judgement:
minal Appeal No. 197 of 1972.
Appeal by special leave from the judgment and order date 24th day of February 1972, of the Delhi High Court in Cr.
Rev. No. 469 of 1970.
section C. Agarwala and A. K. Gupta for the appellant.
D. P. Bhandari and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by DUA, J.
This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court, of Delhi dated February 24, 1972 rejecting the appellant ' revision petition under sections 430 and 561 A of the Code of Criminal Procedure.
In that revision he had prayed, that the charge framed.
:against him by a Magistrate, First Class, New Delhi on July 3, 1969 under section 9 of the Punjab Security of State Act (Punjab Act No. 12), 1953 (hereinafter called the Act) be quashed.
The special leave petition originally came up for preliminary hearing before a bench of this, Court on August 18, 1972 when notice to show cause was issued.
On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner 's counsel to file ' a writ petition.
It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on usual terms.
The appeal was also directed to be heard on the existing paper book with liberty to the parties to file such additional documents as they wished to file, from the record.
The appeal was directed to be listed for hearing in the second week 'of January, 1973.
Sometime in January, 1973 the appellant presented criminal miscellaneous petition No. 32 of 1973 seeking permission to urge additional grounds.
In that application the constitutional ' Validity of section 9 of the Act was questioned.
The said section, according to the averment in that Petition, 'infringes the fundamental.
, right of speech.
guaranteed under article 19(1) (a) of the Constitution.
It is alleged by the prosecution that the appeal ant had addressed a public meeting of the employees of the Defence Department on 535 October 9,,1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State, or to the maintenance of public order.
The Magistrate had, on perusal of the documents filed under section 1973, Cr.
P.C. framed a charge against the appellant punishable under section 9 of the Act.
According to the judgment of the High Court the offending portion of the speech which had been delivered in Hindi reads as follows : "There will be hunger strike at Chavan Sahib 's kothi No. 1 Race Course Road.
If Chavan Sahib thinks that they will be in position to crush us with the, assistance of C.R.P. and B.S.F. then that is his misunderstanding.
Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out.
Because these children of military and.
police personnels are also hungry they also require bread for eating.
Therefore, the day has to come when after their unity these workers will send you out.
Comrades the Government suffered the moral death when it promulgated the ordinance.
Because we had no idea of starting any violance, when we demanded bread, clothes and house.
This struggle of ours will continue.
If Government servants die then other labourers.
will take this struggle ahead.
One thing more I want to tell you that if there will be no celebration of Diwali in the house of our fifty thousand people, then there shall be darkness in the houses of these ministers.
I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not live you live as Udham Singh killed Dyre after going to London.
Annexures I and II attached to the petition under article 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which.
the charge sheet had been filed in court contained a couple of more ' sentences which do appear to be of some importance.
But we consider it unnecessary for our present purposes to refer to them.
The High Court, considered the part of the speech reproduced above and after referring to the decisions of this Court in State of Bihar vs Shrimati Shailbala Devi(1), Rain Manohar Lohia vs State of Bihar ( 2 ) and Sudhir Kumar Saha vs The Commissioner of Police(3) dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under section 9 of the Act.
It was, however, added that it was open to the petitioner either by cross examination of the prosecution (1) A.I.R. 1952 S.C. 320.
(2) ; (3) ; 536 witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order.
The High Court felt that at that stage it could not be said.that there was no prima facie case against the petitioner under section 9 of the Act.
In this Court Shri section C. Agarwal questioned the vires of section 9 of the Act, contending that this section is violative of the fundamental right guaranteed by article 1 0 ( 1 ) (a) of the Constitution.
No doubt, this point was not raised in the High Court and in this Court also it was specifically sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in question was itself sought in para 5 of the petition for special leave to be protected by article 19(1) (a) and as it was a pure question of law raising the constitutionality of section 9 of the Act we permitted the counsel to raise it.
Section 9 of the Act reads "9.
Dissemination of rumours, etc.
Whoever (a) makes any speech, or (b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both." This section on its own plain reading taken within its fold all the objectionable matters which had been taken by sub article (2) of article 19 out of the guaranteed freedom of speech and expression Protected by cl.
(a) of article 19(1).
In order to fully understand the freedom of speech and expression guaranteed by the Constitution it is necessary to reproduce article 19 (1) (a) and (2): Right to Freedom 19(1) AR citizens shall have the right (a) to freedom of speech and expression; (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the 537 State from making any law, in so far as such law imposes reasonable restriction on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence".
It may appropriately be pointed out here that sub article
(2) was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India.
This limitation was not in this sub Article in 1953 but as it does not affect the question raised in this case we need say nothing more about it.
Reading section 9 of the Act and article 19(2) of the Constitution it is obvious that the only matter specifically contained in section 9 in addition to those stated in article 19(2) relate to the offending speech, words or other publications which "tends to overthrow the State".
Now this matter would clearly also fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State" contained in section 9 and within article
19(2) where it speaks of "reasonable restrictions . in the interest of. the security of the State".
Anything tending to overthrow the State must necessarily be prejudicial to the security of the State and, therefore, a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State.
Prima facie, therefore, section 9 clearly falls within the express language of article 19(2).
On behalf of the appellant great stress was laid on Superintendent of Central Jail, Fatehgarh vs Ram Manohar Lohia(1) where this Court struck down as unconstitutional section 3 of the U.P. Special Powers Act (U.P. Act 14 of 1932).
That section reads "3.
Whoever by word, either spoken or written or by signs, or by, visible representations or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both.
" On the face of its plain language this section is materially different from section 9 of the Act.
It therefore does not require.
elaborate argu (1) 538 ment for distinguishing this decision.
Section 3 of the U.P. Act is clearly hit by.
article 19 (1) (a) and can on no reasonable or rational argument be saved by article, 19(2).
There being absolutely no similarity between that section and section 9 of the Act with which we are concerned, the ratio of that decision cannot serve as a precedent for invalidating section 9 of the Act.
The appellant 's learned counsel then drew our attention to Kedarnath Singh vs State of Bihar (1) in which sections 12A and 505, I.P.C. were held to be in the interest of public order and within the ambit of constitutional limitations contemplated by article 19 ( 1 read with article 19 (2).
On analogy of section 124A as construed in than decision it was contended that in order to bring section 9 of the Act within the constitutional limits of article 19 (2) it must similarly be construed narrowly so that the fundamental, freedom of speech and expression is not 'unduly restricted.
The operation of section 9 of the Act, it was sub mitted, should be limited only to such matters as involve incitement to violence.
or intention or tendency to create public disorder or cause disturbance of public peace.
The fundamental right guaranteed by article 19 (1) (a) and the interest of public order protected by article 19 (2) according to Shri Agarwal 's submission, must be, properly adjusted and a correct balance struck between two.
In our opinion, the principle governing the construction of article 19 ( 1 ) (A) read with article 19 (2) is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole round over again by going through them extensively.
We of course agree with Shri Agarwal that the fundamental right guaranteed by article 19(1) (a) and the interest of public protected by article 79(2) must be.
properly adjusted and reasonable balance struck between the two.
There can be no dispute that there is no such thing as absolute of unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy.
The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic.
Our governmental set up being elected, limited and responsible we need requisite freedom of animadversion, for our social interest ordinarily demands free propagation of views.
Freedom to think as one likes, and to speak as one thinks are, as a rule, indispensable to the discovery and spread of truth add without free speech discussion may well be futile.
But at the same time we can only ignore at our peril the vital importance of our social interest in, inter alia, public, order and security of our State.
It is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social in (1) [1966] Supp. 2 S.C.R. 769.
539 terests.
It has permitted.
imposition of reasonable restrictions on the citizen 's right of freedom of speech and expression in the interest of, inter alia, public order, security of State, decency or morality and impartial justice, to serve the larger collective interest of the nation as a whole.
Reasonable restriction in respect of matters specified in article 19(2) are essential for integrated development on egalitarian, progressive lines of any peace loving ' civilised society.
Article 19(2) thus saves the constitutional validity of 9 of the Act.
The analogy between section 124A, I.P.C. and section 9 of the Act is wholly misconceived and in view of the comprehensive of article 19(2) 'we are unable to restrict section 9 of the Act only to those speeches and Expressions which.
incite or tend to incite Violence.
Learned counsel also tried to refer us to some American decisions for developing the argument that the guaranteed freedom of speech and expression should be broadly construed but we did not consider it necessary to go into the American decisions, notwithstanding the fact that in Express Newspapers (P.) Ltd. vs Union of India(1) it was observed that American decisions were relevant for the purpose of understanding the scope of article 19 (1) (a).
In our opinion, it is, hardly fruitful to refer to, the American decisions particularly when this Court has more than once clearly enunciated scope and effect of article 19 (1) (a) and 19 (2).
The test of reasonableness of the restriction has to be considered in each case in the light of the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed 'and the prevailing social and other conditions at the time.
