judgement:
Appeal No. 1174 of 1967.
Appeal from the judgment and order dated August 22, 1966 of the Assam & Nagaland High Court in income tax Reference No. 3 of 1966.
Jagadish Swarup, Solicitor General, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the appellant.
T. A. Ramachandran, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
The Commissioner of Income tax, Assam and Nagaland has brought these appeal by certificate.
The assessment with which we are concerned in this appeal is for the assessment year 1963 64, the relevant accounting year is the financial year 1962 63.
The assessee was the manager of a Tea Estate under the managing agency of M/s. Gillanders Arbuthnot & Co. Ltd. The said Co. had a Provident Fund scheme for its employees.
But that provident fund was not a recognised one.
The assessee retired during the previous year relevant to assessment year 1963 64 and received out of this provident fund an 439 amount of Rs. 27,948/ which represented the interest on the amount of his own contribution to the fund.
The Income tax Officer assessed this amount as the assessee 's income from other sources.
That order was confirmed in appeal by the Appellate Assistant Commissioner.
But on further appeal to the tribunal 'by the assessee, the tribunal came to the conclusion that the receipt in question being profits 'in lieu of salary ', the same was his salary as defined in section 17 of the Income tax Act, 1961 (to be hereinafter referred to as the Act); the same having not been assessed as his salary, the assessment order relating to that item of receipt was not legal.
At the instance of the Commissioner, the tribunal referred the following question of law to the High Court of Assam and Nagaland for its opinion: "Whether on the facts and circumstances of the case and having regard to the provisions of section 17 (3) (ii) of the Income tax Act, 1961 the amount Rs. 27,948/ representing the interest on the amount of the assessee 's own contributions to an unrecognised provident fund was assessable under the residuary section 56 of the said Act?" The High Court answered that question in the negative and in favour of the assessee.
While it came to the conclusion that the, receipt in question cannot be considered as salary as defined in section 17, in its view the same was exempt from payment of tax in view of section 17(3) (ii).
The Commissioner is challenging the above conclusion.
The receipt of Rs. 27,948/ is undoubtedly an income as defined by section 2(24).
The receipt of an interest on any investment is a gain made by the investor and therefore the same is "income".
The next question is whether the said income is exempt from tax or if it is not exempt under what head the same has to be brought to tax? Section 14 of the Act gives the heads of income.
They are (A) Salaries; (B) Interest on securities; (C) Income from house property; (D) Profits and gains of business or profession; (E) Capital gains and (F) Income from other sources.
The salaries are 'brought to tax under section 15 and "the income from other sources" is brought to tax under section 56.
In this appeal we are not concerned with the other heads of income The salary is defined in section 17 as including any "profits in lieu of or in addition to any salary or wages" [section 17(1)(iv)].
Subsection (3) of section 17 says : profits in lieu of salary" includes. 440 (ii) any payment. . due to or received by an assessee from an employer or a former employer or from a provident or other fund (not being an approved superannuation fund) to the extent to which it does not consist of contribution by the assessee or interest on such contributions.
" The contributions to recognised provident funds are dealt with by other provisions of the Act.
Herein we are concerned with the contribution to an unrecognised provident fund.
The learned judges of the High Court opined that the receipt by the assessee with which we are concerned is exempt from the payment of tax in view of section 17 (3) (ii).
In our opinion they were clearly in error in arriving at that conclusion.
Deductions from salaries are dealt with by section 16.
In view of section 17 ( I ) (iv), all receipts of profits in lieu of salary have to be considered as salary.
But then the question is what is meant by "profits in lieu of salary".
In defining the expression "Profits in lieu of salary", the legislature excluded from the scope of that expression any payments received by the assessee from a provident fund, his own contributions to the fund or any interest on such contributions.
From that it follows that the receipt of Rs. 27,948/ by the assessee in the relevant accounting year cannot be considered as salary though undoubtedly that is an income.
Section 17 has nothing to do either with deductions or with exemptions.
It is merely a provision defining the expression "salary".
As the income in question is not salary and the same cannot be said to be either interest on the securities; income from house pro perty; profits and gains of business or profession or capital gains.
it has to be considered as "income from other sources" and brought to tax under section 56.
Section 56 (I) provides that income of every kind which is not to be excluded from the total income under the Act shall be chargeable to income tax under the head income "from other sources" if it is not chargeable to income tax under any of the heads specified in section 1.4 items 'A ' to 'E '.
In our opinion the meaning of section 17(3) (ii) is plain and unambiguous.
Hence there is no need to call into aid any of the rules of construction as was sought to be done by the High Court.
The respondent was not represented before this Court.
We are obliged to Mr. T. A. Ramachandran for acceding to our request to appear on his behalf an amicus curiae and assist us at the time of hearing of the appeal.
441 For the reasons mentioned above we allow this appeal, dis charge the answer given by the High Court and answer the question referred to the High Court in the affirmative and in favour of the Department.
Under the circumstances of the case we make no order as to costs.

summary/full:
On the question whether an amount representing the interest on the amount of the assessee 's own contributions to an unrecognised provident fund was assessable under the residuary section 56 of the Income tax Act, 1961, HELD : The amount was liable to be assessed.
The receipt of an interest of any investment is a gain made by the investor and therefore the same is 'income '.
In view of section 17 ( 1) (iv), all receipts of profits in lieu of salary have to be considered as salary.
In defining the expression 'profits in lieu of salary ', the legislature excluded from the scope of that expression any payments received by the assessee from a provident fund, his own con tribution,; to the fund or any interest on such contributions.
Therefore this receipt cannot be considered as salary, though undoubtedly that is an income.
As the income in question is not salary and the same cannot be said to be either interest on the securities; income from house property, profits and gains of business of profession or capital gains, it has to be considered as 'income from other sources ' and brought to tax under section 56.
Section 56(1) provides that income of every kind which is not to be ex cluded from the total income under the Act shall be chargeable to Incometax under any of the heads specified in section; 14 item "A" to "E".
[43 9 C G]


judgement:
Appeal No. 646 of 1967.
Appeal by special leave from the judgment and order dated December 1, 1966 of the Allahabad High Court in Civil Revision No. 721 of 1964.
J. P. Goyal and G. section, Chatterjee, for the appellant.
V. section Desai and B. R. Agarwala, for the respondent.
The Judgment of the Court was delivered by Shah, C.J.
