judgement:
vil Appeal No. 1306 (N) of 1973.
From the Judgment and Order dated 25.10.1971 of the Gujarat High Court in F.A. No. 320 of 1967.
G. Ramaswamy, Additional Solicitor General, H.K. Puri and S.C. Dhanda for the Appellant.
M.V. Goswami for the Respondents.
The Judgment of the Court was delivered by 756 THAKKAR, J.
While in some States1 a widow of a victim of a motor vehicle accident can recover the amount of compensa tion awarded to her from the Insurance Company, in a pre cisely similar fact situation she would be unable to do so, in other States2, conflicting views having been taken by the respective High Courts.
The unaesthetic wrinkles from the face of law require to be removed by settling the law so that the same law does not operate on citizens differently depending on the situs of the accident.
The question is whether the insurer is entitled to claim immunity from a decree obtained by the dependents of the victim of a fatal accident on the ground that the insurance policy provided "a condition excluding driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification," and that such exclusion was permissible in the context of Section 96(2)(b)(ii)3 for claiming immunity against the obligation to satisfy the judgments against the insured in respect of third party risks.
The facts are not in dispute.
The Claims Tribunal as also the High Court have concurred with the findings which are recorded in the following passage: "The accident in question took place on Novem ber 14, 1964.
The truck had come from Barejadi and had been unloaded at Baroda.
The driver had gone for bringing snacks from the opposite shop leaving the engine running.
The ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver.
The driver had handed over control of the truck to the cleaner.
On these facts the driver having been grossly negligent in leav ing 1.
Andhra Pradesh, Gujarat.
Assam, Madhya Pradesh, Orissa.
Duty of insurers to satisfy judgments against per sons insured in respect of third party risks (1) If, after a certificate of insurance has been issued under sub section (4) of Section 95 in favour of the person by whom a policy has been effected, judgments in respect of any such liabili ty is required to be covered by a policy under clause (b) of sub section (1) of Section 95 (being, a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, nothwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person enti tled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor in respect of the liability . . . 757 such a truck with its running engine in the control of the cleaner, this being the immedi ate cause of the accident, the owner of the car viz. the insured was held vicariously liable along with the driver and the cleaner.
" The view taken by the High Court has been summed up as under: "In the present case there is not an allega tion even that the insurer had at any time committed a breach of this condition.
The insured has never permitted the cleaner to drive on the fatal occasion.
The insured has permitted only the driver who is admittedly the licenced driver.
It is the driver 's negli gence in leaving the vehicle with its engine running with the ignition key in the ignition lock that resulted in this accident.
But for this gross negligence of the driver, the cleaner would not have been able to interfere with this vehicle.
Once a finding is that the driver in the course of the employment or the master 's agent in the course of that agency, he negligently left the vehicle with the cleaner, the vicarious liability would immedi ately be fastened to the owner of the truck . .
Even if vicarious liability arises because of this principle of social justice and not because the owner committed any breach of the policy condition.
The owner in the present case never gave permission to this cleaner to drive and, therefore, the f.n. 3 contd.
No sum shall be payable by an insurer under sub section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bring ing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such pro ceeding is so given shall be entitled to be made a part thereto and to defend the action on any of the following grounds, namely: (a).
xxx (b) that there has been a breach of a specified condition of the policy, being one of the following conditions namely: (i) xxxx (a) to (d) x x x x (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or XXXX" 758 owner even though he had become liable by reason of his vicarious liability he could not be held guilty of the breach of the contractu al condition embodied in the policy of insur ance.
Therefore, the insurer cannot plead any exemption on the ground that the owner had committed breach of the specified condition . " It has been contended on behalf of the Insurance Company that since admittedly there was an exclusion clause, the Insurance Company would not be liable in case at the point of time when the accident occurred the person who had been driving the vehicle was not a duly licensed person to drive the vehicle.
It was immaterial that the insured had engaged a licensed driver and had entrusted the vehicle for being driven to the licensed driver.
Once it was established that the accident occurred when an unlicensed person was at the wheels the Insurance Company would be exonerated from the liability.
The validity of this argument advanced in order to assail the view taken by the High Court has to be tested in the light of the provisions contained in Sections 96(1) and 96(2)(b)(ii) of the (Act).
But before doing so a brief survey of the decisions of the High Courts may be usefully made.
Reliance is placed on behalf of the appellant on Kripa Natha Chakravanhy and others vs Rup Chand Lunawar, A.I.R. 1955 Assam p. 157.
The view has been taken therein .that while the master is .undoubtedly liable for the wrongful conduct or negli gence of his servant where the act or conduct or negligence occurs in the course of the master 's employment or in fur therance of his interest notwithstanding the fact that the servant may have been prohibited from doing such an act.
The High Court has however proceeded to absolve the Insurance Company from the liability in the light of Section 96(2) of the Act.
The High Court in doing so has not examined or analyzed the provisions of Section 96(2) and has taken for granted that once it is established that the vehicle was being driven by an unlicensed person the Insurance Company stood exonerated.
The decision is therefore of little sig nificance for testing the validity or otherwise of the view taken in the judgment under appeal.
The appellant has also relied on Shankar Rao vs M/s Babulal Fouzdar and another, A.I.R. 1980 (Madhya Pradesh) p. 154.
wherein the High Court has exonerated the Insurance Company on the following reasoning: "According to one of the terms of the policy of insurance 759 the insurer 's liability is subject to the condition that person driving the vehicle holds a licence to drive the vehicle or has held and is not disqualified from holding or obtaining such a licence and provided he is in the employment of insured and is driving on his order or with his permission.
Unless the person driving the vehicle falls in that category, the insurer is not liable under the policy and is, therefore, exempted from indem nifying the insured.
In the present case, apart from the question whether Hari Prasad held a driving licence or not, he was neither in the employment of the insured nor was he driving the bus at the time of the accident on the order or with the permission of the in sured.
The insurer, therefore, is exempt from any liability under the terms of the policy and there is no infirmity even in this conclu sion reached by the Tribunal.
" It has to be noticed that the conclusion of the High Court is backed only by an assertion and not by reasoning.
It is therefore of little assistance in resolving the issue.
So also the appellant has placed reliance on Orissa State Commercial Transport Corporation, Cuttack vs Dhumali Bewa & Ors.
, A.I.R. 1982 (Orissa) 70 wherein the High Court came to the conclusion that the insurer was not li able.
The entire reasoning is contained in the following passage which does not threw any light in regard to the basis of the reasoning or the interpretation of Section 96(2)(b)(ii): "The insurer who is opp.
party no.2 in the common written statement denied the averments made in the petitions.
It contended that it is not liable to compensate the appellant as the vehicle was driven by section Appa Rao who had no driving licence.
Further the accident took place near Jetty No. 1 which is not a public place.
For the aforesaid reasons, it is con tended that opp.
party No. 2 is not liable to indemnify opp.
party No. 1.
" On behalf of the respondents support is sought from Kilari Mammi and others vs Barium Chemicals Ltd. & Ors., A.I.R. 1979 (Andhra Pradesh) 75 decided by the Andhra Pra desh High Court which has taken the same view as has been taken by the Gujarat High Court in the judgment under ap peal.
Says the High Court: "If the first respondent had authorised only a licensed 760 driver to drive the vehicle, then the defence under section 96(2) could be rightly invoked by the 4th respondent.
But this is a case where due to the negligence of the authorised driver, the third respondent, a third person, drove the vehicle and, therefore, I do not think the decision relied upon by the learned counsel is of any reliance to the facts of this case.
" This decision is also exposed to the same criticism.
It is buttressed by 'ipse dixit ' rather than rationation.
The respondents have also placed reliance on Dwarka Prasad Jhunjhunwala and another vs Sushila Devi & Ors., A.I.R. 1983 Patna 246.
It is no doubt true that the High Court has upheld the claim of the insured to be reimbursed by the Insurance Company but as is evident from paragraph 9 of the judgment, which is reproduced below things have been taken for granted: "From the above discussions it is clear and was not disputed that the liability of appel lant No. 1 for the negligent act of his driver is there.