There can be no abstract standard or general pattern of reasonableness.
Our Constitution provides reasonably precise, 'general guidance in this matter.
It would thus be misleading to construe it in the light of American decisions given in different context.
(Section 9 of the Act is, in, our view, plainly within the legislative competence of the Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant 's speech is covered by this section.
Shri Agarwal made a strenuous effort to persuade us to cons true the offending portion of the speech as reproduced in the judgment of the High Court and express our opinion whether or not the charge against him has been lawfully framed.
The charge reads as under : "That you, on or about the 9th day of October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak in the area of Delhi Cantt.
made a speech at a public meeting organised by Delhi Defence employees in which you (1) 540 demanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable I under section 9 of the P.S. Act and within my cognizance.
" The appellant, it may be pointed out, had approached the sessions Court on revision to have this charge quashed.
That court apparently did not agree with the appellant.
He then approached the High Court on revision where also he failed.
The impugned judgment of the High Court does not show any serious legal infirmity resulting in failure, of justice which should induce this Court to interfere under article 136 of the Constitution.
The submission that.at this Court has already granted special leave we: must decide the question of the legality of the charge on the merits has not appealed to us.
Even at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage, when the leave to appeal is asked for.
After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right claim adjudication on the merits 'if this Court feels that there is no grave injustice done to the appellant as a result of any serious legal, infirmity.
We are unable find any such infirmity in the impugned judgment.
The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed.
We have, however, no doubt that the learned Magistrate trying the appellant 's case will deal with all the points raised before him oil the merits with,out being, influenced by the tentative view expressed by the High Court which the appellant himself invited.
We also hope that this case which relates to a speech said to have been delivered in October, 1968 and in, which the prosecution was initiated as far back as January, 1969 when the charge was put into court, would be disposed of with due dispatch and without avoidable delay.
This appeal fails and is dismissed.
S.B.W. Appeal dismissed.

summary/full:
The appellant was prosecuted under section 9 of the Maintenance of Punjab Security of State Act for addressing a public meeting in which it was alleged that he had incited the defence employees to commit offences prejudicial to security of the.
State or to, the maintenance of public order.
Sec. 9 of the Act prohibits speeches or statements etc.
which have effect of undermining the security of the.
State, friendly relations with foreign States, public order decency or :morality or which amount to contempt of court, defamation or.
incitement to an offence prejudicial to the security of the State or the maintenance of public order or which tends to over throw the State.
On perusal of the documents filed section 173 of the Cr.
P.C., the Magistrate cam to the conclusion that the prima facie case was established.
The appellant unsuccessfully challenged the said interlocutory order before the Sessions Court and then in the High Court.
On appeal by special leave, the appellant raised the question.
of constitutional validity of Sec. 9 of the Act.
The appellant contended : (i) that Sec. 9 of the Punjab Security of State Act was violative of the fundamental right guaranteed under article 19(1) (a) of the Constitution, and (ii) in the alternative, the operation of Sec. 9 should be limited only to such matters as involve incitement to violence or intention or tendency to create public disorder or cause disturbance to public peace.
In dismissing the appeal.
HELD : (i) Except the words "tends to over throw the State" the rest of the provisions of Section 9 reproduce the provisions of article 19(2) of the Constitution.
The prohibition relating to offending speech, wods or the other publications which tend to over throw the State clearly fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State".
Restriction, therefore, is.
Prima facie reasonable restriction.
[537 C E] Superintendent of Central fail, Fatehgarh vs Ram Manohar Lohia , distinguished on facts.
(ii) Reasonable restrictions in respect of matters specified in article 19(2) are essential for integrated development on egalitarian.
progressive lines of any peace loving civilised society.
article 19(2) thus saves the constitutional validity of Sec. 9 of the Act.
The analogy between s.124(1)IPC and Sec.
9 of the Act is wholly misconceived and in view of the comprehensive sweep of article 19(2).
Sec. 9 of the Act cannot be restricted to those speeches and expressions which incite or tend to incite violence only.
Sec. 9 cannot be interpreted in a restricted L 761 SupCI/73 534 manner Sec.
124(1)IPC was interpreted in Kedarnath Singh vs State of Bihar [1966 Supp. 2 S.C.R. 7691] [539 A C] (iii) The Supreme Court may allow the question of law effecting the constitutional validity of an Act for the first time to be 'raised in Supreme Court.
In an appeal by special leave under article 136 of the Constitution, the scope, of the appeal is not enlarged after leave and the appellant cannot as of right claim adjudication on merits.
The, Court would not pronounce its opinion on the merits of the charge framed against the appellant.
[540 C E]


judgement:
Appeals Nos. 675 to 681 of 1967.
Appeals by special leave from the Award dated March 23 1967 of the Third Industrial Tribunal, West Bengal in Misc.
Cases Nos. 161, 160, 162 64 and 167 of 1966.
AND Civil Appeal No. 1759 of 1971 Appeal by special leave from the Award dated August 11, 1969 of the Third Industrial Tribunal, West Bengal, Calcutta in Case No. VIII: 373 of 1966 published in the Calcutta Gazette dated 27 9 1969.
section V. Gupte, G. B. Pai, Bhuvanesh Kumari, B. Ram Rakhjani and J. B. Dadachanji & Co. for the appellant.
(In C.As.
675 681/67).
V. M. Tarkunde, Rathin Das, Jitendra Sharma and section K. Ganguli & Co. for the appellant.
(In C.A. 1759/71).
627 V. M. Tarkunde, Jitendra Sharma and Janardan Sharma, for the Respondent.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The first batch of appeals are by the Hindustan Lever Ltd. (hereinafter called the Employer) and Civil Appeal No. 1759 of 1971 is by the Mazdoor Sabha of the workers of the same employer in its Calcutta Branch.
The Calcutta Branch was concerned only with marketing.
From the year 1956 at least, if not earlier, the company 's marketing Organisation was in three divisions, the Soaps Division, the Foods Division and the Toilet Preparations Division.
From 6 9 66 the Company reorganised this marketing Organisation into two divisions the Main Lines Division and the Speciality Lines Division.
On 30 9 66 the Government of West Bengal referred to the Third Industrial Tribunal the following question for adjudication : "Is the human rationalisation as a measure of economic reorganisation of the Company reflected through job integration that have either been effected or proposed to be effected justified,? To what relief, if any, are the workmen entitled?" Pending adjudication of this issue seven workers filed applications under section 33A of the before the same.
Tribunal alleging that during the pendency of the adjudication their service conditions had been changed adversely and their salary for the month of October 1966 had not been paid.
The Tribunal held in favour of the workers and passed its award on 23 3 1967.
By special leave granted by this Court the employer has filed the above 7 appeals.
The main reference was finally disposed of on 11 8 69 by the same Tribunal holding in favour of the employer and the workers have, therefore, filed Civil Appeal No. 1759 of 1971 by special leave granted by this Court.
It should be mentioned that the Presiding Officer of the Industrial Tribunal was different in the two cases but the different conclusions arrived at by the two Presiding Officers were not due to the accident of difference in personnel.
There was a vast mass of evidence let in by the employer in the main reference on a consideration of which the Tribunal held in favour of the employer.
On the other hand the evidence in the applications, filed under section 33A of the , let in by the employer was meagre and the Tribunal came to the conclusion on the material available before it that the conditions of work of workers had been changed to their prejudice, that the reorganisation was likely to lead to retrenchment and that the matter thus fell under Item 10 of Schedule IV of the .
The evi 628 dence given in the main reference not being part of the evidence in these 7 cases it is not open to this Court to take it into consideration in deciding these 7 appeals.
On an exhaustive consideration of the material in both the awards we have come to the conclusion that both the awards should be upheld.
Though the decision in the appeals by the management is based on the finding of the Tribunal that the conditions of work had been changed to the disadvantage of the workers, and the decision in the appeal filed by the workers is in effect that the conditions have not been so changed, that is due to the evidence available in the two cases.
Mr. Tarkunde appearing on behalf of the workers in the appeal filed by them in C.A. No. 1759 of 1971 in effect invited us to re assess the evidence in that case.
His whole point was that the reorganisation effected by the management in September 1966 was one which attracted items 8, 10 and 11 of the IVth Schedule to the and as such a notice in accordance with Rule 34 of the West Bengal Industrial Disputes Rules and Form (E) appended to those rules, under section 9A of that Act was necessary.
He was at pains to establish this proposition lest it should effect the workers in the others 7 appeals filed by the employer.
This Court in considering a matter under Article 136 does not ordinarily re assess the evidence on the basis of which the Tribunal came to its conclusions.
It will interfere with the findings of facts by the Tribunal only if it is unsupported by any evidence or is wholly perverse.
It will not interfere with findings of the facts if two views are possible as to the conclusions to be arrived at on the basis of the evidence even though the conclusions arrived at by the Tribunal might not commend itself to this Court.
