judgement:
Appeal No. 455 of 1965.
Appeal by special leave from the judgment and order dated September 11, 1962 of the Gujarat High Court in Civil Revision Application No. 150 of 1960.
347 G. L. Sanghi, and B. R. Agarwala, for the appellant.
O. P. Malhotra and Ravinder Narain, for the respondents Nos. 1 to 4.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by special leave from a judg ment of the High Court of Gujarat passed in a Civil Revision Application arising out of a suit filed by the plaintiff respondent against the defendant appellant to recover possession of certain premises situate in Surat.
The facts are as follows.
The appellant became a tenant of the respondent under a rent note executed on February 27, 1947 whereby rent was fixed at Rs. 40 per month and the tenancy was to be for a period of one year from 22nd February, 1947.
After the expiry of the said period, the appellant continued as a monthly tenant on the same terms and conditions as were to be found in the rent note.
He fell into arrears of payment of rent and the respondent sued him for eviction some time in 1951.
The suit was eventually compromised by a petition put in court bearing date September 16, 1952.
Under the terms of the compromise, the defendant continued as a tenant from September 1, 1952 on the terms and conditions of the rent note dated February 27, 1947: the original conditions in respect of rent also continued excepting that the rate was lowered from Rs. 40/ to quote the words of the compromise to "standard rent of Rs. 27" and "in the matter of taxes and interest also the defendant was to act in accordance with the conditions of the aforesaid rent note.
" Paragraph 2 of the compromise petition contained an account of payments made by the defendant the final.
result thereof being that it was agreed between the parties that the defendant had paid Rs. 104 5 3 "which amount was to be rcmbursed by the plaintiff to the defendant when accounting the future payment of rent.
" It should be noted here that according to the rent note of 1947 the tenant had agreed to pay the monthly rent of Rs. 40 together with interest at Rs. 0 12 0 per cent per annum in respect of any balance due for rent.
Even after the compromise, the defendant fell in arrears again.
The only payments made thereafter up to the institution of the second suit out of which the present proceedings have arisen were a sum of Rs. 250 on July 19, 1954 and Rs. 200 on March 17, 1955.
The defendant did not make any payment to the plaintiff in rcspect of the permitted increases under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 from the 1 st of April, 1954; neither did he pay the taxes agreed upon.
The plaintiff gave a notice to the defendant on April 18, 1955 demanding the arrears of rent and permitted increases in terms of the said Act and also terminating the tenancy of the defend 348 ant with effect from May 31, 1955 in terms of section 106 of the Transfer of Property Act.
The notice was received by the defeiidant on April 21, 1955.
No reply was sent thereto nor was any payment made to the plaintiff.
The suit for ejectment was filed on March 15, 1956 the ground thereof as laid in the plaint being that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act.
In paragraph 6 of the plaint the dues under various heads were specified showing the arrears of rent, increases permitted thereon, interest in terms of the rent note and taxes for three years.
It was pleaded by the defendant in the written statement that rent at Rs. 27 had been fixed by the court without going into the merits of the case and that standard rent or reasonable rent of the property in suit had to be fixed first and a preliminary issue in that respect should be framed.
The defendant did not admit the claim to the arrears as laid in paragraph 6 of the plaint.
He also pleaded that the notice of ejectment was not a valid one as the tenancy was to be reckoned in terms of the Gujarati calendar and not the Gregorian calendar.
The date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purposes of the Act.
On that day the defendant deposited in court a sum of Rs. 1,000.
Thereafter the defendant made a deposit of a sum of Rs. 150 on February 25, 1957.
The suit was decreed by the trial Judge on March 25, 1957.
The trial Judge after considering the evidence on record determined the standard rent of the premises at Rs. 27, exclusive of the permitted increases and water tax and sanitary tax, payable by the defendant to the plaintiff.
Holding that the defendant had not complied with section 12(3)(b) of the Act he passed a decree for eviction.
The defendant went in appeal to the District Judge, Surat.
He raised no contention even at the hearin of the appeal either in regard to the standard rent of the premises or in regard to interest on arrears of rent or municipal taxes or permitted increases.
The finding of the trial Judge that the standard rent of the premises exclusive of permitted increases and water tax and sanitary tax was Rs. 27,1 per month was not challenged by the defendant.
Nor was any question raised as to the finding that the defendant was liable to pay the plaintiff a sum of Rs. 123 4 0 as and by, way of interest on arrears of rent, a sum of Rs. 81 as and by way of water tax and sanitary tax for a period of three years prior to the date of the suit and a sum of Rs. 2 1 9 per month as and by way of permitted increases from April 1, 1954.
The point regarding the validity of the notice of ejectment was however raised in the appeal.
According to the judgment of the High Court, "the only contention urged 349 before the learned Assistant Judge was, whether the defendant had or had not complied with the requirements of section 12(3)(b) of the Rent Act." The Assistant Judge concluded that there had been no compliance with that section and upheld the decree for eviction.
In revision three contentions were.
raised before the High Court, namely, (1) as to the validity of the notice of ejectment; (2) whether section 12(3)(a) or 12(3)(b) of the Act applied; and(3) whether the defendant was entitled to protection under section 12(1) of the Act.
The High Court held that it was not open to the tenant to raise the question of the validity of the notice in a revision application.
Moreover, there was no substance in it as the compromise petition expressly recorded that the tenancy in terms of it should commence on September 1, 1952.
With regard to the second question the High Court held that "it was common ground between the parties before the Assistant Judge that the case of the defendant fell within section 12(3) (b) of the Rent Act.
" The learned Judge of the High Court noted: (a) The trial Judge turned down the applicability of section 12(3) (a) of the Act holding that the defendant had disputed the municipal taxes and permitted increases; (b) The, conditions under section 12(3) (b) of the Act were not fulfilled; (c) No contention about the applicability of 12(3) (a) was raised before the Assistant Judge in appeal and he therefore did not go into the question at all; and (d) The conditions necessary for the applicability of section 12(3)(a) were not present, as besides the amount of Rs. 27 mentioned in the compromise petition, the tenant had to pay other sums not due from him every month.
The High Court further found that after the first date of hearing of the suit on September 3, 1956 rent of the premises which fell due on 1st October 1956, 1st November 1956, 1st December 1956, 1st January 1957, 1st February 1957 and 1st March, 1957 remained unpaid on March 25, 1957 when the suit was disposed of.
As the defendant did not pay or deposit in court regularly the amount of standard rent which became due on the aforesaid dates barring the 1st of March 1957 (taking into account the deposit of Rs. 150 on February 25, 1957) there was default on the part of the defendant attracting the operation of section 12(3)(b) of the Act.
350 The High Court turned down the contention based on section 12(1) of the Act.
At the hearing of the appeal before us, learned counsel for the appellant raised two points, namely: (1) The provisions of section 12(1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing.
If at that stage it was found that the defendant had paid up all arrears due from him he could not be ejected.
(2) Even applying section 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction.
In order to appreciate the first contention it is necessary to set out section 12 of the Act as it stood at the relevant time : "12(1)A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the pro visions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the .
(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any suit, if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter conti 351 nues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court.
(4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.
Explanation.
In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
" Learned counsel drew our attention to a judgment of this Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograj Sinha(1).
There the landlord had filed a suit for possession of the premises on April 25, 1957, the period of tenancy fixed under the rent note having expired on March 14, 1957.
Under section 6 of the Act a notification was issued applying Part II of the Act to the area where the property was situate.
The appellants claimed protection of section 12 of the Act and the main question which engaged the attention of this Court was, whether by virtue of the first proviso to section 50 of the Act, all the provisions in Part 11 including section 12 were made expressly applicable to all suits; and secondly, whether by virtue of section 12(1) of the Act the suit was rendered incompetent.
This Court turned down the contention of the respondent that the operation of section 12(1) was limited to suits filed after it came into force in a particular area and observed that under section 12(1) the landlord was not to be entitled to recover possession and the point of time when the sub section would operate was when the decree for recovery of possession would have to be passed, It appears to us that there is no substance in the contention put forward on behalf of the appellant.
Section 12(1) must be read with the Explanation and so read it means that a tenant can only be considered "to be ready and willing to pay" if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and thereafter pays or tenders the amount of (1) ; 352 rent or permitted increases specified by the court.
We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of section 1 1(3) of the Act.
The readiness and willingness to pay has therefore to be judged in the light of the facts of the case.
