the opinion that all the major members of the kutumba were not parties to exhibit A 2, it is not necessary to examine whether the remaining conditions prescribed under section 36(6) were satisfied.
In the result this appeal fails and the same is dismissed.
But in the circumstances of the case, we direct the parties to bear their own costs in this Court.
V.P.S. Appeal dismissed.

summary/full:
Differences having arisen among members of a family governed by the Aliyasantana Law, all the major members of the family except one referred the disputes to arbitration.
As per the authority given to the arbitrators the arbitrators had to decide the disputes in accordance with the Aliyasantana Law of inheritance, according to which, partition was impermissible except with the consent of all the adult members of the family.
The arbitrators were not required to divide the Kutumba properties on Kavaru basis; but the arbitrators divided the properties between the two Kavarus, which were then in existence in the family, in order to avoid disputes and to fix the responsibility for income, and loss.
There was an award decree in terms of the award, Thereafter, the members of one Kavaru filed a suit for partition under section 35 of the Madras Aliyasantana Act, 1949, and the appellants and some other members of the other Kavaru, contended that the Kutunba had been partitioned by the award, decree or, that the arrangement thereunder was a deemed partition under section 36(6) of the Act.
The trial court dismissed the suit, but the High Court, in appeal, held that the award decree did not evidence partition, and that it was not covered by section 36(6) as it was an award decree and not a mere award.
Dismissing the appeal to this Court, HELD : (1) When the Act came into force, in addition to joint living by the members of the Kutumba, three types of arrangements were in existence in various Kutumbas, namely, (a) When the senior most member of the family (Yejman) or (Yejmanthi) made maintenance allotments which were purely temporary in character, (b) a permanent arrangement for maintenance, and (e) partition with the consent of all adult members.
In the ease of a permanent, arrangement for maintenance it was usually done on Kavairu basis, the jointness of the family was kept intact, but arrangement was made for separate living and separate management of Kutumba properties on a permanent basis which; could not be disturbed without the consent of all the adult members of the Kutumba.
Such of these permanent arrangements which came within the scope of section 36(6) are deemed to be partitions despite the fact that under those arrangements the jointness of the Kutumba was kept intact.
[386A F] (2) The conditions to be satisfied before a document can be considered as coming within the scope of section 36(6) are : (a) there is a registered family settlement or award (b) all the major members of the Kutumba are parties to it; (c) the whole of the kutumba properties have been or were intended to have been distributed; and (d) the distribution is among all the Kavarus of the Kutumba for the separate and absolute enjoyment in perpetuity.
[387 A D] 384 Gummanna Shetty vs Nagaveniamma, ; , followed.
(3) In the present case, the award decree did not evidence a partition; because it contained clauses inconsistent with an out and out partition.
The award decree recited that 'proper arrangements were made for the maintenance of the Kutumba Without disrupting its oneness '; that both Kavarus should together conscious functions; and the members of one of the Kavarus were to show accounts to the senior most member who continued to be the yejman of thee entire kutumba.
[388G H] Ammalu Amma vs Vasu Menon, A.I.R. 1944 Mad.
108, approved.
(4) (6) Award decrees have to be considered as awards for purposes of section 36(6).
[391B C] (a) The principle underlying section 36(6) is not to disturb the finality of, arrangements made.
If that were so, such permanency should be available, in a larger measure to an award decree, for otherwise, parties could enforce partition ignoring award decrees while they would be bound by awards.
[390 G H] (b) After the coming into force of the , all awards had to be compulsorily made decrees of courts if they were to have force.
The Akiyasahntana Act came into force in 1994 and the legislature would not have denied to the awards passed after 1940 (in terms of which decrees would have been passed) the benefit of section 36(6) of the Aliyasanatana Act.
The Legislature, by using the expression 'award ' intended to include both awards simpliciter as well as awards which had been made decrees of Courts.
[391A B] Parameshwari Hengsu vs Venkappa Shetty and ors., (1961) Mys.
L.J. 686 on the interpretation if section 36(6), overruled.
(5) (a) But the second condition for the application of the section is not satisfied in the present case, as one of the major members of the Kutumba was not a party to the award.
[392D] (b) Even though he acquiesced in the arrangements made under the award decree he would not be a party to the arrangement.
Before the arrangement can be deemed to be a partition under section 36(6), all the conditions should be fully satisfied, and substantial compliance is not sufficient, since, it is a case of a deemed partition and not an actual partition.
[392E F]


judgement:
minal Appeal No. 236 of 1969.
Appeal by special leave from the judgment and Order dated March 13, 1969 of the Madhya Pradesh High Court in Miscella neous Criminal Case No. 268 of 1967.
Ram Punjwani and P. C. Bhartari, for the appellant.
R. P. Kapur and I. N. Shroff, for the respondent.
393 The Judgment of the Court was delivered by Mitter J.
, This appeal by special from a judgment and order of the High Court of Madhya, Pradesh dismissing the ' writ petition of the appellant challenging the, order of the State Government under section 5 of the (Act XXIII of 1961) forfeiting the copies of a book published by the appellant under section 4(1) of the Act, can be disposed of on the short ground that the order did not disclose the grounds of the opinion formed by the State Government.
The Criminal Law (Amendment) Act, 1961 (hereinafter referred to as the 'Act ') empowered the State Governments by section 4 to make order declaring any newspaper or book as defined in the Press and Registration of Books Act, 1867 or any other document wherever printed, to be forfeited to the Government if it appeared to the Government that the said book etc.
questioned the territorial integrity or frontiers of India in a manner which was or was likely to be prejudicial to the interests of the safety or security of India.
The relevant provisions of the Act are as follows : " section 2.
Whoever by words either spoken or written, or by signs, or by visible representation or otherwise, questions the territorial integrity or frontiers of India in a manner which is, or is likely to be prejudicial to the interests of the safety or security of India, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
(1) Where any newspaper or book as defined in the Press and Registration of Books Act, 1867, or an other document,_ wherever printed, appears to the State Government to contain an matter the publication of which Is punishable under section 2 or sub section (2) of section 3, the State Government may, by notification in the Official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter and every copy of such book or other document to be forfeited to the Government, and thereupon any police officer may seize the same wherever found and any Magistrate may, by warrant authorise any police officer not below the rank of Sub Inspector to enter upon and search for the same in any premises where any copy of such issue or any copy of such book or other document may be or may be reasonably suspected to be.
