judgement:
minal Appeal No. 207 of 1967.
Appeal by special leave from the judgment and order dated April 17, 1967 of the Andhra Pradesh High Court in Criminal Revision Petition No. 735 of 1965.
P. Ram Reddy and A. V.V. Nair, for the appellant.
G.S. Rama Rao, for the respondents.
The judgment of the Court was delivered by Shah, J.
K. Meerayya, K. Venkatanarayana respondents in this appeal and two others were charged before the Judicial Magistrate, IInd Class, Avanigadda, for offences under sections 323 and 324 I.P. Code for voluntarily causing injuries to Seetharamayya and Veeraraghavayya on June 22, 1964.
The Trial Magistrate convicted Meerayya and Venkatanarayana the first under the offence under section 324 and the second for the offence under section 323 I.P. Code.
In appeal to the Court of Session, 1006 Krishna Division, at Machilipatnam, the order was confirmed.
The High Court, in exercise of its revisional jurisdiction, set aside the order of conviction and sentence.
The State of Andhra Pradesh has appealed to this Court, with special leave.
The case raises a question of some importance in the administration of justice.
The findings recorded by the Trial Magistrate and confirmed by the Sessions Judge were that the respondents had committed assault upon Seetharamayya and Veeraraghavayya and that they could in law be properly convicted.
But it was urged that there was a bar against prosecution of the two accused Meerayya and Venkatanarayana because of the "principle of issue estoppel".
The plea is raised on the ground that the Station House Officer, Kodur Police Station, had instituted proceedings in the Court of the Sub Divisional Magistrate, Bandar, under section 107 ' Code of Criminal Procedure, against 96 persons, amongst whom were the two respondents, and an order under section 112 Code of Criminal Procedure was made stating that the persons named therein were indulging in acts of violence involving breach of public peace and tranquillity in the village of Salempalam and were endangering peace in the village, and that they had formed themselves into a party and were thereby disturbing the public peace and tranquillity by committing, acts of violence, and on that account they were required to show cause why each person named should not execute a bond for keeping the peace for a period of one year in the sum of Rs. 1,000 with two sureties in a like amount each.
In the order requiring the parties to show cause, four incidents were referred to the first of which is material.
It was recited that on June 22, 1964, 11 persons including the two respondents had beaten Seetharamayya and Veeraraghavayya with crow bars and sticks, and a case in Crime No. 20/64 under sections 148, 323 and 325 I.P.
Code had been registered and was being investigated.
The Sub Divisional Magistrate held an inquiry and was of the view that since the evidence led in support of the first incident was not supported by reliable evidence, and there were inherent discrepancies in the testimony of the witnesses and the recitals in the complaint, the first incident was not proved against any of the eleven persons.
It was urged that the order of the Sub Divisional Magistrate holding that the respondents were not concerned in the incident had become final and it was not open to the Judicial Magistrate, IInd Class, Avanigadda, to hold a trial against the respondents in respect of the same incident.
The Trial Magistrate rejected the plea, and the Sessions Judge agreed with him.
But in the view of the High Court since in the proceeding under section 107 of the ,Code of Criminal Procedure the incident which was made the subject matter of the complaint against the respondents in the Court of the Judicial Magistrate was one of the incidents 1007 relied upon and was held not proved, it was not open to the State to commence or continue a prosecution against the respondents in respect of the same incident.
In so holding, the High Court held that on the principle of "issue estoppel" approved by this Court in Manipur Administration vs Thokchom, Bira Singh(1) so long as the finding, that the respondents were not concerned in the incident, was not set aside by appropriate proceeding, no prosecution on any allegation legally inconsistent with that finding could be commenced against the respondents.
Counsel for the State contended that the rule of issue estoppel is inconsistent with the statutory provisions contained in section 403 of the Code of Criminal Procedure, and cannot be resorted to in criminal trials and that in any event the rule of issue estoppel had no application, since there was no "previous trial" of the respondents for any offence alleged to arise out of the incident in respect of which they were tried.
It was urged that it was not the law even recognised by the Australian Courts where the rule of issue estoppel had its origin that evidence on which a criminal proceeding was held cannot be utilised in any subsequent proceeding between the same parties.
The first contention raised by counsel for the State cannot be entertained in view of a large body of authority in this Court.
If the matter were res integra the argument that the Courts cannot travel outside the terms of the Code of Criminal Procedure : and extend the rule of autre fois acquit incorporated in section 403 of the Code of Criminal Procedure may have required serious consideration.
