judgement:
Appeal No. 2 of 1954.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated the 10th September, 1953, of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 123 of 1953.
M. C. Setalvad, Attorney General for India (P. P. Naik and I. N. Shroff, with him) for the appellant.
M. K. Nambiar (Rajinder Narain, with him) for the respondent.
B. Sen and P. K. Bose for the Intervener (State of West Bengal).
May 13.
The circumstances under which the above Resolution came to be adopted may be briefly mentioned.
Consequent on the war, there was a phenomenal rise in the price of foodstuffs and of other essential commodities, and among the persons worst hit by it were the Government servants.
As a measure of relief to them, the Central and the Provincial Governments sanctioned a grant of grain allowances to them under various Resolutions passed in 1940.
The scheme adopted by the Central Government was that its employees stationed in various Provinces received the same benefit as the respective Provincial Government employees.
But this scheme was found to be unsuitable for employees of the Central Government, as the allowances granted by the Provincial Governments were not uniform.
On 10th May, 1946, the Central Government appointed a Central Pay Commission, hereinafter referred to as the Commission, to enquire into and 601 report on the conditions of service of its employees with particular reference to I 'the structure of their pay scales 'and standards of remuneration with the object of achieving a rationalisation, simplification and uniformity to the fullest degree possible.
" The Commission, which was presided over by Sir section Varadachariar, recommended by its report dated 3rd May, 1947, the grant of dearness allowance on a specified scale.
On 27th May, 1947, the Government of Central Provinces and Berar appointed a Pay Committee, hereinafter referred to as the Committee, "to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government, so far as Government servants under its rule making control are concerned." By its report dated 22nd June, 1948, the Committee recommended the grant of dearness allowance on a scale which, though practically identical with that adopted by the Commission in respect of salaries above Rs. 400 per mensem, was less than it as regards salaries of Rs. 400 per mensem or less.
These recommendations were accepted by the Government by its Resolution dated 16th September, 1948.
This difference in the result between the two scales not unnaturally caused considerable dissatisfaction among the employees concerned, and after unsuccessful attempts to get redress on the executive side, they filed through their representative, the respondent, the present application under article 226 of the Constitution.
In the petition it was alleged that "the State Government should have uniformly adopted the Government of India rates for all its servants and the discrimination in making the two fold slab and accepting the Government of India rates for one slab, i.e., for servants receiving salary over Rs. 400, and not accepting them in respect of the other slab, i.e., of servants drawing below Rs. 400, is highly discri minatory," that "the State Government servant has a right to be treated equally with the Central Government servant similarly situated," and that "every servant has these fundamental and natural rights and 77 602 the petitioner and the members of the Ministerial Services Associations have a right to demand from the respondent the Dearness Allowance at the Government of India rates.
" The petitioner then prayed: "That declaring that all ministerial servants are entitled to the Government of India rates of Dearness Allowance or in any case adequate Dearness Allowance, the State Government should be directed by a writ of mandamus or by any other suitable writ or direction to cancel the discriminatory rules of Dearness Allowance and adopt the Government of India rates to all servants without discrimination or in any case, to provide with adequate rates of Dearness Allowance sufficient to provide reasonable subsistence for them." The Government contested the petition on the grounds, firstly, that the claim for dearness allowance was not justiciable, and secondly, that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did not violate article 14.
The learned Judges (Sinha C.J. and Bhutt J.) held that under the rules dearness allowance was placed on the same footing as pay, and that the claim relating thereto was therefore justiciable; and that the differentiation made between the employees of the Central Government and of the State Government in the matter of the grant of dearness allowance rested on "no intelligible and reasonable basis," and that the Resolution dated 16th September, 1948, was therefore bad.
They accordingly issued a direction to the State Government that they do reconsider the question of dearness allowance payable to the employees concerned.
It is against this judgment that the present appeal has been preferred by the State Government on a certificate granted under article 132(1) of the Constitution.
It is argued on behalf of the appellant firstly that grant of dearness allowance is a matter ex gratia and not justiciable, and that neither a writ of mandamus nor any direction could be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is not hit by article 14 of the Constitution.
In our opinion, both these contention are well founded 603 On the first question, Rule 44 of the Fundamental Rules runs as follow: "Subject to any restrictions which the Secretary of State in Council may by order impose upon the powers of the Governor General in Council or the Governor in Council, as the case may be, and to the general rule that the amount of a compensatory allowance should be so regulated that the allowance is not on the whole a source of profit to the recipient, a Local Government may grant such allowance to any Government servant under its control and may make rules prescribing their amounts and the conditions under which they may be drawn.
" Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much.
That being so, the prayer for mandamus is clearly misconceived, as that could be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent.
Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance; it imposes no duty on the State to grant it.
It merely confers a power on the State to grant compassionate allowance at its own discretion, and no mandamus can issue to compel the exercise of such a power.
Nor, indeed, could any other writ or direction be issued in respect of it, as there is no right in the applicant which is capable of being protected or enforced.
The learned Judges of the High Court relied on certain rules which put dearness allowance on the, same footing as pay for certain purposes, and held on the authority of the decision in The Punjab Province vs pandit Tara Chand(1) that the present claim was justiciable.
But The Punjab Province vs Pandit Tara Chand was an action for recovery of arrears of salary, land it was held that under the law of this country which differed in this respect from that of England, arrears of salary were a debt due by the Government, that they could be attached in execution of a decree under section 60, Civil Procedure Code, as a debt, and that on that basis an action to recover the same was (1) 604 maintainable.
This decision was quite recently approved by this Court in State of Bihar vs Abdul Majid(1), wherein it was pointed out that salary was not in the nature of a bounty, and that whatever was recoverable by a Petition of Rights in England could be recovered by action in this country.
This question may therefore now be taken to be settled beyond controversy.
But we are not concerned in the present proceedings with any debt payable by the Government.
The claim is not to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto.
The claim now put forward its to compel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and not a matter of right.
In England, no petition of right will lie in respect of such a claim.
The position is thus stated in Halsbury 's Laws of England, Volume IX, page 688, Note (s) @: " It is erroneous to suppose that a petition of right will lie for matters which are of grace and not of right.
[De Bode (Baron) vs R.(2).]" That is also the law in this country where an action is a substitute for a petition of right.
In the result, we must hold that the matters raised in the petition are not justiciable.
Mr. Nambiar, the learned counsel for the respondent, did not dispute the correctness of this position.
But he argued that when once the Government passed 'a Resolution fixing a scale of allowance under Rule 44, that would be law as defined in article 13(3)(a) of the Constitution, and if that law infringed, article 14, it could be declared void.
That is a contention which is clearly open to him, and the question therefore that falls to be decided is whether the Resolution dated 26th September, 1948, is bad as infringing article 14.
Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance if; to I be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction (1) ; (2) 13 Q. B 364 exhibit Ch.
at P 387 605 of the rate from the lowest to the highest category.
No contention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article 14.
Secondly, within any given slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for residents in the cities of Nagpur and Jubbulpore, which again has not been attacked as discriminatory.
These being the features of the scheme, there can be no room for the contention that it has made any discrimination.
Mr. Nambiar does, not contend that there is anything in the scheme or in the Resolution adopting it, which bring s it within the prohibition enacted in article 14.
His contention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of.
over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates fixed by the Commission, and, instead, adopted different and lower rates, and that this was discrimination hit by article 14.
In other words, the impugned Resolution, though valid in itself as not infringing article 14, becomes void under that provision when it is taken in conjunction with the report of the Commission.
We do not find anything in article 14 which supports this somewhat startling contention.
Under the Constitution, the Union and the States are distinct entities, each having its own executive and Legislature, with their powers well defined.
Article 12 defines "the State" as including the Government and the Legislature of each of the States.
Article 13(2) enacts that the State shall not make any laws taking away, or abridging the rights conferred by Part III, and article 14 enacts that, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
" On these provisions, the position is that when a law is impugned under article 13, what the Court has to 606 decide is whether that law contravenes any of the provisions of Part III.
If it decides that it does, it has to declare it void; if it decides that it does not, it has to uphold it.
The power of the Court to declare a law void under article 13 has to be exercised with reference to the specific legislation which is impugned.