(1) Any person having any interest in any news book or other document in respect of which an forfeiture has been made under section 4 may, within two months from the date of such order, apply to 394 the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document in respect of which the order was made did not contain any matter of such a nature) as is referred to in sub section (1) of section 4.
(2) The provisions of sections 99 C to 99 F of the Code of Criminal Procedure, 1898, shall apply in relation to an application under sub section (1) as they apply in relation to an application under section 99 B of that Code and the reference in section 99 D to seditious or other matter of such a nature as is referred to in subsection (1) of section 99 A of that Code shall be construed as reference to any matter of such a nature as is referred to in sub section (1) of section 4 of this Act.
(3) No order passed or action taken under section 4 shall be called in question in any Court otherwise than in accordance with the provisions of this section.
" The appellant who was admittedly the proprietor of the Narmada Printing Works, Jabalpur had published a book under the name and style of "Madhyamic Bhoogol (Part I for Classes IX and X) written by C. P. Saxena.
On 1St July, 1967 the State Government passed the order which is impugned in this case: "Whereas the books specified in the Schedule below question the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety and security of India; And whereas it appears to the State Government that the said three books contain matter the publication of which is punishable under section 2 of the (No. 23 of 1961); Now therefore in exercise of the powers conferred by, sub section (1) of section 4 of the Act, the State Government hereby declares every copy of the said three books and all other documents containing copies, reprint and repro duction of the said books to be forfeited in favour of the Government.
" The second item in the Schedule relates to the appellant 's publication From the communication of the Deputy Secretary to the Government of Madhya Pradesh dated 5th August 1967 it would appear that the State Government took objection to pages 138, 147 and 149 of the said book as containing wrong maps.
395 According, to the said communication : "These books contain maps of India, part of India, maps of countries adjacent to India and maps of Asia.
All these maps involve the external boundary of India which has been found to be grossly incorrect.
Besides this, the island territories of 'Laccadive, Minicoy and Amindivi Islands ' which form an integral part of India are omitted together from every map of India.
In some of the maps the territory of Bhutan has been omitted while in other Indo Pakistan boundary is ignored.
" The communication refers not only to the publication with which we are concerned in this case but also two other publications both of which appear to be books on geography for school students.
The appellant filed his writ petition on August 29, 1967 before High Court challenging the order of the 1st July 1967 inter alia on the ground That the grounds for the opinion of the State Government which had to be given in terms of section 4 of the Act were non existent in the order.
He therefore filed the petition, within two months of the date of the order forfeiting the book in terms of section 5 of the Act.
In the counter affidavit of the State the stand taken was that the State Government was not bound to place details of information on the basis of which its satisfaction was arrived at.
Reference was however made 'in the counter affidavit to a communication of the Director of Map Publications to the Director of Public Instruction dated 21st March 1967 in which it was stated with regard to all the three alleged offending books that "they contain maps of India, part of India, maps of countries adjacent to India and maps of Asia.
All these maps involve the external boundary of India which has been found to be grossly incorrect.
Besides this, the island territories of 'Laccadive, Minicoy and Amindivi islands ' which form an integral part of India are omitted together from every map of India.
In some of the maps the territory of Bhutan has been omitted while in other Indo Pakistan boundary is ignored.
" The High Court of Madhya Pradesh took the view that the impugned order could not be said to have omitted to state the grounds for the opinion of the State Government.
According to the High Court : "the grounds on which the said opinion was based were that the books contained matter which questions the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety and security of India." 8 L1286SupCI/72 396 In our view the High Court had clearly gone wrong in this view of the law on the subject.
According to the Oxford Dictionary the meaning of the word 'ground ', in this connection must be "base, foundation, motive, valid reason.
" what the State Government did in this case in the opening paragraph of the order was merely to quote a portion of the words of section 2 namely, that the books "questioned the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety or security of India".
The order gives no indication of the facts or the statements or the representations contained in the book which according to the State Government offended section 2.
In the order itself there is no reference to any map or any text in the book which would come within the mischief of the said section.
A book may contain matter questioning the territorial integrity and frontiers of India in many ways one of which may be a wrong map which does not show the proper boundaries of India, either by omitting a portion of the Indian territory therefrom or by depicting a portion of what is really Indian territory as belonging to some other State.
A book may also come within the mischief of section 2 if there is any express reference in the text containing suggestions based on historical or political or other reasons that some portion of what is generally known to the public as Indian territory is not so.
There is a considerable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State etc.
In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion.
Clearly the grounds must be distinguished from the opinion.
Grounds of the opinion must mean the conclusion of facts on which the opinion is based.
There can be no conclusion of fact which has no reference to or is not ex facie based on any fact.
The provisions of the Act have a close parallel in section 99 A of the Code of Criminal Procedure, 1898 in which a large number of matters are mentioned which according to the Government may lead it to form the opinion that the publication offended the said section.
There are also decisions under the Indian Press Act which illustrate what the grounds in a case like this must be.
In re.
Mahomed Ali(1), a case of an order of forfeiture of a pamphlet under the Press Act of 1910, the order of Government went to show that the pamphlet "Come over to Macedonia and help us" contained words of the nature described in section 4 sub section
(1) of the (1) 41 Calcutta 466.
397 Indian Press Act, 19 1 0 inasmuch as they are likely to bring into hatred or contempt certain classes of His Majesty 's subjects in British India.
According to Jenkins C.J. (p. 476): "Those responsible for this Act foresaw this, and so they specifically provided that the forfeiting notification should state the grounds of the Local Government 's opinion.
But when we turn to the notification no such grounds are stated; nothing in the nature of a fact is set forth, there is merely a citation of those words of the section which are invoked.