Mr. Tarkunde even indicated that he was not very much interested in the success of the appeal of the workers in the sense that he wanted the scheme of reorganisation introduced by the employer to be dropped.
According to him the employer had the right to reorganise his business subject only to his compliance with the provisions of section 9A of the , which according to him has not been done in this case.
He wanted to establish this proposition only for laying a foundation for the argument that when after the introduction of the reorganisation by the employer the workers refused to work except on the basis of the previous system of working, they were perfectly within their rights and it was, therefore, illegal for the management to have refused to pay them their salary and that this was an alteration of the conditions of their service during the pendency of an adjudication of an industrial dispute before the Industrial Tribunal.
But in the view we are taking regarding the correctness of the award of the Industrial Tribunal on the applications of the workers under section 33A the workers would probably have no grievance.
629 We shall first of all deal with the appeal by the workers.
Two points were raised by Mr. Tarkunde : 1.
That it was necessary to give notice under section 9A and wait for 21 days before implementing the scheme of reorganisation, and 2.
as notice was necessary, the scheme cannot be said to be justified when it was implemented.
As regards nonpayment of wages, as subsidiary points, he raised the questions 1.the workmen were _justified in refusing to work under the new scheme, and 2.
the non payment of wages amounted in the circumstances of the case to an alteration in the conditions of service to the prejudice of workers.
These two are really questions which arise in the appeals filed by the employer and not in this appeal.
According to Mr. Tarkunde the very fact that three Divisions were sought to be reduced to two would show that it would increase the workload on the workmen and result in retrenchment.
We do, not think that the matter could be disposed of on such a priority consideration.
His grievance also was that the employer had agreed to consult the workers but did not do so.
He also urged that three godowns which previously existed were reduced to.
two godowns and that proved a greater burden on the Godown Keeper.
He further urged that the Journey Cycles, i.e. the period during which salesmen were expected to be on tour contacting the various dealers were increased from 4 weeks to 6 1/2 weeks and that this also proved a greater burden on the salesmen.
He urged that the Sabha had a reasonable apprehension that there will be retrenchment if the 612 week cycles were introduced.
But he conceded that this was avoided in actual working.
As already mentioned earlier, he contended that the Sabha has now no objection to the present arrangement but the employer contends that conditions are very unstable and they now have 3 and even 4 divisions.
According to him the reorganisation is either a change in usage falling under item 8 of 10th Schedule to the Act or rationalisation falling under item 10 or increase or education in the number of persons employed in any department not occasioned by circumstances over which the employer has no control falling under item 11.
According to him the workers having been accustomed to working under 3 divisions, reorganisation into 2 divisions amounted to a change in usage.
He also urged that rationalisation and standardisation per se would fall under item 10 even if they were not likely to lead to retrenchment of workmen and only improvement of plant or technique would require that they should lead to retrenchment of 8 L761Sup.
C.I./73 630 workmen in order to fall.
under item IO.
A further submission of his was that standardisation merely meant standardisation of wages.
We are not able to accept this argument.
It appears.
to us that the arrangement of words and phrases in that item shows that only rationalisation or standardisation or improvement of plant or technique, which is likely to lead to retrenchment of workmen would fall under that item.
In other words, rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment of workmen.
The reference to rationalisation at page 257 of the report of the Labour Cornmission and the reference to standardisation of wages in it are not.
very helpful in this connection.
Standardisation can be of anything, not necessarily of wages.
It may be standardisation of workload, standardisation of product, standardisation of working hours or standardisation of leave privileges.
Indeed in one deci sion in Alembic Chemical Works Co. Ltd. vs The Workmen(1) there is reference to standardisation of conditions of service, standardisation of hours of work, wage structure.
That case itself was concerned with standardisation of leave.
The whole question whether this reorganisation falls under item 10 depends upon whether it was likely ' to lead to retrenchment of workmen.
On this question, as already indicated, the two Tribunals have arrived at two different conclusions.
But as already indicated, it depended upon the evidence in each case.
It is not disputed that the re organisation has not resulted in any retrenchment.
Moreover, during the course of rather prolonged negotiations between the parties the employer made it abundantly clear again and again that no body would be retrenched.
It was clearly made part and parcel of the scheme of reorganisation.
Hindustan Lever Ltd. being a large organisation covering the whole of the country there was no difficulty about giving effect to this reorganisation scheme without retrenching anybody.
It was, however, urged on behalf of the workers that there have been a number of ' voluntarily induced retirements and ;that many posts were not filled after the holders of these posts had retired or left.
We are of opinion that the retrenchment contemplated under item 10 is retrenchment as defined in clause (oo) of section 2 where it is defined as the termination by the employer of the service of a workman for any reason what soever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include voluntary retirement of the workman.
The workers cannot, therefore.
make a grievance of the voluntary retirement and non filling of vacancies and try to bring it under item 10.
As regards item 1 1 it was urged that as one department out of three has been abolished, this item applies.
Though to bring the matter under this item the workmen are not required to show (1) ; 631 that there is increase in the workload, it must be remembered that the 4th Schedule relates to conditions of service for change of which notice is to be given and section 9A requires the employer to give notice under that section 'to the workmen likely to be affected by such change.
The word 'affected ' in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely affected the workers it cannot be brought under item 11.
The same consideration applies to the question of change in usage under item 8.
Let us, therefore, see what was the scheme of reorganisation to which the workers took exception.
There can be no dispute that the employer has got the right to organise his work in the manner he pleases as was held in Parry & Company 's(1) case.
As we have pointed out earlier there was extensive and prolonged consultation between the parties.
The real grievance of the workers seems to be that the reorganisation of the working did not have their approval.
Before the Tribunal the objection of the Sabha to the Company 's scheme of reorganisation was that it was a condition of service.
of every employee to work for only one division at a time after amalgamation of the three companies and for only one company prior to amalgamation.
But the conditions in the letters of appointment of every worker in the company show the contrary.
The Tribunal also found that the Salesmen of the company did in fact handle products of more than one division at, a time in the course of joint selling operation since 1960.
It was admitted that they also did it in the course of integrated selling in Assam since 1964 but that is said to be because that was done on an experimental basis.
It was admitted that there are many employees in different departments of the company who by virtue of their _jobs cannot be attached to any one division.
The Tribunal, therefore, held on the basis of oral as well as documentary evidence that the contention of the workers that it was a condition of service of every employee to work for only one division at a time was not established.
It is in evidence that the company on occasions transferred products from one group to the other group to meet the business exigencies of the company.
After referring to such instances the Tribunal has held that in certain cases a system of joint selling of products of the three divisions by the same salesmen through 'Sales Vans in several markets in India was adopted.
According to the employer if the three divisional set up had 'been continued, it would have adversely affected the business of the company and kept a large number of salesmen of the Foods Division only partly occupied and the company could have had no option but to retrench some number of salesmen work (1) [1970] I.L.L.J. 429.
632 ing in the Foods Division.
It, therefore, effected the reorganisation to meet the challenge of change in marketing conditions.
The scheme of reorganisation in this case was : Firstly, as a result of the regrouping of the products from the three divisions into two lines, the sales management staff of the company was redeployed on a geographical basis instead of product group basis.
Secondly, the employer reorganised its trade outlets so that ReDistribution Stockists would handle all the products of the company rather than the products of any particular division.
Thirdly, the entire sales force was redeployed over two products groups, i.e. Main Lines and Speciality Lines.
The Tribunal following the decision of this Court in Parry & Co. case held that the employer has the right to decide the staff complement and to fill only such jobs as continued to exist and not automatically replace every individual.
The Tribunal has gone elaborately into the question of workload and come to the conclusion that there is no increase in the workload.
We have already referred to the question of journey cycles.
We see no reason to differ from the finding of the Tribunal that there has been no change in usage adversely effecting the worker, and that as there has been no retrenchment item 10 of Schedule IV is not attracted nor is item 11.
It is hardly necessary to refer to the various decisions which were cited before us as to what would constitute conditions of service the change of which would require notice under section 9A of the Act.
In Dharangadhara Chemical Works Ltd. vs Kantu Kalu & Ors.(1) the Labour Appellate Tribunal of India held that the increase in the weight of bags to be carried from cwt to 11/2 cwt was a change in the workload and the company was bound ,to pay wages as the workmen were willing to work but did not work on account of the unreasonable attitude adopted by the management.
In Chandramalai Estate vs Its Workmen(2) the payment of Cumbly allowance was held to have become a condi tion of service.
In The Graham Trading Co. (India) Ltd. vs Its Workmen(3) it was held that the workmen were not entitled to Puja bonus as an implied term of employment.
In Workmen of Hindustan Shipyard Ltd. vs I.T.(4) in the matter of withdrawal of concession of coming late by half an hour (than the usual hour), it was held that the finding of the Industrial Tribunal that section 9A did not apply to the case did not call for interference.
But the decision proceeded on the basis that the Court will not interfere in its jurisdiction unless there was any manifest injustice.