It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination.
But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different Legislatures.
Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments.
The sources of authority for the two statutes being different, article 14 can have no application.
The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14.
It may no doubt ,sound hard that Government servants doing work of a similar kind and working, it may be, even in the same place, should receive different allowances; but the rights of the parties have to be decided on legal considerations, and it is impossible to hold that the Resolution in question is bad under article 14.
It was argued on behalf of the appellant that the assumption underlying the argument of the respondent with reference to article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation.
In the view we have taken on the applicability of article 14, this question has no practical importance; but as 607 all the materials have been placed before us, we may briefly express our opinion thereon.
In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance.
In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were not including it in fixing the dearness allowance.
In paragraph 31, they observed that unlike the Commission they were taking into consideration the financial resources of the State in fixing the scale.
Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance; and if the two schemes produced the same results at some stages, that was due to coincidence and not to adoption of the report of the Commission by the 'Committee.
Mr. Nambiar also referred us to two Resolutions of the appellant dated 4th January, 195 1, and 6th October, 195 1, adopting the scale fixed by the Commission in respect of certain other categories.
That has no bearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination.
The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint; and in formulating the scheme which they did, they did not adopt the Report of the Commission, though they derived considerable assistance from it.
In the result, this appeal must be allowed and the petition of the respondent dismissed; but in the circumstances, there will be no order as to costs either here or in the Court below.
Appeal allowed.

summary/full:
The Government of Central Provinces and Berar (Now State of Madhya Pradesh) fixed in 1948 a scale of dearness allowance for its servants which though practically identical with the scale of dearness allowance fixed by Central Government in respect of salaries over Rs. 400 per mensem was less than it in respect of salaries for Rs. 400 per mensem or less.
The petitioner State government servant challenged the validity of the order of the State Government on the ground that his fundamental right under article 14 of the Constitution had been violated inasmuch as he had a right to be equally treated with the Central Government Servants similarly situated.
Held, that under the provisions of Rule 44 of the Fundamental Rules it is a matter of discretion with the local Government whether it will grant dearness allowance to any Government servant and if so how much.
It imposes no duty on the State to grant it and therefore no mandamus can issue to compel the State to grant it nor can any other writ or direction be issued in respect of it as there is no right in the Government servant which is capable of being protected or enforced.
Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments.
The sources of authority for the two statutes being different, Article 14 can have no application.
Therefore 'the scale of dearness allowance sanctioned by the Central Government can furnish no ground for holding that the allowance sanctioned by the Government of Central Provinces and Berar is repugnant to Article 14.
The State Government was entitled to fix the Government of India rates for one slab and Ali; different rates for another slab, 600 The Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89), and State of Bihar V. Abdul Majid ([1954] S.C.R. 786) distinguished.


judgement:
: Criminal Appeal No. 181 of 1965.
Appeal by special leave from the judgment and order, dated September14, 1965 of the Patna High Court in Criminal Appeal No. 268 of 1962.
S.C. Agarwala, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the Patna High Court dated September 14, 1965 in Criminal Appeal No. 268 of 1962 filed by the appellant against the judgment of the Special Judge, Santhai Pargangs, Dumka dated March 31, 1962.
In January, 1958 the appellant was employed as a Railway Guard on the Eastern Railway and was posted at Sahibganj Railway Station.
On January 18, 1958 Hinga Lal Sinha (P.W. 47) who was in charge of squad of traveling ticket examiners caught hold of Shambu Pada Banerji (P,.
W. 54) as he found him working as a bogus traveling ticket examiner in a train.
P.W.47 handed Shambu Pada Banerji to Md. Junaid (P.W.48) who was a police officer in charge of Barharwa Railway outpost.
A Fard Beyan was recorded on the statement of P.W. 47 and G.R.P. Case No. 12 (1)58 was registered against Shambu Pada Banerji.
In connection with the investigation of that case the house of the appellant which was at a distance of 300 yards from Sahebganj Railway station was searched on January 19, 1958 at about 3.
p.m. by P.W. 56 along with other police Officers, Md. Junaid (P.W. 48) and Dharrnadeo Singh (P.W. 57 ).
Various articles were recovered from the house of the appellant and a search list (exhibit 5/17) was prepared.
A charge sheet was submitted in G.R.P. Case No. 12 (1)58 against the appellant and Shambu Pada Banerji.
Both of them were tried and convicted by the Assistant Sessions Judge, Dumka by a judgment dated June 12, 1961.
The appellant flied Criminal Appeal No. 405 of 1961 against his conviction under section 474/466 of the Indian Penal Code.
The appeal was allowed by the High Court by its judgment dated September 14, 1962 on the ground that there was no proof that the appellant was in conscious possession of the incriminating articles.
During the course of the investigation of G.R.P. Case No. 12 (1)58, the Investigating Officer (P.W. 56) found a sum of Rs. 51,000 standing to the credit of the appellant in the Eastern Railway Employees ' Co operative Credit Society Ltd., Calcutta.
He also found the appellant in possession of National Savings Certificates of the value of Rs. 8,000.
On August 24, 1958 the Investigating Officer (P.W.56) handed over charge of the investigation of G.R.P. Case No. 12(1)58 to P.W. 46 of Sahebganj Government Railway Police Station.
P.W. 46 completed the investigation on February 26, 1958.
Since by that time it was found that the appellant was in possession of pecuniary resources disproportionate to his known sources of income it was thought that he had come in possession of these pecuniary resources by committing 414 acts of misconduct as defined in clauses (a) to (d) of sub section (1) section 5 of the Prevention of Corruption Act, 1947 ( Act 2 or 1947 ), hereinafter referred to as the 'Act ', and since the investigation of a case under the Act could be carried only in accordance with the provisions of section 5A of the Act, under the orders of the superior officers, the case being G.R.P. Case No. 12 (1)58 was split up in the sense that a new case against the appellant being Sahebganj Police Station Case No. 11(2)59 was started upon the first information report of P.W. 46 made on February 26, 1959 to Gokhul Jha (P.W. 45), Officer in charge of Sahebganj Police Station.
By his order dated February 27, 1959 Sri R.P. Lakhaiyar, Magistrate First Class, Sahibganj accepted the recommendation of the Deputy Superintendent of Police that Inspector Madhusudan Haldar, P.W. 55 may investigate the case.
Accordingly Madhusudan Haldhar, P.W. 55 proceeded to investigate the case and after obtaining sanction of the appropriate authority for prosecution of the appellant submitted a charge sheet on March 31, 1960.
Cognizance was taken and the case was transferred to Sri Banerji a Magistrate First Class who committed the appellant and the.
two co accused Baldeo Prasad and Mrs. Kamla Mitra to stand trial before the Court of Session.
By his judgment dated March 31, 1962, the Special Judge, Santhai Parganas convicted the appellant under section 5(2) of the Act and section 411, Indian Penal Code.
The appellant and the other co accused Baldeo Prasad and Mrs. Kamla Mitra were acquitted of the charge of conspiracy under section 120(B) read with sections 379, 411,406 and 420, Indian Penal Code and section 5(2) of the Act.
The Special Judge also acquitted the appellant of the charge under section 474/466, Indian Penal Code.
The matter was taken in appeal to the High Court which by its judgment dated September 14, 1965 set aside the conviction and sentence of the appellant under section 411, Indian Penal Code and confirmed the conviction of the appellant under section 5(2) of the Act.
The High Court, however, reduced the sentence of 6 years simple imprisonment and a fine of Rs. 40,000 to 2 years imprisonment and a fine of Rs. 20,000.
Section 5 of the Act, as it stood before its amendment by Act 40 of 1964, read as follows: "5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration ) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for 415 any other person,any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
(3) In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession, for 'which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.
(4) The provisions of this section shah be in addition W, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which 416 might, apart from this section, be instituted against On December 18, 1964, Parliament enacted the Anti Corruption Laws (Amendment) Act 1964 (Act No. 40 of 1964) which repealed subs.