Where as here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or per mitted increases recoverable under the Act, the tenant makes no application in terms of section 11(3) he cannot claim the protection of section 12(1) by merely offering to pay or even paying all arrears due from him when the court is about to pass a decree against him.
In Vora Abbasbhai Alimahomed lv.
Hai; Gulamnabi Haji Safibhai(1) it was pointed out that section 12(1) of the Act applied to a tenant who continued to remain in occupation even after the expiry of the contractual tenancy so long as he paid or was, ready and willing to pay the amount of the standard rent and permitted increases.
The protection was howsoever available to a tenant subject to the provisions of section 13 and to the limitations contained in section 12(2) and section 12(3)(a) of the Act.
In Mrs. Manorama Masurekar vs Mrs. Dhanlaxmi G. Shah and another ( 2 ) rent was in arrears for a period of more than six months and the tenant neglected to make payment of the same within one month of the notice under section 12(2).
There the rent was payable by the month and there was no dispute regarding the amount of the rent.
It was held that if the conditions of sub section
(3)(a) of section 12 were satisfied the tenant could not claim any protection from eviction by tendering the arrears of rent after the expiry of one month from the service of notice under sub section
It was observed : "It is immaterial whether the tender was made before or after the institution of the suit.
In a case falling within sub section
(3)(a), the tenant must be dealt with under the special provisions of sub section
(3)(a), and he cannot claim any protection from eviction under the general provisions of sub section
(1)" As already noted, if sub section
(3)(a) is not attracted, the tenant, if he is in arrears, cannot sit quiet and offer to pay all the amount due from him at the time of the hearing of the suit so as to get the protection of section 12(1).
To be within the protection of subs.
(1) where he raises a dispute about the standard rent payable, he must make an application to the court under sub section
(3) of section 11 and thereafter pay or tender the amount of rent and permitted (1) ; (2) ; 353 increases, if any, specified in the order made by the Court.
If he does not approach the court under section 1 1(3), it is not open to him thereafter to claim the protection of section 12(1).
The case clearly does not come within section 12(3)(b).
To be within the protection of that provision, the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay or tender in court regularly the rent and the permitted increases till the suit is finally decided.
Before the date of the suit, the appellant was entitled to a credit of Rs. 104 5 3; the total payments up to the date of the first hearing including the.
sum of Rs. 1,000 come to Rs. 1,554 5 3.
The amounts due from him, up to that date were : (a) rent at the rate of Rs. 27 per month for 48 months.
Rs. 1296 0 0 (b) permitted increases from 1 4 54 to 1 9 56.
61 3 9 (c) taxes.
81 0 0 (d) Interest on arrears at 9% p.a. 123 3 0 making a total ofRs.
1561 6 9 Moreover, there was failure on the part of the appellant to pay or tender in court the amounts which fell due from the 1st of October 1956 to the 1st of March, 1957.
Thus, leaving out of consideration the question of costs awarded against him under the decree, the appellant cannot get the protection under section 12(3)(b) of the Act.
A faint attempt was made to raise the point about the invalidity of the notice of ejectment on the plea that the same had to comply with section 12(2) of the Act.
This is clearly fallacious as the said section merely lays down the manner in which a notice of demand of standard rent and permitted increases has to be made.
The contentions raised on behalf of the appellants are therefore without any merits and the appeal is dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The appellant was a tenant of the respondent.
Having fallen into arrears of rent he was given a notice (a) demanding arrears of rent and permitted increases under the Bombay Rents.
Hotel and Lodging House Rat as Control Act, 1947, and (b) terminating his tenancy in terms of section 106 of the Transfer of Property Act, Receiving no response to the notice the respondent filed a suit against the appellant.
On the first day of the Heading of the suit and during its pendency the appellant deposited part of the arrears in Court but not the full amount due.
The trial Court passed a decree against him which was confirmed by the appellate Court.
The High Court dismissed his revision petition.
With special leave he appealed to this Court and urged that (i) he was entitled to the benefit of section 12 ( 1 ) of the Act and that (ii) even if section 12 (3) (b) was applied he was not liable to be eiected.
HElD : (i) Section 12(1) must be read with the Explanation and so read it means that a tenant can only be considered "to be ready and willing to pay" if, before the expiry of the period of one month after notice referred to in sub section
(2), he makes an application to the court under sub section
(3) of section 11 and hereafter pays or tenders the amount of rent or permitted increases specified by the court.
The readiness and willingness to pay has to be judged in the light of the facts of the case.
Where as in the present case a suit is filed on the ground that the tenant was in arrears for a period of more than six months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act, the tenant makes no application in terms of section 11(3) he cannot claim the protection of section 12(1) by merely offering to pay or even paying aii arrears due from him when the court is about to pass a decree against him.
[351 H 352 B] Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograi Sinha; , , distinguished.
Vora Abbasbhal Alimahomed vs Haii Gulamnabi Haii Safibhai, ; , Mrs. Manordma Masurekar vs Mrs. Dhanlaxmi G. Shah and another.
; , applied.
(ii) The case did not come under section 12(3) (b).
To be within the protection of that provision, the tenant must not only pay all the arrears due from him on the first day of the hearing of the suit, but he must thereafter continue to 'pay or tender in court regularly the rent and the permitted increase till the suit is finally decided.
There was a failure on the part of the appellant to pay or tender in court all the amounts which fell due, and he could not therefore get the protection of section 12(3) (b) of the Act.
[353 B E]


judgement:
Appeals Nos. 31 and 32 of 1968.
Appeals by special leave from the judgment and order dated January 25, 1967 of the Mysore High Court in Writ Petitions Nos. 774 and 2171 of 1965.
R. H. Dhebar, Shyamala Pappu and section P. Nayar, for the appellants (in both the appeals).
section section Javali and M. Veerappa for respondent No. (in both the appeals).
364 The Judgment of the Court was delivered by Bachawat, J.
On the reorganisation of States on November 1, 1956, the services of Syed Mahmood and Bhao Rao were allotted to the State of Mysore and they were employed there as junior statistical assistants.
On January 16, 1958 the Head of the Department of Statistics under the directions of the Government of State of Mysore prepared a tentative seniority list of nongazetted staff of that department treating junior statistical assistants and senior statistical inspectors of the former State of Hyderabad, junior statistical assistants and senior compilers of the former State of Mysore, statistical assistants and statistical inspectors from Bombay and the head compiler of Coorg as holding the equivalent posts of junior statistical assistants in the State of Mysore.
In 1959, before revising this tentative seniority list the State Government directed that all the statistical assistants and statistical inspectors of Bombay State and the head compiler of Coorg, should be treated and promoted as senior statistical assis tants.
As a result of this direction officers ranking below Syed Mahmood and Bhao Rao in the seniority list published on January 16, 1958 were promoted to the higher posts.
In makintheir promotions, the State Government did not consider the fitness of Syed Mahmood and Bhao Rao for promotion at all.
At a much later date, they were promoted as senior statistical assistants.
On May 3, 1963, the State Government published a revised seniority list placing inspectors from Bombay and head compilers from Coorg in the catecory of senior statistical assistants.
Syed Mahmood and Bhao Rao filed separate writ petitions in the High Court of Mysore asking for appropriate writs quashing the seniority list published on May 3, 1963, and directing the State Government to consider their case for promotion as senior statistical assistants with retrospective effect.
As the .objections to the seniority list published on May 3, 1963 were still under consideration by the State Government the High Court refused to quash this seniority list but it directed the State Government to promote Syed Mahmood and Bhao Rao as from the respective dates on which respondents junior to them were promoted as senior statistical assistants and to treat such promotions as effective up to May 3, 1963.
The State of Mysore has filed the present appeals from the orders directing the promotion of Syed Mahmood and Bhao Rao after obtaining special leave.
Promotion to the posts of senior statistical assistants is made from the cadre of junior statistical assistants and progress assistants.
Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 requires such promotions to be made by selection on the basis of seniority cum merit, that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion.
In 1959 365 the seniority of junior statistical assistants was governed by the seniority list published on January 16, 1958.
Syed Mahmood and Bhao Rao were junior statistical assistants.
While making selections for promotion to the posts of senior statistical assistants from the cadre of junior statistical assistants in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted.
But without considering their case at all, the State Government promoted junior statistical assistants ranking below them in point of senio rity.
The promotions were irregularly made and they were, therefore , entitled to ask the State Government to reconsider their case.