But the repetition of an opinion cannot be its grounds, and yet that is all that the notification furnishes in the shape of grounds.
This is obviously insufficient and not a compliance with the terms of the Act.
" According to the other learned Judge Stephen, J. (p. 487) "The ground of an opinion must in this case, if not always, be a fact or facts, and no fact is disclosed merely by a specific relation of the elements that the law requires to be present in order for legal consequence to follow.
" In Arun Ranjan Ghose vs State of West Bengal(1) a case under sections 99 A and 99 D of the Code of Criminal Procedure it was stated by Chakravartti, C.J. (p. 497): "It is useful to consider here what is meant by grounds of opinion.
The formation of an opinion by Government is undoubtedly the ground for the action taken by them, but the grounds for the opinion are obviously different.
The opinion, after it has been formed, furnishes a ground to Government for taking action contemplated, but the grounds on which the opinion itself is formed are and must be other grounds ' Those grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which Government may choose.
" In Harnam Das vs State of Uttar Pradesh (2 ) the order under section 99 A of the Code of Criminal Procedure which was made went to show that the State Government declared the books forfeited on the ground that the said books contained matter the publication of which was Punishable under section 153 A and 295 A of the Penal Code.
The two sections of the Indian Penal Code have little in common inasmuch as section 153 A relates to an offence of (1) (2) 398 promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India and section 295 A relates to an offence maliciously intended to outrage he religious feelings of any such class by insulting the religion or the religious belief of that class.
The order which was considered by the court in that case gave no indication which formed the reason for Government taking the view that the book should be forfeited.
The Court held that the order did not as it should have stated the rounds of opinion.
It is not known which communities were alienated from each other or whose religious beliefs were wounded.
We may also refer to article 22(5) of the Constitution which lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
In considering the question as to what the grounds of detention meant when an order under Preventive Detention Act was made this Court said in Naresh Chanra, Ganguli vs The State of West Bengal & others(1): " .
the grounds for making an order of detention, which have to be communicated to the detenu as soon as practicable, are conclusions of facts, and those conclusions of facts have to be communicated to the detenu as soon as may be.
" We may also refer to the judgment of this Court in State of Bombay vs Atma Ram Sridhar Vaidya(2), a case under the Pre ventive Detention Act, Kania C.J. said (p. 178): "By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts .
These conclusions are the "grounds" and they must be supplied. ' ' All the above decisions in our opinion clearly show what the requirements of the are and it appears to us that the State Government merely gave it 's opinion and not the grounds for its opinion.
As such the judgment of the High Court must be set aside and the order of Government dated July 1, 1967 must be quashed.
The appellant will be entitled to return of all the books forfeited.
V.P.S. Appeal allowed.
(1) at 421.

dataset_name: IN-Abs

summary/full:
The appellant published a book with respect to which the State Government passed an order that, as the book questions the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety and security of India and thus contains matter the publication of which is punishable under section 2 of the , it was forfeited in favour of the Government under section 4(1) of the Act.
The appellant challenged the order under section 5, that the grounds for the opinion of the State Government, which hid to be stated under section 4 of the Act, were not given in the order.
The ' State Government filed a counter affidavit stating that the book contained erroneous maps of India with incorrect external boundaries and omitting integral parts of India altogether.
The High Court dismissed the petition.
Allowing the appeal to this Court, HELD : (1) The word 'ground ' occurring in the section means 'base ', foundation, motive, valid reasons. ' The grounds must be distinguished from the opinion of the Government.
The grounds of the opinion must mean the conclusion of facts on which the opinion is based.
[396E F] (2) What the State Government did in this case, in the opening paragraph of the order, was merely to quote a portion of the words of section 2, namely , that 'the book questioned the territorial integrity and frontiers of India in a "Manner 'Which is likely to be prejudicial to the interest of the safety or security of India '.
The order gave no indication of the facts or the statements or the representations contained in the book which, according to the State Government, offended section 2.
In the order itself there was no reference to any map or text in the book which would come within the mischief of the section.
[396A C] Mohomed Ali, In re : 41 Calcutta 466, Arun Ranjan Ghose vs State of West Pengal, , approved.
Harnam Das vs State of Uttar Pradesh, , Naresh Chandra Ganguli vs The State of West Bengal and others,, , 421, State of Bombay vs Atma Ram Sridhar Vaidya, ; , referred to.


judgement:
minal Appeal No. 253 of 1968.
Appeal by special leave from the judgment and Order dated April 12, 1968 of the Allahabad High Court in Criminal Govt.
Appeal No. 13 of 1965 and Criminal Govt.
Appeal No. 10 of 1966.
B. P. Maheshwari and Sobhagmal Jain, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Mathew, J.
This appeal , by special leave, is against a judgment of the High Court of Allahabad by which it restored the order of the Magistrate convicting the appellant of an offence under section 16 read with section 7.
of the (Act 37 of 1954), hereinafter called the 'Act, and sentencing him to undergo one year 's rigorous imprisonment and pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for a further period of six months, after reversing the order passed by the Sessions Judge in appeal acquitting him of the offence.
On June 13, 1963, Head Constable Baboo Khan was on patrol duty.
He happened to come to the Chakki of one Abdul Razaaq.
There he found a heap of Shakkar and some labourers mixing Shelkhari in it with spades.
He went to the police station to inform the Station Officer about it but the Station Officer ' was not there.
He then met the Sanitary Inspector and informed him about what he, saw at the Chakki.
The Sanitary Inspector accompanied by the Food Inspector proceeded to the Chakki and there, they found the labourers mixing Shelkhari with Shakkar.
The stock of Shakkar belonged to the appellant.
The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant by way of sample after paying its price.
He divided the sample into three parts, gave one to the appellant and retained the other two with him.
One of the samples retained was sent to the Public Analyst for examination.
The Analyst found, in his report dated July 11, 1963, that the Shakkar contained 2.4% moisture, 72.7% total sugar, 64.7% sucrose, 17% extraneous matter insoluble in water.