(3 ) of section 5 of the Act and enlarged the scope Of criminal misconduct in section 5 of the Act by inserting a new clause (e) in section 5(1) of the Act to the following effect: "(e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
" It was in the first place contended on behalf of the appellant that section 5 (3) of the Act was repealed by Parliament while the appeal was pending in, the High Court and the presumption enacted in section 5 (3 ) of the Act was not available to the prosecuting authorities after the repeal of the sub section on December 18, 1964.
The argument was stressed.
that it was not open to the High Court to invoke the presumption contained in section 5( 3 ) of the Act in considering the case against the appellant.
It was also said that the presumption contained in section 5(3) of the Act was a rule of procedural law and not a rule of substantive law and alterations in the form of procedure are always.
retrospective in character unless there is some good reason or other why they should not be.
It was therefore submitted that the judgment of the High Court was defective in law as it applied to the present case the presumption contained in section 5(3) of the Act even after its repeal.
We are unable to accept the contention put forward on behalf of the appellant as correct.
It is true that as a general rule alterations in the, form of procedure ' are retrospective in character unless there is some good reason or other why they should not be.
In James Gardner vs Edward A. Lucas(1), Lord Blackburn stated: "Now the general rule, not merely of England and Scotland, but, I believe, of every civilized nation, is ex.
pressed in the maxim, Noya constitutio futuris formam imponere debet non prateritis ' prima facie, any new law that is made affects future transactions, not past ones.
Nevertheless, it is quite clear that the subject matter of an Act might be such that, though there were not any express words to shew it, might be retrospective.
For instance, I think it is perfectly settled that if the Legislature intended to frame a new procedure, that [1878] III App.
Cass.582 at p.603 417 instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure.
Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.
Then, again, I think that where alterations are made in matters of evidence, certainly upon the reason of the thing, and I think upon the authorities also, those are retrospective, whether civil or criminal.
" In the King vs Chandra Dharma (1), Lord Alverstone.
C.J. observed as follows: "The rule is clearly established that, apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective.
It has been held that a statute shortening the time within which proceedings can be taken is retrospective (The Ydun, 1899 p. 236.), and it seems to me that it is impossible to give 'any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective.
If the case could have been brought within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force, Mr.
Compton Smith would have been entitled to succeed; but when no new disability or obligation has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply to offenses .completed before the statute was passed.
That is the case here.
" It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively.
But there is another equally important principle, viz. that a statute should not be, so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (See In re a Debtor(1) and In re Vernazza(3).The same principle is embodied in section 6 of the General Clauses Act which is to the following effect: "6.
Effect of repeal. 'Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or here (1) (2) [1936] 1 ch. 237.
(3) 418 after to be made, then, unless a different intention appears, the repeal shall not . . . . . . . . (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
" The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure.
In the present case, the trial of the appellant was taken up by the Special Judge, Santhai Parganas when section 5 (3) of the Act was still operative.
conviction of the appellant was pronounced on March 31, 1962 by the Special Judge, Santhai Parganas long before the amending Act was promulgated.
It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhai Parganas has become illegal or in any way defective in law because of the amendment to procedural law made on December 18, 1964.
In our opinion, the High Court was right in invoking the presumption under section 5 (3) of the Act even though it was repealed on December 18, 1964 by the amending Act.
We ,accordingly reject the argument of the appellant on tiffs aspect of the case.
It was next argued on behalf of the appellant that the statutory safeguards under section 5A of the Act have not been complied with and the Magistrate has not given reasons for entrusting the investigation to a police officer below the rank of Deputy Superintendent of Police.
Section 5A of the Act provides as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank (a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police, 419 (b) in the presidency town of Bombay, of a superintendent of police, and (c) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable Under section 161, section 165 or section 165A of the Indian Penal B Code or under sub section (2) of section 5 of this Act, without the order of a presidency magistrate or a magistrate of the first class, as the case may be, or make any arrest therefore without a warrant: . . . . . . .
In the present case the officer incharge of Sahibganj police station (P.W. 45) filed a petition dated February 27, 1959 (exhibit 1) to the First Class Magistrate upon which the Deputy Superintendent of Police made an endorsement (Ex.1/1) suggesting that Inspector Haldhar may be empowered to investigate the case.
The order of the Magistrate is Ex.1/2 and is dated February 27, 1959.The order states: "Inspector Sri M.S. Haldhar is ' allowed to do it".
The evidence of P.W. 11 is that he was posted at Sahebganj as a Magistrate from 1956 and used to do the work of the Sub divisional Officer also in his absence.
He passed the order (exhibit 1/2) authorising M.S. Haldhar to investigate the case because the Deputy Superintendent of Police used to remain busy with his work and the present case needed a whole time investigation.
It was argued on behalf of the appellant that there was nothing in the endorsement of the Deputy Superintendent of Police that he was busy and therefore the inquiry should be entrusted to Sri Haldhar.
But the High Court has observed that P.W. 1 was a Magistrate working at Sahibganj for a period of two years prior to the passing to the order in question and he must have known that the Deputy Superintendent of Police could not devote his whole time to the investigation of the case and therefore the Inspector of Police should be entrusted to do the investigation.
On this point the High Court has come to the conclusion that the order of the Magistrate was not mechanically passed and the permission of the Magistrate authorising Haldhar to investigate the case was not illegal or improper.
In our opinion Counsel on behalf of the appellant has been unable to make good his argument on this point.
It was then said that the charge against the appellant under section 5(2) of the Act was defective as there were no specific particulars of misconduct as envisaged under cls.
(a) to (d) of section 5 (1) of the Act.
It was suggested that the charge was 'defective in as much as it deprived the appellant of the opportunity to rebut the presumption raised under section 5(3) of the Act.
.The charge against the appellant reads as follows ': 420 "First That during the period of 1956 to 19th January, 1958 at Sahebganj Police Station Sahebganj G.R.P. and Sahebganj Local, District Santhai Parganas and at other places, within and without the said district, you, being a public servant viz. Guard of trains in the Eastern Railway of the Railway Department and while holding the said post, habitually accepted or obtained from persons for yourself gratifications other than legal remuneration as a motive or reward such as mentioned in sec.
161 of the Indian Penal Code, habitually accepted or obtained for yourself valuable things without consideration or for a consideration which you know to be inadequate from persons having connection with your official function, habitually, dishonestly and fraudulently, misappropriated or otherwise converted for your own use properties entrusted to you or put under your control as a guard of trains or otherwise, and habitually by corrupt and illegal means, or by otherwise abusing your position as a public servant obtained for yourself valuable things or pecuniary advantage, with the result that during the search of your house at Sahebganj aforesaid on 19 1 1958 and during the investigation of the Sahebganj G.R.P.S. Case No. 12 dated 19 1 58 u/s 170 etc.
I.P.C., you were found, during the month of Jan. 1958 in possession of cash amount to the extent of Rs. 59,000 and other properties fully described in the appendix No. 1 attached herewith and forming part of this charge [of Sahebganj P.S. Case No. 11(2)59], and that the said cash amount and properties are disproportionate to your known sources of income and that you cannot satisfactorily account the possession of the same and that you thereby committed the offenses of criminal misconduct, under clauses (a) to (b) of section 5(1) of the Prevention of Corruption Act, 1947 (Act II of 1947), punishable under Sec.
5(2) of the said Act, within the cognizance of this Court.
. . . . . . . . It was argued that the charge did not disclose the amounts the appellant took as bribes and the persons from whom he had taken such bribes and the appellant had therefore no opportunity to prove his innocence.
But, in our view, this circumstance does not invalidate the charge, though it may be a ground for asking for better particulars.
The charge, as flamed, clearly stated.
that the appellant accepted gratification other than legal remuneration and obtained pecuniary advantage by corrupt and illegal.
means.
The charge, no doubt, should have contained better particulars so as to enable the appellant to prove his case.
But 421 the appellant never complained in the trial court or the High Court that the charge did not contain the necessary particulars.
The record on the other hand disclosed that the appellant understood the case against him and adduced all the evidence which he wanted to place before the Court.
Section 225 of the Criminal Procedure Code says "that no error in stating either the offence B or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
" It also appears that the appellant never raised any objection either before the Special Judge or in the High COurt on the score that the charge was defective and that he was misled in his defence on the ground that no particulars of the persons from whom the bribes were taken were mentioned.
We accordingly reject the argument of the appellant on this point.