In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted.
Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect.
The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959.
Mr. Javali submitted that Syed Mahmood and Bhao Rao by virtue of their seniority were entitled to promotion at the time when persons junior to them were promoted.
The argument overlooks the fact that promotion to the post of senior statistical assistant was based on seniority cum merit.
In spite of their seniority officers junior to them could be promoted if they were unfit to discharge the duties of the post.
Promotion could not be claimed as a matter of right by virtue of seniority alone.
Mr. Javali argued that even in the case of promotion based ,on seniority cum merit, an officer is entitled to promotion by virtue of seniority alone, and he relied on the decision in State of Mysore vs H. M. Bellary(1).
In that cast, an officer of the Bombay Government was sent on deputation from his parent department to another department.
After long and satisfactory service and a number of promotions in the new department, he was reverted to his parent department and was posted in a lower grade though in the meantime an officer next below him in the parent department had been promoted to a higher grade.
The promotion to the higher grade was based on seniority cum merit.
The Court held that under r. 50(b) of the Bombay Civil Services Rules and the circular of the Government of Bombay dated October 31, 1950, an officer on deputation in another department on reversion to his parent department was entitled to be restored to the position he would have occupied in his parent department had he not been deputed.
Rule 50(b) treated the service of an (1) ; 366 officer on deputation in the new department as equivalent to service in the parent department.
As he rendered satisfactory service and was considered fit for obtaining increments and promotions in the new department, he should be deemed to be fit for promotion in the parent department and was entitled to promotion in that department when an officer next below him there was getting promotion based on seniority cum merit.
In official language, this is the "next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted.
In our opinion, this case is entirely distinguishable.
It decided that under the relevant service rules the fitness for promotion of an officer on deputation in the new department was equivalent to fitness for promotion in the parent department and the officer was entitled to promotion in the parent department when the officer next below him there was obtaining promotion based on seniority cum merit.
But it is not an authority for the proposition that the officer on deputation is entitled to promotion in either the new or the parent department as a matter of right by virtue of his seniority alone, or that he should be deemed to be promoted whenever the officer next below him is being promoted.
Where the promotion is based on seniority cum merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone.
If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.
We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959.
If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise.
The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959.
In the result, we allow the appeals and set aside the orders passed by the High Court.
We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the posts of senior statistical assistants on the relevant dates when officers junior to them were promoted, and if so, what consequential monetary benefits should be allowed to them.
While granting special leave, this Court directed that the appellants shall pay the costs of the respondents in any event.
Accordingly, the appellants are directed to pay the costs of these appeals to the respondents.
One hearing fee.
Y.P. Appeals allowed.

dataset_name: IN-Abs

summary/full:
Rule 4(3)(b) of the Mysore State Civil services General Recruitment Rules, 1957 requires promotion to be made by selection on the basis of seniority cum merit, that is seniority subject to the fitness of the candidate to discharge the duties of the Post from among persons eligible for promotion.
While making selections for promotions to the posts of senior statistical assistants from the cadre of junior statistical assistants, the State Government did not consider the case of the respondents who were junior statistical assistants, and published a list promoting persons ranking below them in point of seniority.
The respondents filed writ petitions, in which the High Court refused to quash the seniority list but directed the appellant State to Promote the respondents as from the dates on which their juniors were promoted and treat their promotion as effective from that date.
Allowing the appeal, this Court, HELD : While making selections for promotion to the posts of senior statistical assistants from the cadre of junior statistical assistants in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted.
The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case.
In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted.
Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect.
The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959.
[365 B D] Promotion to the post of senior statistical assistant was based on seniority cum merit.
In spite of their seniority, officers junior to them could be promoted if they were unfit to discharge the duties of the post.
Promotion could not be claimed as a matter of right by virtue of seniority alone.
[366 C D] State of Mysore vs H. M. Ballary, [1964] 7 S.C .R. 471, distinguished.


judgement:
minal Appeal 185of 1967.
Appeal by special leave from the judgment and order dated May 18, 1967 of the Punjab and Haryana High Court in Cri minal Appeal No. 247 of 1967 and Murder Reference No. 23 of 1967.
A.S.R. Charl, B. A. Desai, section C. Agarwal, A. K. Gupta, Shiva Pujan Singh and Virendra Verma, for the appellant.
Hans Rai Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
Bhupendra Singh has come up to this Court in appeal by special leave against a judgment of the High Court of Punjab and Haryana confirming the sentence of death awarded to him by the Sessions Judge of Jullundur for an offence, under section 302 of the Indian Penal Code and dismissing his appeal against the conviction and sentence.
The conviction of the appellant was recorded for committing the murder of one Gurdarshan Singh who was living in the same.
village Birpind as the appellant in the house adjoining the appellant 's house.
The appellant 's father, Ajit Singh, also lived with the appellant, while, with Gurdarshan Singh, were living his sons, Gurdial Singh and Sarvjit Singh, and his daughter Gian Kaur.
According to the prosecution, on the 6th November, 1965, at about 7.45 p.m., the two brothers, Gurdial Singh and Sarvjit Singh, happened to be standing in front of their house talking to each other, when the appellant came out of his house and asked them what they were talking about.
Gurdial Singh replied that he and Sarvjit Singh were brothers and were talking between themselves and it was no business of the appellant to interfere.
The appellant, thereupon, abused the two brothers and also slapped Sarvjit Singh on the face.
Gurdial Singh asked the appellant why he had beaten his brother and used abusive language against the appellant.
The appellant got enraged, ran into his house abusing the two boys, and return 406 ed with a double barrel 12 bore gun.
When he came out of his house this time, he was accompanied by his father, Ajit Singh.
Gurdial Singh and Sarvjit Singh then ran into the 'deorhi ' of their house.
In the meantime, their father, Gurdarshan Singh, and their sister, Gian Kaur, returned to the house from their fields.
When Gurdarshan Singh saw the appellant carrying the gun, he enquired what the matter was.
Thereupon, Ajit Singh raised a 'lalkara ' asking his son, the appellant, to finish off Gurdarshan Singh.
The appellant then fired two shots in quick succession from his gun hitting Gurdarshan Singh on vital parts of his body.
Gurdarshan Singh fell down dead on the ground.
One Malkiat Singh, who lived in a house nearby, had arrived and saw this occurrence, so that the four persons, who witnessed the occurrence.
were Malkiat Singh, Gurdial Singh, Sarvjit Singh and Gian Kaur.
Gurdial Singh, leaving others to look after the dead body of his father, went with Lal Singh, Lambardar, to the Police Station which was situated at a distance of about three miles and lodge the First Information Report at about 9.30 p.m. on the same day.
The ,case was then investigated.
A post mortem examination on the corpse of Gurdarshan Singh was performed and articles like pellets, blood stained cardboard pieces lying near the scene of occurrence were taken into their possession by the Police.
Both the appellant and his father, Ajit Singh, were thereafter prosecuted for this murder.
The appellant was charged with being the principal offender in committing the murder, while his father, Ajit Singh, was prosecuted for having participated in the murder with the common intention that Gurdarshan Singh should be killed.
However, before the trial could take place in the Court of Sessions, Ajit Singh was murdered and, for that murder, Gurdial Singh was prosecuted.
In the case, at the first stage before the Court of the Committing Magistrate, both Ajit Singh and the appellant took the plea that neither of them was responsible for committing the murder of Gurdarshan Singh and contented themselves with denying the correctness of the prosecution case.
In the Court of Sessions, when the appellant was examined under section 342 of the Code of Criminal Procedure, he came forward with the plea that it was his father, Ajit Singh, who actually fired and killed Gurdarshan Singh.
He pleaded that he himself was not present in this village at all and was, in fact, that day staying at Phillaur.
He, thus, put forward the plea of alibi.
The Sessions Judge believed the evidence of the four prosecution witnesses mentioned above, and, after discussing the defence evidence given on behalf of the appellant in support of his pleas.
rejected that evidence.
He did not accept the defence evidence that Gurdarshan Singh was fired at by Ajit Singh and he also, held that the evidence given on behalf of the appellant to prove 407 his alibi could not be relied upon.
On these findings, the Sessions Judge convicted the appellant and sentenced him to death for committing the murder of Gurdarshan Singh.
When the case came up before the High Court, the High Court briefly examined the evidence of the prosecution witnesses and held that their evidence was reliable.