The following important rules emerge from the terms of section 403 of the Code,of Criminal Procedure: (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the Court trying the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.
(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which re suited therefrom constitute a different offence, he may again be tried for that different offence arising out of the consequences, if (1) ; L 6 Sup C1169 13 1008 the consequences had not happened or were not known to the Court to have happened, at me time when he was convicted.
(4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure.
Section 403 of the Code of Criminal Procedure enacts the rule of autre fois acquit and autre fois convict applicable to criminal trials.
The rule is that so long as an order of acquittal or conviction at a trial held by a Court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising there/fore.
But the rule of issue estoppel in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of section 403 of the Code of Criminal Procedure.
Lord MacDermott in Sambasivam vs Public Prosecutor, Federation of Malaya(1) observed at p. 479: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial.
And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.
That it was not conclusive of his innocence on the fire arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other." 1009 In Sambasivam 's case(1) the appellant was tried for the offence of being in possession of ammunition in violation of Reg.
4(1)(b) of the Emergency (Criminal Trials) Regulations, 1948.
He was acquitted of the charge.
Later he was tried for the offence of carrying a fire arm contrary to Reg.
4(1)(a) of the Emergency Regulations and was convicted by the Supreme Court of the Federation of Malaya.
An appeal was carried to the Judicial Committee and the legality of the conviction was challenged on the grounds, inter alia, that so long as the order of acquittal in respect of the carrying of ammunition stood, the facts proved in support of that charge were in the circumstances of the case clearly relevant to the second charge, and the appellant was entitled to rely upon the acquittal in so far as it was relevant to his defence.
The plea so raised was accepted by the Judicial Committee.
Pritam Singh vs The State of Punjab(a) this Court held that where a person has been tried under section 19(f) of the Arms Act and is acquitted because the prosecution has failed to establish the possession of a revolver by the accused as alleged, in a subsequent trial of the offence of murder, where the possession of the revolver was a fact in issue which had to be established, the prosecution could not ignore the finding at the previous trial.
In several later judgments of this Court the principle of issue estoppel has received approval: Manipur Administration vs Thokchom, Bira Singh(a).
Banwari Godara vs The State.
of Rajasthan(4).
Lalta & Ors.
vs The State of U.P.(5) It was also accepted in The Assistant Collector of Customs and another vs L.R. Malwani and another(x).
It is too late now to make a departure from the rule accepted by this Court.
In the American Courts also the rule of issue estoppel has received approval: Sealfron vs United States(7).
It is true that in Connelly vs Director of Public Prosecutions(8) decided by the House of Lords there was some difference of opinion amongst the Law Lords as to the applicability of the rule to criminal trials in the English Courts.
Our Criminal jurisprudence is largely rounded upon the basic rules of English Law though the procedure is somewhat different.
Trials by jury have been practically abolished and the cases are being tried by Judges.
Several charges arising out of the same transaction can be tried under the Code of Criminal Procedure together at one trial, and specific issues are always raised and determined (1) (2) L A.I.R. 1956 S.C. 415.
(3) ; (4) Cr. A. No. 141 of 1960 decided on Feb. 7, 1961.
(5) Cr. A. No. 185 of 1966 decided on Oct. 25, 1968.
(6) Cr.
15 & 35 of 1967 decided on Oct. 16, 1968.
(7) [1948] 332 U.S. Rep. 575.
(8) L.R. 1010 by the Courts.
Under the English system of administration criminal jaw, trials for serious offences are held with the aid of the jury and it is frequently impossible to determine with certitude the specific issues on which the verdict of the jury is founded.
In criminal trials under the Code of Criminal procedure, there is no uncertainty in the determination of issues decided.
Difficulties envisaged in Connelly 's case(1) in the application of the rule of issue estoppel do not therefore arise under our system.
But it is necessary to notice the true basis of the rule.
Dixon 1., in The King vs Wilkes(2) observed at pp.
518 519: " . it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence., that the same point was determined in favour of a prisoner in a previous criminal trial which is brought issue on a second criminal trial of the same prisoner.
There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner.
The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding.
But if such a condition affairs arises I see no reason why the ordinary rules of issue estoppel should not apply.
Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict.
They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.
Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties.
It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation .
" The rule, does not predicate that evidence given at one trial against the accused cannot again be given in the trial of the accused for a distinct offence.