According to him the extraneous matter insoluble in water, total ash and ash insoluble in Hydrochloric acid exceeded by 15,O%, 10.1% and 13.3% respectively as against the maximum prescribed standards of 2.0%, 6.0% and O.5% respectively.
On the basis of a complaint filed by the Food Inspector of the Municipal Board, Saharanpur, the Magistrate who tried the ap 352 pellant for an offence under section 16 read with section 7 of the Act came to the conclusion that the appellant had stored the Shakkar for sale, that it was adulterated and that he was guilty of the offence and convicted and sentenced him as aforesaid.
The appellant filed an appeal against the order before the Sessions Judge.
The Sessions Judge acquitted him of the offence for the reason that the prosecution had notproved 'that the Shakkar stored by the appellant was for sale.
He said that the appellant was mixing extraneous matter with the Shakkar for converting it into Rab and as such it cannotbe said that the Shakkar was stored for sale by the appellant.
He also said that no standard of quality was prescribed by therules framed under the Act for Shakkar, that as an article of food, Shakkar was neither 'gur ' nor 'Jaggery ' and that the sale of Shakkar to the Food Inspector by the appellant was under duress and was not a sale in the eye of the law.
The Municipal Board filed an appeal against the order to the High Court.
The High Court held that Shakkar is same as 'jaggery ', that standard 'of quality has been prescribed by the rules framed under the Act for jaggery, that the Shakkar in question was adulterated, that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of section 2 (xiii) of the Act, that Food Inspector had power under the Act to get the sample even if the Shakkar was stored for being manufactured into Rab and not for sale and restored the order of the Magistrate convicting and sentencing the appellant as aforesaid.
The first contention on behalf of the appellant was that Shakkar is not 'jaggery ', and since no standard of quality has been prescribed for Shakkar under the rules formed under the Act, the Shakkar was not adulterated.
We find it difficult to accept the contention that Shakkar is not Jaggery.
Para A.07.05 of Appendix B of the Rules reads "Gur or jaggery means the product obtained by boiling or processing juice pressed out of sugar cane or extracted from palmyra palm, date palm or coconut palm.
It shall be free from substances deleterious to health and shall conform to the following analytical standards on dry weight basis (i)total sugars not less than 90 per cent and sucrose not less than 70 per cent.
(ii) extraneous matter insoluble in water not more than 2 per cent.
3 5 3 (iii)total ash not more than 6 per cent.
(iv) ash insoluble in hydrochloric acid (HCI) not more than O.5 per cent.
Gur or jaggery other than that of the liquid or semi liquid variety shall not contain more than 10 per cent moisture.
" It is not disputed that Shakkar is a product obtained by boiling or processing _juice pressed from out of sugarcane, and therefore, it is clear that Shakkar is jaggery.
But counsel for the appellant submitted that Appendix B of the Rules does not define jaggery but only gives the description of what 'jaggery ' is and it cannot, therefore, be said that jaggery would comprehend all the varieties of products obtained by boiling or processing _juice pressed out of sugarcane.
In other words, counsel said that Appendix B to the Rules only describes what jaggery or gur is and that it does not define what jaggery or gur is.
We are unable to accept the contention for the reason that jaggery or gur is defined as any product obtained by boiling or processing juice pressed out of sugarcane and so any product so obtained would be comprehend within the definition.
Quite apart from this, we find in Chambers Twentieth Century Dictionary (Revised Edition) the meaning of 'jaggery ' as : "A coarse dark sugar made from palm sap or otherwise.
(Hindi Shakkar; Sanskrit Sarkara).
" It is, therefore, clear that Shakkar is 'jaggery '; and the finding of the High Court, on the basis of the report of the Analyst, that the Shakkar has not conformed to the standard of quality prescribed for jaggery and, therefore, the food was adulterated, was correct and has to be maintained.
The second contention on behalf of the appellant was that he had kept the Shakkar for manufacturing Rab out of it.
The contention, in other words, is that he had not kept the Shakkar for sale but kept it for manufacturing Rab out of it and, therefore, the conviction under section 16 read with section 7 of the Act was bad.
We do not think that there is any substance in this contention either.
Section 7 of the Act, in so far as it is material, Provides "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute 354 (i) any adulterated food;" Section 16, which imposes the punishment, in so far as it is relevant, says : " 16 (1) If any person (a)whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;" The finding of the High Court is that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article, of food after mixing Shelkhari with it.
We see no reason to think that the finding was wrong.
But assuming that the finding was wrong and that the appellant kept the Shakkar was for sale but for manufacturing Rab out of it, what follows ? If Shakkar is an article of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out of it, provided the appellant has sold it.
Arid a sale to the Food Inspector is a sale for the purpose of section 16 of the Act.
In The Food Inspector, Calicut Corporation vs Charukattil Gapalan and another(), this Court held that, if any articles of food are sold by any person, whether he be a dealer in them or not, and if the food is adulterated, he is liable to be convicted under section 16 read with section 7 of the Act.
The respondents before this Court in that case were the manager and owner of a tea stall.
The case against them was that they sold 600 grains of sugar to the appellant, the Food Inspector, for analysis and that the sugar was adulterated.
The respondents pleaded that the sugar was not sold 'as such ' in the tea stall and was only used for preparing tea which alone was sold.
The plea was accepted by the District Magistrate and the respondents were acquitted.
The acquittal was confirmed by the High Court.
In appeal to this Court by the Food Inspector, one of the arguments for the respondents, was that they were not dealers in sugar and the sugar was not kept for sale and so they cannot be convicted under section 16 read with section 7 of the Act.
The Court held, inter alia, that sale to a Food Inspector is a sale for the purpose of section 16 of the Act, that the article of food sold to the Food Inspector need not have been taken from a larger quantity kept for sale, and that the person by whom the article of food was sold to the Food Inspector need not be a dealer as such in the article.
(1) [1971] 2 S.C.C.322.
355 In that case it was assumed by this Court that the sugar was adulterated.
Whether it was adulterated or not as a matter of fact, this _Court proceeded on the assumption that it was adulterated.
it that be so, we see no reason to doubt the correctness of the ratio of the case.