The High Court did not, however, go into the defence evidence, because the counsel appearing for the appellant, according to the High Court, frankly admitted that there was no substance in it.
On this view, the High Court dismissed the appeal of the appellant and confirmed his sentence of death.
In this appeal, the principal question that was canvassed before us on behalf of the appellant was that the High Court, in not examining the defence evidence for itself on the simple ground that counsel for the appellant admitted that there was no substance in it, committed an error and did not properly discharge its duty.
It appears that there is substance in the submission made on behalf of the appellant.
Ordinarily, in a criminal appeal against conviction, the appellate Court, under section 423 of the Code of Criminal Procedure, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the trial Court.
It is not necessary for the appellate Court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified.
The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under section 374 of the Code of Criminal Procedure.
On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with sections 375 and 376 of the Code of Criminal Procedure and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person It is true that, under the proviso to section 376, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a condemned prisoner that appeal has to be disposed of before any order is made in the reference confirming the sentence of death.
In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under section 375 of the Code of Criminal Procedure and, consequently, the Court must examine the appeal record for itself,.
408 arrive at a view Whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed.
In Jumman and Others vs The State of Punjab( '), this Court explained this position in the following words: ". . but there is a difference when a reference is made under section 374, Criminal Procedure Code, and when, disposing of an appeal under section 423, Criminal Procedure Code, and that is that the High Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused persons for the infliction of the penalty of death.
In fact the proceedings before ' the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons.
Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge.
In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above mentioned it is for the High Court to come to an independent conclusion of its own.
" The same principle was recognised in Ram Shankar Singh Others, vs
State of West Bengal (2) :_ ".
The High Court had also to consider what order should be passed on the reference under section 374, and to decide on an appraisal of the evidence, whether the order of conviction for the offences for which the accused were convicted was justified and whether, having regard to the circumstances, the sentence of death was the appropriate sentence." In Masalti V. State of U.p.(3) this Court was dealing with an appeal under Article 136 of the Constitution and, in that appeal, on behalf of the persons who; were under sentence of death, a point was sought to be urged which was taken before the trial Court and was, rejected by it, but wits not repeated before the High Court.
This Court held: ". . it may, in a proper case, be permissible to the appellants to ask this Court to consider (1) A.I.R. 1957 S.C. 469.
(2) [1962] Supp.
I S.C.R. 49 at p. 59.
(3) ; at P. 144. 409 that point in an appeal under Article 136 of the Constitution; after aft in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court.
If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course the party is entitled as a matter of right to obtain a decision on those pleas from this Court.
But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under article 136.
" In view of these principles indicated by us above, and in view of the fact that, in this case, the ' High Court did not properly examine the defence evidence on the ground that the counsel for the appellant in that Court admitted that there was no substance in it, we permitted learned counsel for the appellant in this appeal to take us through the entire evidence on the record given by the prosecution and the defence so as to enable us to form our own judgment about the correctness of the conviction and sentence of the appellant.
We, however, find that, after examining the entire evidence, we are unable to hold that any grounds are made out for interference with the conviction.
The prosecution case, as already mentioned by us above, is supported by the evidence of four eye witnesses, Gurdial Singh, Sarvjit Singh, Gian Kaur and Malkiat Singh.
Three of these witnesses, Gurdial Singh, Sarvjit Singh and Gian Kaur are the sons and daughter of the deceased Gurdarshan Singh, but this circumstance, in our opinion, does not detract from the value to be attached to their evidence, because, naturally enough, they are interested in seeing that the real murderer of their father is convicted of the offence and they cannot be expected to adopt a course by which some innocent person would be substituted for the person really guilty of the murder.
None of these witnesses had any such enmity with the appellant as could induce him to give false evidence and to substitute him as the murderer in place of the person really guilty.
In fact, their feelings. would be strongest against the real culprit and, consequently, their evidence cannot be discarded on the mere ground of their close interest in the deceased.
Malkiat Singh has been held both by the Sessions Judge and the High Court to be an independent witness and we find no reason to differ from the view taken by the two Courts.
On behalf of the appellant, it was sought to be.
urged that Malkiat Singh bore a grudge against Ajit Singh, because Ajit Singh had been instrumental in the adoption of a son by Malkiat Singh 's real uncle, Veer Singh, with the result that Malkiat Singh was 410 deprived of the succession to the property of his uncle.
Malkiat Singh denied that he had any grievance against Ajit Singh on such a ground.
In support of the plea put forward on behalf of the appellant, one defence witness, Niranjan Singh was examined who claimed to be the son of another real uncle of Malkiat Singh.
Niranjan Singh came to depose that his son, Sadhu Singh, had been adopted by Veer Singh and this adoption took place because Ajit Singh had asked Veer Singh to take Sadhu Singh in adoption.
Niranjan Singh had, however, to admit that, in the deed of adoption, the person adopted is described as Mukhtiar Singh and not Sadhu Singh.
To explain this discrepancy, Niranjan Singh came forward with the assertion that his son, Sadhu Singh, bore an alias Mukhtiar Singh.
If Sadhu Singh was the real and principal name of the boy adopted by Veer Singh, there is no reason why that name was not mentioned in the deed of adoption and why the person adopted was described only as Mukhtiar Singh.
There is further the circumstance that, even according to Niranjan Singh, Malkiat Singh, witness, did not try to challenge the adoption, even though the adoption had taken place in April 1965, seven months before this incident.
Malkiat Singh had stated that he had no grievance against Ajit Singh and was in fact not interested in challenging the adoption.
In these circumstances, we do not think that Malkiat Singh can be said to be an interested witness and must hold that his evidence has been rightly relied upon.
The time of the murder was not only proved by the evidence of these four witnesses, but is also borne out by the circumstance that the First Information Report was lodged at the Police station three miles away at about 9.30 p.m. without any undue delay.
On behalf of the appellant, it was urged that the First lnformation Report was in fact recorded much later and not at 9.30 p.m. the same day, on the basis that the copy of that report sent to the Ilaqa Magistrate was received by him at 10.30 a.m. on 8th November, 1965.
The argument was that, if the report had been lodged at 9.30 p.m. on 6th November 1965, the copy should have reached the Magistrate the same night or early on the 7th November and not as late as 8th November.
We are unable to accept this submission.
The evidence of Gurdial Singh was perfectly clear that he reached the police station and lodged the report that very night at 9.30 p.m. and there is no reason to disbelieve him.
It appears that in this case, the investigating officer, Sub Inspector Ram Saran Dass was, to some extent, negligent.
In the report lodged by Gurdial Singh, the facts given clearly made out an offence of murder, and yet the Sub Inspector chose to register the case wrongly as for an offence under section 304 read with section 34 of the Indian Penal Code.
It may be that, having wrongly put down the offence as under 304 I.P.C. 'instead of section 102, the Sub Inspector did not consider it necessary to 411 send the report to the Ilaqa Magistrate the same night and delayed sending it, so that it was received at 10 30 a.m. on 8th November, 1965 by the Magistrate.
It is also not clear from the evidence whether, apart from the copy of the First Information Report sent to the Ilaqa Magistrate, any special report was also sent to the Magistrate by the Sub Inspector.
In any case, we do not think that this late receipt of the copy of the First Information Report by the Magistrate can lead to the inference that Gurdial Singh is not right in saying that he had the report recorded the same night at 9.30 p.m.
The evidence of the doctor who performed the post mortem examination and of the ballistic expert clearly establish that Gurdarshan Singh had died as a result of gun shot injury received by him from a gun.
The gun which the appellant possessed under a licence issued to him was examined by the ballistic expert and his evidence proved that the shots, which killed the deceased, were fired from that very gun.
In these circumstances, the Sessions Judge and the High Court were right in recording the conviction of the appellant for the murder of Gurdarshan Singh on the basis of this prosecution evidence.
So far as the defence put forward on behalf of the appellant is concerned, the first point to be noticed is that the plea that the shots, which killed Gurdarshan Singh, were fired by Ajit Singh, was not taken by the appellant until his father, Ajit Singh, had already died.
It seems to be clear that this plea, which was put forward for the first time in the Court of Sessions, was an afterthought which could be taken safely by the appellant after Ajit Singh had died and he could not be convicted for the murder.
When the appellant was examined in the court of the Committing Magistrate while Ajit Singh was alive, he did, not make any such statement.
This is an important circumstance that militates against the plea put forward in defence.