In McLeod & Co. vs Its Workmen (5) the provision for tiffin was held to be an amenity to which the employees were entitled, and (1) [1955] I L.L.J. 316.
(2) (3) [1960] I S.C.R. 107.
(4) (5) 633 the provision of cash allowance in lieu of free tiffin directed to be made by the industrial tribunal could not be considered to be erroneous in law.
In India Overseas Bank vs Their Workmen(1) "key allowance " was treated as a term and condition of service.
In Indian Oxygen Limited vs Udaynath Singh(2) withdrawal by the management of the supply of one empty drum at a time at reasonable intervals was held not to contravene section 9A and 33.
In Oil & Natural Gas Commission vs Their Workmen(3) where there was nothing to show that it was a condition of service that a workman should work for 61 hours only, no notice of change was held to be required under section 9A for fixing the hours of work at eight.
In Tata Iron & Steel Co. vs Workmen (4) change in weekly days of rest from Sunday to some other day was held to require notice.
A close scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.
In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment.
It follows, therefore, that section 9A is not attracted.
It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of section 9A and the mere fact that a formal notice was not given under section 9A would not make the reorganisation scheme not valid.
In the applications filed by the workers the Tribunal was conscious of the employer 's right to reorganise his business in any fashion he likes for purposes of economy or convenience and that no body is entitled to tell him how he should conduct his business.
But it was of the opinion that this right of the employer is subject to the limitations contained in section 9A.
It specifically considered the applicability of item 10 of the Fourth Schedule to the Act and relying upon the decision in North Brooke Jute Co. Ltd. (1) held that no scheme of rationalisation could be given effect to if it was not preceded by a notice under section 9A.
It did not consider it necessary to give a final decision regarding 'the legality or otherwise of the scheme introduced by the company.
But it considered whether the workers" refusal to work under *,he new scheme was justified.
On the evidence it held that the Union had the apprehension that the proposed reorganisation would (1) (2) (3) (4) ; (5) , 634 result in some members of the staff becoming surplus, and that this apprehension was not without justification, and that the apprehension became true when the reorganisation was actually introduced.
It also held that the workload of the various applicants increased as a result of the reorganisation.
It, therefore, held that workers were within their legitimate right to refuse to do the work under the new scheme as no notice has been given under item 9A.
It held that however laudable the object of the reorganisation may be, it cannot be doubted for a moment on the evidence on record, that the scheme has seriously prejudiced the workers.
It, therefore, directed the employer to pay all the workers their wages for October 1966.
Mr. Gupte appearing for the employer contended relying on the decision in the case of North Brook Jute Co. Ltd. vs Their Workmen (supra) that the alteration of the conditions of service in this case, even if it should be held that non payment of wages amounted to alteration of conditions of service, was made not when a reference tinder section 10 was pending but that the reference itself having been made after the reoganisation, no application could be made under section 33A.
Technically no doubt this contention is correct because the scheme was introduced on the 5th or 6th of September and the reference was made on 30th of September.
But the applications in this case were not for the wages due for the month of September but for October.
The applications proceeded on the basis that the non payment of wages was an alteration in the conditions of service, and it is to that question that we must first address ourselves.
Mr. Gupte contended that non payment of wages is not an alteration of conditions of service and that no application under section 33A could be made in such cases as the remedy available was under section 33C.
We are not able to appreciate this argument.
Indeed payment of wages, is one of the most important among the workers ' conditions of service.
The worker works essentially only for the wages to be paid to him.
Therefore, the question that would really have to be answered is whether the refusal of the worker to work was justified or not.
It is in evidence that the workers, presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme They were told that as long as they refused to work under the new scheme they would be paid no wages.
The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under section 33C.
It was a continued refusal.
It was, therefore, a permanent alteration of the conditions of service.
The cause of action, so to say, arises de die in diem.
If the refusal of the workers to work under the reoganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount 635 to alteration of the conditions of service of workers.
If on 'the other hand the workers were not justified in doing so then no other question arises.
But in the face of the finding of the Tribuanal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under section 9A and introducing the scheme of reorganisation without such notice is justified.
It means that the workers were justified in refusing to work under the new scheme.
It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under section 33A.
Even apart from that it was urged by Mr. Gupte relying upon the decision in National Coal Co. vs L. P. Dave(1) that non payment of wages was neither an alteration in, the conditions of service nor is it a punishment and as such cannot come within the mischief of section 33 of the Act.
The Patna High Court relied also for its decision on the decision in Shama Biscuit Co. vs Their Workmen(2).
The facts of that case are not quite clear, The Court gives no reason for its view that the non payment of wages is not an alteration of conditions of service applicable to workmen and that it was only a case of default of payment of wages on the pay day falling under Payment of Wages Act.
The facts there were in any case different from the facts of the present case.
We may refer to the decision of the Allahabad High Court in Rain Nath Koeri vs
Lakshmi Devi Sugar Mills & Ors.
(3) where it was observed that the payment of wages is one of the essential ingredients of the contract of employment and that the word 'conditions ' includes the idea conveyed by the word 'terms ' but goes beyond it and is not confined, to what is included in that word.
The Court also held that 'terms and conditions of employment ' is wider in.
scope than the expression 'terms and conditions of labour '.
But as we have already observed failure or refusal to pay wages for a certain period may necessitate proceeding under section 33C, but refusal to pay wages indefinitely on the refusal of the workers to work according to a scheme of reorganisation which was not a valid one, because of the failure to give notice under section 9A, cannot but be considered to be an alteration in the conditions of service of the workers.
Mr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified.
He also contended that the applications by the workers as well as the reference (1) A.I.R. 1956 Patna 294.
(3) (2) 636 made by the company should have been heard together and should not have been disposed of separately.
That is really the main complaint of the employer.
As we have pointed out earlier if all the evidence which was let in in the reference were available to tile Tribunal which decided the applications of the workers, the result might well have been different.
But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did.
Mr. Tarkunde rightly contended that even if an application had been made under section 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under section 33C, the procedure for which would be the same as under section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made.
We consider that as an application under section 33A has to be decided as if it were a reference under section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under section 10, does not bar ,an application under section 33A in the circumstances we have explained.
We thus come to the conclusion (1) that non payment of wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under section 10 was made does not bar an application under section 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under section 9A.
The result is that all the appeals are dismissed.
There will be no order as to costs.
V.P.S. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Before September 1966 the marketing Organisation of the employercompany was in three divisions.
Thereafter it was organised into two divisions.
There were extensive and prolonged consultations between the employer and the employees but the reorganisation was not approved by the employees.
The new scheme was introduced on the 5th or 6th September and the industrial dispute arising therefrom was referred to the Tribunal on 30th September.
The workers presented themselves for work every day and offered to work according to the old scheme but they were not given any work.
They were told that as long as they refused to work under the new scheme they would not be paid any wages.
Some workers had voluntarily retired and the vacancies were not filled.
Therefore, pending the adjudication on the reference already made, seven workers filed applications under section 33A of the , alleging that during the pendency of the adjucation, their service conditions had been changed adversely and that their salary for the month of October had not been paid.
The Industrial Tribunal was different in the two cases as also the evidence let in in the two cases.
In the main reference, the Tribunal held in favour of the employer.
With reference to the applications of the employees, the other Tribunal held in favour of the employees on the grounds that the conditions of work had been changed to the workers ' prejudice, that the reorganisation was likely to lead to re trenchment, that the matter thus fell under item 10 of Schedule 4 to the Act and that therefore, the employees were justified in refusing to work.
Both parties appealed to this Court, HELD : On a consideration of the material in each of the awards 'both the awards should be upheld.
[628 A B] (1) The evidence given in the main reference not being a part of the evidence in the applications filed by the employees it is not open tothis Court to take it into consideration in deciding the appeals filed by the employer as against the award in favour of the employees.
[628A] (2) This Court, in considering a matter under article 136, does not ordinarily reassess the evidence on the basis of which the Tribunalcame to its conclusion.
It will interfere with findings of facts only if they are unsupported by any evidence or are wholly perverse.
[628 D E] (3) The reorganisation is neither a change in usage falling under item 8 of the 4th Schedule to the Act, nor rationalisation falling under item 10, nor an increase or reduction in the number of persons employed in any department falling under item 11; and hence, it was not necessary to give any notice under section 9A of the Act.
[633 D E] 625 (a) The employer has a right to organise his work in the manner he pleases.
[631C] (b) The various decisions show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case.
, On the evidence and findings given by the Tribunal it cannot be held that there has been any change in the terms and conditions of service of the workers in this case to their detriment.