On October 5, 1960 the appellant agreed to do certain construction work for the respondent on the terms and conditions of a "written tender".
Clauses 12 & 13 of the tender were : "12.
In the event of any dispute, arising out of this sub contract, the parties hereto agree that the matter shall be referred to arbitration by two Arbitrators under the of 1940 and such amendments thereto as may be enacted thereafter.
Notwithstanding the place where the work under this contract is to be executed, it is mutually understood and agreed by and between the parties hereto that this Contract shall be deemed to have been entered into by the parties concerned in the City of G Bombay and the Court of law in the City of Bombay alone shall have jurisdiction to adjudicate thereon.
" Disputes arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under section 20 of the Indian 10 of 1940 that the agreement be filed and an order of reference be made to an Arbitrator or Arbitrators appointed by the Court to settle the dispute between the parties in respect of the construction works done by him.
The respondent contended that the Civil Courts in Bombay alone had because of the terms contained in cl. 13 316 jurisdiction to entertain the petition.
The Trial Judge rejected that contention observing that the condition in cl. 13 that "the contract shall be deemed to have been entered into by the parties concerned in the city of Bombay has no meaning unless the contract is actually entered into in the city of Bombay", and that there was no evidence to establish that it was entered into in the city of Bombay.
The Trial Judge concluded that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the Courts at Bombay, which they did not otherwise possess.
The High Court of Allahabad in exercise of its revisional jurisdiction set aside the order passed by the Subordinate Judge and declared that the Courts in Bombay had jurisdiction under the general law to entertain the petition, and by virtue of the covenant in the agreement the second branch of cl. 13 was applicable and binding between the parties and since the parties had agreed that the Courts in Bombay alone had jurisdiction to adjudicate upon the contract, the petition to file the arbitration agreement could not be entertained by the Courts at Varanasi.
Against the order of the High Court directing that the petition be returned for presentation to the proper Court, the, appellant has appealed to this Court with special leave.
Section 41 of the provides in so far as it is relevant : "Subject to the provisions of this Act and of rules made thereunder (a) the provisions of the Code of Civil procedure, 1908, shall apply to all proceedings before the court, and to all appeals under this Act.
" The Code of Civil Procedure in its entirety applies to proceedings under the .
The jurisdiction of the Courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure.
By cl. 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the City of Bombay.
In any event the, respondent have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts at Bombay.
It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code.
But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall 317 be tried in one of such Courts is not contrary to public policy.
Such an agreement does not contravene section 28 of the Contract Act.
Counsel for the appellant contended that merely because the respondent carried on business in Bombay the Courts at Bombay were not invested with jurisdiction to entertain any suit or a partition for filing an arbitration agreement.
Section 20 of the Code of Civil Procedure provides : "Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a,) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b). . . . . . (c) the cause of action, wholly or in part, arises. "Explanation II.
A corporation shall be deemed to carry on business at its sole or principal office in India, or, in respect of any cause of action arising at.
any place where it has also a subordinate office, at such place.
" Plainly by the terms of section 20(a) read with Explanation II, the respondent Company was liable to be sued at Bombay where it had its principal place of business.
The argument of counsel for the appellant that the expres sion "corporation" in Explanation II includes only a statutory corporation and not a company registered under the Indian Companies Act is, in our judgment, without substance.
The Code of Civil Procedure uses the expression "corporation" as meaning a legal person and includes a company registered under the Indian Companies Act.
Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code of Civil Procedure that a corporation referred to under section 20 means only a statutory corporation and not a company registered under the Indian Companies Act.
Since an application for filing an award in respect of a dispute arising out of the terms of the agreement could be filed in the Courts in the City of Bombay, both because of the terms of cl. 13 318 of the, agreement and because the respondents had their Head Office where they carry on business at Bombay, the agreement between the parties that the Courts in Bombay alone shall have jurisdiction to try the proceeding relating to arbitration was binding between them.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
On October 5, 1960 the appellant agreed to do certain construction work for the respondents company registered under the Indian Companies Act and having its principal place of business at Bombay On the terms and conditions of a written tender.
Clause 12 of the tender provided for arbitration in case of dispute.
Clause 13 provided that notwithstanding the place where the work under the contract was to be executed the contract shall be deemed to have been entered into by the parties at Bombay and the court in Bombay alone shall have jurisdiction to adjudicate thereon.
On disputes arising between the parties the appellant submitted a petition to the Court at Varanasi for an order under section 20 of the that the agreement be filed and an order of reference be made to an arbitrator or arbitrators appointed by the court.
The respondent contended that in view% of cl. 13 of the arbitration agreement only the courts at Bombay had jurisdiction.
The trial court held that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the courts of Bombay which they did not otherwise possess.
The High Court at Allahabad in exercise of its revisional jurisdiction held that the courts at Bombay had jurisdiction under the general law and hence could entertain the petition.
It further held that in view of cl. 13 of the arbitration agreement the petition could not be entertained at Varanasi.
Against the order of the High Court directing the petition to be returned for presentation to the proper court, the appellant appealed to this Court by special leave.
The question that fell for consideration were : (i) whether the courts at Bombay alone had jurisdiction over the dispute; (ii) whether Explanation 11 to section 20(a) of the Code of Civil Procedure refers only to Government corporations and not to companies registered under the.
Indian Companies Act.
HELD : (i) The Code of Civil Procedure in its entirety applies to proceedings under the by virtue of section 41 of the latter Act.
The jurisdiction of the courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure.
By the terms of section 20(a) of the Code .of
Civil Procedure read with Exp.
11th thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay.
[316 G] It is not open to the par ties by agreement to confer jurisdiction on any Court which it did not otherwise possess under the Code.
But where two courts have under the Code of Civil Procedure jurisdiction to try a suit of proceeding an agreement between the parties that the dispute between 315 them shall be tried in one of such courts is not contrary to Public Policy Such an agreement does not contravene section 28 of the Contract Act.
[316 H] Since in the present case the courts at Bombay had jurisdiction under the Code of Civil Procedure the agreement between ,the parties that the courts in Bombay alone shall have jurisdiction to try the proceedings relating to arbitration was binding between them.
[318 A] (ii) Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code to support the contention that a Corporation referred to under section 20 means only a statutory corporation and not a company registered under the Indian Companies Act.