For the reasons expressed we hold that the judgment of the High Court dated September 14, 1965 is correct and this appeal must be dismissed.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
In connection with an investigation in January 1958 relating to another case, the appellant, who was employed as a railway guard on the Eastern Railway, was found in possession of pecuniary resources disproportionate to his known sources of income.
As it was thought that he ' had come in possession of these pecuniary resources by committing acts of misconduct defined in clauses (a) ,to (d) of section 5(1) of the Prevention of Corruption Act 2 of 1947, on the recommendation of the Deputy Superintendent of Police for the area, an Inspector of Police was appointed by an Order dated 27th February 1959 of the Magistrate, Ist Class, Sahibganj, to investigate the case against the appellant.
The Investigating Officer, upon completion of the investigation and after obtaining sanction of the appropriate authority for prosecution of the appellant, submitted a charge sheet on March 31, 1960.
The Trial Court convicted the appellant under section 5(2) of the Act and s.411 I.P.C.
In appeal, by a judgment dated September 14, 1965,.
the High Court set aside the conviction and sentence of the appellant under section 411 I.P.C. but confirmed his conviction under section 5(2) of the Act and reduced the sentence awarded by the Trial Court.
On December 18, 1964 Parliament enacted the Anti Corruption Laws (Amendment) Act 40 of 1964 which repealed sub section (3) of section 5 of the.
Act and enlarged the scope of criminal misconduct in section 5 by inserting a new clause (e) in section 5(1) of the Act.
In appeal to this Court it was contended on behalf of the appellant (i) that section 5(3) of the Act having been repealed while the appeal was pending in the.
High Court, the presumption enacted in section 5(3) was not available to prosecuting authorities after the repeal 'and it was not open to the High Court to invoke the presumption in considering the case against the appellant; the presumption contained in section 5(3) was a rule of procedural law and as alterations in the form of procedure are always retrospective in character, unless it was provided otherwise, it was not open to the High Court to apply the presumption in the present case; (ii) that the statutory safeguards under section 5A of the Act had not been complied with as the Magistrate had not given reasons for entrusting the investigation to a Police Officer below the rank of Deputy Superintendent Police; and (iii) that the charge against the appellant under section 5(2) the Act was defective as there were no specific particulars of misconduct as envisaged under clauses (a) to (d) of section 5(1) of the Act, nothing was stated about the amounts the appellant took as bribes and the 412 persons from whom he had taken such bribes so that the, appellant had no opportunity to rebut the presumption raised under section 5(3) of the Act and to prove his innocence.
HELD: Dismissing the appeal v: (i) The High Court was right invoking the presumption under section 5(3) of the Act .even though it was repealed on December 18, 1964 by the Amending Act.
Although as a general rule the amended law relating to procedure operates retrospectively, there is another equally important principle, which is also embodied in section 6 of the General Clauses Act, that a statute should not be so construed 'as to create new disabilities or obligations or impose new duties ties in respect of transactions which were complete at the time the amending Act came into force.
The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are governed by the new procedure ' under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure.
In the present case, the trial of the appellant was taken up when section 5(3) of the Act was still operative.
The conviction of the appellant was pronounced on March 31, 1962 long before the amending Act was promulgated.
It Was not therefore possible to accept the contention that the conviction pronounced by the trial Court had become illegal or in any way defective in law because of the amendment to procedural law made on December 18, 1964.
[417 G; 418 D] James Gardner v, Edward A. Lucas, at p. 603; King V, Chandra Dharrna, ; In re a Debtor [1936] .1
Ch.237 and In re Vernazza; ; referred to.
(ii) Although the Magistrate 's order on the, petition filed by the DepUty Superintendent of Police suggesting that the Inspector of Police be empowered to investigate the case does not state any reasons for his granting the permission sought, the High Court had rightly concluded 'that as the Magistrate was working in the area for a period of two years prior to the passing of the order in question he must have known that the Deputy Superintendent of Police could not devote his whole.
time to the investigation of the case and therefore the inspector of Police .should be entrusted to do the investigation.
[419 F] (iii) The charge, as framed, dearly stated that the appellant accepted gratification other than legal remuneration and obtained pecuniary advantage .by corrupt ,and illegal means.
The absence of sufficient particulars could not invalidate the charge though it may be a ground for asking for.
better particulars.
The appellant never complained in the trial court or the High Court that the charge did not contain the necessary particulars, he , was.
misled on that account in his defence.
In view this and the provisions of section 225 Cr.
P.C. it could not be said that charge was defective.
[421 F]


judgement:
Civil Appeal No. 329 of 1966.
Appeal by special leave from the judgment and order dated October 11, 14, 1963 of the Bombay High Court in Appeal No. 30 of 1962 from the Appellate Decree.
D. Narsaraju and R.V. Pillai, for the appellant.
M.S.K. Sastri and M.S. Narasimhan, for respondent No. 1.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, on behalf of the .plaintiff against the judgment of the Bombay High Court dated October 11/14, 1963 in Appeal No. 30 of 1962 from the appellate order of the District Court, Osmanabad whereby the High Court reversed the judgment of the lower courts and declared that the appellant was not entitled to execute the decree for pre emption and that the respondents were entitled to be put in possession of the properties of which they were dispossessed in the enforcement of the pre emption decree.
The appellant had obtained a decree for possession of certain lands in a pre emption suit he had brought against the respondents.
The decree was made in March, 1945 and the appellant was directed to pay the consideration of Rs. 5,000 within six months from the date of the decree on which the appellant was to be put in possession of the suit lands.
In case of default in depositing the sum within the time the plaintiff 's suit was to be deemed to have been dismissed.
The respondents preferred an appeal to the District Court against the decree but the District Court confirmed the decree on January 28, 1955.
The amount of Rs. 5,000 was deposited in Court by the appellant on December 20, 1954 within the time granted in the trial court 's decree but it was subsequently withdrawn by him under orders of the Court.
While dismissing the appeal of the respondents and confirming the decree for pre emption, the District Court directed the appellant to deposit the sum of Rs. 5,000 on or before April 30, 1955 and directed the respondents on such deposit to deliver possession of the properties.
There was also a direction in the decree that in case the amount was not paid on the due date the suit shall stand dismissed with costs.
The decree was passed in conformity with O.20, r.14 of the Civil Procedure Code.
The respondents preferred a Second Appeal to the High Court and 516 pending disposal of the appeal the respondents prayed for stay of the execution decree.
On March 23, 1955 the High Court passed the stay order in the following terms: "Stay of execution of decree of the lower appellate court is granted on condition that the appellant furnishes security to the extent of the amount of costs.
" The order was received by the trial court on April 19, 1955.
The appellant who was directed under the terms of the lower appellate court 's decree to deposit the sum of Rs. 5,000 on or before April 30, 1955 made default in depositing the amount on that date.
He, however, deposited the amount on May 2, 1955.
Since the deposit was not made in time according to the lower appellate court 's decree an application was filed along with the deposit stating that the amount could not be paid in time as the appellant fell ill.
The Second Appeal preferred by the respondents to the High Court was dismissed on October 6, 1960 and the pre emption decree in favour of the appellant was confirmed.
Thereafter on February 3, 1961 the appellant flied a Darkhast for possession of the suit properties.
Since the application was within a year of the decree of the High Court a warrant for possession was issued by the Executing Court without notice to the respondents and the appellant also obtained possession of a portion of the suit properties under the aforesaid warrant.
On February 8, 1961 the respondents filed an application in the Executing Court for restitution of the properties taken possession of by the appellant on the ground that the appellant had defaulted in depositing the purchase money on or before April 30, 1955 as required by the lower appellate court 's decree and the Executing Court was in error in issuing the warrant for possession of the suit properties.
The application for restitution was contested by the appellant on the ground that the stay order made by the High Court in the Second Appeal prevented him from acting in accordance with the terms of the lower appellate court 's decree and in any case the High Court had dismissed the Second Appeal and the decree holder would get by necessary implication a fresh starting point for depositing the purchase amount from the date of the High Court 's decree.
The Executing Court rejected the claim of the respondents for restitution and 'allowed the execution case of the appellant to proceed.