[633 C E] Parry & Company 's ; Dharangadhara Chemical ,Works Ltd., vs Kanju Kalu & Ors. [1955] 1 L.L.J. 316; Chandramalai Estate vs Its Workmen ; The Graham Trading Co. (India) Ltd. vs Its Workmen ; ; Workmen of Hindustan Shipyard Ltd. vs I.T. ; McLeod & Co. vs Its Workmen ; Indian Overseas Bank vs Their Workmen [1967 68] ; Indian Oxygen Limited vs Udaynath Singh , Oil & Natural Gas Commission vs Their Workmen and Tata Iron & Steel Co. vs Workmen ; , referred to.
(c) The Tribunal held on the basis of oral as well as documentary evidence that the contention of the workers that it was a condition of service of every employee to work for only one division at a time was not established.
The arrangement of the words and phrases in item 10 shows that only rationalisation or standardisation or improvement of plant or technique, which is likely to lead to retrenchment of workmen that would fall under that item and not mere rationalisation or standardisation.
The retrenchment contemplated is retrenchment as defined in section 2(00), which does not include voluntary retirement of the workmen.
Therefore, the workers cannot make a grievance of the voluntary retirement and non filling of vacancies and try to bring the matter under item 10.
The employer had the right to decide the staff complement and to fill only such jobs as continued to exist and not automatically replace every individual.
[630 A H] Alembic Chemical Works Co. Ltd. vs The Workmen, ; , referred to.
Therefore, there is no reason for differing from the findings of the.
Tribunal that there has been no change in usage adversely affecting the workers coming under item 8, and that there has been no retrenchment under item 10.
[632D] (4) The 4th schedule relates to conditions of service for change of which the notice is to be given, and section 9(A) requires the employer to give notice under that section to the workmen likely to be affected by such.
change.
The word 'affected ' in the circumstances could only refer to the workers being adversely affected and unless it could be shown that the abolition of one department has adversely affected the workers it cannot be brought under item 11.
[631 A C] [The question whether the prolonged and detailed discussion between the parties was a substantial compliance with the provisions of section 9A not decided].[633E] (5) But the non payment of wages in the circumstances of this case amounts to an alteration in the conditions of service and the fact that the scheme was introduced before the reference under section 10 was made does not bar an application under section 33A.
The tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without the notice under section 9A. [634 C D; 635 B C] 626 (a) The applications in this case were not for wages due for the month of September but for October.
[634E] (b) The refusal to pay wages was not a solitary instance in respect of which an application could have been made under section 33C. it was a continued refusal and the cause of action arises de die in diem.
If the refusal of the workers to work under reorganisation scheme is justified then the refusal by management to pay unless they work under the reorganisation scheme would amount to alteration of the conditions of service of Workers.
[634 G H] (c) Even if an application had been made under section 33C the whole scheme would have been considered and it is not fair at this distance of time to drive the workers to file application under that section, the procedure for which would be the same as under section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to the adjudication was made.
[636 B C] (d) The Tribunal had found that the reorganisation scheme had rendered some workers surplus, that the scheme had seriously prejudiced.
the workers, and that the apprehension of the workers that the reorganisation would result in some members of the staff becoming surplus had come true.
[635 A B] North Brooke Jute Co. Ltd. , National Coal Co. vs L. P. Dave, , Shama Biscuit Co. vs Their Workmen , referred to : Ram Nath Koeri vs Lakshmi Devi Sugar Mills & Ors. , approved.
(e) If all the evidence which was let in in the main reference were available to the Tribunal which decided the applications of the workers, the result might have been different.
But it could not be said that the Tribunal is wrong in having proceeded to dispose of the matter in the way it did.
[636 A D]


judgement:
minal Appeal No. 264 of 1972.
Appeal by special leave from the judgment and order dated March 6, 1972 of the Bombay High Court at Bombay in Cr. A. No. 164 of 1972.
M. N. Sharma, for the appellant.
section B. Wad and Rine Sachthey, for the respondent.
The Judgment of the Court was delivered by DUA, J.
The appellant in this appeal by special leave was tried in the court of Session for Greater Bombay at Bombay for offences under section 467, under section 471 read with section 467 and under section 420, I.P.C.
According to the prosecution the appellant was running an octroi clearing agency under the name and style of "National Octroi Clearing Agency" at the Mulund check post.
He used to attend to certain transactions relating to the transport companies, one of those companies being the Montgomery Transport Company.
On December 16, 1962 a truck belonging to the said transport company bearing No. MPR 2147 arrived at the check post carrying a Depleix Machine to be delivered to Messrs Imperial Tobacco Company.
There were two drivers and one cleaner in the truck.
On being approached by them the appellant telephoned to manager Bakshi of the Transport Company to arrange for the payment of octroi which amounted to more than Rs. 8,000/ .
The Manager, Bakshi and Director, Inderjit Singh went to the Imperial Tobacco Company the following day and after getting Rs. 8,196/ /for the octroi reached the Mulund Check post.
The amount was handed over to the appellant in the presence of the driver.
Actually only Rs. 81 80/ were required for the octroi with the result that Rs. 16/ were paid back to Messrs Imperial Tobacco Company by means of a cheque.
During the investigation of another case arising out of an alleged forged receipt relating to octroi in respect of some imports by Messrs Pure Drinks Private.Ltd., it came to light that proper octroi had not been paid on December 17, 1968 in respect of the transaction in question in the present case.
The Assistant Assessor and Collector, Shri Karkhanis, after sending his superintendent Govind Charan to, the office of Messrs Imperial Tobacco Company he himself also visited the Company 's office and they both felt that the receipt for the payment of octroi held by the said Company was not genuine.
Having failed to trace the necessary relevant documents in the office files Shri Karkhanis lodged the complaint in February, 1969 and a case 3 L761Sup.
CI/73 550 was registered After preliminary enquiry under Ch.
XVIII Cr.
P.C. the appellant was committed for trial to the court of Session.
According to,the trial court the following points arose for determination : 1.
Whether it is proved that the receipt, Article A is a forged document ? 2.
Whether it is proved that it is the accused who forged that receipt with intent to commit fraud ? 3.
Whether it is proved that the accused used this receipt as genuine knowing it to be forged ? 4.
Whether it is proved that he cheated the Bombay Municipal Corporation, as alleged ? 5.
Whether it is proved that the accused cheated the Imperial Tobacco Co. of India Ltd., as alleged ?" The conclusions of the trial court on these points were "1.
In the affirmative.
Not proved.
In the affirmative, 4.
In the affirmative.
Not proved.
" The evidence in this case is mainly, if not wholly, circumstantial and about 20 witnesses were examined including a handwriting expert.
The trial court felt that the case required evaluation of the evidence of Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expert (P.W. 17).
Driver Balwant Singh was not examined in the case.
The trial court in a lengthy judgment exhaustively discussed the evidence of these witnesses.
It did not place implicit reliance either on Bakshi (P.W. 4) or on Inderjit Singh (P.W. 18) as, indeed in the testimony of 'both of them the trial court found partly reliable and partly unreliable statements.
The court did not feel inclined to hold that their evidence was wholly unreliable.
On evaluation of the evidence of the Handwriting Expert the trial court felt that the receipt in question could not necessarily be held to have been forged by the appellant.
After this ' observation follows the following passage in the judgment "I do not, however, feel that this earns an acquittal for him The direct charge regarding the forgery could be taken as not proved we will have however to weigh the other evidence for finding out whether he could have used the document which is necessarily a fogged docu ment, as a genuine document.
For this purpose we will have to appreciate the evidence of the two witnesses 551 about whom I have spoken quite a long time and we have also to appreciate the interval of time.
What exactly the accused did within that half an hour when he took the money and returned, will have to be surmised, particularly in the absence of categorical evidence showing that the disputed receipt is executed by him.
The evidence shows, it is a forged receipt.
It is not prepared at the counter.
We may not be sure in finding out as to who wrote it.
The accused may have had his associates it he himself has not written it.
Considering the way in which counters are stated to be working, considering the amount involved and the short time 'limit when the accused reappeared legitimate payment across the counter will have to be ruled out.
That is not even suggested on behalf of the accused.
He may have his own collaborators.
If we accept the version, which I do, then it was this receipt which was in the hands of the accused that was given over to the driver and from there onwards it reached the firm Messrs Imperial Tobacco Co. of India Ltd. I feel, the accused ought to be supposed to be aware that the real payment was made and what he carried could not be the real receipt.
It is for this reason that I am feeling that the charge of using a forged receipt knowing it to be forged could be brought home to him." The trial court thereafter dealt with the, charges of cheating and ultimately convicted the appellant for offence under sections 471 read with 467, I.P.C. and for an offence under section 420, I.P.C. Under the former he was sentenced to five, years ' rigorous imprisonment and a fine of Rs. 500/ with six months ' further rigorous imprisonment in case of default.
Under section 420 he was sentenced to rigorous imprisonment for two years.
The substantive sentences were directed to be concurrent.
The appeal to the High Court was dismissed in limine with one word "Dismissed".
Before us on appeal by special leave the short point but one of vital importance to the appellant requiring our decision is whether the High Court was justified on the facts and circumstances of this case in unceremoniously dismissing the appeal in limine with one word "Dismissed" without making a speaking order indicating the reasons for the dismissal.