If appellant No. 1 being the owner of the car is liable, then I do not see why if the insurance company cannot be fastened with the liability.
The appellant had taken an insurance policy to cover the risk against third party.
Clause (b) of Section 95(1) ensures the person against the liability incurred by him in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle in public place.
In view of this cover the appel lant No. 1 appears to me to be certainly entitled to shift the burden of the compensa tion awarded against him on the Insurance company which, in this case the car being a private one, is unlimited.
I would, therefore, accept the argument of Mr. S.C. Ghose that on the facts and in the circumstances discussed above the liability of appellant No. 1 should be shifted from him to the National Insurance Co. Ltd., respondent No. 7.
" The question therefore deserves to be examined afresh on its own merits on principle.
Now, the proposition is incon trovertible that so far as the owner of the vehicle is concerned, his vicarious liability for damages arising out of the accident cannot be disputed having regard to the general principles of law as also having regard to the violation of the obligation imposed by Section 84 of the Act which provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, 761 unless there is in the deiver 's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.
However, in the present case the appellant contends that the exclusion clause is strictly in accordance with the statutorily per missible exclusion embodied in Section 96(2)(b)(ii) and that under the circumstances the appellant Insurance Company is not under a legal obligation to satisfy the judgment pro cured by the respondents.
The defence built on the exclusion clause cannot succeed for three reasons, viz: 1.
On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour, and fulfil the promise and he himself is not guilty of a deliberate breach.
Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
The exclusion clause has to be 'read down ' in order that it is not at war with the 'main purpose ' of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does every thing in his power to keep the promise.
In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same.
Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not.
If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle.
Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting Section 94.
Surely the 762 obligation has not been imposed in order to promote the business of the insurers engaged in the business of automo bile insurance.
The provision has been inserted in order to protect the members of the Community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads.
The law may provide for compen sation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependents of the victims in the case of a fatal accident.
However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accident.
A Court can only pass an award or a decree.
It cannot ensure that such an award or decree results in the amount awarded being actually recov ered, from the person held liable who may not have the resources.
The exercise undertaken by the law Courts would then be an exercise in futility.
And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce re sources of the Community would make a mockery of the injured victim, or the dependents of the deceased victim of the accident, who themselves are obliged to incur not inconsid erable expenditure of time, money and energy in litigation.
To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.
To use the vehicle with out the requisite third party insurance being in force is a penal offence.1 The legislature was also faced with another problem.
The insurance policy might provide for liability walled in by conditions which may be specified in the con tract of policy.
In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the Insurance Compa ny to satisfy the judgment obtained against the persons insured against third party risks.
(vide Section 96).
In other words, the legislature has insisted and made it incum bent on the user of a motor vehicle to be armed with an insurance policy coveting third party risks which is in conformity with the provisions enacted by the legislature.
It is so provided in order to ensure that the injured vic tims of automobile accidents or the dependents of the vic tims of fatal accidents are really compensated in terms of money and not in terms of promise.
Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has be 1.
Section 94 of the . 763 come an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation.
The provision has therefore to be interpreted in the twilight of the aforesaid perspective.
Section 96(2)(b)(ii) extends immunity to the Insurance Company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disquali fied for holding or obtaining a driving licence during the period of disqualification.
The expression 'breach ' is of great significance.
The dictionary meaning of 'breach ' is 'infringement or violation of a promise or obligation '.1
It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle.
The very concept of infringement or violation of the promise that the expres sion 'breach ' carries within itself induces an inference that the violation or infringement on the part of the promi sor must be a wilful infringement or violation.
If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty ' of the breach of the promise that the vehicle will be driven by a licensed driver.
It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract.
Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise.
Not when some mishap occurs by some mis chance.
When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver with the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach.
And it is only in case of a breach or a violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause.
In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine.
The discussion made in paragraph 239 of Breach of Contract by Carter (1984 Edition) under the head Proof of Breach, 1. See Collins English Dictionary.
764 gives an inkling of this dimension of the matter1 In the present case even if the promise were to be treated as an absolute promise the grounds for exculpation can be found from Section 84 of the Act which reads under: "84.
Stationary vehicles No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver 's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.
" In view of this provision apart from the implied mandate to the licensed driver not to place an unlicensed person in charge of the vehicle.
There is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver.
What is prohibited by law must be treated as a mandate to the em ployee and should be considered sufficient in the eye of law for excusing non compliance with the conditions.
It cannot therefore in any case be considered as a breach on the part of the insured.
To construe the provision differently would be to re write the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person regardless of the circum stances in which such a contingency occurs, the insured will not be liable under the contract of insurance.
It needs to be emphasised that it is not the contract of insurance which is being interpreted.
It is the statutory provision defining the conditions of exemption which is being interpreted.
These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life aim.
To do otherwise would amount to nullifying the benevolent provision by reading it with a non benevolent eye and with a mind not tuned to the purpose and 1.
"Exculpation of a promisor.
Given a presumption of abso luteness of obligation, a promisor who is alleged to have failed to perform must either prove performance or establish some positive excuse for any failure on his part.
In other words he must find exculpation from what is presumed to be a breach of contract, either in the contract itself or in some external rule of law.
These are five grounds for exculpa tion: construction of the contract; the doctrine of frustra tion; the existence of an implied term; the presence of an exclusion clause; and the application of a statutory rule or provision.
These will be considered later." 765 philosophy of the legislation without being informed of the true goals sought to be achieved.
What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent.
In fact it appears that the former view is more plausible apart from the fact that it is more de sirable.
When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equal ly plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice.
The Court cannot but opt for the former view.
Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to, the doctrine of 'reading down ' the exclusion clause in the light of the 'main purpose ' of the provision so that the 'exclusion clause ' does not cross swords with the 'main purpose ' high lighted earlier.
The effort must be to harmonize the two instead of allowing the exclusion clause to snipe success fully at the main purpose.
This theory which needs no sup port is supported by Carter 's "Breach of Contract" Vide paragraph 251.
To quote: "Notwithstanding the general ability of con tracting parties to agree to exclusion clause which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisor 's contractual obligations.
For example, in Glynn vs Margetson & Co., at 357 Lord Halsbury L.C. stated: "It seems to me that in construing this docu ment, which is a contract of carriage between the parties, one must be in the first instance look at the whole instrument and not at one part of it only.
Looking at the whole instru ment, and seeing what one must regard . . as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.
" Although this rule played a role in the devel opment of the doctrine of fundamental breach, the continued validity of the rule was ac knowledged when the doctrine was rejected by the House.
of Lords in Suissee Atlantigue Societed ' 766 Armement Maritime S.A.v.
N.V. Rotterdamsche Kolen Centrale, at 393,412 413,427 428, 430.
Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract.
" _ (Exphasis added).
In our opinion, therefore, the High Courts of Gujarat and Andhra Pradesh are right and the High Courts of Orissa, Patna and Madhya Pradesh are in error.
The exclusion clause does not exonerate the Insurer.
The appeal accordingly fails and is dismissed with costs.
A.P.J. Appeal dismissed.

summary/full:
The driver of a truck handed over the control of his vehicle to the cleaner while its engine was running and the ignition key was in the ignition lock.
In the absence of the driver, who had gone for bringing snacks the cleaner inter fered with the vehicle.
which resulted in an accident.
The Tribunal as well as the High Court held that this being the immediate cause of the accident, the owner of the truck was vicariously liable.
The High Court further held that since the owner never gave permission to his cleaner to drive, he could not he held guilty of the breach of the contractual condition embodied in the policy of insurance and, therefore, the insurer cannot plead any exception on the ground that the owner had committed breach of the speci fied condition.
In the appeal to this Court, on behalf of the appellant Insurance Company it was contended: (i) that in view of the exclusion clause in the insurance policy the Insurance Company would not be liable if it was established that the accident occurred when an unlicenced person was at the wheels; (ii) that the exclusion clause is strictly in accordance with the statutorily permissible exclusion em bodied in section 96(2)(b)(ii) of the and (iii) that under the circumstances the appellant Company is not under a legal obligation to satisfy the judgments against the insured.