[317 G H]


judgement:
iminal Appeal No. 171 of 1968.
479 Appeal by special leave from the judgment and order dated September 13, 1967 of the Calcutta High Court in Criminal Reference No. 36 of 1967.
D. N. Mukherjee, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Dua, J.
The appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Damodar.
This lease was for a period of three years (August 14, 1963 to August 13, 1966) : exhibit 2.
On November 30, 1964 Matiar Rahman Mandal filed a complaint against the appellant in the court of the Sadar Sub Divisional Officer (Judicial), Burdwan alleging that the appellant used to realise illegally 20 nP. per cart from the cultivators who used to drive their carts across the dry bed of the river.
The matter was reported to the S.D.O. who directed an enquiry.
This infuriated the appellant.
On November 29, 1964 the appellant realised double the amount of toll and on protest and refusal by the complainant he was threatened with violence by the appellant.
The Magistrate trying the appellant for offences under sections 23 and 24 of the Bengal Ferries Act, I of 1885 convincted him of both the offences.
The appellant was sentenced to a fine of Rs. 10/ under section 23 and to fine of Rs. 20/ under section 24 : in default of payment of fine in the former case he was to undergo simple imprisonment for ten days and in the latter for 20 days.
On the appellant challenging his conviction on revision in the Court of the Sessions Judge, the Additional Sessions Judge, Burdwan made a reference to the High Court recommending the appellant 's acquittal.
It was observed by the Additional Sessions Judge in his reference that according to the appellant 's defence the complainant 's party were in fact using the landing stage and the path constructed and repaired by him and, therefore, they were liable to pay the usual toll tax.
After reproducing section 24 he added : ".
the complainant 's case as it appears from the petition of complaint and also from the evidence of the three witnesses examined on the point, is that they do not take advantage of any of the facilities provided by the lessee and that the lessee demanded toll from them even though they were using their own path.
The defence as I have already stated, was that the pathway and the landing stage belonged to the lessee and that, therefore, he was entitled to collect toll.
Forgetting the defence for the moment, it seems to me that no conviction 480 u/s 24 can be sustained on the case of the complainant as it is." According to him the collection of money from the people using their own pathway might amount to extortion but it would not attract section 24.
We need not refer to the recommendation with respect to the appellant 's conviction under section 23 as this was accepted by the High Court and there is no appeal against acquittal under that section.
The High Court accepted the recommendation with respect to the conviction under section 23 and acquitted the appellant of that offence.
In regard to the; conviction under section 24 the High Court observed that the trial Magistrate had found (i) that the appellant had been realising toll charges in excess of the scheduled rate of 20 ps.
per cart and also realising such charges from persons who did not use the ferry and (ii) that though the complainant had not availed of the ferry and: had taken the cart over the sandy bed of the river 40 ps.
per cart were realised from him.
These findings of fact were held not open to re examination on revision.
The High Court added that realisation of 40 ps.
fell within the mischief of section 24 which forbids every lessee from realising more than lawful toll even in cases in which he is entitled to demand ferry charges.
Repelling the argument that the present was a case of extortion and it did not fall within the purview of section 24 the High Court, after referring to the complainant 's case, observed that it was a case of illegal realisation of toll in excess, when the appellant was not entitled to realise it at all and not a case of extortion under the Indian Penal Code.
The amount had been illegally demanded as a toll and that also ' in excess of permissible rate.
The reference with respect to section 24 was, as observed earlier, rejected.
The appellant has secured special leave to appeal under article 136 of the Constitution and his counsel Mr. D. N. Mukherjee has strenously contended that the realisation of 40 ps.
per cart from those who do not use the ferry can not as a matter of law fall within the mischief of section 24 of the, Bengal Ferries Act.
His contention in essence is that unless someone actually uses a ferry no charges realised from him for permitting him to cross the river, even if the demand is made by way of toll, can attract the provisions of section 24.
The contention though prima facie somewhat attractive does not stand scrutiny.
Section 24 reads as under : "Penalty for taking unauthorised tolls, and for causing delay : Every such lessee or other person as aforesaid asking or taking more than the lawful toll, or without due cause 481 delaying any person, annual, vehicle or other thing, shall be punished with fine which may extend to one hundred rupees.
" It is obvious that this section does not speak of taking toll in excess of the lawful limit only from those persons who use the ferry.
This Act was enacted for regulating ferries but that does not mean that an illegal demand, under the pretext of claim by way of toll under this Act when it is not legally claimable was not intended by the legislature to be prohibited and made punishable by the language of section 24, Shri Mukherjee drew our attention to section 5 of the Act in which "ferry" is defined to include a bridge of boats, pontoons or rafts, a swing bridge, a flying bridge, a temporary bridge and a landing stage.
According to him, this definition suggests that it is only when a ferry is used and excessive, charges realised that section 24 would be attracted.
The submission is difficult to accept.
This definition which is not exhaustive does not seem to us to control or otherwise to throw helpful light in the interpretation of section 24.
This section seems to have been designed in effect to protect the persons crossing the river against harassment and abuse of the privileged position which the lessee or other person authorised to collect the tolls of a public ferry occupies under the statute in the matter of control over the passage or pathway for crossing, fording or ferrying across the river.
Demanding or re ceiving more than lawful dues and unduly delaying persons, animals, vehicles or things.
in crossing the river are both rendered penal and punishable.
Whether the person from whom the amount is demanded or received is under no obligation to pay anything by way of toll while crossing the river bed or is bound by law only to pay 20 ps.
per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due.
In either case section 24 would seem to be attracted : this construction would serve to suppress the mischief at which this section appears to be aimed.
The question whether or not the appellant 's case falls within the mischief of extortion as defined under the Indian Penal Code is not strictly relevant to the point arising in the controversy because if the appellant 's case is covered by section 24 of the Act then he is liable to be punished thereunder.
His liability to be prosecuted under the Indian Penal Code cannot by itself in law exclude the applicability of section 24 to his case.
The Additional Sessions Judge was, in our opinion, not quite right in observing that the defence that the accused was entitled to claim the toll may be ignored, because defence of an accused person can legitimately be taken into consideration while assessing the value of the evidence and judging the guilt or innocence of the accused.