We think the High Court was right in its conclusion.
We dismiss the appeal.
G.C. Appeal dismissed.

summary/full:
The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant after paying its price.
He divided the sample into three parts, gave one to the appellant and retained the other two with him.
One of the samples retained ' was sent to the Public Analyst for examination.
The Public Analyst found it to be adulterated because of excess of extraneous matter.
The food Inspector filed a complaint before the Magistrate who convicted the appellant 'for an offence under section 16 read with section 7 of the .
In appeal the Sessions Judge acquitted the appellant but in further appeal to High Court the appellant was again convicted.
He appealed to this Court by special leave.
The contentions on behalf of the appellant were : (i) that Shakkar is not jaggery and since no standard of quality has been prescribed for Shakkar under the rules framed under the Act the Shakkar was not adulterated; (ii) that he had not kept the Shakkar for sale but for manufacturing Rab out of it and therefore the convicion under section 16 read with section 7 of The Act was bad.
HELD : (i) Shakkar is a product obtained by following processing juce pressed from out of sugar cane and therefore in view of the definition of jaggery in para A.07.05 of Appendix B of the rules framed under the Act Shakkar is jaggery.
In Chambers 20th Century Dictionary (revised edition) also the Hindi equivalent of jaggery given as Shakkar.
Therefore the finding of the High Court on the basis of the report of the Analyst that the Shakkar did not conform to the standard of quality prescribed for jaggery and was thus adulterated was correct and had to be maintained.
[353 B F] (2) The finding of the High Court was that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article of food after mixing Shelkhari in it.
There was no reason to think that the finding was wrong.
But assuming that the finding was wrong and that the appellant kept the Shakkar not for sale, but for manufacturing Rab out of it, the appellant would still be guilty.
If Shakkar is an article of food, it does not matter whether the appellant kept it, for sale or for manufacturing Rab out of it provided the appellant bad sold it.
And a sale to the Food Inspector is a sale for the purpose of 16(1) of the Act.
[C D] The Food Inspector, Calicut Corporation v, Charukanttil Gopalan and another, , followed and applied.
The appeal must accordingly be dismissed.


judgement:
iminal Appeal No. 11 of 1972.
Appeal by special leave from the judgment and order dated September 16, 1971 of the Himachal Pradesh High Court in Criminal Appeal No. 37 of 1970 and Murder Reference No. 3 of 1970.
G. Narayana Rao, for the appellant.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
Nika Ram (34) was convicted by learned Sessions Judge Mahasu under section 302 Indian Penal Cods for committing the murder of his wife Churl (26) and was sentenced to death.
On appeal and reference under section 374 of the Code of Criminal Procedure, the High Court of Himachal Pradesh confirmed the conviction and death sentence.
Nika Ram has now come up in appeal to this Court by Special leave.
The prosecution case is that Nika Ram was married to Churi deceased near about 1958.
In 1964 Churi gave birth to a son named Joginder.
Nika Ram considered that Joginder was not his son and had been born as a result of adulterous conduct on the part of Churi.
When Joginder was three months old, Churi and Joginder were sent to the house of Churi 's mother Smt.
Nagju (PW 2) in village Gani.
Churi on arrival at her mother 's house told her that the accused had not been treating her well.
After Churi had stayed at her mother 's house for about three or four years, the accused paid visits to her and wanted to take Churl to his house.
The accused, however, declined to take Joginder with him.
At the suggestion of Nagju, Churi, Joginder and Nagju came to the house of the accused in village Shilaroo which is at a distance of 1 1/2 mile from, Gani.
At his house,, the accused gave beating to Churi deceased.
Nagju consequently returned along with Churi and Jogindler to her village Gani.
On the day of Shivratri before 'the present occurrence ', the accused took Churi along with him to his house.
Joginder was, however, left with Churi 's mother Nagju. , The accused and his wife lived alone, in their house in Shilaroo.
No one else resided with them in that house.
On the evening of September 16, 1969, the accused and his wife were seen together at the house.
430 Kotkhai is at a distance of 2 1/2 furlongs from Shilaroo.
At about 10.30 p.m. on September 16, 1969 the accused went to the residence of Shri Sudershan Kumar Mahajan (PW 15), Naib Tehsildar who exercised the powers of second class magistrate,, in Kotkhai.
The accused appeared to be nervous and told Shri Mahajan that he had murdered his wife.
Shri Mahajan told the accused to sit down and be composed.
On enquiry of Shri Mahajan, the accused stated that his wife was of loose character and had given birth to in illegitimate son.
His relations with her were consequently strained.
the accused, who was wearing a Kachha and a coat, added that he had tried to commit suicide by jumping into nulla but had somehow survived.
Shri Mahajan thereafter recorded statement PH of the accused, wherein the accused stated +that he had murdered his wife by giving her three Khokhri blows.
According to the accused, he,had enquired from the wife regarding the father of the child, whereupon she had abused him.
He consequently killed her.
There was no reference to the attempt at suicide in statement PH of the accused.
At about .10.45 p.m. Shri Mahajan called his peon Mangan Ram (PW 10) and sent him to the police post at Kotkhai to call the officer incharge of the police post.
Mangat Ram went to the police post and arrived there at 10 50 p.m.
At the police post he told Head Constable Bhag Singh (PW 13) that an accused in a murder case had come at the residence of the Naib Tehsildar and the police was wanted there.
Entry 26, copy of which is PV, was made in the daily diary of the police post at 10 50 p.m. regarding the above, intimation given by Mangat Ram.
The entry was signed by Mangat Ram.
Head Constable Bhag Singh then went to the residence of Shri Mahajan Naib Tehsildar.
The, accused, who was present there, was Put under arrest by the Head Constable.
The Head Constable found that the coat and Kachha of the accused were wet.
Writing PH was also handed over by the Naib Tehsildar to the Head Constable.
The Head Constable returned with the accused to the police post and made entry in the daily diary.
Intimation about the occurrence was also sent to Police station Theog as well as to the Superintendent of Police.
At about 12 mid night, Head Constable Bhag Singh went to the.
village of the accused.