Dismissing the Appeal, HELD: 1.
The exclusion clause in the policy of insurance does not exonerate the Insurer.
[766B] 753 Kilari Mammi and Others.
vs Barium Chemicals Ltd. & Ors., A.I.R. 1979 (Andhra Pradesh) 75, approved.
Kirpa Natha Chakravarthy and others vs Rup Chand Luna wat, A.I.R. 1955 Assam p. 157; Shankar Rao vs M/s Babulal Fouzdar and another, A.I.R. 1980 (Madhya Pradesh) 9. 154; Orissa State Commercial Transport Corporation, Cuttack vs Dhumali Bewa & Ors.
, A.I.R. 1982 (Orissa) 70 and Dwarka Prasad Jhunjhunwala and another vs Sushila Devi & Ors., A.I.R. 1983 Patna 246, overruled.
The vicarious liability of the owner of the vehicle for damages arising out of the accident cannot be disputed having regard to the general principles of law also having regard to the violation of the obligation imposed by section 84 of the Act which provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver 's seat a person duly licensed to drive the vehi cle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.
[764B C] 3.
In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same.
[761G] 4.
Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not.
If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle.
Section 94 has been enacted to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads.
The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependents of the victims in the case of a fatal accident.
However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accidents.
The legislature has, therefore, made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.
To use the vehicle without the requisite third party insurance being in force is a penal offence under section 94 of the Act.
In 754 order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by section 96 and it will be the obligation of the Insurance Company to satisfy the judgment obtained against the persons insured against third party risks.
[761G H; 762A B] 5.
Section 96(2)(b)(ii) extends immunity to the Insur ance Company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.
Therefore, the insur er will have to establish that the insured is quilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle.
The very concept of infringement of violation of the promise that the expression 'breach ' carries within itself induces an inference that the violation or infringement on the part of the promiser must be a wilful infringement or violation.
If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty ' of the breach of the promise that the vehicle will be driven by a licensed driver.
It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract.
Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise.
Not when some mishap occurs by some mis chance.
When the insured has done everything within his power inasmuch as he has engaged a licensed driver, and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself it cannot be said that the insurer is guilty of any breach.
And it is only in case of a breach or a violation of the promise on the part of the insured that the insured can hide under the umbrella of the exclusion clause.
[763B G] 6.
The question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine.
In the present case even if the promise were to be treated as an absolute prom ise the grounds for exculpation can be found from section 84.
In view of this provision apart from the implied mandate to the licensed driver not to place a non licensed person in charge of the 755 vehicle, there is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver.
What is prohibited by law must be treated as mandate to the employee and should be considered sufficient in the eye of law for excusing non compliance with the conditions.
It cannot therefore in any case be considered as a breach on the part of the insured.
[763G 764A; C El 7.
The statutory provisions defining the conditions of exemption under section 96(2)(b)(ii) and not the contract of insurance must be interpreted in the spirit in which the same have been enacted, accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life aim.
To do otherwise would amount to nullifying the benevolent provision.
[764F G] 8.
When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equal ly plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice.
The Court cannot but opt for the former view.
[765B C] 9.
The exclusion clause has to be 'read down ' in order that it is not at par with the 'main purpose ' of the provi sions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.
[765C D] Collins English Dictionary and Carter 's Breach of Con tract (1984 Edn.) Paras 239 and 251, relied upon.


judgement:
Criminal Appeal No. 225 of 1978.
From the Judgment and order dated 19.4.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 1106 of 1974.
A.N. Mulla, Mrs. Pravawati, Mrs. Urmila Kapur and Ms. section Janani for the Appellants.
R.S. Sodhi for the Respondent.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
After hearing Shri A.N. Mulla, Sr.
Advocate for appellants and Shri R.S. Sodhi, Counsel appear ing on behalf of the respondent and having carefully exam ined all aspects of the case in the light of the submissions made at the Bar, we have unhesitatingly come to the conclu sion that this appeal has to be allowed.
749 The four appellants before us Tota Singh, Dauli Singh, Mithu Singh and Mukhtiar Singh were tried by the Court of Sessions, Faridkot on charges under Section 302 IPC read with Section 34 IPC and Section 323 IPC read with Section 34 IPC.
After detailed consideration of the entire evidence adduced in the case, the learned Sessions Judge by his judgment dated May 30, 1974 acquitted the appellants of all the charges laid against them.
Against the said decision of the Sessions Judge, the State of Punjab preferred Criminal Appeal No. 1106 of 1974 in the High Court of Punjab and Haryana.
A Division Bench of the High Court by its judgment dated April 9, 1978 allowed the State 's appeal, set aside the order of the Sessions acquitting the appellants and convicted the appellants under Section 302 IPC read with Section 34 IPC as well as under Section 323 1PC read with Section 34 IPC.
On the first count all the appellants were sentenced to undergo rigorous imprisonment for life and on the second account they were ordered to undergo rigorous imprisonment for one year each with a further direction that the substantive sentence of imprisonment in respect of all the appellants shall run concurrently.
We do not propose to set out in extenso the facts of the case nor to discuss in detail the oral and documentary evidence adduced.
We say this for the reason that we are fully satisfied that the approach made by the High Court to a consideration of the appeal was wholly vitiated by a manifest illegality inasmuch as the High Court has acted in total disregard of the principles repeatedly laid down by this Court delineating the restricted grounds on which alone interference may be made by a Court of appeal with an order of acquittal passed by a lower Court.
The occurrence that led to the prosecution took place on July 19, 1973 at about 4 P.M. in village Bishmandi, Police Station Jaitu in District Faridkot.
The case of the prosecu tion is that the deceased Gurdev Singh accompained by Ajmer Singh P.W. 2 and Malkiat Singh P.W. 6 was going from the house of the Ajmer Singh to the house of the deceased on that fateful day.
While they were approaching the house of one Moda Singh Jat, the four appellants, all carrying a gandasa each, suddenly besieged them from behind the Cheli anwali Street raising a "lalkara" proclaiming that they were going to take their revenge for outraging the modesty of Malkiat Kaur and they attacked the deacased as well as Ajmer Singh and Malkiat Singh by inflicting gandasa blows on them.
It was alleged that this was a preplanned and concerted attack made by the appellants as a reappraisal for an inci dent of alleged rape of one Malkiagt Kaur by Ajmer Singh 750 (P.W. 2), Gurdev Singh (deceased) is said to have fallen down on the spot as a result of the blows inflicted on him and P.Ws. 2 and 6 are said to have suffered simple injuries due to the attack with gandasa.
According to the prosecution version on hearing the cries for help raised by P.W. 2 and P.W. 6, Kaur Singh, son of deceased Gurdev Singh came to the place of occurrence and thereupon all the four appellants ran away from the spot leaving P.W. 6 near Gurdev Singh, who was lying on the ground in an injured condition.
P.W. 2 is said to have gone to the Sarpanch and the Panch of the village and informed them about the incident.
Thereafter he returned to the scene of occurrence and himself along with P.W. 6 are said to have put Gurdev Singh on a bullock cart and got him admitted in the injured condition in the hospi tal.
P.W.2 and P.W.6 were also admitted in the same hospi tal.
Gurdev Singh was subsequently transferred to the Chris tan Medical College at Ludhiana, where he succumbed to his injuries on July 30, 1973.
The learned Sessions Judge after a careful analysis of all the facts and circumstances as disclosed by the evidence adduced in the case came to the conclusion that the testimo ny of Ajmer Singh P.W. 2 and Malkiat Singh P.W. 6 who were examined by the prosecution as eyewitnesses to prove the occurrence could not be safely accepted and acted upon as true.
The trial Judge set out in his judgment detailed and cogent grounds for arriving at the said conclusion.
In his opinion there was no proper explanation for the inordinate delay in reporting the crime to the police and there was also no adequate proof of any motive.