Against this order of the Executing Court the respondents went up in appeal to the District Court which dismissed the appeal and confirmed the order of the Executing Court.
The respondents thereafter took the matter in Second Appeal to the Bombay High Court which differed from the view of the District Court and allowed the appeal.
The High Court took the view that there was default on the part of the appellant in depositing the amount and therefore the appellant 's 517 suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the pre emption decree.
The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment debtors and not a stay with regard to the deposit of purchase price by the decree holder.
In our opinion, the High Court was in error in taking this view.
The decree framed under O.20, r. 14, Civil Procedure Code requires reciprocal rights and obligations between the parties.
The rule says that on payment into court of the purchase money the defendant shall deliver possession of the property to the plaintiff.
The decree holder therefore deposits the purchase money with the expectation that in return the possession of the property would be delivered to him.
It is therefore clear that a decree in terms of O.20, r.14; Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other.
To put it differently, the obligations are reciprocal and are inter linked, so that they cannot be separated.
If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues.
We are accordingly of the opinion that the order of stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price.
The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.
We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court 's decree.
The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.
But the appellant has deposited the amount on May 2, 1955, long before the date of the High Court 's decree and there is no default on the part of the appellant in fulfilling the terms of the pre emption decree.
In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired.
It was open to the respondents to press this point in the Second Appeal and for the High Court to decide that, the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the 518 High Court for decision.
It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit.
When the High Court refrained from following the first course and confirmed the trial court 's decree, what was its intention ? Surely it wanted to give the plaintiff an effective decree in his favour.
If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial court 's decree.
That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal.
The view that we have expressed is borne out by the decision of the Bombay High Court in Satwaji Balajiray Deshamukh vs Sakharlal Atmatarnsher(1).
In that case, the plaintiff brought a suit to recover possession of property as purchaser from defendants 1 to 6 and to redeem the mortgage of defendant 7.
The first court having dismissed the suit, the appellate court, on plaintiff 's appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1 to 6 of a certain sum within six months from the date of its decree and then to redeem defendant 7, and on the plaintiff 's failure to pay within six months from the date of the decree he should forfeit his right to recover possession.
All parties being dissatisfied with the decree, the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections.
The High Court confirmed the decree and the plaintiff 's second appeal and the defendants ' cross objections were dismissed.
Within six months from the date of the High Court 's decree the plaintiff deposited in court the amount payable by him and applied for execution.
Defendant 7 contended that the plaintiff not having complied with the terms of the decree of the first appellate court, his right to recover possession in execution was.
forfeited.
The lower courts upheld the defendant 's contention and dismissed the darkhast.
On second appeal by the plaintiff, the High Court reversed the decree of the lower court and held that the time for executing a decree nisi for possession ran from the date of the High Court 's decree confirming the decree of the lower court, for what was to be looked at and interpreted was the decree of the final appellate court.
There is also a decision to the similar effect in Sita vs Ramnath(2).
For the reasons already given we hold that the decree of the High Court in Second Appeal should be construed in the present case as affording by implication a fresh starting point to the plaintiff for making payment to the Court.
For the reasons expressed we hold that this appeal should be allowed, the judgment of the, Bombay High Court dated October (1) I.L.R. (2) I.L.R. 28 Patna 371.
519 11/14, 1963 should be set aside and the application of the first defendant made on February 8, 1961 for restitution under section 144 of the Civil Procedure Code should be dismissed.
In the circumstances of this case we do not propose to make any order as to costs of this appeal.
T.P. Appeal allowed.

summary/full:
The appellant had obtained a decree for possession of certain lands in a pre emption suit which he had brought against the respondents.
The respondents ' appeal to the District Court was dismissed.
The District Court directed the appellant to deposit purchase money by a certain date and directed the respondents on the deposit to deliver possession of the property.
There was also a direction in the decree that in case the amount was not paid on the due date the suit shall stand dismissed with costs.
The respondents preferred a second appeal to the High Court and pending disposal of the appeal the respondents prayed for stay of the execution decree.
Before the date fixed for depositing the purchase money the High Court stayed the execution of the decree of the lower appellate court.
The appellant deposited the purchase price 3 days after the date fixed stating that he could not deposit in time as he fell ill.
Thereafter the High Court dismissed the second appeal, and the appellant, obtained possession of the properties.
The respondents applied to the Executing Court for restitution of properties on the ground that the appellant had defaulted in depositing, the purchase money by the date fixed by the lower appellate court 's decree.
The appellant contended that the stay order made by the High Court in the second appeal prevented him from acting in accordance with the terms of the lower appellate court 's decree, and in any case the High Court had dismissed the second appeal and the decree holder would get by necessary implication a fresh starting point for depositing the purchase amount from the Sate of the High Court 's decree.
The Executing Court rejected the claim of the respondents for restitution.
This decision was affirmed, on appeal by the District Court.
But the High Court in appeal, took the ' view that there was default on the part of the appellant in depositing the amount and therefore the appellant 's suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the pre emption decree.
HELD: The appeal must be allowed.
A decree in terms of 0.20 r. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other.
To put it differently, the obligations are.
reciprocal and are inter linked, so that they cannot be separated.
If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continue.
[517 D, E] The effect of the order of the High Court dismissing the second appeal was to give by necessary implication a fresh starting point 515 depositing the amount from the date of the High Court 's decree and the appellant could have deposited the amount immediately after the High Court 's decree.
But the appellant had deposited the amount before the date of the High Court 's decree and there was no default on the part of the appellant in fulfilling the terms of the pre emption decree.
[517 F G] Satwaji, Balajiray Deshamukh vs Sakharlal Atmaramshet, I.L.R. and Sita vs Ramanth I.L.R. 28 Patna 371, approved.


judgement:
ivil Appeal No. 1832 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 31, 1967 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 40 of 1967.
S.V. Gupte, Rarneshwar Nath, Mahinder Narainand, Ravinder Nath for the appellant.
Sarjoo Prasad and D.N. Misra for respondent No. 1.
The Judgment of the Court was delivered by, Mitter, J.
This is an appeal from a judgment of the Madhya Pradesh High Court by a returned candidate at an election to Madhya Pradesh Legislative Assembly from Ujjain North Constituency held in February 1967 declaring the election of the appellant void under section 98 of the Representation of the People Act (hereinafter referred to as the Act).
There was no less than eight candidates at the said election, five of whom polled very few votes.
The result of the election so far as the other three were concerned was as follows: 1.
Mahadev Govind Joshi, the returned candidate secured 23,709 votes 2.
Mrs. Hansaban Patel polled '10,767 ,, 3.
Shri Bansidhar Azad polled 7,093 .
The election petition was filed by the husband of the 2nd respondent, Mrs. Hansaben Patel.
In the petition numerous grounds were taken.
for declaring the election of the appellant void under 424 the Act and no less than five issues with different sub heads were flamed by the court on August 31, 1967, but at the final stage the hearing only the first issue was canvassed.
The said issue reads as follows: "1. (a) Was the respondent No. 1 holding one or more of the three following offices of profit ? (i) his being included in the panel of lawyers prepared by the Central and Western Railway Administration; (ii) his holding the post of the president member of a tribunal constituted under section 73 of the M.P. Town Improvement Trusts Act, 1960; (iii) his holding the office of Professor of law in the Madhav College, Ujjain on regular salary of Rs. 250 p.m.; (b) If so, its effect ?" Before the trial Judge a number of documents were exhibited and some witnesses were examined.
The learned trial Judge was of opinion that the appellant, the successful candidate held an office of profit under Government being on the panel of lawyers prepared by the Central and Western Railway Administration and having been at the material time a Professor of Law in the Madhav College on a regular salary of Rs. 250 per month, but he was not prepared to hold on the material before him that the appellant held the post of the President member of a Tribunal constituted under section 73 of the Madhya Pradesh Town Improvement Trust Act, 1960.
The first alleged disqualification is based on a letter of appointment dated February 6, 1962 addressed by the Chief Commercial Superintendent to the appellant who accepted the conditions and terms of that letter by his reply within a few days thereafter.
The letter of the Commercial Superintendent ' shows that the appellant 's name.
was kept on the panel of Railway Pleaders for conducting suits filed against the Union of India in the courts of Ujjain on the terms and conditions therein 'mentioned.