The appellant 's defence in this case would clearly tend to support the complainant 's case that the amount received was demanded as toll which was an unlawful 482 ,demand.
To exclude cases like the present from the operation of section 24 would unduly restrict its effectiveness and would indeed facilitate illegal recoveries prohibited by it.
To that extent it would defeat the object and purpose which this section is intended to achieve.
When the appellant 's counsel took us through the evidence we found that the appellant had also delayed the prosecution witnesses without due cause in crossing the river in violation of section 24.
It is, however, unnecessary to pursue this aspect.
Finally it may be pointed out that article 136 of the Constitution does not confer a right of appeal on a party.
It only confers a discretionary power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or from misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence.
The present case suffers from no such infirmity.
The appeal accordingly fails and is dismissed.
R.K.P.S. Appeal dismissed.

summary/full:
The appellant was a leaseholder in respect of tolls of a public ferry crossing the river Damodar.
The respondent filed a complaint against him alleging that the appellant used to realise illegally 20 np per cart from the cultivators who used to drive their carts across the dry bed of the river.
After hearing of the respondent 's complaint on November 29, 1964 the appellant realised double the amount of toll from the respondent.
The appellant was, thereafter convicted for offences under sections 23 and 24 of the Bengal Ferries Act, 1885.
In revision, the Additional Sessions Judge recommended acquittal of the appellant in respect of his conviction under both the provisions.
As to the conviction under section 24, according to the Additional Sessions Judge, the collection of money from the people using the river bed and not the ferry might amount to extortion under the Indian Penal Code but it would not attract the provisions of section 24.
Although the High Court accepted the recommendation with respect to the acquittal under section 23, it rejected the reference in respect of the conviction under section 24.
In the appeal to this Court by special leave, it was contended that the realisation of 40 np per cart from those who did not use the ferry could not as a matter of law fall within the mischief of s, 24.
HELD: dismissing the appeal.
Section 24 of the Bengal Ferries Act does not speak of taking toll in excess of the lawful limit only from those persons who use the ferry.
This Act was enacted for regulating ferries but that does not mean that an illegal demand under the pretext of claim by way of toll under this Act, when it is not legally claimable, was not intended by the legislature to be prohibited and made punishable by the language of section 24.
Demanding or receiving more than lawful dues and unduly delaying persons, animals, vehicles or things in crossing the river are both rendered penal and punishable.
Whether the person from whom the amount is demanded or received is under no obligation to pay anything by way of toll while crossing the river bed or is bound by law only to pay 20 ps per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due.
[181 C F] To exclude cases like the present from the operation of section 24 would unduly restrict its effectiveness and would indeed facilitate illegal recoveries prohibited by it.
To that extent it would defeat the object and purpose which this section is intended to achieve.
[182 A]


judgement:
Appeal No. 649 of 1967.
411 Appeal by special leave from the order dated May 4, 1966 of the Calcutta High Court in Income tax Reference No. 114 of 1965.
Jagadish Swarup, Solicitor General, Ram Panjwani, R. N. Sachthey and B. D. Sharma, for the appellant.
C. K. Daphtary, B. P. Maheshwari and K. R. Khaitan, for the respondent.
The Judgment of the Court was delivered by Shah, C.J.
Burlop Dealers Ltd. hereinafter referred to as 'the assessee is a limited company.
For the assessment year 1949 50 the assessee submitted a profit and loss account disclosing in the relevant year of account Rs. 1,75,875/ as profit in a joint venture from H. Manory Ltd. and claimed that Rs. 87,937/ being half the profit earned from H. Manory Ltd. was paid to Ratiram Tansukhrai under a partnership agreement.
The assessee stated that on June 5, 1948, it 'had entered into an agreement with H. Manory Ltd. to do business in plywood chests and in consideration of financing the business the assessee was to receive 50% of the profits of the business.
The assessee claimed that it had entered into an agreement on October 7, 1948, with Ratiram Tansukhrai for financing the transactions of H. Manory Ltd. in the joint venture, and had agreed to pay to Ratiram Tansukhrai 50% of the profit earned by it from the business with H. Manory Ltd. The Income tax Officer accepted the return filed by the assessee and included in computing the total income for the assessment year 1949 50 Rs. 87,937/ only as the profit earned on the joint venture with H. Manory Ltd. In the assessment year 195051 the assessee field a return also accompanied by a profit and loss account disclosing a total profit of Rs. 1,62,155/in the relevant account ear received from H. Manory Ltd., and claimed that it had transferred Rs. 81,077/ to the account of Ratiram Tansukhrai as his share.
The Income tax Officer on examination of the transactions brought the entire amount of Rs. 1,62,155/ to tax holding that the alleged agreement of October 1948 between the assessee and Ratiram Tansukhrai had merely been "got up as a device to reduce the profits, received from H. Manory Ltd.".
This order was confirmed by the Appellate Assistant Commissioner and by the Income tax Appellate Tribunal.
The Tribunal then stated a case under section 66(1) of the Income tax Act to the High Court of Calcutta.
The High Court agreed with the view of the Tribunal and answered the question against the assessee.
412 In the meanwhile on May 13, 1955, the Income tax Officer issued a notice under section 34 to the assessee for the assessment year 1949 50 to re open the assessment and to assess the amount of Rs. 87,937/ allowed in the assessment of income tax as paid to Ratiram Tansukhrai.
The assessee filed a return which did not include the amount paid to Ratiram Tansukhrai.
The Income tax Officer re assessed the income under section 34(1) (a) and added Rs. 87,937/ to the income returned by the assessee in the assessment year 1949 50.
The Appellate Assistant Commissioner held that the Income tax Officer was entitled to take action under section 34(1) (a) of the Income tax Act 1922 after the ,amendment in 1948, and to re open the assessment if income had been under assessed owing to the failure cf the assessee to disclose fully and truly all material facts necessary for the assessment.
He confirmed the order observing that the assessee had misled the Income tax Officer into believing that there was a genuine arrangement with Ratiram Tansukhrai and had stated in the profit and loss account that the amount paid to Ratiram Tansukhrai was the share of the latter in the partnership, whereas no much share was payable to Ratiram Tansukhrai.
In appeal against the order of the Appellate Assistant Com missioner the Income tax Appellate Tribunal held that the assessee had produced all the relevant accounts and documents necessary for completing the assessment, and the assessee was under no obligation to inform the Income tax Officer about the true nature of the transactions.