The learned Sessions Judge rejected the theory put forward by the prosecu tion 'that it was a pre planned attack made by the appellants with a view to avenge the alleged molestation of Malkiat Kaur by Ajmer Singh P.W. 2 by pointing out that if such had been really the case, the target of attack by the appellants would have been Ajmer Singh to whom only simple injuries were caused and not Gurdev Singh who had nothing to do with the alleged incident of molestation.
The learned Sessions Judge was inclined to accept the defence version that the appellants being 'siris ' had some trouble with P.W. 2 and P.W. 6 about the apportionment of 'batai ' and this might have led to their false implication in the case.
In the absence of any independent corroboration of the testimony given by the two alleged eye witnesses (P.W. 2 and P.W. 6), the learned Sessions Judge who had seen them giving evidence in the box was not impressed by their evidence specially having regard to the fact that both of them had been appear ing as prosecution witnesses in a large number of police cases.
The testimony of P.W. 2 and P.W. 6 having been found to be not worthy of belief, the 751 learned Sessions Judge acquitted the appellants on both the charges levelled against them.
The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of P.W. 2 and P.W. 6 were either unreasonable or perverse.
What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such reappreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge.
This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal.
The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse.
Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its con sideration of the evidence is erroneous.
Tested in the light of the above principles, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Sessions Judge was wholly unwarranted.
We accordingly, allow this appeal, set aside the judgment of the High Court and restore the judgment and order of the learned Sessions Judge acquitting the appellants of all the charges framed against them.
M.L.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellants were tried by the Court of Sessions on charges under section 302 IPC read with section 34 IPC and section 323 IPC read with section 34 IPC, and the Sessions Judge acquitted the appellants or ' all the charges laid against them on the grounds: (i) that there was no proper explanation for the inordinate delay in reporting the crime to the police; (ii) that there was also no adequate proof of any motive; (iii) that it was not a pre planned attack; and (iv) that the testimony of P.W. 2 and P.W. 6 who were exam ined as eye witnesses to prove the occurrence, could not be safely accepted and acted upon as true.
In the absence or ' any independent corroboration or ' the testimony given by them, since they had also been appearing as prosecution witnesses in a large number of police cases.
The High Court, however, in appeal by the respondent State made an independent reappraisal of the evidence and set aside the acquittal, merely on the ground that as a result of such reappreciation it was inclined to reach a conclusion different from the one recorded by the Sessions Judge.
Allowing the appeal by the appellants, this Court, HELD: 1.
The approach made by the High Court to a con sideration of the appeal was wholly vitiated by a manifest illegality inasmuch as the High Court has acted in total disregard of the principles repeatedly laid down by the Supreme Court delineating the restricted grounds on which alone interference may be made by a court of appeal with an order of acquittal passed by a lower Court.
[751D] The High Court in the instant case, has not found that the reasons given by the Sessions Judge for discarding the testimony of P.W. 2 and 748 P.W. 6 were either unreasonable or perverse.
[751B] 2.1 The mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal.
[751C] 2.2 The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circum scribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse.
[751D E] 3.
Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.
[751E]


judgement:
ION: Criminal Appeal No. 3 of 1954.
Appeal by special leave from the judgment and order dated the 22nd June, 1951, of the Bombay High Court in Criminal Revision Application No. 1425 of 1950,arising out of the judgment and order dated the 9th September, 1950 of the court of the Presidency) Magistrate Fifth Court, Dadar, Bombay in Cause No. 7825/P of 1949.
P. R. Das, section A. Desai, Shellim Samuel and I. N. Shroff, for the appellant.
B. D. Boovariwala, Jindra Lal and R. H. Dhebar, for the respondent.
October 8.
The following Judgment of the Court was delivered by SINHA, J.
The main question for determination in this appeal by special leave is whether the High Court has power, and, if so, the extent of such power, to revise an order of discharge passed by a Presidency Magistrate.
The, order impugned in this case was passed by a Division Bench of the Bombay High Court (Bhagwati and Vyas, JJ.), dated June 22, 1951, setting aside the order dated September 9, 1950, passed by a Presidency Magistrate of Bombay, directing the appellants who were accused 1 and 2 before the learned magistrate, to take their trial in the Court of Session, on a charge under section 409, Indian Penal Code, as against 620 the first accused and under section 409, read with section 109, Indian Penal Code, as against the second accused.
The facts leading upto this appeal, in bare outline, are as follows: On July 8, 1947, Raja Dhanraj Girji Narsingh Girji, Chairman of the Dhanraj Mills Limited, who will be referred to in the course of this judgment as the complainant, lodged a first information report before the Inspector of Police, General Branch, C.I.D., Bombay, in writing, to the effect that the Dhanraj Mills were formerly his private property which he converted into a limited concern in 1935.
He is the life Chairman of the Board of Directors of the concern.
Till 1937, he was the Managing Agent, but, in that year, he transferred the managing agency to Ramgopal Ganpatrai, the first appellant who converted the managing agency into a private limited concern consisting of himself and members of his family.
In 1943, the first appellant floated two private limited concerns under the name and style of (1) Ramgopal Ganpatrai and Sons as the Managing Agents and (2) Ramrikhdas Balkisan and Sons Limited, as the selling agents.
Thus, the first appellant came to have control of the managing agency and the selling agency as also of the Mills, all inter connected.
The complainant had six annas share in the managing agency and the remaining interest therein was owned by the first appellant and his family.
Differences arose between the complainant and the first appellant in respect of the affairs of the Mills.
The complainant 's suspicions were aroused with respect to the accounts of the Mills, and as a result of his private enquiries, he claims to have discovered that " there were large defalcations committed in the management of this Mill".
It appeared to him that during September to December, 1945, the first appellant as the Managing Agent, in the course of his large purchases of cotton bales for consumption in the Mills, had " dovetailed in these transactions about 20 bogus entries of socalled purchases of 3,719 cotton bales from fictitious merchants in the Bombay market.
The cost of these purchases involved an approximate sum of Rs. 8,27,000.
" Against the customary practice of the 621 Mills, the first appellant made payments in respect of those fictitious purchases by bearer cheques which were cashed by his men and the cash, thus obtained was misappropriated by him to his personal use and account.
In order to cover up those fictitious and bogus purchases, false entries had been made in the books and registers and the receipts, kept by the Mills In order to balance the stock in hand of cotton bales the first appellant and his associates in the crime like the second appellant, who is described as the office manager, showed bogus sales of an equal number of bales said to contain deteriorated cotton at reduce rates.
The sale price of such bogus sales amounted to Rs. 4,19,000, thus, causing a loss of over four lacs of rupees to the shareholders.
The sale price is also said to have been received in cash by bearer cheques which have, likewise, been cashed by the employees of the Mills and similarly misappropriated to the appellant 's account.
A third series of bogus purchases are said to have been in respect of stores, dyes an chemicals, etc., approximately of the value of five lacs of rupees " by falsely debiting various sums of money to a number of non existent parties".
In order to conceal the fraud, thus perpetrated on the Mills other false entries in the books of account and other documents relating to those bogus transactions were alleged to have been made by the first appellant and his underlings.
It was, further, alleged that the complainant 's suspicions were further strengthened by the false statement made at a Directors ' meeting that there was a strike and that the strikers had burnt some records of the Mills.
Three persons, namely, the first appellant, Harprasad Gupta, the second appellant and A. R. Mulla Feroz who was subsequently discharged by the magistrate, were named as the three accused persons concerned in the crime of embezzlement in respect of the funds of the Mills.
During their investigation, the Police had taken possession of the relevant books of account from the precincts of the Mills.
On July 19, 1948, a charge sheet under section 409 and section 409/109, Indian Penal Code, was submitted by the Police, against the aforesaid three persons, for 622 defalcation of Rs. 8,97,735 and odd between August 1, 1945 to July 31, 1956.
The names of 40 witnesses appear in the charge sheet.
The learned Presidency Magistrate, Shri C. B. Velkar, passed a I preliminary order ' in which he considered the question whether the enquiry against the accused persons should take the form of the procedure for summons trial or for a warrant trial or commitment proceedings preliminary to their being placed on trial before a Court of Session.