As Lord Morris of Borty Y Gest observed in Connelly 's case(1) at p. 1325: " . there is no rule or principle to the effect that evidence which has first been used in support of a charge which is not proved may not be used to, support a subsequent and different charge, (1) (2) 77 C.L.R. 511.
1011 Can it be said in the present case that there has been a trial of the accused on an issue in a prior litigation, and an attempt is made to relitigate the same? It may be recalled that the respondents were not tried at any criminal trial in the previous case.
The earlier proceeding was for binding over the respondents and 94 others to keep the peace on the case that it was apprehended that they were likely to commit breach of peace or disturb public tranquillity.
The primary issue which the Court was called upon to determine was whether there was any apprehension of the breach of peace or disturbance of public tranquillity which necessitated the passing of the order requiring the respondents and others to give security.
It is true that in support of that order the Station House Officer in his report had relied upon four incidents, one of which specifically set out the details which formed the subject matter of ' the trial from which the present appeal arises.
But there was no trial of the respondents for an offence in the earlier proceeding and there was no order of conviction or acquittal.
The rule of issue estoppel cannot, in our judgment, be extended so as to prevent evidence which was given in the previous proceeding and which was held not sufficient to sustain the other for being used in support of a charge of an offence which the State seeks to make out.
The rule of issue estoppel prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused.
If in respect of an offence arising out of a transaction a trial has been taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.
In the present case, there was no trial and no acquittal.
The rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace does not preclude the trial of the respondents in respect of the specific incident which together with the other incident was sought to be made the basis of the order of binding over the respondents.
This Court in L.R. Malwani 's case(1) declined to apply the rule of issue estoppel to a case arising under the Sea Customs Act in which there was an inquiry held by the Collector of Customs and a criminal prosecution was then filed.
In our judgment, the High Court was in error in holding that the respondents could not be tried and convicted of offences under section 324 and 323 I.P. Code because in the earlier proceeding under section 107 of the Code of Criminal Procedure, evidence with regard to the incident out of which offences which are the subject matter of the present appeal was taken, and was regarded as insufficient to sustain the order.
(1) C:r, As.
15 & 35 of 1967 decided on Oct. 16, 1968, 1012 The appeal is allowed, and the order passed by the High Court is set aside.
As, however, the sentences passed by the learned Trial Magistrate and confirmed by the Court of Session were of short duration and the respondents have been released on bail, we do not think that they should be called upon to undergo the remaining sentences.
We reduce the sentences of imprisonment to the period already undergone.
The appeal is allowed and the order of the Session Court is restored, subject to the modification in the sentence of imprisonment.
R.K.P.S. Appeal allowed.

summary/full:
Proceedings were instituted under section 107 Cr.
P.C. against four persons including the two respondents and an order was made against them under section 112 Cr.
P.C. stating that they were indulging in various acts of violence involving breach of peace and requiring them to show cause why each of them should not execute a bond for keeping the peace.
This order referred to four incidents, the first of which was that on June 22, 1964, eleven persons including the two respondents had indulged i.n certain acts of violence as a result of which a case under sections 148, 323 and 325 I.P.C. had been registered.
After holding an inquiry, the Magistrate was of the view that the evidence led in support of the first incident was not reliable and the first incident was not proved against any of the eleven persons.
Subsequently the respondents were convicted at a trial of offences under sections 323 and 324 I.P.C. committed in the first incident in the order under section 112 Cr.
The Court of Session in appeal confirmed the conviction but the High Court, in revision, set it aside holding that on the principle of "issue estoppel" approved by this Court in Manipur Administration vs Thockchom Bira Singh, ; , since in the proceedings under section 107 Cr.
P.C. the incident which was made the subject matter of the complaint against the respondents in the Trial Court was one of the incidents relied upon and was held not proved, it was not open to the State to prosecute the respondents in respect of the same incident.
In appeal to this Court with special leave, it was contended that the rule of "issue estoppel" had no application in the present.
case, since there was no "previous trial" of the respondents for any offence alleged to arise out of the incident in respect of which they were tried; and furthermore, that the rule of issue estoppel was inconsistent with the statutory provisions contained in section 403 Cr.
P.C. and could not be resorted to in criminal trials.
HELD: (i) The High Court was in error in holding that the respondents could not be tried and convicted of offences under sections 324 and 323 I.P.C. because in the earlier proceeding under section 107 Cr. P.C., evidence with regard to the incident out of which the offences arose which were the subject matter of the present appeal was taken, and was regarded as insufficient to sustain the order.
The rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace did not preclude the trial of the respondents in respect 1005 of the specific incident which together with the other incidents was sought to be made the basis of the order of binding over the respondents.
The rule of "issue estoppel" prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused.
If in respect of an offence arising out a transaction a trial has taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.
In the present case there was no trial of the respondents for an offence in the earlier proceeding and there was no order of conviction or acquittal.
[1011 D F, H] (ii) Section 403 Cr.
P.C. enacts the 'rule of autre fois acquit and autre fois convict applicable to criminal trials.
The rule is that so long as an order of acquittal or conviction at a trial held by a court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom.
But the rule of "issue estoppel" in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of section 403.
[1008 C] Manipur Administration vs Thokchom, Bira Singh, ; ; Sambasivam vs Public Prosecutor, Federation of Malaya, ; Pritam Singh vs The State of Punjab, A.I.R. 1956 S.C. 415; Banwari Godara vs The State of RaJasthan, Cr. A. No. 141 of 1960 decided on Feb. 7, 1961; Lalta & Ors.
vs The State of U.P., Cr. A. No. 185 of 1966 decided on Oct. 25, 1968; The assistant Collector of Customs and another vs
L.R. Malwani and another, Cr. ,As.
15 & 35 of 1967 decided on Oct. 16, 1968; Sealfron vs United States, (1948) 332 U.S. Rep. 575 and The King vs Wilkes; , , referred to.
Connelly vs Director of Public Prosecutions, , distinguished.


judgement:
Appeal No. 1869 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 24, 1967 of the Punjab and Haryana High Court in Election Petition 14 of 1967.
K.P. Bhandari and Harder Singh, for the appellants.
C.L. Lakhanpal and D.D. Sharma, for respondent No. 1.
The Judgment of the Court was delivered by Mitter, J.
In the election petition out of which the present appeal arises, the main question canvassed was, whether the nomination paper of respondent No. 8 (appellant No. 2 before this Court) was wrongly rejected.
It is admitted that if the rejection was wrong, the election cannot stand.
The petitioner challenged the election to the Lambi Assembly Constituency (reserved seat) in the district of Ferozepore.
There were eight candidates, the first respondent being the returned candidate.
The petition was filed by one of the unsuccessful candidates impleading the other seven candidates, and Kishan Lal whose nomination paper was rejected.
According to the petitioner, Kishan Lal was a Hindu and being a Chamar by caste he belonged to a scheduled caste within the meaning of paragraph 2 read with Part X of the Constitution (Scheduled Castes) Order 1950 issued under article 341 of the Constitution: he had filed a declaration under section 33(2) of the Representation of the People Act, stating his caste to be chamar covered by item 9 in Part X (Punjab) of the Schedule to the Order.
The said item reads as follows: "Chamar, Jatia Chamar, Reghar, Raigar, Ramdasi or Ravidasi.
" It was stated in the petition that the Returning Officer had at first accepted the nomination paper of Kishan Lal on 21st January 1967, but subsequently, on an objection having been raised by the first respondent on the ground that Kishan Lal was not a member of a Scheduled Caste, the proceedings were adjourned till the next day when after admitting evidence, the same was rejected on the plea that Kishan Lal was a mochi by caste.
The petitioner 's case was that Chamar and mochi were not two separate castes and the word 'mochi ' was applied to a chamar who actually started working in lwather.
On the pleadings the learned trial Judge framed four issues: 1.
respondent No. 8 Kishan Lal a Hindi Chamar by caste which is a scheduled :caste within the 999 meaning of Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950? 2.
Was the nomination paper or respondent No. 8 Kishan Lal accepted by the Returning Officer and it so, whether the Returning Officer had the power of reviewing his order? ' 3.
Has the nomination paper of respondent No. 8 Kishan Lal been wrongly rejected? If so, is the election of the returned candidate void? 4.
Is Chamar or Mochi one and the same caste and a scheduled caste within the meaning of Part X of the Constitution (Scheduled Castes) Order, 1950? The point canvassed before him with a good deal of force was that the Returning Officer had sought to review his own order passed on 21st January 1967 accepting the nomination paper and this, he was not competent to do.
The learned Judge did not accept that a finalised order had been reviewed.
An examination of the document tends to support the appellant 's argument about the nomination paper having been accepted at first but rejected subsequently.
The manner of recording ;the order is suggestive of the above.