The tribunal on that view reversed the order of the Appellate Assistant Commissioner and directed that the amount of Rs. 87,937/ be excluded from the total income of the assessee for the year 1949 50.
An application under section 66(1) of the Indian Income tax Act for stating a case to the High Court was rejected by the Tribunal.
A petition to the High Court of Calcutta under section 66(2) for ,directing the Tribunal to submit a statement of the case was also ,rejected.
The Commissioner has appealed to this Court.
Section 34(1) of the Indian Income tax Act, 1922, as it stood in the assessment year 1949 50 provided: "If (a) the Income tax Officer has reason to elieve that by reason of the omission or failure on the part of an assessee to make a return of income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains 413 chargeable to income tax have escaped assessement for that year, or have been under assessed.
(b) notwithstanding that there has.
been no omission or failure as mentioned in clause (a) on the part of the assessee, the income tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to Income tax have escaped assessment for any year, or have been under assessed.
he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee, a notice containing all or any of the requirements which may be included in a notice under sub section(2) of section 22, and may proceed to assess or re assess such income, profits or gains" The Income tax Officer had in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe, that income chargeable to tax had escaped assessment.
Such a case would appropriately fall under section 34(1)(b).
But the period prescribed for serving a notice under section 34(1) (b) had elapsed.
Under section 34 (1 )(a) the Income tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year, income chargeable to tax had escaped assessment.
As observed by this Court in Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta and another(1).
"The words used are "omission or failure to disclose fully and truly all material facts necessary for his assessment for that year".
It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment.
What facts 'are material and necessary for assessment will differ from case to case.
In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion.
From the primary facts (1) 41 ; , 200. 414 in his possession whether on disclosure by the assessee, or discovered by him on the basis of the facts disclose, or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable".
We are of the view that under section 34(1) (a) if the assessee has disclosed primary facts relevant to the assessment, he is under no ,obligation to instruct the Income tax Officer about the inference which the Income tax Officer may raise from those facts.
The terms of the Explanation to section 34(1) also do not impose a more onerous obligation.
Mere production of the books of account or other evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the meaning of section 34(1), but where on the evidence and the materials produced the Income tax Officer could 'have reached a conclusion other than one which he has reached, a proceeding under section 34(1) (a) will not lie merely on the ground that the Income tax Officer has raised an inference which he may later regard as erroneous.
The assessee had disclosed his books of account and evidence from which material facts could be discovered : it was under no obligation to inform the Income tax Officer about the possible inferences which may be raised against him.
It was for the Income tax Officer to raise such an inference and if he did not do so the income which has escaped assessment cannot be brought to lay under section 34(1) (a).
The appeal fails and is dismissed with costs.
K.B.N. Appeal dismissed.

summary/full:
For the assessment year 1949 50 the assessee submitted a profit and loss account disclosing a certain amount as profit in a joint venture and claimed that half of this profit was paid to R under a partnership agreement.
The Income tax Officer accepted the return and included only half of the profit in the joint venture in computing the assessee 's total income.
In the next assessment year the assessee filed a return accompanied by a profit and loss account and claimed that it had transferred half the profit to R as his share.
But the Income tax Officer on examination of the transactions brought the entire amount of profit in the joint venture to tax, holding that the partnership agreement was got up a devise to reduce the profits received from the joint venture.
This order was confirmed by the Tribunal and the High Court.
Meanwhile, the Income tax Officer issued a notice under section 34 of the Income tax Act, 1922 to reopen the assessment for the assessment year 1949 50 and to assess the amount allowed in that assessment as paid to R. The Income tax Officer re assessed the income under section 34(1) (a) and added that amount to the income returned by the assessee in the assessment year 1949 50.
The Appellate Assistant Commissioner confirmed that order but the Tribunal reversed.
The High Court, on reference, answered in favour of the assessee.
Dismissing the appeal by the Revenue, HELD : Under section 34(1) (a,), if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income tax Officer about the inference which the Income tax Officer may raise 'from these facts.
The terms of the Explanation to section 34(1) also do not impose a more onerous obligation.
Mere production of the books of account or other evidence from which material facts could with due diligence, have been discovered does not necessarily amount to disclosure within the meaning of section 34(1); but where on the evidence and the materials produced the Income tax Officer could have reached a conclusion other than the one which he has reached, a proceeding under section 34(1) (a) will not lie merely on the ground that the Income tax Officer has raised an inference which he may later regard as erroneous.
The assessee had disclosed his books of account and evidence from which material facts could be discovered.
It was 'for the Income tax Officer to raise the necessary inference and if he did not do so the income which has escaped assessment cannot be brought to tax under section 34(1) (a).
[413 C] Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta & Anr. , 200, referred to.


judgement:
Appeal No. 1223 of 1967.
Appeal from the judgment and decree dated March 5, 1964 of the Allahabad High Court in Income tax Reference No. 71 of 1959.
section K. Mitra, B. B. Ahuja, R. N. Sachthey and B. D. Sharma, for the appellant.
Ram Lal and A. T. M. Sampat, for the respondent.
The Judgment of the Court was delivered by Shah, C.J.
The respondent who is the Karta of a Hindu Un divided Family entered on behalf of the family into a partnership with one Devi Sharan Garg to carry on the business of 407 manufacturing and selling pharmaceutical products and literature relating thereto.
On July 27, 1946 the partnership was dissolved .
The assets of the firm which included goodwill, Machinery, furniture, medicines, library and copyright in respect of certain publications were valued at the date of dissolution at Rs. 2,50,000/ .
The respondent was paid a sum of Rs. 1,25,000/ in lieu of his share and the business together with the goodwill was taken over by Devi Sharan Garg.
In proceedings for assessment of the respondent for the year 1947 48 the Income tax Officer sought to bring an amount of Rs. 70,000/ to tax as capital gains.
The contention raised by the respondent that no part of the amount of Rs. 1,25,000/received by the respondent represented capital gains was rejected by the Income tax Officer, Appellate Assistant Commissioner and the Income tax Appellate Tribunal.
The Tribunal however reduced the amounts capital gains brought to tax to Rs. 65,000/ .