After a consideration of the police charge sheet and his own powers adequately to punish the offenders if their offence were made out, and the relevant provisions of the Criminal Procedure Code, he recorded the following order: ". .
I hold that this case is governed by section 207 Criminal Procedure Code and as such I order that this case should be proceeded with on Sessions Form.
" Thereafter, the learned magistrate examined as many as 42 witnesses for the prosecution between November, 1948 and October, 1949.
He also considered the written statements of the accused persons, filed in October and December that year and a very large volume of documentary evidence, which was exhibited in the case, numbering many hundreds of exhibits and running into thousands of pages, as will presently appear.
On December 17, 1949, after hearing counsel for the parties and considering their respective versions as contained in the oral and documentary evidence, the learned magistrate recorded the following order: ". .
I agree with this view and order that accused No. 3 should be discharged.
As regards accused Nos. 1 and 2 1 hold that there is a prima facie case to charge them and for reasons already mentioned I restrict the charges to the following counts:".
Then, he framed seven separate charges in respect of much smaller sums against the two accused persons under section 409, read with section 109, Indian Penal Code.
He also decided, apparently on a misunderstanding of a circular issued b the Registrar of City Civil and 623 Sessions Court, of August, 1949, to try the case himself.
This, in our opinion, was a serious mistake on his part inasmuch as he lost sight of those very considerations on which he had previously, in his order of May 6, 1948, decided to bold only a preliminary inquiry " on Sessions Form The learned magistrate appears to have thought that, as an offence under section 409, Indian Penal Code, was not exclusively triable by a Court of Session, irrespective of the enormity of the offence alleged and his power properly and adequately to punish such an offence, he was empowered by the Circular aforesaid to try the case.
This was a grave error in exercise of judicial discretion vested in the magistrate.
The State Government of Bombay moved the High Court against the order aforesaid of the learned Presidency Magistrate deciding to try the case himself on the seven mutilated charges framed by him.
The application in revision was heard by a Division Bench consisting of Bavdekar and Chainani, JJ.
The High Court by its order dated March 1, 1950, remitted the proceedings to the learned magistrate, after reframing the charges which are as under: "That you, accused No. 1 Ramgopal Ganpatrai Ruia being an agent of the Dhanraj Mills Ltd., and in such capacity entrusted with property, viz., the amount of Rs. 6,06,661 3 6, being the proceeds of the cheques Nos.
Exhibits J/22, J/23, J/25, H/3, H/4, J1, J/2, J/4, J15, J/30 to J/32, J/33, J/34, J/10 to /J13, belonging to the said Mills, committed at Bombay, between the dates of the 21st August, 1945 and the 31st of December, 1945, criminal breach of trust with respect to the above property, and thereby committed an offence punishable under section 409 of the Indian Penal Code and within the cognizance of the Court of Session of the City of Greater Bombay.
And I further charge you, accused No. 2 Harprasad Ghasiram Gupta, and the said RamgopaI Ganpatrai Ruia, accused No. 1, between the dates of the 21st of August, 1945 and the 31st of December, 1945, at Bombay committed the offence of criminal breach of trust as an agent in respect of the amount of 624 Rs. 6,06,661 3 6, being the proceeds of the cheques Exhibits J/22, J/23, J/25, H/3 and H/4, J/1, J/2, J/4 J15, J/80 to J/32, J/33, J/34, J/10 to J/13 belonging to the said Mills, and that you between the said dates and at the same place abetted the said accused No. 1.
Ramgopal Ganpatrai Ruia, in the commission of the said offence of criminal breach of trust as an agent, which was committed in consequence of your abetment, and you have thereby committed an offence punishable under section 109, when read with section 409 of the Indian Penal Code, and within the cognizance of the Court of Session, Greater Bombay." After setting out the case of the parties in some detail, the High Court acceded to the arguments made on behalf of the State that the charges framed by the learned Presidency Magistrate, required to be completely changed in form and substance.
Though it did not "desire to fetter the discretion of the magistrate", it clearly expressed the view that "the case ought to be committed to the Court of Session".
The High Court clearly took the view that the magnitude of the case and the amount of punishment in the event of a conviction, clearly justified a committal.
But inspite of giving that clear direction in view of the fact that the magistrate himself had found a prinza facie case for the prosecution, it returned the proceedings to the learned magistrate after reframing the charges, with a direction to expedite the case.
On receiving the case back from the High Court, the learned magistrate recorded the evidence of two defence witnesses in great detail, covering about 50 pages in print and accounting for the months of March to June, 1950.
It appears that in spite of the expression of opinion by the High Court, as aforesaid, that it was a fit case for committal to the Court of Session, the learned magistrate decided to discharge the accused.
On September 9, 1950, after hearing the arguments, he wrote a very elaborate judgment running into more than 30 pages in print.
Though in form it is an order passed in commitment proceedings, it reads like a judgment after a full trial.
The learned magistrate stated the prosecution case in all its details, setting 625 out the documentary evidence on which the charges were based, running into 33 paragraphs and ten pages in print.
Then, he proceeded to state the defence version equally elaborately, and embarked upon a very detailed examination of the evidence in the case, to find which version is the more acceptable one.
He felt convinced that the defence version depending as it did, on the large mass of documentary evidence, explained by oral evidence of both sides, was the more acceptable one.
He discussed seriatim the evidence which according to the prosecution lent itself to the sinister inferences to be drawn against the accused persons, and then weighed all that evidence and balanced it as against the innocent interpretations sought to be put on that large mass of evidence on behalf of the accused.
In the result, be passed the following order in the last paragraph of this judgment: "This case is pending with me for about two years and had gone on practically on the basis of audit of the mill accounts in respect of these transactions in a Criminal Court.
I do not think that I will be justified in permitting the time of another court being occupied for this case unless a conviction in the case is reasonably probable.
For several reasons given above and looking to the evidence of the prosecution as regards the question of delivery being taken or not, I am of the opinion that on the evidence before me no criminal court would convict the accused and I therefore hold that there are no sufficient grounds for committing the accused for trial and this is not a fit case to go to the sessions.
" The Government of Bombay moved the High Court in revision against the aforesaid order of discharge against the two appellants.
The revisional application was heard and disposed of by a Division Bench by its judgment and order, dated June 22, 1951, which is almost as long as that of the learned Presidency Magistrate, running into about 30 printed pages.
The High Court, after going into the history of the case., set out the prosecution version and the voluminous evidence on which the prosecution case was founded.
The High Court pointed out that from a cursory 626 examination of the evidence led on behalf of the prose cution, it appeared: that 3,719 bales of cotton were purported to be purchased by the Mills, and an equal number of bales of that commodity were purported to be sold on behalf of the Mills, during the months of September to December, 1945; that not only the number of bales was the same but also the classification of cotton purchased and sold; that except in two instances, in almost all cases of purchases and sales, the transactions of sales purported to have taken place some days after the alleged purchases, and that in no case did any sale purport to have taken place earlier than the purported purchase; that unlike admittedly genuine transactions, weigh ment certificates were not taken by the sellers but by the accused No. 2 to P. W. Chottey Lal; that the invoices from Chottey Lal were not taken by the sellers but by the accused No. 2; that cheques for large amounts running into thousands and lacs of rupees, prepared by, BhAt A, bank employee were not crossed and order cheques but bearer cheques; that such bearer cheques were not made over to the alleged sellers.
or their agents but were taken away by accused No. 2; that those cheques were not cashed by the alleged sellers but by the employees of the Mills; that the receipts for the amounts were signed by persons like accused No. 2 for fictitious agents of fictitious vendors.
These were some of the circumstances which had been strongly relied upon by the prosecution for showing that all those alleged transactions of sale and purchase of cotton bales were bogus transactions which had been entered in the books of account kept by the company with a view to benefiting the accused persons, particularly the first accused.
It was also pointed out that most of the moneys obtained in the course of the alleged transactions of sales and purchases were in one thousandrupee notes.