It appears that the Returning Officer at first ' wrote the word "accepted ' and gave the date as 21 1 1967 to the left of his signature: the endorsement rejecting the nomination paper is by way of a post script abbreviated as "P.S." the last two lines curving over the signature.
Unfortunately,; however, for the petitioner, the Returning Officer, although he appeared in court to produce some documents, was not orally examined and we are therefore without his testimony on the subject.
Kishan Lal who came to give evidence in this case in support of the petition stated in his examination in chief that: "At the time of the scrutiny of the nomination papers for elections in 1967 the Returning Officer at first announced orders on my nomination papers accepting the same.
Then an objection was raised by respondent No. 1 Shiv Chand.
Thereafter the Returning Officer adjourned the matter to the next date on which after examining evidence led by the parties he rejected the nomination papers.
" Prima facie this goes to support the case of the petitioner, but in corss examination Kishan Lal stated: "At the time when the nomination papers were being scrutinised by the Returning Officer, an objection was raised when he was writing the order." 1000 This nullifies the effect of the statement in the examination inchief and suggests that this objection was raised before the order had been signed or announced.
This is strengthened by the evidence of Shiv Chand R.W. 7.
He said: "The Returning Officer had not announced that he had accepted the nomination papers of Kishan Lal but had written the word 'accepted '.
This I know because I was sitting next to him.
" On this evidence, it is not possible to hold that the Returning Officer had announced his decision accepting the nomination paper, but had reviewed his own order afterwards on objection being raised and let in evidence on the next day and rejected the nomination paper.
Before the learned trial Judge, a good deal of evidence was adduced and arguments advanced as to whether the words 'chamar ' and 'mochi ' were synonymous and even if Kishan Lal was held to be a mochi, there was no reason to exclude him from the fold of the caste of chamars in which case his nomination paper was wrongly rejected.
For this we have to refer to article 341 of the Constitution under el. 1 of which the President may, with respect to any State or Union Territory, and where it is a State, after consulting the Governor of the State, by public notification specify the castes, races or tribes or parts, or groups within castes, races or tribes which shall for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to that State or Union Territory as the case may be.
This article empowered the President to specify not only the entire castes but tribes or parts or groups within castes, races or tribes which were to be treated as Scheduled Castes in relation to a particular caste.
So far as chamars and mochis are concerned, it will be noted from a reference to the Constitution (Scheduled Castes) Order, 1950 that the President was not of opinion that they were to be considered to belong to the same caste in all the different States.
For instance, in the States of Andhra Pradesh, Bihar, Gujarat, Kerala, Madhya Pradesh, Madras, Maharashtra, Mysore, Orissa, Rajasthan and West Bengal chamars and mochis were put on the same footing.
Before the Reorganisation of the Punjab Act of 1966 item 9 of Part X of the Order specifying the Scheduled Castes in the State read "Chamar, Jatia chamar, Reghar, Raigar, Ramdasi or Ravidasi." After the reorganisation of territories and creation of new States by the said Act the Scheduled Castes Order was amended pro 1001 viding for the specification of Scheduled Castes for the new States and territories.
The Constitution (Scheduled.
Castes) (Union Territories) Order of 1951 was also amended in 1966.
As a result of the above changes, the final position with regard to the Scheduled Castes was as follows.
Item No. 9 remained unaltered as regards the new States of Haryana and the Punjab.
Chamars and Mochis were put in the same class as regards the Union territory of Delhi and Himachal Pradesh, while the position in the Union territory of Chandigarh remained the same as in the old State of Punjab.
This shows that even when the subject of specification of Scheduled Castes engaged the attention of the President in 1966 he did not take the view that mochis should be classed together with chamars in so far as the State of Haryana, Punjab and Union territory of Chandigarh were concerned.
It is also clear that the question of inclusion of mochis in the Scheduled Castes was considered by him.
Apart from this, there are two decisions of this Court which conclude the point.
In Basavalingappa v.D. Munichinnappa and others(x) an election petition was filed challenging the election of the first respondent inter alia on the ground that he was not a member of any of the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950.
Respondent No. 1 claimed that he belonged to the scheduled caste listed as 'Bhovi ' in the Order.
The appellant, on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the order and consequently, he could not stand for election from a scheduled caste constituency.
It was held by this Court that it was not open to anyone to seek for any modification in the order by producing evidence to.
show (for example) that though caste alone was mentioned in the order, caste B was also a part of caste A, and as such to be deemed to be included in caste A.