The Tribunal referred the following question to the High Court of Allahabad under section 66(1) of the Indian Income tax Act, 1922 "Whether on a true interpretation of sub section (1) of section 12 B of the Income tax Act, the sum of Rs. 65,000/ has been correctly taxed as capital gains".
The High Court answered the question in the negative.
Against that order, with certificate granted by the High, Court, this appeal has been preferred.
Section 12 B(1), insofar as it is relevant provides "The tax shall be payable by an assessee under the head "Capital gains" in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946 .
and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place Provided.
Provided further.
Provided further that any transfer of capital assets . .
on the dissolution of a firm or other association of persons. . . shall not for the purposes of this section, be treated as sale, exchange or transfer of the capital assets; 408 Liability to pay capital gains arises under section 12 B(1) if there be a sale, exchange or transfer of capital assets.
There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Sharan Garg.
Nor did he transfer his share in the capital assets.
The assets of the firm included the goodwill, machinery, furniture, medicines library and the copyright in respect of certain publications.
A large majority of the assets were incapable of physical division, and the partners agreed that the assets be taken over by Devi Sharan Garg at a valuation, and the respondent be paid his share of the value in money.
Such an arrangement, in our judgment, amounted to a distribution of the assets of the firm on dissolution.
There is no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs.
In the course of dissolution the assets of a firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying the money value equivalent thereof.
This is a recognized method of making up the accounts of a dissolved firm.
In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm.
The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange or transfer his share in the assets of the firm.
Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not in consequence of any sale exchange or transfer of assets.
To persuade us to take a different view, reliance was placed on behalf of the Revenue upon James Anderson vs Commissioner of Income tax Bombay City(1).
In that case the assessee held a power of attorney from the executor of a deceased person, in the course of the administration of his estate.
He sold certain shares and securities belonging to the deceased for distribution among the legatees.
The excess realized by sale was treated by the Income tax Department as Capital gains.
The contention of the assessee that since the sale of the shares and securities fell within the purview of the third proviso to section 12 B (1) it could not be treated as a sale of capital assets within the meaning of section 12 B(1) was rejected by this Court.
This Court observed that the object of the third proviso to section 12 B(1), in providing that "any distribution of capital assets under a will" shall not be treated as sale, exchange or transfer of capital assets for the purpose of section 12 B was that as long as there was distribution of capital assets in specie and no sale, there was no transfer for the purposes of that section, but if, there was a sale of the capital assets and profits or gains arose therefrom, the liability to tax (1) 409 arose, whether the sale was by the administrator or executor or a legatee, and that the expression "distribution of capital assets" in the third proviso to section 12 B(1) meant distribution in specie and not distribution of sale proceeds.
That case has no application.
There was no distribution of capital assets between the legatees : the assessee had pursuant to the authority reserved to him from the executor of the deceased person sold the shares and securities, and from the sale of shares and securities capital gains resulted.
In the case in hand there is no sale and payment of price, but payment of the value of share under an arrangement for dissolution of the partnership and distribution the assets.
The rights of the parties were adjusted by handing over to one of the partners the entire assets and to the other partner the money value of his share.
Such a transaction is not in our judgment a sale, exchange or transfer of assets of the firm.
In Commissioner of Income tax, Madhya Pradesh, Nagpur & Bhandara vs Dewas Cine Corporation(1) in dealing with the meaning of the expressions "Sale" and "sold" as used in section (10) (2) (vii) of the Income tax Act, 1922, this Court observed that the expression "sale" in its ordinary meaning is a transfer of property for a price, and adjustment of the rights of the partners in a dissolved firm by allotment of its assets is not a transfer for a price.
In that case the assets were distributed among the partners and it was contended that the assets must in law be deemed to be sold by the partners to the individual partners in consideration of their respective shares, and the difference between the written down value and the price realised should be included in the total income of the partnership under the second proviso to section 10(2) (vii).
This Court observed that a partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a family in satisfaction of his claim to his share, cannot be deemed in law to be sold to him.
We therefore agree with the High Court that the question referred must be answered in the negative.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The respondent who was the karta of his Hindu undivided family entered into partnership with one D to carry on the business of manufacturing and selling pharmaceutical products etc.
On July 27, 1946 the partnership was dissolved.
The assets of the firm which included goodwill, machinery, furniture etc. were valued on the date of dissolution at Rs. 2,50,000 and the respondent was paid the sum of Rs. 1,25,000 in lieu of his share and the business together with the goodwill was taken over by D.
The question in income tax proceedings was whether the transaction was one of sale liable to capital gains tax under section 12B(1) of the Income tax Act.
The assessing and appellate authorities held against the respondent.
The High Court in reference, however, held in his favour.
The revenue appealed.
HELD : There was no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs.
In the course of dissolution the assets of the firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying money value equivalent thereof.
This is a recognised method of making up the accounts of the dissolved firm.
In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm.
The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange on transfer his share in the assets of the firm.
Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not consequence of any sale, exchange or transfer of assets.
[408 C E] James Anderson vs Commissioner of Income tax, Bombay City, and Commissioner of Income tax, Madhya Pradesh and Nagpur & Bhandara vs Dewas Cine Corporation, 68 I.T.R. 240, distinguished.


judgement:
minal Appeal No. 162 of 1967.
Appeal by special leave from the judgment and order dated May 3, 1967 of the Patna High Court in Criminal Appeal No. 40 of 1965.
840 E. C. Agrawala, for the appellants.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
This appeal by special leave is directed against the decision of single judge of the High Court of Judicature at Patna setting aside the acquittal of the appellants and convicting them under sections 379/149, I.P.C. as well as under section 143, I.P.C. The appellants were prosecuted before the Munsiff Magistrate, 1st Class, Arrah for dishonestly cutting and removing the paddy crop in plots Nos. 340 and 346 pertaining to khata No. 82 in village Ibrahim Nagar District Shahbad.
The complainant 's case is that those lands belonged to him and the appellants unlawfully trespassed into that property on November 19, 1961 and harvested the rice crop.
The appellants pleaded not guilty to the charge.
The learned trial magistrate held the appellants guilty and convicted them as mentioned earlier.
In appeal the learned District Judge, Shahbad acquitted the appellants.
He felt unable to rely on the prosecution case for three different reasons.
Firstly he came to the conclusion that the witnesses who spoke about the occurrence are all interested witnesses and it is unsafe to place reliance on their testimony.