278 of such one thousand rupee notes were traced to a bank on account of the first appellant, and 118 of such one thousand rupee notes were traced to another bank on similar account.
It was also pointed out in the judgment that no previous permission of the Textile Controller was obtained in 627 respect of the movement of cotton, which, during the relevant period, was necessary under the law.
Similarly, in respect of the purchases of stores, etc., the persons shown in the memoranda of purchase were not found in the market to be dealing with any such commodities and did not possess the necessary licence.
The High Court also noticed the arguments advanced on behalf of the accused persons to the effect that the transactions of sales and purchases which were alleged by the prosecution to be mere fictitious transactions which had no existence in fact, were real transactions but had been in the ostensible names of some persons for the benefit of the second accused and his partners who did not think it advisable or expedient to use their own names; that the transactions have been regularly entered in the books and registers maintained by the Mills and passed through several hands in the usual course of business, as done by the Mills and as evidenced by the large number of entries relating to the transactions im peached in this case.
The High Court also noticed the several explanations offered by the defence to show that the transactions had no sinister significance, and that they were capable of bearing innocent inter retstions supporting the defence version.
In our opinion, the High Court need not have examined the defence version in as great a detail as they have done; but, perhaps, they took that course in view of the very elaborate judgment written by the learned Presidency Magistrate.
The High Court expressed their conclusions in these terms: " We have referred to the evidence on which the prosecution relies and also to the evidence on which the defence relies.
We do not wish, nor is it our function in this application, to express our views regarding its eventual acceptance or otherwise.
We wish to appraise it only prima facie and from that point of view it appears to us that having regard to the mass of circumstances and evidence in the case it is not possible to say that no Court would ever convict the accused or that the Judge would withdraw the case 628 from the Jury on the (,round of there being no evidence at all." The High Court then examined the legal arguments advanced on behalf of the parties, and a number of rulings of the different High Courts in India.
Upon such an examination, the High Court 's conclusion is as follows: " The correct position is not that be should commit the case to the Sessions Court only if a conviction, in his opinion, is bound to follow.
If there are circumstances for and against, if there are probabilities for and against, if there is evidence for and against with which there is nothing wrong prima facie, which on an appraisement by the jury may lead to a conviction or may not, his duty is to commit the case and not discharge the accused.
The test is that if there is credible evidence which, if accepted, may lead to conviction, he ought to commit.
If the magistrate comes to the conclusion that the evidence is such that no Court would ever convict, he should not commit the case In the result, the High Court allowed the application setting aside the order of the learned magistrate and directing that the appellants shall stand committed to the Court of Session, the first appellant for a charge under section 409, Indian Penal Code, and the second appellant under section 409, read with section 109, Indian Penal Code, that is to say, on the charges as framed by the Division Bench of the High Court in their order dated March 1, 1950, when the matter was before them on the previous occasion.
The accused persons then moved this Court and obtained special leave to appeal from the order aforesaid of the High Court, directing their committal to the Court of Session.
The special leave was granted by this Court, on January 15, 1952, and further proceedings against the appellants in the Court of Session were stayed.
The learned counsel for the appellants has raised three main contentions against the order passed by the High Court: (1) that this Court should not direct a trial of the persons after such a long delay 629 of about 12 years from the time the offence is alleged, to have been committed; (2) that the High Court bad no jurisdiction to revise the order of discharge passed by a Presidency Magistrate, and (3) that assuming that the High Court had such a jurisdiction, it erred.
in setting aside the order of the magistrate when there was no misdirection in the order of discharge, nor had it been shown that it was an improper order in all the circumstances of the case.
Under the last heading, a further contention was raised that the High Court had not considered all the grounds on which the order of discharge was passed.
It is convenient to deal with the contentions in the order in which they have been raised at the Bar.
As regards the delay in bringing the case to trial, it cannot be said that the blame lies all at the door of the prosecution.
As will presently appear, the accused persons themselves have largely contributed to this inordinate delay in bringing the case to trial.
During the period of 1948 to 1951 , the case traveled to the High Court of Bombay four times on interlocutory matters.
Only two of those revisional proceedings have been noticed above, the other two not being necessary to be referred to for the purposes of this appeal.
As already stated, special leave was granted by this Court in January, 1952.
The records, the preparation of which lay mainly with the appellants, was not received until January, 1954.
The record as prepared at the instance of the appellants and as it stands now, runs into eleven big volumes running into over 5,700 closely printed pages.
Of these volumes, only the first three have been referred to in the course of the arguments at the Bar only portions of them.
The remaining eight volume,% have all gone waste.
This case is a very telling illustration of waste of public time and private funds.
Even after the receipt of the records, the parties between them have succeeded in preventing the case from being put up for final hearing and disposal for another three years.
It is not necessary to go into any further details, but the Court must look with great disfavour upon, and publicly denounce the way in which the appeal has 630 been prosecuted during the last more than 5 years that the case has remained pending in this Court.
It cannot, therefore, be said that the appellants have any just grievance that the case has remained pending for more than nine years since after the submission of the charge sheet and has not yet been brought to trial.
They have largely to thank themselves for this result.
We cannot, therefore, for a moment, entertain the plea that on the ground of delay, the case should not proceed to trial, if this Court upholds the order of commitment made by the High Court.
The most important ground of attack against the order of the High Court is that it had no jurisdiction to set aside the order of discharge passed by a Presidency Magistrate.
This contention is based upon the ground, firstly that section 437 of the Code of Criminal Procedure, which specifically deals with the power to order commitment, does not, in terms, apply to a case dealt with by a Presidency Magistrate.
It was, therefore, suggested that the Legislature did not intend that an order of discharge passed by such a magistrate should be interfered with at all.
Secondly, it was contended that those cases, to be presently noticed, which have held that the authority of the High Court to interfere with such an order is derived from the provisions of sections 435 and 439, read with section 423 of the Code, have been wrongly decided.
In other words, it is contended that on a proper construction of those sections of the Code, it should be held that there was no power in the High Court to set aside an order of discharge passed by a Presidency Magistrate, though it has been taken as settled law during the last about half a century, so far as High Courts are concerned, that such an order is revisable by the High Court.
Before examining the rulings of the High Courts of Bombay and Calcutta, bearing on this controversy, we shall first examine the relevant provisions of the Code itself and find out for ourselves whether as a matter of interpretation of those sections, the contention has any force.
Under section 435, the High Court or any Sessions Judge or a District Magistrate or a Subvisional Magistrate specially so empowered, has 631 been vested with the power to call for and examine the record of any proceeding before any inferior criminal court, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order.
Section 436, dealing as it does with the power to direct further inquiry, need not detain us.
Section 437 is equally out of the way, because it deals with the powers of a Sessions Judge or a District Magistrate, to order commitment in cases triable exclusively by a Court of Session.
Section 439 is the operative section and the question now before us must be answered with reference to the terms of that section.
It provides that on examining the record of "any proceeding", the High Court "may, in its discretion, exercise any of the powers conferred on a, court of appeal by sections 423. . . (omitting portions not necessary for our present purpose), except that the section does not authorise a High Court to "convert a finding of acquittal into one of conviction.
" We have, therefore, to examine the terms of section 423 which contains the powers of an appellate court in dealing with appeals.
The learned counsel for the appellants contended that as an order of discharge is not appealable under the Code, it can be set aside only under the specific provisions of the Code contained in sections 436 and 437 and not otherwise.
It has already been pointed out that these two sections are out of the way in this appeal.
In other words, the argument is that only that order is revisable under section 439 of the Code which is appealable under the Code.
This argument has only to be stated to be rejected in view of the very wide terms in which section 439 has been worded.
Section 439 has to be read along with section 435 so far as the present controversy is concerned.
Section 435 certainly authorizes the High Court besides other courts mentioned therein, to "call for and examine the record of any proceeding before any inferior criminal court".
It has not been, and it cannot be contended that a Presidency Magistrate is not such an inferior criminal court.
If the High Court is empowered to call for the record of any proceeding before a Presidency Magistrate, it follows that it may examine the 632 correctness, legality or propriety of any order passed by him and if it finds that the order is not correct or is illegal or improper, it may, acting under section 439, exercise any of the powers conferred on a court of appeal by section 423.