It is not necessary to recapitulate the terms excepting three or four to be mentioned presently.
The first term showed that the appellant was ordinarily to be entrusted with cases up to valuation of rupees three thousand only.
The ninth term imposed a condition on the appellant that he would not ' accept any briefs against.
any Railway in any court.
Clause (13) of the terms is really the most important one for our present purposes :and reads as follows : "You will be expected to watch cases coming up for hearing against this Railway in the various courts at 425 UJB and give timely intimation of the same to this office.
H no instructions regarding any particular case are received by you, will be expected to appear in the court and obtain an ,adjournment to save the exparte proceedings against this Railway in the court.
You will be paid Rs. 5 for every such adjournment if you are not entrusted with the conduct of the suit later On.
" The other terms deal mostly with the fees and the expenses to which the appellant would be entitled if he accepted the engagement.
The question before us is, whether by accepting the engagement, the appellant could be said to have held an office of profit.
The word 'office ' according to Webster 's New World Dictionary means, inter alia, "a function or duty assigned to someone, specially as an essential part of his work or position, a position of authority or trust especially in a Government, Corporation etc." According to Jowitt 's Law Dictionary, it means the right and duty to exercise an employment such as an office of a trustee, executor, guardian, director, Sheriff, Judge etc. ' The expression 'office of profit ' finds a place in an old English Act, namely, the Act of Settlement, 1701, section 3 of which provided that "no person having an office or place of profit under the Crown could be a member of the House of Commons.
" The meaning of the expression came up for consideration by this Court in a recent case.
The Statesman (Private) Ltd. vs
H.R. Deb and others(x) decided on April 2, 1968.
There, a question arose as to whether the respondent, H.R. Deb, was qualified to hold a judicial office in India in terms of section 7 (3) of the Industrial Disputes Act.
Under that provision "a person shall not be qualified for appointment as the presiding officer of a Labour Court, unless inter alia. (d) he has held any judicial office in India for not less than seven years".
The facts relating to the career of Mr. Deb as found by this Court were as follows.
He was first appointed in 1940 as a Sub Deputy Collector and was vested with powers of a Third Class Magistrate.
Thereafter, he was vested with powers of a Second Class Magistrate, and after a year or so with those of a First Class Magistrate.
There seems to have been some difference of opinion between the Judges of the High Court on the point as to whether Mr. Deb held a judicial office or whether he merely discharged certain judicial functions.
According to the judgment of this Court delivered by the learned Chief Justice "the dispute, therefore, really reduces itself to this: Does the Magistrate hold ' an "office?" An office means no more than a position to which certain duties are attached.
" The learned Chief Justice also referred to the Judicial Officers Protection Act which (1) ; 3 Sup.
CI/69 10 426 was enacted to protect not only Civil Judges but also Magistrates, and observed that "office means a fixed position for performance of duties.
" We may also refer to certain observations of the House of Lords in 'the case of Mcmillan vs Guest(1).
There LOrd Wright in delivering his opinion said: 1 "The word "office" is of indefinite content.
Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following: "A position or place to which certain duties are "attached, especially one of a more or less public character.
" This was a case arising out of assessment under the Income tax Act.
The appellant was a director of A. Wander, Ld., a private company which was resident and controlled in the United Kingdom.
He was appointed a director by the articles of association and had no contract of service with the company.
Since 1919 he had been resident in the United States of America, and in 1938 he became a naturalized American citizen.
He had gone over to America to take over the management of a company in Chicago allied to the predecessors of A. Wander, Ld., for whom he opened a Canadian office, and concerned himself in the administrative and selling organization there.
Copies of minutes;annual balance sheets etc.
were regularly sent to the appellant in America, but he attended no board meetings in England except one in 1931 and only one in Chicago in 1925.
He was not required to attend board meetings of the English company, and notices of such meetings were not sent to him.
The question before the House of Lords was whether he held an office within the U.K. for the purposes of rule 6 of the Rules applicable to Sch.
E to the Income Tax Act, 1918 and the House of Lords was of the view that he held an office and dismissed his appeal.
If by "office" is meant the right and duty to exercise an employment or a position to which certain duties are attached as observed by this Court, it is difficult to see why the engagement of the appellant in.
this case under t,he letter of February 6, 1962 would not amount to the appellant s holding an office.
By the said letter he accepted certain obligations and was required to discharge certain duties.
He was not free to take a brief against the Railway Administration.
Whether or not the Railway Administration thought it proper to entrust any particular case or litigation pending in the court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent.
Even if no instructions regarding any particular case were given to him, he was expected (1) 427 to appear in court and obtain an adjournment.
In effect this cast a duty on him to appear m court and obtain an adjournment so as to protect me interests of the Railway.
The duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the panel of Railway lawyers so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render service to the Railway.
In the absence of the above he was bound by the terms the engagement to watch the interests of the Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had made no arrangement for representation.
It is true that he would get a sum of money only he appeared but the possibility that the Railway might not engage him is a matter, of no moment.
An office of profit really means an office in respect of which a profit may accrue.
It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount profit irrespective of the duties discharged by him.
Learned counsel for the appellant argued that the appellant was not a salaried employee of the Railway.
He was not even bound to act for the Railways and if he thought it proper to accept a brief against the railway the Railway Administration could only take steps against him for breach of professional etiquette and nothing more.
According to counsel, he could only get remuneration in case he thought it proper to act on the terms of the letter and appeared in any case to support the cause of the Railway.
In our view, although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement, that would not detract from the position that he was in duty bound to work the Railway Administration and see that its causes did not suffer by default.
So long as the engagement was not put an end to, he was holding an office of profit in the Railway Administration, and as such was disqualified for being elected to the Legislative Assembly of Madhya Pradesh.
The question as to whether the appellant was holding an office of profit under the Government of Madhya Pradesh as a Professor of Law in the Madhav College, Ujjain is not altogether free from difficulty.
This college was at first one owned and managed by the Government.
In 1950 the appellant was invited by the Principal of the College to come and work as a lecturer.
He did so for some time and his work was purely on the basis of an arrangement between himself and the Principal.
In July, 952 the Principal wrote to the Education Department that the appellant should be formally appointed.
Thereupon the Deputy Secretary, Education Department, wrote to the Director of Edu 428 cation on April 7, 1952 conveying sanction of the Rajpramukh to the appellant 's appointment on one year 's probation as a part time Professor of Law in Madhav College on a fixed salary of Rs. 250 per month with effect from the date he assumed his duties in a temporary capacity, that is to say, August 1, 1951.
The appellant was employed only as a part time lecturer without increment or Provident Fund benefits.
His appointment was never confirmed by any letter.
It is, however, the common case of the parties that he continued to act as a lecturer in Law in Madhav College till July 1967.
Up to March 1959 the College was not only a Government owned institution but one which was being managed from day to day directly by its Education Department.
In 1959 there were certain changes in the management of the institution, but without the Government relinquishing ownership or ultimate control.
As a matter of fact,.
an agreement was entered into on March 16, 1959 between the Governor of Madhya Pradesh and Vikram University Ujjain, a body corporate formed under section 3 of the Madhya Bharat Vikram University Act, 1955, regarding certain terms under which the Governor 'had offered to transfer to the University the management of the Madhav College, together with its buildings and premises etc.
for a period of five years in the fi.rst instance commencing from the 1st of April, 1959 and ending on the 31st March, 1964.
The agreement also recorded that the University was to be in charge of the management for the said period subject to the terms and conditions therein mentioned.
Under cl.
(15) of the said terms and conditions "the existing members of the staff and other servants of the said college shall be treated as being on deputation to the University during its period of management and shall be deemed to have been deputed on the usual foreign service conditions, retaining their lien in the State Educational Service.
The University shall be liable to make payment of salaries and other allowances, except the deputation allowance, to the members of the staff and other servants of the said college, in employment at the date of its transfer.
" Under cl.
(16) "the University shall be entitled to make fresh appointments in regard to the staff and other servants for the said college and, on the University informing the Governor in this behalf, the Governor shall take back within a period of three months from the date of receiving information from the University, in the State Government 's service the members of the existing staff and other servants belonging to the said college at the time of execution of this agreement.