He awakened Poshu Ram (PW 7), Mani Ram (PW 8) and Bhagat Ram (PW 16) and went to the house of the accused with those witnesses The door of the verandah of the accused was found bolted from inside.
Poshu Ram PW jumped into the verandah and unbolted the door.
The door of the residential room of the accused was found closed and was opened.
Torch light was thrown inside and the dead body (If Churi deceased was found lying in a pool of blood.
There was 431 a quilt up to the, chest of the body.
A number of injuries were found on the body.
A Khokhri, its scabbard, male shirt and a pair of tongs were lying near the body stained with blood.
The Read Constable then took steps for keeping a watch over the house.
Police station Theog is at a distance of 20 miles from Shriaroo.
Sub Inspector Devi Singh of Theog police station was on the night of September 16, 1969 away to Gajairi at a distance of five.
or six miles from Theog in connection with a fair there.
At mid night the Sub Inspector received intimation that a murder had taken place at Kotkhai.
The Sub Inspector accordingly went in a truck to Kotkhai and reached there at about 3 a.m The Sub Inspector took rest at the police post and after sunrise went Lo the place of occurrence,.
The accused too was taken by the Sub Inspector to the spot.
The party reached, the house of the accused at about 8 a.m.
Inside the room the Sub Inspector found the dead body of Churi deceased lying on.
the floor.
Ile Sub Inspector prepared injury statement and.
inquest report.
The blood stained clothes as well as Khokhri P. 1 and its scabbard were taken into possession and were made into sealed.
parcels.
The dead body of Chun deceased was sent for post mortem examination to Civil Hospital Kotkhai.
Post mortem examination was performed at the said hospital by Dr. G. C. Gupta at 6 p.m. on September 17, 1969.
Parcels containing the bloodstained articles which had been taken into possession from the spot were sent to the Chemical Examiner and the Serologist, whose report showed that human blood was found on the Khokhri, scabbard and the male shirt.
The accused was sent to judicial lock up on September 17, 969.
On September 29, 1969 Sub Inspector Devi Singh made ail application to PW 6 Shri Raj Kumar Sharma, magistrate first class Theog for recording the confessional statement of the accused.
The accused was also, produced before Shri Sharma.
Shri Sharma then apprised the accused of the, consequences of confession.
The accused volunteered to make a confessional statement.
Shri Sharma, however, considered it necessary to give him time to think over the matter.
The accused was accordingly ordered to be, produced on October 4, 1969.
Shri Shalma, who also holds his court at Kasumpti, could not visit Theog on October 4, 1969.
The accused was directed to be produced before Shri Sharma on October 18, 1969.
On that day the accused declined to make any confessional statement.
At the trial the accused stated that he had been, married to Churi; deceased in 1957.
It was admitted by the accused that Churi had given birth to Joginder about four years: after the marriage, but he denied having maltreated Churi.
The accused admitted that Churi had come, to his House on the Shivratri day, 432 but, according to him, the child too had come along with her.
As regards the date of occurrence, the accused stated that he was with Churi in the house during the day but at 6 p.m. he left for Kotkhai leaving his wife alone at the house.
The accused denied having gone to Shri Mahaian and having made any confessional statement on the night of occurrence.
It was also denied by the, accused that his Kachha and coat were in a wet condition at the ,time, of his arrest, As regards the 'blood stained Khokhri and shirt, the accused stated that those articles did not belong to him The accused further made the following statement "I had cordial relations with my wife for the fast 14 years.
I claim the son to be my own.
He is not illegitimate.
I left my house, at 6 P. m. on 1st of Asuj last year.
It was Tuesday 2026 Bk.
leaving, my wife at home, to see a documentary film being exhibited at Kotkhai.
Gaddu Ram was with me in the show.
The picture finished at about 9 30 p.m.
I was taken by the police to the Police Post from the bazar.
I was called through a police constable who was not produced as prosecution witness.
I was given beating at the police post.
A.S.I. was there besides other Foot Constable.
My signatures were obtained on a paper.
I do not know what had been written on that.
It was disclosed to me by the S.H.O. next morning that my wife had been murdered, and I was taken to my village.
From there I was brought to Theog.
I am innocent and have no hand in the, crime.
" No evidence was produced in defence.
Learned Sessions Judge accepted ,lie prosecution case that it was the accused who had caused injuries to Churi deceased, as a result of which she died.
Reliance in this connection was placed upon the other evidence adduced by the prosecution in the case as well as upon the confession made to Shri Mahajan PW.
On appeal the learned Judges of the High Court in maintaining the conviction of the accused relied upon the confession made by the accused to Shri Mahajan PW as well as upon the other circumstances of the case.
The confession was found to have been amply Corroborated by the other evidence on record.
The present appeal was filed by the accused appellant through jail.
Arguments have, however, been addressed on his behalf by Shri Narayana Rao, who has contended that the material on record is not sufficient to justify the conviction of the accused appellant.
Admissibility of the confessional statement of the accused recorded by Shri Mahajan PW has also been questioned.
As against that, Mr. Khanna on behalf of the State has convassed for the correct ness of the view taken by the High Court.
433 It cannot be disputed that Churi deceased died as a result of the injuries inflicted upon her.
Dr. G. C. Gupta, who performed post mortem examination on the dead body of the deceased, found ten injuries on the body of the deceased, out of which the following three were individually sufficient to cause death in the ordinary course of nature "(1) Punctured wound right side of the neck, 2 inches diameter 1 1/2 inches deep.
(2) Punctured wound 2" diameter, 1 1/2" deep, 2" below injury No. 1.
(3) Incised wound 6 X 1" x 1" on left side of the neck.
" Besides the, above three injuries, there were one incised wound on the left eyebrow two incised wounds on the left forearm one incised wound on the fingers of the left hand, one incised wound on the right hand and one incised wound in the right arm.
A scratch was also found on the right hand.
The punctured and incised wounds, in the opinion of the doctor, could be caused by Khokhri P. 1 Larynx and trachea were found to be torn and punctured.