This Court also pointed out that "wherever one caste has another name it has been mentioned in brackets after it in the Order.
Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order.
" In the peculiar circumstances of this case, evidence was allowed to be led to identify the caste specified in the Order because the Order referred to a Scheduled Caste known as Bhovi in the Mysore State as it was before 1956 and therefore it had to be accepted that there was some caste which the President intended to include after consultation with Rajpramukh in the Order, when the Order mentioned the caste Bhovi as a scheduled caste.
But when it was not disputed specifically that there was no caste (1) ; 1002 known as Bhovi in the Mysore State before 1956, the only course open to.courts was to find which caste was meant by Bhovi by taking evidence.
A point very similar to the one before us came up for consideration in this Court in Bhaiya Lal vs Harikrishen Singh and others(1).
There, the appellant 's election was challenged on the ground that he belonged to the Dohar caste and was not a chamar.
Dealing with this point, it was stated by this Court: ".
the plea that the Dohar caste is a subcaste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950.
" Reference was then made to article 341 of the Constitution cls. 1 and 2 and it was said: "in order to determine whether or not a particular caste is a scheduled caste within the meaning of article 341, one has to look at the public notification issued by the President in that behalf.
In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi.
The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub caste of the Chamar caste, cannot be accepted.
It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in article 341." These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazetteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals which mochis do not.
However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a mochi, he could still claim to belong to the scheduled caste of chamars and be allowed to (1) ; 1003 contest an election on that basis.
Quite a lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Kriqhan Lal was a chamar and not a mochi.
The learned Judge examined the evidence thoroughly and we do not propose to do the same again.
In his view Krishan Lal was a mochi and not a chamar and we do not see any reason why we should come to any different conclusion.
Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears.
In this case, Krishan Lal was found to be a mochi and not a chamar and therefore his nomination paper was rightly rejected.
He tried to prove by evidence that he was a chamar but he did not succeed therein.
The appeal therefore falls, and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Appellant No. 1 filed a petition challenging the election of the first respondent from the Lambi Assembly Constituency ( 'reserved seat) in the district of Ferozepur, Punjab, at the 1967 general election.
It was urged in the petition that the nomination paper of appellant No. 2 had been wrongly rejected by the Returning Officer who had held that appellant No. 2 was a mochi and as such not a member of the chamar caste mentioned in item 9 of the Constitution (Scheduled Castes) Order, 1950 issued under article 341 of the Constitution.
It was also urged that the Returning Officer had at first accepted the nomination paper but had subsequently reviewed his own order.
The High Court dismissed the petition, whereupon an appeal was filed in this Court.
HELD: (i) On the evidence it was not possible to hold that the Returning Officer had after announcing his decision accepting the nomination paper reviewed his own order afterwards.
(ii) No ground had been made out for disturbing the conclusion of the trial court on the evidence that appellant No. 2 was a mochi and not a member of the chamar caste.
(iii) It was not open to this Court to scrutinise whether a person properly described as a mochi also fell within the caste of chamars and could describe himself as such.
The question was one the determination of which lay within the exclusive power of the President under article 341 of the Constitution.
[1003 B C] , Basavalingappa v.D. Munichinnappa & Ors. ; and Bhaiya Lal vs Harikrishen Singh & Ors., ; , applied.
Article 341 empowered the President to specify not only entire castes races or tribes but also parts or groups within castes, races or tribes which were to be treated as Scheduled Castes in relation to a particular State or Union Territory.
So far as chamars and mochis are concerned, a reference to the Constitution (Scheduled Castes) Order, 1950 shows that the President was not of opinion that they were to be considered to belong to the same caste in all the different States.
In several States chamars and mochis were put on the same footing but not so in the State of Punjab.
Even after the Reorganisation of the Punjab Act, 1966 when the question of specification of Scheduled Castes in the territories created came up for his consideration the President did not take the view that mochis should be classed with chamars in so far as the States of Haryana, Punjab and the Union Territory of Chandigarh were concerned though he directed that in the Union Territories of Delhi and Himachal Pradesh mochis and chamars were to be placed in the same group.
[1000 E, H; 1001 A D]


judgement:
minal Appeal No. 183 of 1966.
Appeal by special leave from the judgment and order dated March 30, 1966 of the Mysore High Court in Criminal Revision Petition No. 384 of 1965.