" On March 31, 1964 a telegram was sent to the Vice Chancellor, Vikram University recording that "pending Government decision on Sen Committee Report existing arrangement regarding Madhav College may continue on the same terms till 30th of June 1964.
" There is a further letter dated July 17, 1964 showing that the Government had decided to.
transfer the management of the 429 College and a regular transfer deed was in the course of preparation, but ,actually there is nothing to show that a transfer deed was executed as contemplated.
The position became complicated by reason of the fact that as a Government servant under the Fundamental Rules in force at the time of his appointment, the appellant could continue in service only till he attained the age of 55.
The age of superannuation was later increased to 58.
But even on this basis the appellant had attained the age of 58 on June 30, 1964 and would be deemed to have retired from Government service unless a special order to continue him in service was made.
No such order was, as a matter of fact, made.
Under the Rules of the University a teacher could be continued in service up to the age of sixty but not beyond with this qualification that if a teacher reached the age of sixty during the currency of an academic session he might be permitted to continue in service and retire at the end of the session.
The letters which passed between the Vikram University on the one hand and the Government of Madhya Pradesh and/or the appellant in this case on the other which form part of the record do not permit us to come to any conclusion as to the manner in which the employment of the appellant under the Government as a part time Professor of Law in Madhav College came to an end.
On January 1, 1965 the Under Secretary to the Government of Madhya Pradesh, Education Department, wrote a letter to the Principal of Madhav College asking for information as to whether the appellant, a part time Professor of Law, was confirmed in his existing post.
The record does not include any reply to this letter.
On May 22, 1967 the Registrar of the University addressed a letter to the Principal, Madhav College drawing his attention to the fact that in terms of el.
5 of Schedule B of Statute 7 B of the University Calendar the appellant would retire on June 30, 1967 as he had already attained the age of 60 years on 31st July 1966.
The occasion for writing this letter is not quite clear unless it related to his election to the Legislative Assembly because by the last sentence of the letter the writer was asking the Principal as to whether the appellant had resigned from his post on his being elected as an M.L.A. On July 4, 1967 after the filing of the election petition, the Registrar of Vikram University intimated to the appellant in writing that his services as part time Professor of Law would not be required with effect from the commencement of the academic session 1967 68 i.e. from Monday, the 17th July 1967.The letter went on to add: "Your tenure as part time Professor of Law in Madhav College, Ujjain has therefore ceased with effect from June 30, 1967.
" By letter dated 31st July 1967 the Registrar of the University intimated the Secretary to the Government of Madhya Pradesh 430 Education Department, that under instruction dated 31st March 1967 the University had been asked to maintain the status quo with respect to teachers transferred to the University until final terms and conditions of transfer were eftected and in the absence of any Government orders to the contrary, the appellant also continued to remain in the service of the University.
Finally, the letter recorded that in terms of the rules of the University fixing 60 years as the age of superannuation for teachers, the appellant had been informed that his services would not be required after 30th June 1967.
It was during the hearing of the election petition that a letter dated 9th October 1967 came to be written by the Under Secretary to the Government of Madhya Pradesh,Education Department to the Registrar, Vikram University that the appellant had ceased to be in Government service with effect from 30th June 1964 in terms .of the rule prescribing 58 years as the age of superannuation for Government servants.
The last letter may legitimately be subject to a comment that efforts were being made to establish that the appellant had ceased to be in Government service after June 30, 1964.
It is all the more surprising that the letter of October 9, 1967 should be written at such an opportune moment when more than two years before the Under Secretary was himself enquiring of the Principal as to whether the appellant had been confirmed in his existing post.
Learned counsel for the appellant contended that after attaining the age of 58 the appellant must be treated as not in ernment service and as the University had the power to manage the affairs of the College, in effect it retained him in exercise of its rights under the above mentioned rule but this would not make the appellant 's emp1oyment one under the Government.
On the other hand, it was contended by learned counsel for the resportdent that we should ignore these deeming provisions of the Fundamental Rules and hold that.
as a matter of fact the appellant had continued in service till 1967 notwithstanding the Fundamental Rules of the Madhya Pradesh Government and the rules of the University which permitted the termination of his service before February 1967 but which were never resorted to.
For the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force.
The appellant was only a temporary Government servant.
lie had never 'become permanent.
lie really had no lien on the post.
He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation.
It was really for the Umversity.
to ignore the fact.
that he had been superannuated.in 1964 and.continue him in service, but that would be an 431 act of the University and not of the Government.
There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.
The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City.
The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of section 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at Ujjain.
President Shri M.C. Joshi, Advocate, Ujjain.
Assessors.
Shri Chand Narayan Rajdan, Retired Traffic Superintendent Agar Light Railway Ujjain.
The High Court in its judgment noted that there was no 'clear positive indication that the appellant had been consulted beforehand.
There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office.
The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification.
The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification.
But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal.
As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification.
He had never taken charge of any office nor had he ever discharged any function with regard to the office.
In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government.
On the materials before it the High Court was not prepared to hold 'that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding.
of the High Court.
In the result, the appeal fails and is dismissed with costs.
R.K.P.S Appeal dismissed.

summary/full:
The appellant 's election to the M.P. Legislative Assembly in February 1957 was challenged by an election petition mainly on the allegation ,that he was disqualified from being a candidate as he held certain offices of profit under the Government.
The trial Judge allowed the election petition holding that the appellant held an office, of profit under the Government being on the panel of lawyers prepared by the Central 'and Western Railway Administration and having been at the material time a Professor of Law in a Government College on a regular salary of Rs. 250 per month; it was also held that on the material before the court it could not be said that the appellant held the post of the President Member of a Tribunal constituted under section 73 of the Madhya Pradesh Town Improvement Trust Act, 1960.
On appeal to this Court, HELD: Dismissing the appeal: (i) "By office" is meant the right and duty to exercise an employment or a position to which certain duties are attached.
The appellant held such an office by his enagagement on the, basis of a letter of appointment dated February 6, 1962 addressed to him by ' the Chief Commercial Superintendent of the Railway and his reply thereto whereby he accepted certain obligations and was required to discharge.
certain duties.
lie was not free to take a brief against the Railway Administration.
Whether or not the Railway Administration thought it proper to entrust any particular case to him, it was his duty to watch 'all cases coming up fog hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent.
Even if no instructions regarding any particular case were given to him, he was expected to appear in court and obtain adjournment.
In effect this cast a continuing duty on him to protect the interests of the Railway as long as his engagement continued.
The fact that the appellant would be paid only if he appeared in a case and the possibility of the Railway 's not engaging him was a matter of no moment.
An office of profit realy means an office in respect of which a profit may accrue.
It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him.
[426 F 427 C] Although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by 'accepting a brief against the Railway without formally putting.
an end to the engagement that would ' not detract from the position that he was in duty bound to work for the Railway Administration and see that it causes did not suffer by default.
So long as the engagement was not put an end to, he was holding an office of profit in the Railway Adminis 423 tration, and as such was disqualified for being elected to the Legislative Assembly of Madhya Pradesh.
The Statesman (Private) Ltd. vs
H.R. Deb and others ; ; Mcmillan vs Guest [1942] Appeal Cases 561; referred to.
[427 E F] (ii) Although it was not necessary for the purpose of the present case to express any final opinion on the point, on the facts, there was great force in the appellant 's contention that he did not hold an office of profit by being a Professor of Law in a Government College on a salary of.
Rs. 250 per month.
The Management of the College in question had been handed ' over W the University The appellant was only a temporary Government servant.
He had never become permanent nor had a ,lien on the post.
He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the age of superannuation.
No order was passed in respect of him at any time either by the Government or by the University until after the firing of the election petition.
[430 F 431 B] (iii) On the facts, it was difficult to hold that the appellant held the office: of profit as the President of a Tribunal constituted under section 73 of the Madhya Pradesh Town Improvement Trust Act, 1950.
He had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification.
He had never taken charge of 'any office nor had he ever discharged any function with regard to the office.
[431 G]


judgement:
: Criminal Appeal No. 145 of 1966.