The appellant relied upon the evidence of two witnesses in support of the plea that the shots which killed Gurdarshan Singh were fired by Ajit Singh and not by the appellant.
The first of these witnesses is Uggar Singh who stated that he was in his house situated opposite to the house of the appellant and, when he came out on hearing the noise, he saw Ajit Singh quarelling with Gurdarshan Singh deceased and exchanging abuses.
Thereafter, Ajit Singh fired the gun shots towards Gurdarshan Singh killing him instantaneously.
According to him, neither Malkiat Singh nor the sons of Gurdarshan Singh were present at that time.
Even Shrimati Giano, according to him, was not there.
The evidence of this witness cannot be relied upon for several reasons.
According to this witness, his statement was recorded by the Police at about 10 a.m. the next day, i.e., the 7th November, 1965; but L7Sup.
C.l.68 2 412 the investigating officer 's statement is clear that no person residing in the neighbourhood had been examined by him or had come forward to give any statement to him.
Uggar Singh, thus, made a wrong statement that he was examined by the Police the next day.
It also appears that he was prosecuted in a murder case in which he was acquitted and Ajit Singh had assisted him in that trial.
The answers given by him in the cross examination also show that, in fact, his house is not in front of the house of the appellant but is situated in the same line as the house of the appellant and the deceased and at some distance.
He tried to get over this difficulty by stating that he has another house which is opposite to the house of the appellant, but it appears that that house belongs to his cousin, Ujagar Singh, and that is how the house is described in the site plan also.
In all these circumstances, the evidence of Uggar Singh cannot be accepted.
The second witness is Niranjan Singh, whose evidence we have noticed Above, and he also partially supported this part of the defence case by saying that he came rushing to the spot after the incident and found Gurdarshan Singh lying dead, while Ajit Singh was standing outside his house with something which appeared to be a gun.
It is clear that this is art another attempt by Niranian Singh to help the appellant and on this point also reliance cannot be ,placed on his evidence.
There remains to be considered the evidence given on behalf of the appellant to establish his plea of alibi.
One defence witness Kirpal Singh was examined to prove that the accused was on deputation in the Seed Corporation at Phillaur and was attached to the Tehsildar, Phillaur and that he was not suspended until 11th November, 1965.
His evidence is of no help, because it is obvious that the appellant could be suspended only after he surrendered in connection with this charge which happened on 11th November 1965.
The fact that he was in service on 6th November, 1965, does not necessarily prove that he could not have been present at the place of occurrence.
The Witness, on whose evidence reliance is primarily placed is Bunta Ram, Patwari.
Bunta Ram stated that on 6th Novem ber, 1965 he had come to the office of the Corporation at Phillaur in order to collect his pay and he also brought some files from Nakodar in order to consign those files.
In that connection.
he remained in the office of the Corporation throughout the day.
He saw the appellant also working in the said office throughout the day.
According to him, at about 6.30 p.m., he and the appellant went to the house of Inderjit Singh, Patwari and spent the night at his house.
It, 'however, I appears that this witness is a direct subordinate of the appellant and that is the reason why he has come forward to support the appellant 's case.
In this connec 413 tion, Jagdish Rai Batta, Tehsildar in the Seed Corporation, was examined as a court witness by the Sessions Judge and his evidence shows that Bunta Ram was one of the Patwaris working as a subordinate of the appellant who was a kanoongo in the Corporation.
Bunta Ram had stated that on that day he had himself appeared before the Tehsildar in connection with the consignment of the tiles and the Tehsildar had given him some directions in that behalf.
Jagdish Rai Batta stated that on that day Bunta Ram, Patwari did not appear before him nor did he produce any files.
He went further and stated that he did not point out any defects to Bunta Ram Patwari either orally or in writing.
Thus, Bunta Ram is proved to be an untruthful witness by the evidence of Jagdish Rai Batta, Tehsildar.
Bunta Ram, in his cross examination, purported to state that the appellant was living in a part of the house of Inderjit Singh at Phillaur.
On the face of it, it cannot be correct because the appellant did not belong to Phillaur and was not even posted there in connection with his employment.
His headquarters, according to Jagdish Rai Batta, was Nakodar and not Phillaur.
The evidence of Jagdish Rai Batta only shows that he saw the appellant working in his office at Phillaur on that day until about 5 p.m. Phillaur is connected with Nako dar by a metalled road along with which there is a bus service, and village Birpind,where the murder took place, is only three miles from Nakodar.
It is quite clear that the appellant could easily reach Birpind well before 7.45 p.m. even if he worked at Phillaur till 5 p.m. on that day.
It is also significant that the murder was committed with the gun belonging to the appellant.
If the appellant himself had not been at Birpind and had been at Phillaur or Nakodar, the gun should have been with him.
at one of these places and not at Birpind.
The gun could not, therefore, have been available for use by Ajit Singh, his father in his absence.
Considering all these circumstances and the nature of the evidence, we are unable to accept that there is any force in the defence plea of alibi put forward by the appellant, so that the conviction based on the prosecution evidence must be upheld.
A plea was put in for reduction of sentence.
Ordinarily, this Court, in exercise of its powers under article 1 36 of the Constitution, does not interfere with a sentence awarded by a Sessions Judge and upheld by the High Court; but, in this case, there are some special features which we cannot ignore.
Even according to the prosecution, the murder of Gurdarshan Singh by the appellant was not pre meditated.
The act of firing at him appears to be that of a hot headed person who was incited to do so by his father.
The murder was, not in any way cruel or brutal.
In all these circumstances, we think that the ends of justice would be met if the lesser penalty prescribed by law is awarded to the appellant.
414 Consequently, while upholding the conviction, we allow the appeal to the extent that the sentence of death is set aside, and, instead, the appellant is sentenced to imprisonment for life.
R.K.P.S. Appeal allowed.

summary/full:
The appellant lived with his father A in a house adjoining that of the deceased G who lived there with his two sons and a daughter.
An argument developed one evening between the appellant and one of the sons of G.
When G intervened, the appellant 's father A raised a 'lalkara ' asking the appellant to finish him off.
Thereupon the appellant shot and killed G. By this time G 's two sons, his daughter and one M who lived nearby had arrived and witnessed the occurrence.
At the trial the appellant 's defence was a pica of alibi but the Trial Court rejected the defence and convicted the appellant of G 's murder and sentenced him to death.
in appeal, the High Court did not go into the defence evidence because the counsel appearing for the appellant admitted that there was no substance in it.
The High Court accordingly dismissed the appeal and confirmed the sentence of death.
In appeal to this Court against the conviction and the sentence it was contended that the High Court in not examining the defence evidence for itself, committed an error and did not properly discharge its duties.
HELD : (i) Although ordinarily, in a criminal appeal against conviction, the appellate Court, under section 423 of the Code of Criminal Procedure, can dismiss the appeal if the Court is of the opinion that there is no sufficient ground for interference and it is not necessary for the appellate Court to examine the entire record for the purpose of arriving at an independent decision, the position is different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal,a reference for .confirmation of the capital sentence under section 374 of the Code.
On a re ference for confirmation of sentence of death, the High Court is required to proceed in accordance with sections 375 and 376 of the Code of Criminal Procedure and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge Is correct but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person.
[407 D G] Jumman and Others vs The State of Punjab, A.I.R. 1957, S.C. 469; Ram Shanker Singh & Ors.
vs State of West Bengal, [1962] Supp. 1 S.C.R. 49 at p. 59; applied.
(ii)(Upon an examination of the entire evidence by the Court) : No s had been made out for interference with, the appellants con[409 D E] 405 Maaslti vs State of U.P., ; at p. 144; referred to.
(iii) The sentence of death must be set aside and instead the appellant sentenced to imprisonment for life Although ordinarily this Court, in exercise of its power under Art 136, does not interfere with a sentence, in the present case there were some special features which had to be taken into account : even according to the prosecution, the murder of G by the appellant was not premeditated; the act of firing at him a to be that of a hot headed person who was incited to do so by his father; the murder was not in any way cruel or brutal.
In all these circumstances, the ends of justice would be met if the lesser penalty prescribed by law was awarded to the appellant.
[413 G H]


judgement:
Appeal No. 1597 of 1967.
Appeal from the judgment and order dated March 31, 1967 of the Bombay High Court in Appeal No. 11 of 1967.