Probable time between the receipt of injuries and death was five minutes, while between I death and post mortem was 19 1/2 hours.
According to the prosecution case, the injuries found on the body of Churi deceased were caused by the accused.
The accused, as stated earlier, has denied this allegation.
In order to bring the charge home to the accused, the prosecution has relied upon the confessional statement PH of the accused recorded by Shri Mahajan as well as the other circumstances of the case.
It has been argued on behalf of ,lie accused appellant that confessional statement exhibit PH is not admissible in evidence.
In this connection it is pointed out that Shri Mahajan was a second class magistrate and there is nothing on the record to indicate that he was specially empowered by the State Government to record a confession.
The confession, it is further stated, was recorded during, the investigation of the case and as it was not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure, the same is inadmissible in evidence.
In this contexts we find that according to sub section (1) of section 164 of the Code of Criminal Procedure, any Presidency Magistrate, and Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the State Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this chapter (Chapter XIV of the Code) be under any other law for the time being in force or at any time afterwards before the commencement 434 of the enquiry of trial. 'Mete is no material on the record to indicate that Shri Mahajan was a second class magistrate who had been specially empowered by the State Government to record a confession.
Indeed, Mr. Khanna on behalf of the respondent State has argued the care on the assumption that Shri Mahajan was not specially empowered in this behalf.
question as to whether a confession recorded during the investigation of a case by a second class magistrate not specially empowered was admissible in evidence was considered by this Court in the case of State of Uttar Pradesh vs Singhara Singh and Others.(1) It was held that the record of such a confession could not be put in evidence under sections 74 and 80 of the Indian Evidence Act.
Reliance in this connection was placed upon the decision of the Judicial Committee in the case of Nazir Ahmed vs King Emperor.
( 2 ) Argument was further advanced in Singhara Singh 's case that oral evidence of the magistrate to prove the confession was admissible.
This contention was rejected by this Court in the following words : "When a statute, confers a power on certain judicial officers, that power can obviously be exercised only by those officers.
No other officer can exercise that power, for it has not been even to him.
Now the power has been conferred by section 164 on certain magistrates of higher classes.
Obviously, it was not intended to confer the power on magistrates of lower classes.
If, therefore, a proper construction of section 164, as we have held, is that a magistrate of a higher class is prevented from giving oral evidence of a confession made to him because thereby the safeguards created for the benefit of an accused person by section 164 would be rendered nugatory, it would be an unnatural construction of the section to hold that these safeguards were not thought necessary and ' could be ignored, where the confession bad been made to a magistrate of a lower class and that such a magistrate was, therefore, free to give oral evidence of the confession made to him.
We cannot put an interpretation on section 164 which produces the abnormaly that while it is not possible for higher class magistrates to, practically abrogate the safeguards created in section 164 for the benefit of an accused person, it is open to a lower 'class magistrate to do so.
We, therefore, think that the 'decision in Nazir Ahmed 's case (supra) also covers the case in hand and that on the principles there applied, here to oral evidence given by Mr. Dixit of the confession made to him must be held inadmissible." Mr. Khanna on behalf of the State concedes that in view of the a decision, a confession recorded by a second class magistrate (1) [1964] 4 S.C.R. 485.
(2) L.R.63 I.A. 372.
435 not specially empowered during the investigation of a case is not admissible in evidence and no oral evidence in respect of that confession can also be led at the: trial.
Mr. Khanna, however, contends that the restriction on the admissibility of the above evidence would operate only if the confession is recorded during the course of investigation.
If, however.
the confession is recorded at a stage prior to the commencement of investigation, there would be no bar to the admissibility of such a confession.
Reference in this connection has been made to the case of In re Yondra Narasimha Murthy.
(1) In that case an accused after committing murder went to a second class magistrate and made a statement that he had killed the deceased.
The statement was recorded by the magistrate and was signed by the accused.
It was held that the aforesaid statement was admissible in evidence.
Dealing with the contention that there had not been compliance with sect ion 164 of the Code of Criminal Procedure, the court observed that the person making the confession was not an accused at the time he went to the magistrate and no investigation of a crime registered against him was in progress at that time.
Question consequently arises whether statement exhibit PH was recorded by Shri Mahajan during the investigation of the case or whether it was recorded before the commencement of the investigation.
In this connection we find that the time mentioned by Shri Mahajan of the recording of confessional statement was 11 p.m. while the intimation which was given by Mangat Ram (PW 10) to the police regarding a murderer having come to the residence of Shri Mahajan was entered in the daily diary at 10.50 p.m.
Head Constable Bhag Singh (PW 13) after having made that entry proceeded to the residence of Shri Mahajan and on arrival there put the accused under arrest.
It is well established that the discovery and arrest of the suspected offender is one of the essential steps in the course of an investigation (see in this connection H. N. Rishbud and Inder Singh vs The State of Delhi(2) and The State of Madhya Pradesh vs Mubarak Ali.(2) We are, therefore of the view that the contention advanced on behalf of the appellant that the confessional statement exhibit PH was recorded during the investigation of the case cannot be deemed to be devoid of force.
It is not, however, necessary to dilate upon this aspect of the matter because we are of the opinion that even after excluding the con fessional statement PH from consideration, the other material on record proves the guilt of the accused.
It is in the evidence of Girju PW that only the accused in Churi deceased resided in the house of the accused.
To similar effect are the statements of Mani Rm (PW 8), who is the uncle (1) A.I.R. 1966 A.P. 131.
(2) ; (3) [1959] supp.
2 S.C.R. 201.
436 of the accused, and Bhagat Ram school teacher (PW 16).
Ac cording to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence.
Mani Ram (PW 8) saw the accused at his house at 3 p. in., while Poshu Ram (PW 7) saw the accused and the deceased at their house or, the evening of the day of occurrance.
The accused also does not deny that he was with the deceased at his house on the day of occurrence.
The house of the accused, according to plan PM, consists, of one residential room one other small room and a varandah.
The correctness of that plan is proved by A. R. Verma overseer (PW 5).
The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, ts would be shown hereafter.
were strained would, in the absence of any cogent explanation by him, point to his guilt.