He secondly came to the conclusion that there was considerablE delay in filing the complaint and the delay in question has not been explained by the prosecution and that circumstance throws doubt on the prosecution case.
Lastly he held that the non examination of the police inspector who is said to have come to the place of occurrence at the time of the occurrence and seen some of the appellants ' harvesting the crop casts further doubt on the prosecution case.
The High Court differing from the 1st appellate court held that there was no delay in filing the complaint nor was the non examination of the police inspector a circumstance that went against the prosecution.
It did not deal with the finding of the 1st appellate court that it is unsafe to place reliance on the evidence of P.W.s. 1 to 4 as they were interested witnesses.
It is true that the powers of the High Court in considering the evidence on record in appeals under section 417, Cr.
P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal.
It must also bear in mind the fact that the appellate judge had found them not guilty.
Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions.
If two 841 reasonable conclusions can be reached on the basic of the evidence on record then the view in support of the acquittal of the accused should be preferred.
The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to, interfere with the order of acquittal.
The learned appellate judge has come to the conclusion that P.Ws. 1 to 4 are interested witnesses and it is unsafe to place reliance on their testimony.
It is established in evidence that P.Ws. 1 to 3 are interested witnesses.
They are the enemies of the appellants.
This aspect of the case was not considered by the High, Court at all.
The occurrence Is said to have taken place on November 19, 1961 but the complaint in respect of the same was filed on November 27, 1961.
The explanation given by the complainant for this inordinate delay was that he laid information about the occurrence before the police on the date of the occurrence itself; he was.
expecting the police to take up the investigation; as the police did not take up the investigation, he filed the complaint on 27th November, 1961.
This explanation has been rejected by the 1st appellate court.
The complaint said to have been filed by the complainant has not been summoned nor proved.
No satisfactory proof of any such complaint has been adduced before the court.
If a complaint tinder section 154 had been filed, the same would have been registered and a final report under section 173 submitted.
None of those documents have been summoned much less proved.
Curiously enough, the learned judge of the High Court says that if the learned Sessions Judge had looked into the diary of the magistrate, he would have found reference to the complaint filed by the complainant.
In this Court we requested the Counsel for the State to look into the original records and inform us whether there is any reference to a complaint filed by the complainant.
After examining the records, he told us that there is no such reference.
We do not know how the learned judge formed the impression that there was some reference in some record about the information laid before the police.
In fact in this Court Counsel for the State told us that what had happened was that before the occurrence, the com plainant appears to have filed an application before the police mentioning that there was an apprehension of breach of peace.
The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution story.
It was the duty of the prosecution to explain the delay satisfactorily.
Failure of the prosecution to do so undoubtedly is a circumstance of considerable importance.
According to the complainant, as the appellants were reaping the crop the Police Inspector happened to come there and that he 842 had seen some of the appellants harvesting the crop.
If that be so the Inspector of Police would have been an extremely important witness.
His evidence would have been useful in determining the guilt of the accused.
He is a disinterested person.
No explanation was given for not examining him.
Strangely enough the learned Judge of the High Court opined that there was no purpose in examining the inspector when he had failed to investigate the complaint made before him.
As seen earlier, the alleged complaint appears to be an imaginary one.
Therefore the inference that the inspector of police was guilty of dereliction of duty was unwarranted.
In view of our above conclusion, it is unnecessary for us to consider the question of law canvassed by Mr. E. C. A agarwal, learned Counsel for the appellant.
But as the same has been argued we shall go into it.
The appeal before the High Court was brought after obtaining special leave under sub section
(3) of section 417, Cr.
It appears that during the pendency of the appeal, the complainant died.
It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the complainant.
This contention was rejected by the High Court.
In support of that contention, Counsel for the appellant relied on two decisions one of Allahabad High Court in Nehal Ahmad vs Ramji(1) and the other of Madras High Court in Thothan and anr.
vs Murugan and ors.(2) The first decision has no application to the facts of the present case.
That was an appeal under section 476 (B) of the, Cr.
It is true that the Madras decision was rendered in an appeal under section 417(3) of the Cr.
In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under section 417(3), Cr.
P.C. abates on the death of the complainant.
The question of abatement of criminal appeals is dealt with by section 431 of Criminal Procedure Code.
That section reads "Every appeal under section 41 1 A, sub section 1 ) or section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appel lant.
" From this section it is clear that an appeal under section 417 can only abate on the death of the accused and not otherwise.
Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it (1) A.I.R. 1925 All.
(2) A.I.R. 1958 Mad 624.
843 or unable to prosecute it for one reason or the other.
The argument that while introducing sub section
(3) into section 417, Cr.
P.C., the Parliament overlooked the provisions.
contained in section 43 1, does not deserve consideration.
The language of section 431 is plain and unambiguous.
Therefore no question of interpretation of that provision arises.
In view of our finding on the merits of the case, we allow this appeal, set aside the judgment of the learned single judge of the High Court and restore that of the Sessions Judge.
The appellants on bail.
Their bail bonds do stand cancelled.
V.P.S. Appeal allowed.

summary/full:
The appellants were prosecuted for dishonestly cutting and removing the paddy crop of the complainant.
The complaint was filed 8 days after, the incident.
The trial court convicted them.
The appellate court acquitted them on the grounds.
: (1) that the prosecution witnesses were unreliable; (2) that there was considerable delay in filing the comPlaint for which no explanation was given; and (3) the Inspector of Police who was alleged to have been an eye witness of the occurrence was not examined.
The complainant filed an appeal to the High Court under s.417(3) Cr.
During the pendency of the appeal the complainant died.
The High Court set aside the acquittal and convicted the appellants.
In appeal to this Court, HELD : (i) The question of abatement of criminal appeals is., dealt with by s.431 Cr. P.C., and according to that section an appeal under s.417 can only abate on the death of the accused and not otherwise.
Therefore, once the appeal against acquittal is entertained by the High Court, it becomes its duty to decide it on merits even though the com plainant died.
[842 G H] Thothan vs Murugan, A.I.R. 1958 Mad. 624, overruled.
(ii) Unless the conclusion that the accused were not guilty, reached by the first appellate court, was palpably wrong, or was based on an erroneous view of the law or that the decision was likely to result in grave injustice, the High Court should be reluctant to interfere with that conclusion.