But at this stage, it has been pointed out that the power to order committal for trial is contained in clause (a) of section 423(1), and that clause begins with the words " in an appeal from an order of acquittal".
It has, therefore, been contended that unless there is an appeal against an order of acquittal, the High Court 's power to order that the accused be committed for trial, cannot be exercised under section 439.
But section 417 of the Code specifically deals with an appeal to the High Court against acquittal, and its powers in dealing with such an appeal are contained in section 423 (1)(a).
If the appellant 's argument is well founded, section 439 becomes redundant in so far as it deals with the power of the High Court to order committal for trial.
In our opinion, the fallacy of this argument lies in reading all the words of section 423 into section 439, which the latter section does not contemplate.
Section 439 only authorizes the High Court in revision to exercise any of the powers conferred under, section 423.
It does not further make reference to the cases in which such powers have to be exercised.
The latter question does not arise because section 439 itself makes the sweeping provision that "in the case of any proceeding", the High Court may exercise the powers enumerated in section 423.
We have, therefore, to look into section 423 to find out not the cases in which the High Court can interfere but only the nature of the power that it can exercise in a case, in its revisional jurisdiction, that is to say, we have to incorporate only the several powers contained in section 423, into section 439, except the power to convert a finding of acquittal into one of conviction.
The argument that the power of revision contained in section 439 can be exercised only in cases of appealable orders, is also negatived by referring to section 441 which incorporates section 435.
Section 441 specifically provides for the record "of any proceeding of any Presidency Magistrate" being called for by the High Court under section 435.
In such a case, such a magistrate is empowered 633 to submit, along with the record, a statement setting forth the grounds of his decision or order, and the High Court shall then "consider such statement before overruling or setting aside the said decision or order.
" Section 441 is so widely worded as to include the decision or order of a Presidency Magistrate in any proceeding, which the High Court may set aside in a proper case.
Under the Code, a Presidency Magistrate may pass an order without recording the reasons for such an order, for example, an order under section 213 (1) committing the accused for trial.
If such an order is called in question before the High Court, the Presidency Magistrate concerned, unlike other magistrates, is permitted by the Code to supplement the record by a statement setting forth the grounds of his decision or order, so that the High Court may have before it not only the order or decision in question but also a statement of the reasons therefor.
It is manifest, therefore, that on a consideration of the relevant provisions of the Code, there is no warrant for th extremely wide proposition which has been canvassed before us.
Until the decision of the Calcutta High Court in Malik Pratap Singh vs Khan Mahomed (1), there was a divergence of judicial opinion in that Court as to the power of the High Court under section 439 to revise an order of discharge passed by a Presidency Magistrate.
The cases pro and con are discussed in that ruling and need not be specifically cited here.
The learned counsel for the appellants has not drawn our attention to any decision of any High Court in India to the contrary.
A Division Bench of the Bombay High Court also in the case of Emperor vs Varjivandas alias Kalidas Bhaidas (2 ), has taken the same view after discussing the Calcutta and Allahabad cases.
In view of these considerations, it must be held that there is no merit in the second contention raised on behalf of the appellants.
Having held that the High Court had the necessary jurisdiction, it remains to ' consider the last serious objection raised on behalf of the appellants to th (1) Cal.
(2) Bom, 84.
634 exercise of that jurisdiction by the High Court.
In this connection, it was contended that the High Court erred in reversing the order of the Presidency Magistrate and directing the accused to take their trial in the Court of Session, because, it was further argued, the High Court has not shown any misdirection in the well considered order passed by the Presidency Magistrate, or that it was otherwise improper.
It was further urged that the sole ground on which the High Court has set aside the order of discharge was that the jury may spell out a case which was not alleged by the prosecutions case which is wholly inconsistent with the case set out in the first information report and sought to be made out in evidence.
In order to appreciate the grounds on which this part of the appellants ' contentions has been rested, it is necessary to examine the relevant provisions of the Code of Criminal Procedure.
Chapter XVIII deals with the procedure before a committing magistrate.
Under section 208, the magistrate has to take all such evidence as may be produced by the prosecution and by the accused.
Section 209 authorizes the magistrate to discharge the accused person " if he finds that there are not sufficient grounds for committing the accused person for trial.
" Similarly, section 210 authorizes the magistrate to frame a charge declaring with what offence the accused is charged if he "is satisfied that there are sufficient grounds for committing the accused for trial.
" If the magistrate frames a charge against the accused person as aforesaid, it is open to the latter to examine witnesses in defence.
After such defence witnesses have been examined by the magistrate, section 213 authorizes him either to commit the accused for trial or to cancel the charge and to discharge the accused if he is satisfied that there are not sufficient grounds for committing him to the Court of Session.
As will presently appear, there is a large volume of case law on the question as to when a magistrate should or should not commit an accused person for trial.
The controversy has centered round interpretation of the words "sufficient grounds", occurring in the relevant sections of the Code, set out above.
635 In the earliest case of Lachman vs Juala (1), decided by Mr. Justice Mahmood in the Allababad High Court, governed by section 195 of the Criminal Procedure Code of 1872 (Act No. X of 1872), the eminent judge took the view that the expression "sufficient grounds" has to be understood in a wide sense including the power of the magistrate to weigh evidence.
In that view of the matter, he ruled that if in the opinion of the magistrate, the evidence against the accused "cannot possibly justify a conviction" there was nothing in the Code to prevent the magistrate from discharging the accused even though the evidence consisted of statements of witnesses who claimed to be eye witnesses, but whom the magistrate entirely discredited.
He also held that the High Court could interfere only if it came to the conclusion that the magistrate had committed a material error in discharging the accused or had illegally or improperly underrated the value of the evidence.
Thus, he overruled the contention raised on behalf of the prosecution that the powers of the committing magistrate did not extend to weighing the evidence and that the expression "sufficient grounds" did not include the power of discrediting eye witnesses.
Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words "sufficient grounds" have continued throughout.
That decision was approved by a Division Bench of the Bombay High Court in In re Bai Parvati(2), and the observations aforesaid in the Allahabad decision were held to be an accurate statement of the law as contained in section 209 of the Code, as it now stands.
The High Court of Bombay held in that case that where the evidence tendered for the prosecution is totally unworthy of credit, it is the duty of the magistrate to discharge the accused.
It also added that where the magistrate entertains any doubt as to the weight or quality of the evidence, he should commit the case to the Court of Session which is the proper authority to resolve that doubt and to assess the value of that evidence.
The question of the extent of the power of a committing court under sections 209 and 210 of the Criminal 636 Procedure Code of 1882 (Act X of 1882), arose in the case of Queen Empress vs Namdev Satvaji (1), and a Division Bench of the Bombay High Court, presided over by Mr. Justice West, made the following observations which correctly laid down the legal position: ". . an accused ought to be committed when there is a prima facie case substantiated against him by the testimony of credible witnesses.
According to the English law, a commitment ought to be made whenever one or two credible witnesses give evidence showing that the accused has perpetrated an indictable offence (see Hale 's Pleas of the Crown, 11, 121 ; Hawkins ' Pleas of the Crown, Ch.
XVI; Cox vs Coleridge (14 Calc.
W. R., Cr. Rul., 16).
And the sort of prima facie case that warrants a committal is defined by Stat.
and 12 Vic., Ch. 42, section 25, as one "that is sufficient to put the party upon his trial for an indictable offence." According to our Criminal Procedure Code, sections 209 and 210, the magistrate is to commit, or not, as there are or are not, in his opinion, "sufficient grounds for committing ".
What are "sufficient grounds for committing" is not in any way defined, but it is manifest that they are not identical with grounds for convicting, since, taken in that sense, the provisions would enable the magistrate virtually to supersede the Court of Session to which the cognizance of the case for actual trial belongs.
The true principle appears to be that expressed in the English statute.
The magistrate ought to commit when the evidence is enough to put the party on his trial, and such a case obviously arises when credible witnesses make statements which, if believed, would sustain a conviction.