The facts briefly stated by us and a close study of the lengthy judgment of the trial court quite clearly show that the appeal in the High Court did raise points which were not only arguable, but were also substantial requiring critical scrutiny and serious appraisal and evaluation of the prosecution evidence and the circumstances of the case.
The impor 552 tance of the opinion of the High Court on arguable points requiring consideration on appeal in that court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Court in Mushtak Hussein vs The State of Bombay(1) when Mahajan J., (as he then was) observed at p. 820 : "With great respect we are however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them.
In cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised.
Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters, without the benefit of that opinion.
" Since then in a series of decisions (quite a number of them reported and several unreported) this Court has consistently drawn the attention of the High Courts to the eminent desirability of giving an indication of their views on the points raised in arguable cases in accordance with the legal position enunciated by this Court.
Such a course is normal in cases which raise fairly arguable questions of fact or law.
In one of the latest decisions of this Court in K. K. Jain vs State of Maharashtra(2) some of the earlier decisions were again noticed and it was considered necessary to repeat the emphasis laid on the necessity of recording reasons by the High Court for dismissing appeals raising questions which cannot be considered to be unsubstantial or not arguable.
In that decision it was reiterated, inter alia, that reasons prevailing with the High Court for dismissing the appeal, if recorded, would have been of valuable assistance to this Court in finally disposing of the appeal on merits.
Another advantage of recording such reasons.
is that the accused appellant who may not always be present in court would have the satisfaction of knowing from the judgment that the points appropriately arising for consideration in his case were actually argued and only considered by the High Court while dismissing his appeal.
This would, inter alia, tend to promote confidence of the parties concerned in our judicial process.
in the present case had the High Court recorded its reasons for dismissing the appeal it would have better enabled the appellant 's lawyer to consider the advisibility of appealing (1) ; (2) A.I.R. 1973 S.C. 243.
553 under article 136 of the Constitution and after filing the appeal would have afforded valuable assistance both to the counsel appearing in this Court and to us in the final disposal of the appeal without feeling the necessity of remanding the case to the High Court for re hearing.
The remand no doubt must result in further delay in the final disposal of the appellant 's appeal in the High Court, and this indeed is regrettable.
But in the absence of the opinion of the High Court which that Court was under the law expected to record we are left guessing about the line of reasoning the High Court would have adopted after appropriate scrutiny of the evidence on the record.
The appellant is entitled to have a proper decision on the points arising in his appeal by the High Court on due appraisal of the evidence in accordance with law.
The legal position on the point in question has been authoritatively settled and declared by this Court and the same has been frequently reiterated in its decisions.
The law reports are so full of them that it appears to us to be somewhat surprising that the counsel appearing in the appeal in the High Court Should have been unaware of it.
It, however, does seem that the attention of the High Court was not drawn to these decisions, for had that Court been apprised of the law as authoritatively declared by this Court, it is inconceivable ,that the present appeal would still have been dismissed without indicating the reasons in support of it.
Had the High Court recorded reasons the delay necessitated by this remand could have been avoided.
But in the circumstances we have no option but, to allow the appeal and remand ' the case to the High Court for rehearing and deciding the appeal after considering the points raised and recording its reasons in accordance with law.
We have taken care not to express any opinion on the merits of the case either way.
It is hoped that this appeal would now be disposed of by ,the High Court expeditiously and without avoidable delay.
section C. Appeal allowed.

summary/full:
The appellant was running a Octroi Clearing Agency at 'Mulund Check Post ' in the State of Maharashtra.
He used to attend to certain transactions of Montgomery Transport Co. also.
On December 16, 1968, a truck of the said transport company arrived at the Check Post with a machine to be delivered to M/s. Imperial Tobacco Co. The appellant informed the Manager of the Transport Company to arrange for the payment of Octroi which amounted to more than Rs. 8,000/ .
Accordingly, a sum of Rs. 8,196/ was handed over to the appellant in the presence of the Driver of the truck.
It was found out after investigation that the receipt for the payment of Octroi held by the Imperial Tobacco Co. was not genuine and on a complaint lodged by the Company, the appellant was arrested and committed for trial to the Court of Sessions, under section 467, 471 read with section 467 and section 420 of I.P.C.
The Trial Court convicted the appellant for an offence under section 471 read with section 467 1.
P. C. and for an offence under section 420 1.
The appeal to the High Court was dismissed in limine with the word "dismissed".
The point raised before this Court was whether the High Court was justified in dismissing the appeal in limine with one word "dismissed", without making a speaking order indicating the reasons for dismissal.
Remanding the case to the High Court for rehearing.
HELD : (i) The importance of the opinion of the High Court on arguable points requiring consideration in appeal in that Court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Court in Mustaq Hussain vs The State of Bombay, ; Since then, in a series of decisions, this Court has consistently drawn the attention of the High Courts to the desirability of giving an indication of their views on the points raised in arguable cases in accordance with the legal position enunciated by this Court.
[552 AB.] (ii) In K. K. Jain vs State of Maharashtra, A.I.R. 1973 S.C. 243 it was reiterated that reasons before the High Court for dismissing the appeal, if recorded, would be a valuable assistance to this Court in finally dismissing of the appeal on merits.
Another advantage of recording such reasons is, that the accused appellant, who may not always be present in the court, would have the satisfaction of knowing from the judgment that the points appropriately arising for consideration in his case, were actually argued and duly considered by this High Court while dismissing his appeal.
In the prevent case, since the High Court did not record its reasons for dismissing the appeal, this court has no option but to remand the case to the High Court for rehearing and deciding the appeal after considering the points raised and recording its reasons in accordance with law.
[552 FG & 553A] 549 Mustaq Hussain vs State of Bombay, ; , and K. K. Jain vs State of Maharashtra, A.I.R. 1973 S.C. 243, referred to.


judgement:
minal Appeal No. 139 of 1954.
1333 Appeal by Special Leave from the Judgment and Order dated the 29th April 1954 of the Allahabad High Court in Criminal Appeal No. 1101 of 1953 and Referred No. III of 1953 arising out of the Judgment and Order dated the 3rd September 1953 of the Court of the Sessions Judge at Fatehpur in Sessions Trial No. 50 of 1953.
Sadhan Chandra Gupta and Janardhan Sharma, for the appellant.
K. B. Asthana and C. P. Lal, for the respondent.
March 1.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave from the judginent of the High Court at Allababad.
The sole appellant before us has been convicted by the Sessions Court under sections 148, 307 and 302 of the Indian Penal Code, and sentenced to rigorous imprisonment for two and a half years under section 148, to transportation for life under section 307, and to death under section 302.
These convictions and sentences have been confirmed by the High Court.
At the trial there were 19 other accused along with this appellant.
All of them were convicted and sentenced by the trial court under various sections of the Indian Penal Code.
On appeal ten out of them were acquitted by the High Court.
In respect of the remaining nine besides this appellant, the convictions and sentences were partially modified.
But this appeal is not concerned with them.
The incident in the course of which these offences are said to have been committed took place in the evening of the 4th January, 1953, shortly before sun set in a village called Sonari in the district Fatehpur, Uttar Pradesh.
During that incident two persons, Bisheshwar and Surajdin, are alleged to have received gun shot wounds.
Bisheshwar survived but Surajdin died on the spot.
The back ground for this incident was as follows: In the village of Sonari there were two factions between whom there was prior history of enmity resulting in criminal prosecutions by each against the other.
It 1334 may be broadly stated that the accused persons in the present case belong to one party and the prosecution witnesses as well as the deceased person belong to the other party.
In the year 1946 there was rioting between them in which two of the present prosecution witnesses were assaulted.
This led to a criminal case against some of the present accused and others, in which they were convicted and sentenced, the members of the other party figuring there in as prosecution witnesses.
Again, just five months prior to the present incident, there was another rioting in the village between these two groups.
In that, one Rain Bharosey a member of the party of the present accused was killed.
As a result 15 persons of the opposite party (i. e. the party of the present prosecution witnesses) were prosecuted.
By the date of this incident that case had been committed to the sessions but the sessions trial had not started.
According to the prosecution case, the occasion for the incident, which concerns us, was that some of the present accused wanted to persuade or prevent a member of the opposite party by name, Bisheshwar P.W. 2 in this case from doing what is called pairavi on behalf of the accused in that case.
(Pairavi is said to be the active assistance in relation to Court proceedings which a friend or agent renders to a litigant).
While, Bisheshwar, P.W. 2, and two others Bhurey Lal, P.W. 1, and Ram Saran, P.W. 3, were sitting in front of the house of Ram Saran on the evening of the 4th January, 1953, the present appellant and the other accused are said to have turned up before them, ' lathies in hand.
The appellant is said to have asked Bisheshwar to give up doing pairavis in the then pending case on behalf of the accused therein.