Jethmalani, N. H. Hingorani and K. Hingorani, for the appellant.
K. G. Khandalawala, H. R. Khanna and section P. Nayar, for the respondents.
The Judgment of the Court was delivered by Bachawat, J.
This is an appeal by certificate against an order of the Bombay High Court on Letters Patent appeal confirming an order of dismissal of a writ petition by which the appellant Tukaram G. Gaokar asked for a writ of prohibition restraining proceedings for imposition of a penalty on him for alleged complicity in the smuggling of gold in pursuance of a notice dated November 16, 1966 issued under section 112 of the Sea .
The appellant 's contention is that the threatened proceedings amount to contempt of the magistrate before whom hi. , trial for offences in connection with the smuggling of gold is imminent are and in violation of the constitutional protection of article 20(3) of the Constitution.
The High Court rejected these contentions.
The main facts may be stated briefly.
On September 14 and 17, 1966, the customs officers raided a number of premises in the city of Bombay and seized 65,860 tolas of foreign gold and some cold bangles worth about Rs. 1,14,20,270.
On September 14.
1966, the appellant was arrested on charges of complicity in the smuggling of (,old and other articles.
After several remands.
424 he was released on bail.
On October 6, 1966, the customs officers lodged a first information report charging the appellant, one John D 'Sa and other persons with offences in connection with the smuggling of gold under section 120B of the Indian Penal Code read with section 1 3 5 of the Sea , r. 1 3 1 B of the, Defence of India Rules and section 8 of the Foreign Exchange Regulation Act.
The trial of the appellant on these charges before a magistrate is imminent.
On November 16, 1966, the, Assistant Collector of Customs, Preventive Department, Bombay issued a notice to the appellant to show cause why the gold should not he confiscated under section 111 of the Sea and why a penalty should not be imposed on him under section 112 of the same Act.
The, notice alleged that he acquired possession of and was concerned in carrying removing, depositing, harbouring, keeping, concealing and dealing 'with gold which he knew or had reason to believe was liable to confiscation under section III and that in relation to such gold he was knowingly concerned in fraudulent evasion of customs duties and of the prohibitions imposed under the laws in force.
The notice relied on several documents and the statement of John D 'Sa.
The appellant disclaims any interest in the gold seized by the customs officers.
He resists the imposition of penalty on him for alleged complicity in the smuggling.
It is quite clear that identical issues arise in proceedings for imposition of penalty under section 112(b) of the Sea and in a trial for an offence punishable under section 135(b) of the same Act.
If any.
person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring.
keeping, concealing, selling or purchasing, or in any other manner ,dealing with any goods which he knows or has reason to believe are liable to confiscation under section 1 1 1, he may be proceeded against under section 1 1 2 ( b) and also, under section 135(b).
On the same set of facts, a penalty may be imposed on the offender under section II 2 (b) and he maybe punished with imprisonment and fine under section 135(b).
Similar issues arise in the trial of offences for contravention of r. 131 B of the Defence of India Rules and section 8 of the Foreign Exchange Regulation Act.
The customs officers will have to enquire into these issues, though the same issues will later be tried by the criminal court.
The Sea contemplates parallel proceedings of this kind Section 127 expressly provides that the award of a penalty under section 112 is not a bar to the infliction of punishment under section 135.
The offender may be punished under section 135 without prejudice to any other action that may be taken under the Act.
The customs officers are empowered to confiscate smuggled.
goods and to levy penalties on persons concerned with the smuggling.
They may initiate proceedings for confiscation of the goods and for imposition of the 425 penalty though the trial of those persons in a criminal court for connected offences is imminent.
The initiation and continuance of those proceedings in good faith cannot amount to contempt of the criminal court.
To constitute contempt of court, there must be involved some "act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority" or something "calculated to obstruct or interfere with the due course of justice or the lawful process of the courts", see Reg v, Gray( '), Arthur Reginald Perera vs The King (2) .
The customs officers did nothing of this kind.
They are acting bone., fide and discharging their statutory duties under sections III and 112.
The power of adjudicating penalty and confiscation under those sections is vested in them alone, The criminal court cannot make this adjudication.
The, issue of the show cause notice and proceedings thereunder are authorised by the Act and are not calculated to obstruct the course of justice in any court.
We see no justifycation for holding that the proceedings amount to contempt of court.
The decided cases do not support the appellant 's contention.
In Saibal Kumar Gupta vs B. K. Sen (3), it was held that an enquiry by a special committee appointed by the Corporation of Calcutta to enquire in to the conduct of the Commissioner in the matter of appointment of municipal officers pending criminal proceedings against him in respect of certain offences did not amount to contempt of court.
The special committee could not be said to hold a parallel enquiry on matters pending before the court, though the enquiry might extend to those matters incidentally.
It may be noted that there was no express provision in the Calcutta Municipal Act authorising a special committee to hold an enquiry into any matter in issue before a Court.
In section section Roy vs State of Orissa (4) , a magistrate issued an order restraining the execution of a warrant of arrest issued by a civil court.
The order was in excess of his jurisdiction and was not warranted by section 144 of the Code of Criminal Procedure.
The court held that he could not be punished for contempt of court in the absence of wilful error proceeding from improper or corrupt motives In the present case also, the customs officers are not actuated by any oblique motive.
Moreover, their action is authorised by sections 111 and 112 and is not in excess of their jurisdiction.
The customs officers have, a discretion to stay the proceedings under sections 111 and 112 during the pendency Of the trial in the (1) [1900] 2Q.B.36.
(2) ,488.
(3) [1961] 3S.C.R.460.
(4) A.I.R. 1960 S.C. 190, 426 criminal court.
In the exercise of their discretion they have refused to stay the proceedings.
It is not shown that their action is mala fide or arbitrary.
The court will not issue a mandamus to control this exercise of their discretion.
The appellant then claims that the proceedings under sections 111 and 112 are in violation of article 20(3) of the Constitution.
He says that unless the proceedings are stayed he will be compelled to enter the witness box to rebut the evidence of John D 'Sa and will be forced in cross examination to give answers incriminating himself.
Article 20(3) affirms that "no person, accused of any offence shall be compelled to be a witness against himself.
first information report has been lodged and formal accusation has been made in it against the appellant charging him with offences in connection with the smuggling of gold.
The appellant is, therefore a person accused of an offence.
But it is not possible at this stage to say that he is compelled to be a witness against himself.
There is no compulsion on him to enter the witness box.
He may, if he chooses, not appear as) a witness in the proceedings under sections I I I and 1 12.
The necessity to enter the witness box for substantiating his defence is not such a compulsion as would attract the protection of Art,.
20(3).
Even in a criminal trial, any person accused of an offence is a competent witness for the defence under section 342 A of the Criminal Procedure Code and may give evidence on oath in disproof of the charges made against him.
n It may be very necessary for the accused person to enter the witness box for substantiating his defence.
But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of article 20(3).
Compulsion in the context of article 20(3) must proceed from another person or authority.
The appellant is not compelled to be a witness if he voluntarily gives evidence in his defence.
Different considerations may arise if he is.
summoned by the customs authorities under s i 108 to give evidence in the proceedings under sections I I 1 and 1 1 2.
But he has not yet been summoned to give evidence in those proceedings.
We express no opinion on the question whether in the event of his being summoned he can claim the protection under article 20(3) and whether in the event Of his being, then compelled to give incriminating answers he can invoke the protection of the proviso to section 132 of the Indian Evidence Act against the use of those answers in the criminal proceedings.
It may be noted that counsel for the customs authorities gave an undertaking in the High Court that they would not use in any criminal proceedings the statement, if any, that might be made by the appellant during the course of the adjudication proceedings.
Before the High Court, the appellant took the further point that the proceedings under sections Ill and 112 were in violation of 427 article 14 of the Constitution.
The High Court repelled this contention.
That point has now been abandoned by the appellant and does not survive.
In the result, the appeal is dismissed.
There will be no order as to costs.
G.C. Appeal dismissed.

summary/full:
In September 1966 the Customs authorities seized certain contraband . gold from the possession of the appellant.
Thereafter the appellant along with certain other persons was charged before.
a Magistrate for offences in connection with the smuggling of gold under section 120 B of the Indian Penal Code read with section 135 of the Sea , r. 131 B of the Defence of India Rules and section 8 of the Foreign Exchange Regulation Act.