The evidence of Nagju (PW 2), mother of the deceased, shows that the accused had been illtreating Churi deceased.
It is further in the testi mony of Girju (PW 1) that the accused had a Khokhri at his house similar to Khokliri P. 1 which was found near the dead body of the deceased and with which the injuries on the body of the deceased, according to Dr. Gupta, could have been caused.
Besides that it is established by the evidence of Mangat Ram (PW 10) and Shri Mahajan (PW 15) 'that the accused on the night of occurrence at about 10.30 p.m. went to the house of Shri Mahajan and talked to him.
Shri Mahajan thereafter sent for Head Constable Bhag Singh through Mangat Ram.
Head Constable Bhag Singh lids deposed regarding his having arrested the accused at the house of Shri Mahajan.
The dead body of Churi deceased was thereafter discovered lying in the house of the accused.
The discovery of the dead body from the house of the accused can thus be traced to the visit of the accused to the residence of Shri Mahajan.
The various circumstances referred to above, in our opinion.
clearly point to the conclusion that it was tile accused and none else who was responsible for the murder of Churi deceased.
The plea of the accused that he had gone to see film show at Kotkbai on that evening and that the murder of the deceased was committed during his absence cannot be accepted.
I lad the accused gone to the film show, the persons with whom he sat at the film show must have noticed his presence there, but no evidence has been adduced to show that anyone noticed the accused at the film show.
According to the accused, Gaddu Ram was with him at the film show.
Gaddu Ram has, however, not been examined as a witness.
The film show at Kotkhai, which had been arranged by the Publicity Department, according to Head Constable Bhag Singh PW, lasted from 7 to 8 30 p.m.
Assuming that the accused went to the film show, it would not have taken more than 10 or 437 15 minutes 'for the accused to return ' to his house after the film show.
The accused would thus be present at his house at about 9 30 p.m. when the present occurrence took place.
Had someone other than the accused murdered his wife Churi, the accused would have raised hue and cry and this fact must.
have attracted to the spot his neighbours like Poshu Ram PW.
The accused would have also in that event gone and made a report to the police.
The conduct of the accused in neither raising hue and cry nor going to the police even though his wife was murdered in his house is hardly consistent with his innocence.
The version of the accused that he was taken by the rolice to the police post from the bazar cannot be accepted because there is nothing to show that the police was aware of the murder of Churi deceased before the visit of the accused to the house of Shri Mahajan.
On the contrary, the evidence on record establishes beyond any manner of doubt that the dead body of the deceased was recovered after the accused had visited the house of Shri Mahajan.
We are, therefore, of the view that it was the accused and none else who caused injuries, to Churi deceased as a result of which she died.
We, therefore, maintain his conviction.
So far as the sentence is concerned, we are of the view that it is not a fit case in which the extreme penalty need be exacted from the accused.
It is the case of the prosecution itself that the accused suspected the fidelity of Churi deceased and believed that Joginder had been born to her as a result of her adulterous conduct.
Had Joginder been the son of the accused, the accused would have had a natural affection for the child and it is difficult to believe that he would have insisted upon Churi staying with him without the child.
It is also the case of the prosecution that shortly before the occurrence, the accused enquired from the deceased regarding the father of the boy and the deceased thereupon abused him.
The act of the deceased in abusing the accused must have been taken by the accused to be adding insult to the injury by an unchaste wife.
In view of the above, it would, in our opinion, meet the ends of justice if the accused is awarded tile lesser penalty.
We, therefore, alter his sentence into that of imprisonment for life.

summary/full:
The appellant was tried by the Sessions Judge for an offence under section 30 of the Indian Penal Code for the murder of his wife.
According to the prosecution the appellant had suspected the fidelity of his wife because he believed that a son born to her was not his.
The wife was last scen in the company of the appellant on the evening of the murder.
It was alleged that the appellant went to the Tahsildar and made a confession.
The Tahsildar thereafter called the police.
At the instance of the appellant the body of his wife was recovered from his house.
When produced before a first class Magistrate for having his confessional statement 'recorded the appellant declined to make any confessional statement.
Relying upon the confession made to the Tahsildar and the other evidence the Sessions Judge convicted the appellant.
The High Court upheld the conviction.
In appeal before this Court it was inter alia contended on behalf of the appellant that the confession recorded by the Tahsildar was inadmissible in evidence since he was a second class Magistrate not specially empowered by the State Government in terms of section 164 of the Code of Criminal Procedure, to record a confession, HELD : In Singhara Singh 's case this Court relying on Nazir Ahmed 's 'case laid down that a confession recorded during the investigation of a case by a second class Magistrate not specially empowered could not be put in evidence under sections 74 and 80 of the Indian Evidence Act.
It was also held that the oral evidence of the Magistrate to prove the confession was inadmissible.
In the present case therefore the confession recorded by the Tahsildar was inadmissible and so was his oral testimony to prove ,It.
[434 B C] State of Uttar Pradesh vs Singhara Singh and Others, [1964] 4 S.C.R. 485 and Nazir Ahmed v, King Emperor, L.R. 63 I.A. 372, applied It could not be said that the Tahsildar recorded the statement before the commencement of investigation, The confession was recorded at It p.m. while the intimation to the police regarding a murderer having come to the residence of the Tahsildar was entered in the daily diary at 10.50 p.m.
The Head Constable after having made that entry proceeded to the residence of the Tahsildar and on arrival there put the accused under arrest.
It is well established that the discovery and arrest of the suspected offender is one of the essential steps in the course of an investi gation.
[435 E G] H. R. Rishbud and Inder Singh vs The State of Delhi, ; and The State of Madhya Pradesh vs Mubarak Ali, [1959] Supp. 2 S.C.R. 201, followed.
In re Yendra Narasimha Murthy, A.I.R. 1966 A.P. 131, referred to 429 However in the present case even if the confession was excluded the ,rest of the material on record proved the guilt of the accused.
[435 E] [Conviction maintained but in view of the special facts of the case ,sentence reduced from death to imprisonment for life.]