Bisheshwar having declined to do so, the appellant is said to have pulled out a pistol from his inner pocket and fired at him, as a result of which he fell down on the ground.
P.Ws. 2 and 3 are said to have dragged him inside the house and chained the door from inside, run up the roof and raised an alarm, whereupon a number of persons of the other party are said to have come running up.
One of the persons who so came running up was 1335 Surajdin who was cutting fodder at the house of Bhurey Lal, P.W. 1.
The appellant is said to have fired at him with the pistol.
He fell down and died on the spot.
Another person named Gaya Prasad is said to have received some minor lathi injuries.
Accused party thereafter is said to have run away.
First information of the report was lodged by Bhurey Lal, P.W. 1, near about 12 that very night at the police station which was about nine miles from the scene of the occurrence.
The police came on the scene the next morning and the usual investigation followed.
The police filed on the 22nd February, 1953, a charge sheet for offences under sections 147, 148, 323/149 and 307/149.
The charge sheet in so far as it was under section 323/149 related presumably to some minor injuries said to have been received by Gaya Prasad, and in so far as it was under section 307/149 related presumably to the gun shot wounds received by Bisheshwar, P.W. 2.
It may be noticed that the charge sheet did not concern itself with any offence or offences alleged to have been committed, in bringing about the death of Surajdin by the firing of a pistol at him.
It is on this charge sheet that cognizance of the case was taken by the Magistrate and committal proceedings were started.
It appears, however, that the complainant party finding that the police challan did not relate to the offence under sec tion 302, Indian Penal Code filed, on the 2nd May, 1953, a private complaint, before the very Magistrate in whose court the committal proceedings were by then pending.
That complaint was filed by the same Bisheshwar, P.W. 1, who lodged the first information in this case on the 5th January, 1953.
It sets out substantially the same facts.
This complaint also was taken on the file of the Magistrate.
The enquiry thereon was merged into the enquiry relating to the police challan case.
The Magistrate eventually committed all the 20 accused to take their trial before the Sessions Judge by framing charges, under sections 147, 323/149, 307/149 and 302/149.
There was a specific charge under section 148, Indian Penal Code against Suraj Pal and 1336 Dharm Raj, the former for being armed with a pistol and the latter for being armed with a pharsa, at the time of the commission of the rioting.
It is in respect of charges so framed by the committing Magistrate without any amendment or alteration that the accused were tried in the Sessions Court.
It may be mentioned at this stage that the defence of the accused, apart from the general denial of their hav ing anything to do with the incident and denials as to their having been present at the occurrence, was to the effect that it was the complainant 's party including the deceased Surajdin who formed the unlawful assembly, with the common object of beating one Ram Pal of the village.
This Ram Pal had appeared as a prosecution witness at the committal stage in the criminal proceedings by then pending against the present prosecution witnesses as accused.
It was also their defence that it was one Ram Bhawan of that party who, in the course of the incident, fired pistol shots in the air and also shot, later, Surajdin and brought about his death.
The learned Sessions Judge found all the accused guilty of the various offences as charged and sentenced them.
On appeal the High Court considered the prosecution evidence with reference to three aspects.
(1) How far the manner in which the prosecution alleged the incident to have taken place can be accepted; (2) How far the prosecution case regarding the presence and participation of the various per sons can be accepted; and (3) What offence can be said to have been made out as against each of them.
On the first question the High Court accepted the view that the incident took place as alleged by the prosecution.
With reference to the second, the High Court set out elaborately various reasons why the prosecution evidence in so far as it implicates particular individuals, could not be accepted at its face value and required to be carefully scrutinized.
With reference to certain criteria which it was considered necessary and right to adopt for purposes of scrutiny, the High Court held that the convictions of ten out of the 20 persons before it should be set aside and that 1337 the other ten persons including the present appellant were participants in the rioting.
Accordingly, the Court confirmed the conviction as against these ten under section 147, Indian Penal Code.
As regards the charge under section 148, Indian Penal Code, Dharm Raj was acquitted but the conviction of Suraj Pal was maintained on the ground of his having a pistol in his hand at the time of the rioting.
There remained the three charges against the ten persons under sections 323/149 for injuries on Gaya Prasad, 307/149 in respect of the gun shot wounds received by Bisheshwar, and 302/149 in respect of the murder of Surajdin.
It was held that the assault on Gaya Prasad wasn 't proved beyond doubt and hence, all the accused were acquitted in respect of this charge.
As regards the other two charges, i.e., under sections 307/149 and 302/149, the High Court came to the conclusion that neither the attempt on the life of Bisheshwar by pistol fire nor the actual death of Surajdin by pistol fire can be said to have been in prosecution of the common object of the unlawful assembly nor to have been within the knowledge of the accused as being so likely.
It was, therefore, held that none of the accused could be found guilty under section 149, with reference to, the attempt on the life of Bisheshwar, or the death of Surajdin.
All the same, in view of the fact that the evidence showed that the person who inflicted the pistol fire as against both was the appellant Suraj Pal, it was held that he was guilty of the offences under sections 307 and 302, Indian Penal Code.
On this ground, therefore, the High Court, while it set aside the convictions and sentences of all the accused under sections 307/149 and 302/149, maintained the 'convictions of the appellant under these two sections and maintained the sentences of transportation for life under section 307 and of death under section 302, Indian Penal Code.
The High Court convicted the other nine persons under section 323/149 in respect of the injuries received by P.W. 2 and sentenced them therefor.
On the above statement of the course of these proceedings, one important fact which emerges is that 1338 there have been no direct and individual charges against the appellant for the specific offences under sections 307 and 302, Indian Penal Code.
The question that arises is whether ', without such direct charges the convictions and sentences for those offences can be maintained.
It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecu tion of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly.
The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed.
A charge under section 149, Indian Penal Code puts the person on notice only of two alleged facts, viz. (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed.
Whether or not section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as "constructive liability" a convenient phrase not used in the Indian Penal Code.
There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence.
Such a case is not covered by sections 236 and 237 of the Code of Criminal Procedure.
The framing of a specific and distinct charge in respect of every distinct bead of criminal liability constituting an offence, is the foundation for a conviction and sentence therefore The absence, therefore, of specific 1339 charges against the appellant under sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life And to death respectively, is a very serious lacuna in the proceedings in so far as it concerns him.
The question then which arises for consideration is whether or not this lacuna has prejudiced him in his trial.
It is perfectly true that the initial accusation as disclosed by the first information lodged by the com plainant, P.W. 1, on the 5th January, 1953, specifically, was to the effect that it was this appellant who with a pistol fired both as against Bisheshwar, P.W. 2, as also against the deceased, Surajdin.
It is also true that this allegation was repeated in the private complaint filed by this same P.W. I in May, 1953, directly before the Magistrate.
It is also undeniable that the evidence in court, both in the committal proceedings as well as at the sessions trial, given by the prosecution witnesses was in support of that allegation.
But curiously enough, apart from the absence of any individual charges against the appellant for these specific offences, even the charges against him and others relating to the injuries inflicted on P.W. 2 and the deceased Surajdin are somewhat vague as to the authorship thereof The relevant charges run as follows (after specifying the members alleged to constitute the unlawful assembly): "Firstly: That you, on the 4th day of January 1953 at about half an hour before sunset in village Sonari, formed an unlawful assembly with the common object of committing the murders of Bisheshwar and Suraj Din and committed rioting.
And thereby committed an offence punishable under section 147 of the Indian Penal Code.
Secondly: That you on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which you were members at that time committed the murder of Suraj Din who was shot dead by a pistol fire.
And thereby committed an offence punishable under section 302/149 of the Indian Penal Code, 1340 Thirdly: That you on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which you were members at that time attempted to commit the murder of Bisheshwar Singh by means of a pistol fire.
And thereby committed an offence punishable under section 307/149 of the Indian Penal Code".
The portions underlined (for the purposes of this judgment) in the charge under heads 2 and 3 above are curiously vague.
They appear to indicate a definite non committal attitude on the part of the Public Prosecutor and the Court, which has the ultimate responsibility for the framing of the charge, (vide section 226, Code of Criminal Procedure) as to who is the active author of the pistol fire referred to under these two heads of charge.
When the charge was so pointedly vague, no accused was bound to direct his attention in his defence to the question as to whether he or somebody else was the person who fired the pistol which brought about the gun shot wounds.
It has been brought to our notice that the appellant has been specifically questioned in the Court of Sessions under section 342, Code of Criminal Procedure on the footing that he was the person who fired at P.W. 2 and the deceased, Surajdin, and that the accused denied it.
But this cannot be said to remove any prejudice that would arise by virtue of the vagueness in the charge at the sessions trial, as to who was the author of the pistol fire.
Normally in a sessions trial the accused has no right of cross examination after the questioning under section 342, Code of Criminal Procedure.