Before the commencement of the trial the Assistant Collector of Customs issued a notice to the appellant to bow cause why the gold should not be confiscated under section III of the Sea and why a penalty should not be imposed on him under section 112 of the same Act.
Thereupon the appellant under article 226 of the Constitution asked the High Court for a writ of prohibition restraining proceedings for imposition of penalty on him in pursuance of the aforesaid notice.
The contention was that the threatened proceedings (i) amounted to contempt of the Magistrate before whom the trial was imminent and (ii) were in violation of article 20(3) inasmuch as he would be compelled to go into the witness box to rebut the evidence of an accomplice witness.
The High Court rejected these contentions, but granted a certificate to appeal to this Court.
HELD : (i) Identical issues arise in proceedings for imposition of penalty under section 112(b) of the Sea and in a trial for an offence punishable under section 135(b) of the same Act.
If a person incurs liability under section 1 1 1 he may be proceeded against under section 112(b) and also under section 135(b).
Similar issues arise in the trial for contravention of r. 131B of the Defence of India Rules and section 8 of the Foreign Exchange Regulation Act.
The customs officers will have to enquire into these issues though the same issues will later be tried by the criminal court.
Section 127 expressly provides that the award of a penalty under section 112 is not bar to the infliction of punishment under section 135.
The offender may be punished under section 135 without prejudice to any other action that may be taken under the Act.
[424 E H] The Customs Officers were acting bona fide and discharging their statutory duties under sections 111 and 112.
The power of adjudicating penalty and confiscation under those sections is vested in them alone.
The criminal court cannot make this adjudication.
The issue of the show cause notice and proceedings thereunder were authorised by the Act and were not calculated to obstruct the course of justice in any Court.
There was no justification for holding that the proceedings amounted to contempt of Court.
[425 C] 423 Reg vs Gray, , Arthur Reginald Perera vs the King, , Saibal Kumar Gupta vs B. K. Sen, ; and section section Roy vs State of Orissa, A.I.R. , referred to.
(ii) The customs officers have a discretion to stay the proceedings under sections III and 112 during the pendency of the trial in the criminal court.
In the exercise of their discretion they had refused to stay the proceedings.
It was not shown that their action was mala fide or arbitrary.
The Court would not issue a mandamus to control this exercise of their discretion.
[425 H] (iii) The proceedings under sections 111 and 112 could not be said to be in Violation of article 20(3) of ;he Constitution.
The possibility of having to enter the witness box to rebut the evidence of an accomplice was not such a compulsion as would attract the Provisions of proceedings from another person or authority.
If an accused voluntarily gives evidence in his defence he is not being compelled to be a witness against himself.
[The Court however observed that different considerations might arise if the appellant was summoned by the customs authorities under section 108 to give evidence in the proceedings under sections III and 112.1 [426 D F]


judgement:
minal Appeal No. 134 of 1965.
Appeal by special leave from the judgment and order dated May 14, 1965 of the Patna High Court in Government Appeal No. 25 of 1962.
Nur ud din Ahmed and A. K. Nag, for the appellant.
D. P. Singh, Anil Kumar and Shivpujan Singh, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Patna High Court allowing the appeal filed by the State Government, and convicting the appellant, Mohd. Usman, under section 5 (3) (a) of the Indian (IV of 1884) hereinafter referred to as the Act and sentencing him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2,000, in default to undergo rigorous 429 imprisonment for a further period, of six months.
The High Court, however, agreed with the Magistrate that the appellant could not be held guilty under section 304A, IPC.
The High Court did not find the two other accused persons, Abdul.
Rahinan and Abdul Aziz, guilty, and State appeals against them were dismissed.
The prosecution case, in brief, is that an explosion occurred in appellant 's factory at Matkuria, PS Dhanbad, on April 28, 1960.
As a result of the explosion Kashi Bhokta, Gobardhan Bhokta and Mohan Bour died.
On that day, the appellant, who manufactures fireworks, had allowed minors (under 16 years of age), viz., Kashi Bhokta, Guhi Bhokta Gobardhan and Subhas Chamar to work in the manufacture of fireworks, thus contravening r. 16 of the Explosives Rules, 1940 hereinafter referred to as the Rules made under the Act, and had thereby committed an offence punishable under section 5 (3) (a) of the Act.
The High Court, disagreeing with the Magistrate who tried the case, held that "the three minor boys, Kashi, Guhi and Subhas, were employed and Gobardhan, in any event, was allowed to enter the premises licensed under the Rules for manufacture of explosives" in contravention of r. 16, and convicted the appellant as already stated.
Section 5(3) of the Act reads thus: "Any person contravening the rules made under this section shall be punishable (a) if he imports or manufactures any explosive in such contravention, with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both; (b) if he possesses, uses, sells or transports any explosive in such contravention with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both; and (c) in any other case, with fine which may extend.
to one thousand rupees.
" Rule 16 of the Explosives Rules provides: "16.
Children and intoxicated persons, No child under 16 years of age and no Person who is in a state of intoxication shall be employed on the loading, unloading or transport of explosives, or be employed in or allowed to enter any premises licensed under these rules.
" 430 The first question which arises is whether every breach of r. I6 falls under section 5 (3) (a), of the Act.
In our opinion, the answer is in the negative.
It will be noticed that cl.
(a) of section 5 (3) deals with a person who imports or manufactures in contravention of the; Rule, cl.
(b) deals with a person who posses uses, sells or transports any explosive in contravention of the Rules and cl.
(c) deals with contraventions of the Rules in other.
It seems to us that the scheme of this sub section is to divide the contravention of the Rules into three categories.
In the first category fall rules which person must observe while he imports or manufactures.
In other words, rules relatable to the import or manufacture.
of explosives would fall in the first category.
For example, clause 11 ' of the licence issued to the "Not more than four persons shall be allowed at any one time in any one building or tent in which the explosive is being manufactured and only persons actually employed in manufacturing or superintending manufacture shall be allowed inside the place of manufacture.
" Clause 12 of the Licence provides: "No iron or steel implements shall be used in the manufacture.
only copper gun metal or wooden tools are permissible.
" Now, if the appellant had infringed the provisions of the clauses it could be said that the contravention would fall under cl.
(a) of section 5(3).
We may mention that r. 81 provides that "no explosive shall be manufactured, possessed used or sold except under and in accordance with the conditions of a licence granted under these rules", and a breach of the, conditions would be contravention of r. 81.
But suppose the appellant had contravened clause 2 of the licence his licence is for the manufacture, possession and sale of 25 pounds of fireworks which prescribes the modes in which the explosives shall be kept in the premises, i.e. "(a) in a building, substantially constructed of brick stone or concrete or in a securely I constructed fire proof safe; or (b) in an excavation formed in solid rock or earth. he would be guilty under cl.
(b) 'of section 5(3) and not cl.
(a) of section 5(3).
Similarly, a contravention of clause 18, which provides that "all sales of explosives under this licence must be effected on the premises described on the face of the licence, and an explosive shall not be sold to 'any person under the age of 16 years" would fall under cl.
(b) of section 5 (3).
The learned counsel for the appellant contends that on the facts found by the High Court the conviction of the appellant 431 under cl.
(a) of section 5(3) cannot be sustained.
He says that there is no finding or evidence that the four minors were engaged to manufacture or were taking part in the manufacture of fireworks.
We have gone through the evidence and we find that no witness states that these minor boys were employed by the appellant to manufacture fireworks.
Subhas Chamar, P.W. 1, says that he "was working in the workshop of explosives at Matkuria owned by Usman .
We were working in the normal manner and in the same place at the time of occurrence.
" Puran Bhokta, P.W. 2, father of Kashi and Gobardhan, says that all his sons "worked in the explosive workshop of Matkuria owned by Usman.
" He does not enlighten us about the nature of work done by his sons.
Guhi Bhokta, P.W. 8, only states that "about 18 months ago, on a Thursday, I was working in the explosive shop in village Matkuria under the supervision of Rahman accused.
There is no other evidence bearing on this point.
From this evidence it cannot be definitely inferred that the four minors were actually employed in the manufacture of explosives on April 28, 1960.
In fact, there is no evidence at all that any fireworks were being manufactured that day.
It was for the prosecution to prove all the ingredients of the offence, and section 106 of the Evidence Act does not, as contended by the learned counsel for the State, absolve the prosecution from proving its case.
There is no doubt that there has been a contravention of r. 16, inasmuch as the four minors were employed in or allowed to enter the premises licensed under the Rules.