If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred.
[840 H, 841 A] (iii) In the present case, the prosecution witnesses were obviously , interested witnesses being the enemies of the accused, and the explanations given by the complainant for the delay in filing the complaint and the non examination of the Inspector of Police were false, therefore, the High Court erred in interfering with the order of acquittal.
[841 B C]


judgement:
iminal Appeal No. 137 of 1970.
Appeal by special leave from the judgment and order dated February 6, 1970 of the Calcutta High Court in Criminal Appeal No. 5 of 1964.
O. P. Rana, for the appellant.
section P. Mitra and Sukumar Basu, for the respondent.
The Judgment of the Court was delivered by Sikri, C.J.
In this case special leave was limited to the question of sentence only The relevant facts for determining this point are as follows : The appellant, Vivian Rodrick, was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having been committed to stand his trial by the Presidency Magistrate as early as July 31, 1963.
The substance of the charges against the appellant were as follows : 547 (i) that on January 13, 1963 the appellant was a member of an unlawful assembly guilty of rioting, being armed with deadly weapons and as such punishable under section 148, I.P.C.; (ii)that on January 13, 1963 the appellant committed the murder of one Vincent D 'Rozaric and thereby committed an offence punishable under section 302, I.P.C.; and (iii)that on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under section 5 of the Explosive Substances Act.
Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and ,convicted under section 302 read with section 149, and also under section 148, I.P.C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge convicted the appellant under section 302, I.P.C., and sentenced him to death.
At the trial the appellant was also convicted for offences under section 148, I.P.C., and section 5 of the Explosive Substances Act, and sentenced to, rigorous imprisonment for two years and three years respectively.
The terms of imprisonment were directed to run concurrently.
The appellant filed a petition of appeal under section 411A, Cr.
P.C., on September 7, 1964, challenging his conviction and the sentences imposed on him.
The High Court, by its judgment dated September 19, 1967 in Criminal Appeal No. 5 of 1964, confirmed the conviction and sentences imposed on the appellant.
In considering the question of sentence the High Court observed that "the murder was a premeditated and cold blooded one.
There was not the slightest provocation from the side of the deceased.
This is undoubtedly a fit case for capital punishment.
No question of showing any leniency on the ground of tenderness of age arises as the appellant is now aged about 35 years.
" It was urged before the High Court that the sentence of death should be reduced to rigorous imprisonment for life on account of the long delay that had taken place in hearing the appeal.
Although the High Court regretted the delay and the consequent mental suffering undergone by the condemned prisoner, it felt that the "delay in executing the death sentence was not by itself a sufficient ground for which the court should exercise its jurisdiction to commute the death sentence to one of imprisonment for life.
" The appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same 548 was refused on January 8, 1968.
Having obtained special leave, the appellant filed an appeal to this Court (Criminal Appeal No. 190 of 1968).
By its judgment dated April 30, 1969, this Court set aside the the judgment and order of the High Court, dated September 19, 1967, and remanded the appeal to the High Court for fresh disposal and hearing in accordance with law and in the light of the observations contained in this Court 's judgment.
This Court in its judgment in Cr.
No. 190 of 1968 observed, regarding the four other co accused, as follows "Though the conviction was for an offence under section 302 read with section 149, I.P.C., curiously they were sentenced to varying terms of imprisonment, and none of them challenged their conviction in appeals.
" On remand the appeal was again dismissed by the High Court on February 6, 1970.
Chakrabarti, J., with Whom Amaresh Chandra Roy, J., agreed, again considered the question of Sentence and held that although there had been a delay of more than five years in executing the death sentence that was not by its, If sufficient ground for commuting the death sentence.
The High Court referred to Nawab Singh vs The State of Uttar Pradesh(") and Piare Dusadh vs King EMperor(2).
As the High Court did not find any extenuating circumstances whatsoever that 'would .justify its taking a lenient view in the matter, it left to the State Government to take a decision as to whether it should, on account of inordinate delay in executing the sentence, exercise its powers under section 402, Cr.
The learned counsel for the appellant contends that the matter should not have been left to the State Government.
In Nawab Singh vs The State of Uttar Pradesh("), which has been referred to by the High Court in its judgment dated February 6, 1970, it is observed "It is true that in proper cases an inordinate delay in the execution of the death sentence may be regarded as a ground for commuting it, but we desire to point out that this is no rule of law and is a matter primarily for consideration of the local Government.
If the Court has to exercise a discretion in such matter, the other facts of such case would have to be taken into consideration.
In the case before us, we find that the murder was a cruel and deliberate one and there was no extenuatin circumstance whatsoever which would justify using ordering a commutation of the death sentence.
" (1) A.I.R. 1954 S.C. 278.
(2) 549 It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under section 302.
Section 302, I.P.C., prescribes two alternate sentences, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence.
In this particular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964.
It is now January 1971, and the appellant has been ' for more than six years under the fear of sentence of death.
This must have caused him unimaginable mental agony.
In our opinion it would be inhuman to make him suffer till the Government decides the matter on a mercy petition.
We consider that this is now a fit case for awarding the sentence of imprisonment for life.
Accordingly we accept the appeal, set aside the order of the High Court awarding death sentence and award a sentence of imprisonment for life.
The sentences under section 148, I.P.C., and section 5 of the Explosive Substances Act and under section 302, I.P.C., shall run concurrently.
V.P.S. Sentence modified.

summary/full:
The accused was committed to trial in July 1963 and was convicted and sentenced to death on September 4, 1964.
The appeal to the High Court under section 411A, Cr.
P.C., was finally dismissed on February 6, 1970.
The High Court left it to the State Government whether it should reduce the sentence on account of inordinate delay.
In appeal to this Court on the question of sentence, HELD : Section 302, I.P.C., prescribes two alternate sentences, namely, death sentence or imprisonment for life.
When there has been inordinate delay in the disposal of the appeal by the High Court, it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence.
[549 A B] In the present case, the appellant has been for 6 years under the fear of sentence of death, which must have caused him unimaginable mental agony.
In view of the excessive delay it is a fit case for awarding the lesser sentence instead of leaving it to the Government to decide the matter on a mercy petition.
[549 B D] Nawab Singh vs State of U.P., A.I.R. 1954 S.C. 278, referred to.