559 Appeal by special leave from the judgment and order dated January 29, 1966 of the Patna High Court in Criminal Appeal No. 231 of 1963.
D. Goburdhun, for the appellants.
B.P. Jha, for the respondent.
The Judgment of the Court was delivered by Shah, J.
At mid day on July 2, 1962, an unlawful assembly about 30 persons armed with lethal weapons made an assault upon certain villagers of Mananki Khandha who were engaged in agricultural operations and caused injuries to six persons.
Budhia one of the persons injured died as a result of the injuries, a few hours after the assault.
The seven appellants in this appeal and one Harihar Gope were tried before the Additional Sessions Judge, Patna, for offences under section 302 read with sections 149, 147, 148, 323, 324, 325 read with 34 and 326 I.P. Code, on the charge that they had formed an unlawful assembly and had committed rioting and in prosecution of the common object of the unlawful assembly, viz. to rescue their cattle which had damaged the maize crop of Budhia and had on that account been detained by the villagers, and to assault persons resisting the rescue, and had caused injuries to the victims as a result of which Budhia died.
The Sessions Judge held, relying on the evidence of four witnesses P.Ws. 5, 8, 12 and 18, that Harihar Gope had caused injuries with a spear to Budhia which resulted in her death.
He accordingly recorded an order of conviction against Harihar Gope of the offence under section 302 I.P. Code and against the other appellants for the offence under section 302 read with section 149 I.P. Code.
The High Court of Patna in appeal acquitted Harihar Gope for the offence under section 302 I.P. Code for they entertained doubt about Harihar Gope 's presence in the unlawful assembly in question.
The High Court observed that Harihar Gope was a resident of another village and had no reason to bring his cattle to the village .Mananki Khandha for grazing,.
and that the name of Harihar Gope was not mentioned in the first information which was given at the police station in the presence of the witnesses who deposed to the assault made on Budhia by Harihar Gope.
The State has not appealed against that order of acquittal.
The High Court has however, confirmed the conviction of the other appellants for the offence under section 302 read with section 149 I.P. Code.
In this Court, counsel for the appellants contends that because of the order of acquittal passed by the High Court in favour of Harihar Gope, conviction of the other appellants for the offence under section 302 read with section 149 I.P. Code cannot, in law, be sus 560 tamed.
Counsel argues that if Harihar Gope who was according to the case of the prosecution responsible for causing the death of Budhia is acquitted the appellants who were charged with sharing the common object of the unlawful assembly cannot be convicted for the vicarious liability arising out of the offence committed in prosecution of the common object of the unlawful assembly.
There is no substance in that argument.
The case for the prosecution when analysed consists of four parts (1) that there was an unlawful assembly of 30 persons the common object of which was to forcibly rescue cattle detained by the villagers of Mananki Khandha and to beat up all those who resisted; (2) that six villagers of Mananki Khandha were beaten up by the members of the unlawful assembly and Budhia died in consequence of the injuries suffered by her; (3) that the injuries were caused to the six victims by the members of the unlawful assembly in prosecution of the common object of the unlawful assembly or the injuries were such that the members of the assembly knew to be likely to he caused; (4) that Harihar Gope was a member of the unlawful assembly, and he caused injuries to Budhia in prosecution of the common object of the assembly in consequence of which she died.
The result of the findings of the High Court is that the first three parts are made out but not the last.
On that account however we are unable to hold that the appellants who are proved to be members of the unlawful assembly escape liability for conviction under section 302 read with section 149 I.P. Code.
On the finding recorded by the High Court it inevitably follows that fatal injuries were caused to Budhia by a member of the unlawful assembly which the members of the assembly knew to be likely to be caused in prosecution of the common object of the unlawful assembly.
The State, however, failed to establish that it was Harihar Gope who caused those injuries.
Failure to establish that a member or members of the unlawful assembly named by .the witnesses for the State cause the particular injury which resulted in the death of Budhia will not result in the rejection of the case of the State against persons proved to be members of the unlawful assembly, if the common object of the unlawful assembly and the commission of the offence in the prosecution of the common object or which the members knew to be likely to be committed be proved.
Where a member of an unlawful assembly is named as an offender who committed an.
offence for which the members of the unlawful assembly are liable under section 149 I.P. Code, and the evidence at the trial is insufficient to establish that the named person committed the act attributed to him, he may still be convicted of the offence if it is proved that he was a member of the unlawful assembly and that the act was done by some member of the assembly in prosecution of the common object or which the members knew was likely to be committed in prosecution of that 561 object.
In our judgment, failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of section 149 I.P. Code be established.
If the Court refuses to accept the testimony of witnesses who speak to the presence of and part played by a named offender, the weight to be attached to the testimony of those witnesses insofar as they involve others may undoubtedly be affected, but it cannot be said that because the testimony of witnesses who depose to.
the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly escape liability arising from the commission of the offence in prosecution of the common object of the assembly.
The High Court found that on the day in question more than 30 persons formed an unlawful assembly, the common object of which was to rescue cattle detained by the villagers of Mananki Khandha, and to kill those who resisted, and that members of the unlawful assembly committed 'an assault on the villagers and severely beat up the villagers including Budhia in prosecution of the common object.
The offence being such that it was known to be likely to be committed, every person who was a member of that unlawful assembly at the time of the commission of the offence would by virtue of section 149 I.P. Code be guilty of the offence committed.
The argument that Harihar Gope alone had the object of causing the death of Budhia cannot on the evidence be accepted as correct.
The object to beat up and kill those who resisted the rescue of the cattle detained was according to the case for the prosecution common to all members of the unlawful assembly, and that object was established by abundant evidence.
Proof of the common object of the unlawful assembly did not depend upon the presence therein of Harihar Gope.
Failure to establish that Harihar Gope was a member of the unlawful assembly did not, in our judgment, affect the liability of the persons proved to be members of the unlawful assembly for the acts done in prosecution of its common object, or which they knew to be likely to be committed in prosecution of the object thereof.
When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender.
But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.
There is clear evidence on the record to show that Budhia was one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and others were members.
562 In the assault made by the members of the assembly Budhia as well as other persons were injured.
On the findings of the High Court, the offender who actually caused injuries to Budhia cannot be ascertained: it follows that the injuries were caused to Budhia by some member of the unlawful assembly, and that Budhia succumbed to those injuries.
In our judgment, the order of conviction of the appellants, other than Harihar Gope, for the offence under section 302 read with section 149 I.P. Code is not rendered illegal, because Harihar Gope is held not to have been a member of the unlawful assembly.
The appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.

summary/full:
The appellants and one H were tried on the charge that on July 2, 1962 they had formed an unlawful assembly and in prosecution of the common object of the unlawful assembly i.e., to rescue their cattle which had damaged the maize crop of one B and had on that account beer detained by the villagers, made an assault on persons resisting the rescue causing injuries to various persons including B as a result of which B died.
The Trial Court, relying on the evidence of certain witnesses, held that H had caused injuries with a spear to B which resulted in her death.
It therefore convicted H of an offence under section 302 I.P.C. and the appellants for an offence under section 302 read with section 149 I.P.C.
The High Court appeal acquitted H as it entertained a doubt about his presence in the unlawful assembly, but confirmed the conviction of the other appellants.
In appeal to this Court it was contended on behalf of the appellants that because of the acquittal of H, the conviction of the other appellants for an offence under section 302 read with section 149 I.P.C. could not, in law, be sustained; when according to the prosecution case H was responsible for causing the: death of B and he was acquitted, the appellants who were charged with sharing the common object of the unlawful assembly could not be convicted for the vicarious liability arising out of the offence committed in prosecution of the common object of the unlawful assembly.
HELD: Dismissing the appeal: The order of conviction of the appellants for the offence under section 302 read with section 149 I.P.C. was not rendered illegal because H was held not to have been a member of the unlawful assembly.
[56.2 B] There was clear evidence to show that B was one of the persons upon whom an attack was made and injuries inflicted by the unlawful assembly of which the appellants and others were members.
On the findings of the High Court, the offender who actually caused injuries to B could not be ascertained: it follows that the injuries were, caused to B by some members of the unlawful assembly.
[561 H] Failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of section 149 I.P.C. be established.
[56.1 A]