But r. 16 is, a comprehensive rule and applies to employment of minors in the premises for various purposes manufacture and sale of explosives it would also apply to employment of a minor to sweep floors and keep the premises clean.
If a minor is employed to keep clean the premises, would this contravention fall under cl.
(a) cl.
(b) or cl.
(c) of section 5(3)? It seems to us that if cl.
(a) and cl.
(b) are read widely so as to cover every activity which might take place on the premise cl.
(c) would be rendered redundant.
This is not a permissible way of reading statutes.
If will be noticed that the legislature regards an offence under cl.
(a) of section 5(3) to be more serious than one under cl.
(b) and an offence under cl.
(b) to be more serious than one under cl.
Further, the rules are many; some regulate minor matters, and if would be absurd to treat the breach of every rule to be a breach of cl.
(a) or cl.
In our opinion, if there is a breach of a rule, it has to be ascertained in each case whether the rule or part of it relates to activities mentioned in cl.
(a) of section 5(3) or cl.
(b) of section 5(3).
If it does not relate to any of the activities mentioned in cl.
(a) 432 or cl.
(b) of section 5 (3), the breach of the rule would fall under cl.
(c) of section 5 (3).
In this case the prosecution has not proved that the four minors were employed in any of the activities mentioned in cl.
(a) or cl.
(b) of section 5 (3).
Nor has it proved that any manufacture of fireworks was done on April 28, 1960.
It follows that the contravention of r. 16, on the facts found, can only come under cl.
(c) of section 5 (3).
We may mention that the learned counsel for the appellant challenged the findings of fact made by the High Court, but, in our opinion, they are not vitiated in any manner.
In the result, the appeal is partly :allowed.
The conviction is altered to one under cl.
(c) of section 5 (3) of the Act, and the.
appellant is sentenced to pay a fine of Rs. 1,000 and in default to undergo rigorous imprisonment for a period of three months.
Fine, if paid in excess, shall , be refunded.
Y.P. Appeal partly allowed.

summary/full:
The appellant, a manufacturer of fireworks was convicted under section 5 (3) of the Indian as he had allowed minors to work in the manufacture of fireworks thus contravening r. 16 of the Explosives Rules.
HELD: Clause (a) of section 5(3) deals with a person who imports or manufactures in contravention of the Rules; el.
(b) deals with a person who possesses, uses, sells or transports any explosive in contravention of the Rules; and el.
(c) deals with the contravention of the Rules in other cases.
If there is a breach of a rule, it has to be ascertained in each case whether the rule or part of it relates to activities mentioned in el.
(a) of section 5(3) or el.
(b) of section 5(3).
If it does not relate to any of the activities mentioned in el.
(a) or cl(3)(b) of section 5(3) the breach of the rule would fall under cl.
(c) of section 5(3) .
[430 A B; 431 H] In this case, though it was established that the minors were employed in or allowed to enter the premises, it was not proved that the minors were employed in any of the activities mentioned in el.
(a) or el.
(b) of section 5(3).
Nor it has been proved that any manufacture of fireworks was done on that day.
So the contravention of r. 16 on the facts found, could only be punishable under el.
(e) of section 5(3).
[432 B]


judgement:
minal Appeal No. 162 of 1965.
Appeal by special leave from the judgment and order dated January 8, 1965 of the Gujarat High Court in Criminal Appeal No. 345 of 1964.
Urmila Kapur and section P. Nayar, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Hidayatullah C.J.
This is an appeal by special leave against the judgment and order of a learned Single Judge of the High 448 Court of Gujarat, January 8, 1965, by which an order confiscating 1500 and odd bottles said to contain intoxicating liquor by the City Magistrate, 8th Court, Ahmedabad, has been set aside.
The facts of the case are as follows.
On January 9, 1963, Sub Inspector, Benot of Ahmedabad City raided a godown con sisting of two rooms in Serial No. 151010 and Survey No. 324/0.
He found several deal boxes which were opened and each box was found to contain 144 bottles packed with grass, each bottle containing 4 oz. of some liquid.
Bottles were of two kinds, one containing yellow liquid and the other a red liquid.
The bottles containing Yellow liquid were labeled 'U. D. Colon Solvek Cosmetics Bombay, 28. , and the bottles containing red liquid were labeled 'Jasmine Batch No. 3.
Solvek Cosmetics Bombay.
From these bottles, two bottles, one of each kind, were selected and were sent to the Chemical Examiner.
Baroda for test.
Before sending them, the Panchas were allowed to seal the bottles with paper slips containing the signature of panchas pasted on them for identification.
On analysis, they were found to contain alcohol and the respondent Chinubhai Gopaldas was prosecuted under section 66(b) of the Bombay Prohibition Act.
The other bottles numbering 1584 containing 6336 oz. of alleged alcohol were kept intact.
Gopal Das 's prosecution failed.
He was, acquitted by the City Magistrate, because according to him, it was not proved beyond reasonable doubt that he was in possession of these bottles on his own.
It was found 'that he possessed them as agents of a wholesale merchant.
It is in evidence however that he did not possess a permit or licence for possessing alcohol.
The Magistrate while acquitting him ordered the confiscation of the remaining bottles under section 98 of the Prohibition Act.
The State Government did not appeal against the acquittal.
Gopaldas went to the High Court 'in appeal against the order of confiscation.
The learned Single Judge of the High Court ordered return of the bottles, because according to him it was not proved that the 1500 and odd other bottles also contained intoxicants.
He therefore held that the confiscation of the bottles was illegal as no order under section 98 of the Bombay Prohibition Act could be passed.
In this appeal by the State of Gujarat it is contended that section 98 applies to the case.
That section reads as follows : "Whenever any offence punishable under this Act has been committed, (a) any intoxicant, hemp, shora, flowers, molasses, materials.
still, utensil, implement or 449 apparatus in respect of which the offence has been committed, shall be confiscated by the order of the Court.
" The short question therefore is whether it can be said that in respect of the 1500 and odd bottles, an offence punishable under the Prohibition Act had been committed.
It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought to book, but whether the offence in respect of the property has been committed or not.
There is distinction between the two.
An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted.
We may give an example.
Suppose in a house a vast quantity of contraband opium is found.
The householder may get off because the opium was found from a place which was open and had access to strangers.
He may get the benefit of doubt and be acquitted, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that , the contraband article was opium, it would be remarkable that the order should be that the opium be returned to the householder.
In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist, the obvious course would be to confiscate it to the State.
In the present case, the two bottles which were sent to the Chemical Examiner were said to contain alcohol although there was some doubt in the mind of the Magistrate as to whether there was no chance of any malpractice.
Be that as it may, there are the other bottles intact.
There is some evidence to show that they were in the original packing and were a proprietary product.
The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture.
In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination.
However an examination of random samples can be made and if they satisfy the court that the bottles contain contraband articles the bottles can be confiscated.
The order of the High Court is thus set aside, but instead of restoring the order of confiscation we order that a few bottles at random should be, analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated.
The appeal is allowed and the case is remanded as ordered.
G.C. Appeal allowed.

summary/full:
A stock of bottles apparently containing cosmetic preparations was found from the possession of the respondent.
On analysis the bottles which were taken as samples were found to contain alcohol and as the respondent did not have any licence for possessing alcohol he was Pro secuted under section 66(b) of the Bombay Prohibition Act.
The trying Magistrate acquitted him.
on the ground that he did not hold the bottles on his own but only as the agent of a wholesale dealer who acknowledged his ownership.
While acquitting the respondent the Magistrate ordered the confiscation of the remaining bottles under section 98 of the Prohibition Act.
The respondent went to the High Court against the order of confiscation.
The learned Single Judge ordered return of the bottles because according to him it was not proved that the 1500 and odd other bottles also con tained intoxicants, and therefore the order under section 98 of the Act was illegal.
The State appealed, HELD : Under section 98 what has to be seen is whether an offence under the Prohibition Act in respect of the property in question has been committed or not.
An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted.
On proof that there is a contraband article in respect of which an offence has been committed the obvious course is to confiscate, it to the State.
Therefore in the present case if the court was satisfied that the bottles contained contraband article the bottles could be confiscated.[449C E] [Order of the High Court set aside with the direction that a few bottles at random should be analysed and if contraband stuff against the prohibition act was found the whole stock should be confiscated.]