It has been suggested that since such a question was put also in the questioning by the committing Magistrate under section 342, Code of Criminal Procedure, the accused had ample notice of this specific case before the commencement of the sessions trial.
But it does not follow that there could be no prejudice.
On the other hand, the very fact that in spite of such questioning the charges framed in the Magistrate 's Court, with their vagueness, in so far as this feature therein is concerned, has been 1341 maintained, before the Sessions Court without any amendment, is likely to have been misleading.
The appellant might well have relied on the absence of any such amendment as being an indication that he was not called upon to defend himself on the footing of his being the author of the pistol fire.
In a case so serious as that which involves the sentences of transportation for life, and of death, and particularly in a case like the present one, where the death sentence has been awarded in the trial court by distinguishing this appellant from all the other accused in respect of his individual act by way of pistol fire, it is difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and 302, Indian Penal Code.
Further, the medical evidence indicates that P.W. 2 as well as the deceased Surajdin had gun shot wounds on their person.
The evidence of the Doctor is to the effect that these wounds may have been caused by a country pistol which, it is alleged, the appellant had in his hand.
It has been suggested on behalf of the defence that the Medical Officer was not competent to speak about it and that if the prosecution wanted to rely thereupon, they should have called an arms expert to speak to the same.
Whether or not this comment is legitimate, it is clear that if the appellant is to be found directly responsible for inflicting the wounds, noted as gun shot wounds by the Medical Officer, he might well have availed himself of the opportunity to elucidate, by cross examination or positive defence, the nature of the fire arm which would have caused the actual injuries found on the bodies of P. W. 2 and of deceased Surajdin.
In all the circumstances above noticed, we are satisfied that the absence of specific charges against the appellant under sections 307 and 302, Indian Penal Code has materially prejudiced him.
We must accordingly set aside the convictions and sentences of the appellant under sections 307 and 302 of the Indian Penal Code.
The further question that arises is whether or not we are to direct a retrial of the appellant in respect of these offences.
We have given our best considera 1342 tion to all the circumstances of this case and have for this purpose looked into the evidence and the material on the record.
The case discloses certain outstanding features.
At the very outset and simultaneously with the first information filed by P.W. 1 in this case, there was another report filed by one Ram Pal at the same police station, almost exactly at the same time, relating to the same incident.
This is exhibit P 16 on the record.
This report is said to have been lodged at the police station at 12 15 in the night, while the other report is said to have been lodged at 12 10 that night.
The report, exhibit P 16, alleged the present prosecution party to be the aggressors and put forward, as the occasion for the incident, an attempt on the part of the prosecution party to beat Ram Pal, the com plainant of that complaint, for having given evidence in support of the prosecution in the committal proceedings of the rioting case then pending against the present prosecution witnesses (as accused therein)obviously with a view to prevent him from giving evidence in the Sessions Court against them.
That complaint specifically refers to one Ram Bhawan who is P.W. 4 in the present case as the person who had a pistol in hand and fired with it.
That report makes no mention of any injuries having been by then received from pistol fire, in the course of that incident.
Of course, there is no proof, in this case, of any of the allegations in that report.
But it appears from the order of commitment in this case (which forms part of the present printed record) that with reference to that report there was pending, at the date of the committal, a cross case against some of the prosecution witnesses in the present case for the same incident.
The police constable mohair of the police station where the counter complaint, exhibit P 16 was lodged and who accepted both the complaints (1) from Bhurey Lal, and (2) from Ram Pal, has stated in his evidence that when the complaint, exhibit P 16, was filed by Ram Pal the present appellant Suraj Pal had also accompanied Ram Pal, the complainant therein.
This may well be claimed to be the conduct of an innocent person.
It is also not without some significance 1343 that admittedly and as a matter of fact, the police did not file any charge sheet in the present case against any one for the actual offence of murder under section 302, Indian Penal Code and that even in the charge sheet which they did file they confined the case to section 307, Indian Penal Code but did not commit themselves as to who out of the members of the unlawful assembly was the author of the pistol fire.
So far as it appears from the police charge sheet dated the 22nd February, 1953, as printed in the record before us, there is a statement therein to the effect "Suraj Pal Singh and Ram Manohar were armed with pistols".
Ram Manohar is also one of the accused who was put up for trial.
The statements of some of the prosecution witnesses furnish indication of more than one fire arm having been used at the incident.
Thus, for instance.
, Bisheshwar, P.W. 2, said "I heard 3 or 4 guns being fired outside and also heard a noise".
P.W. 4., Ram Bhawan, said "We four persons threw lumps of earth from the well at the accused persons, the accused retired and fired their gun twice. . . .
The accused had fired a gun from the door of Mabadeo when going away, then, bad fired two or three guns from his door".
P.W. 5, Gaya Prasad, said "Two or three guns afterwards had been fired from the door of Mahadeo Pandit.
Those guns had been fired from the lane.
The guns had been fired at the door of Ram Saran and had bit it".
All these witnesses no doubt assert that so far as the particular injuries with which this case is concerned the firing was by the appellant Suraj Pal.
But the above state ments by these witnesses in the cross examination may well indicate that there may have been other persons in the unlawful assembly at that time with arms in their hands, who made use of them by firing.
Apart from the use of pistols in the course of that incident, by one party or the other, there are clear indications that there was a mutual fight between both the parties.
Two of the persons on the side of the accused, viz. Lal Pratap and Chedi Lal have received some injuries and their injury certificates have 172 1344 been marked as Exs.
D 1 and D 2.
The prosecution witnesses themselves admit that there was mutual fighting to this extent, viz. that there was also throwing of brickbats by the complainant 's party against the rioters.
As already stated there is in fact a counter case against some of the present prosecution witnesses in respect of the same incident.
In such a situation any further trial is likely to result only in very doubtful and unreliable evidence being adduced after a considerable lapse of time.
Even as it is, the evidence recorded in the present case has been found by the High Court in its judgment as not acceptable at its face value.
The learned Judges have dealt with this aspect at length and they wound up their consideration of this part of the case as follows: "For the above reasons, I am of opinion that there is a good deal of substance in this part of the arguments of the appellants ' counsel.
The question that would arise is as to which of the particular accused is guilty and what should be the criterion for deciding this matter.
In view of the biassed and interested nature of the prosecution evidence, I am of opinion that the presence of only those accused should be held to have been proved who have been assigned any definite part by the prosecution witnesses or ,whose presence is corroborated by some other circumstantial evidence.
In view of the highly interested nature of the prosecution evidence, dealing with the first aspect of the case also, viz. the question as to how far the prosecution have succeeded in proving the manner in which the incident occurred, 1 have not accepted the prosecution case unless it found corroboration from some other factor of a circumstantial nature or from probabilities of the case".
It is by reference to these standards that they have rejected the evidence of the prosecution witnesses in so far as they implicated ten other accused whom the High Court acquitted.
But it appears to us, that judged by the very same standards there is no adequate reason for accepting the evidence as being reliable in respect of this appellant also.
In fact there is good reason to feel that on the same standards this appel 1345 lant also should have got the benefit of the doubt.
At this stage, it is not out of place to mention one fact.
It appears from the evidence of the Investigating Officer, P.W. 14, that in the course of the investigation the prosecuting authorities were of the opinion that the murder in this case was to be attributed to the prosecution witness, Ram Bhawan, P.W. 4, and not to the appellant, and that in their view even the evidence as against Ram Bhawan was not sufficient to put him on trial for the murder.
Doubtless such an opinion of the prosecuting authorities has no relevancy in the case and should not have been placed on the record in this case.
But when we have to consider the desirability or otherwise of retrial, we need not shut our eyes to these features of the case which have been brought on the record.
In the circumstances mentioned above we do not consider that the interests of justice require that any retrial should be ordered.
We accordingly direct that there shall be no retrial.
In the result, the convictions of the appellant under sections 307 and 302 of the Indian Penal Code and the sentences therefor are hereby set aside.
But his conviction under section 148 of the Indian Penal Code is maintained as also the sentence of two years and a half in respect thereof.
This appeal is accordingly allowed partially to the extent indicated above.
Appeal partially allowed.

summary/full:
Where a person has been charged along with others under sections 302 and 307 of the Indian Penal Code each, only as read with section 149 of the Code, his convictions and sentences for the substantial offences under sections 302 and 307 of the Code are erroneous.
The absence of specific charges in this behalf is a serious lacunas in the proceedings, inasmuch as the framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the foundation for a conviction and sentence therefore The conviction in these circumstances under Bs.
302 and 307 of the Code and sentences of death and transportation for life cannot be maintained unless the Court is satisfied, on the facts of the case, that the accused has not been prejudiced in his trial.
Whether or not in such a situation the questioning of the accused during the course of his examination under section 342 of the Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be relied upon as obviating the likelihood of prejudice has to be determined with reference to the facts and circumstances of each case.
All the circumstances of the case and the evidence and materials on the record should be looked into on the question arising in such a situation as to whether a retrial should be ordered or not.