The weighing of their testimony with regard to improbabilities and apparent discrepancies is more properly a function of the Court having jurisdiction to try the case.
" A Division Bench of the same High Court dealing with a case arising under the Code of 1898 'Act V of 1898), observed that the words "sufficient grounds for committing", do not mean sufficient grounds for convicting, but have reference to a case in which the evidence is sufficient to put the accused on his trial, that is to (1) Bom.
372, 374 (1) Bom.
372, 374.
637 say, when there is credible evidence which, if believed, would sustain a conviction.
Hence, a committing court has only to be satisfied that there is a prima facie case made out by the prosecution evidence.
In the same High Court, on account of certain observations made in the case of Parasram Bhikha vs Emperor (1), the question of the ambit of the powers of a committing court was referred to a Full Bench presided over by Sir John Beaumont C. J.
The learned Chief Justice, in the course of his judgment, overruled the previous decision in I.L.R. , to the effect that the magistrate was entitled and bound to value and weigh the evidence and that the revisional court could interfere only if the order was perverse or manifestly contrary to the evidence.
He also observed that under section 209, a magistrate has the power to consider the evidence and, thus, to satisfy himself that there are sufficient grounds for committing the accused for trial, and, for that purpose, he has to look into the nature of the evidence and credibility of the witnesses, but that is not the same thing as examining evidence with a view to reaching a conclusion that a case for convicting the accused bad been made out.
In other words, it is not the magistrate 's duty to try the accused, which duty is cast upon the Court of Session.
In his view, if the magistrate came to the conclusion that there was evidence which required to be weighed, he ought to commit the accused for trial and he ought not to discharge the accused simply because in his view, the evidence was not sufficient for the conviction of the accused.
Thus, according to the learned Chief Justice, there is a difference between the power of a committing court to consider and appreciate the evidence and its power to weigh the evidence.
Rangnekar J. who delivered a separate but concurring judgment, does not appear to have agreed with the learned Chief Justice in all his observations, particularly in so far as he made a, distinction between considering the evidence and weighing the same.
(See Ramchandra Babaji Gore vs Emperor (1) Bom.
(2) Born.
638 It is not necessary to multiply instances where the High Courts in India have, in some cases, held that the duty of the committing court is only to satisfy itself that there are sufficient grounds for committing the accused for trial in the sense that there is prima facie evidence which, if believed by the Court of Session, may lead to conviction of the accused.
Whereas, there are also cases, as laid down in the earliest case referred to above in I.L.R. 5 Allahabad 161 (judgment of Mahmood J.), to the effect that the magistrate holding a preliminary inquiry is empowered to weigh the evidence led on behalf of the prosecution, and to decide for himself whether there is a probability of the trial ending in the conviction of the accused.
An examination of the large number of rulings cited before us, which we do not think it necessary to refer to in detail, shows that though it is easy to say that a magistrate should commit the accused for trial if he is satisfied that sufficient grounds for doing so have been made out, it is difficult to apply those crucial words "sufficient grounds" to individual cases.
Apparently conflicting observations about the powers of a committing magistrate have been made in the reported cases, but those observations have to be read in the light of the facts and circumstances disclosed in the case then before the Court.
In our opinion, the law in India and the law in England, on the question now under consideration, appears to be the same.
In "Halsbury 's Laws of England", Vol. 10, 3rd ed.
(Lord Simonds), in article 666 at p. 365, the law has been stated thus: "When all the evidence has been heard, the examining justices then present who have heard all the evidence must decide whether the accused is or is not to be committed for trial.
Before determining this matter they must take into consideration the evidence and any statement of the accused.
If the justices are of opinion that there is sufficient evidence to put the accused upon trial by jury for any indictable offence they must commit him for trial in custody or on bail.
" In each case, therefore, the magistrate holding the preliminary inquiry has to be satisfied that a 639 prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit.
Applying the aforesaid test to the present case, can it be said that there is no evidence to make out a prima facie case, or that the voluminous evidence adduced in this case is so incredible that no reasonable body of persons could rely upon it ? As already indicated, in this case, there is a large volume of oral evidence besides an unusually large volume of documentary evidence the latter being wholly books and registers and other documents kept or issued by the Mills themselves, which may lend themselves to the inference that the accused are guilty, or to the contrary conclusion.
The High Court has taken pains to point out that this is one of those cases where much can be said on both sides.
It will be for the jury to decide which of the two conflicting versions will find acceptance at their hands.
This was pre eminently a case which should have been committed to the Court of Session for trial, and it is a little suprising that the learned Presidency Magistrate allowed himself to be convinced to the contrary.
The learned counsel for the appellants also raised a number of points bearing on the merits of the controversy on facts.
In view of the fact that we do not propose to interfere with the orders passed by the High Court, directing that the accused be committed for trial, we think it inexpedient to express any opinion on those controversial matters.
We do not think it desirable that any observations made by us, should prejudice either party at the trial.
In our opinion, both the courts below have traveled beyond the limits proper for decision at the stage at which the case was before them.
In our opinion, the accused persons did not consult their best interests when they invited the courts below to go into those questions which did not properly arise for determina tion at that stage.
We do not agree with the last contention raised on behalf of the appellants that the High Court has said too little on the merits of the case.
In our opinion, the High Court, in the circum 640 stances of the case, had been taken into matters which should have been left to be determined at the trial.
Perhaps, they had to cover the ground which had been so elaborately discussed in the order of the learned Presidency Magistrate.
For the reasons given above, we have come to the conclusion that there are no merits in this appeal.
It is accordingly dismissed.
It is hoped that the Court of Session, which will now be in seizing of the case, will conduct the trial and conclude the proceedings with all reasonable speed and without any avoidable delay.
We hope that the inordinate delay in bringing this case to trial has not prejudicially affected the case of either party.
Appeal dismissed.

summary/full:
The High Court has ample power under section 439, read with section 435, of the Code of Criminal Procedure to revise an order of discharge made by a Presidency Magistrate in a commitment proceeding, and to direct the committal of the accused person to the Court of Session.
Section 439 of the Code contemplates all the powers of an Appellate court under section 423.
Of the Code, except the power to convert a finding of acquittal into one of conviction and that such powers may be exercised in the case of any proceeding.
There is, therefore, no basis for the proposition that the High Court can revise only such orders as are made appealable by the Code.
Malik Pratap Singh vs Khan Mahomed, Cal. 994 and Emperor vs Varjivandas alias Kalidas Bhaidas, (19O2) I.L.R. , referred to.
The words "sufficient grounds" occurring in SS. 209, 210 and 213 of the Code of Criminal Procedure do not mean sufficient grounds for the purpose of conviction but mean such evidence as would be sufficient to put the accused upon trial by the jury.
In each case, therefore, the committing Magistrate has to be satisfied whether or not a prima facie case has been made out against the accused person by reasonably reliable evidence.
Where he is satisfied that it has been, he has to commit the accused to the Court of Session and it is for the jury to decide which of the conflicting versions it should accept and either to convict or acquit him.
Queen Empress vs Namdev Satvaji, Bom.
372 approved.
Case law reviewed.
Consequently, in a case where a committing Presidency Magistrate, on a full and elaborate consideration of a large volume of evidence, both oral and documentary, adduced both by the prosecution and the defence came to the conclusion that no Criminal court would convict the accused persons on such evidence and discharged them and the Hi Court in exercise of its powers 619 under section 439 of the Code of Criminal Procedure set aside the order of discharge and directed the committal of the accused persons to the Court of Session on charges under section 409 and S 409 read with section 109 of the Indian Penal Code and it could not be said that the evidence had not made out a prima facie case against the accused persons or that it could not be reasonably relied on.
Held, that it was preeminently a case for committal to the Court of Session, the order of discharge made by the Presidency Magistrate was highly improper and the High Court 's order must be affirmed.
Held further, that the appellants could not be allowed to make a grievance of the inordinate delay in bringing them to trial, for which they themselves were primarily responsible, and such delay could be no ground for not holding the trial at all.