R.B. Datar, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Mysore High Court in which the only point involved is whether a private complaint could be entertained for the commission of an offence under section 220 of the Mysore Village Panchayats & Local Boards Act, 1959, hereinafter called the "Act".
The appellants who were the Vice Chairman and the Chairman of the Keladi village panchayat were convicted under the aforesaid section and sentenced to pay a fine of Pa. 50 and Pa. 40 and in default to undergo 7 days and 5 days ' simple imprisonment respectively.
A private complaint was filed against the appellants alleging that they gave bids at an auction held at the village panchayat and appellant No. 1 purchased a radio belonging to the panchayat for Pa. 35/ .
Appellant No. 2 also bid at the same auction for the radio.
According to section 220 of the Act no member or an employee of a panchayat shah directly or indirectly bid for or acquire interest in any movable or immovable property sold at such sale in connection therewith.
if any person contravenes this provision he is to be punished, on conviction, with a fine which may extend to Rs. 500/ .
Under Rule 16 of the Mysore Panchayat Secretaries ' Powers and Duties Rules, 1961 promulgated under the provisions of the Act, only the Secretary of the Panchayat has the power to file a complaint on behalf of the Panchayat.
The High Court was of the view that this Rule did not ' preclude persons 935 other than the Secretary from filing a complaint but it only debarred complaints being, made by others on behalf of the Panchayat.
Now Rule 16 may be reproduced.
: "The Secretary shall have power to file complaints and suits on behalf of the Panchayat and to conduct the proceedings on its behalf under the orders of the Panchayat." In K.M. Kanavi vs The State of Mysore(1) the appellant Kanavi, who was the president of Municipal Borough of Gadag Betgeri had been removed from Presidentship.
He refused to hand over the charge of all the papers and property which were in his possession relating to the Borough to the new President in spite of an order made by the Government under section 23A of the Bombay Municipal Boroughs Act 1925, hereinafter called the "Bombay Act" to that effect.
Pursuant to orders made by the Divisional Commissioner and the Deputy Commissioner the new President filed a complaint against Kanavi for an offence punishable under section 23A(3) of the Bombay Act.
The appellant was convicted and sentenced to pay a fine of Rs. 50/ .
A question arose whether the complaint filed by the new President was competent as it was not filed in accordance with the procedure laid down in that Act.
Section 200 of the Bombay Act provided that the Standing Committee and subject to the provisions of sub section
(3) the Chief Officer may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of the aforesaid Act.
This Court was of the opinion that the complaint which had been filed by the new President was for initiating the proceedings for the punishment of Kanavi who had offended against the provisions of sub section
(2) of section 23A and as the new President was not the Chief Officer and he had not filed the complaint under any direction made by the Standing Committee the complaint could not be entertained.
In that case also the High Court had taken the view that section 200(1) was only an enabling section which gave the power to the Standing Committee and the Chief Officer to make a direction for taking of proceedings and it could not be held to be exhaustive of the authorities who could make directions for initiation of proceedings.
The High Court had taken notice of the fact that there was no provision in that Act forbidding cognizance of offences being taken except on a complaint made under a direction of the Standing Committee or the Chief Officer.
, This is what was observed by this Court : "We are unable to accept the interpretation put by the High Court on section 200(1) of the Act.
It is true that there is no specific provision in the Act laying down that ; 936 cognizance of an offence under the Act is not to be taken except on a Complaint filed in accordance with a direction made under section 200(1), but the scheme of the Act and the purpose of this provision in section 200(1) makes it clear that the legislature intended that such proceedings.
should only be instituted in the manner laid down m that sub section.
The word "may" was used only because the legislature could not have enacted a mandatory provision requiring the Standing Committee or the Chief Officer to make a direction for institution of proceedings in all cases.
This word was intended to give a discretion to the Standing COmmittee or the Chief Officer to make directions for taking proceedings only when they considered it appropriate that such a direction should be made and to avoid compelling the Standing Committee or the Chief Officer to make such direction in all cases.
The use of this word "may" cannot be interpreted as laying down that, if a proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted, it can be instituted in any manner without complying with the requirements of section 200(1) of the Act.
If the interpretation put by the High Court on this provision is accepted, it would mean that this provision was totally unnecessary, because there would be no need to confer power on the Standing Committee or the Chief Off icer to make such directions if such directions could be made or proceedings instituted at the instance of any private individual.
We cannot accept the submission that this provision was made in the Act simply by way of abundant caution.
In fact, if the provision had been made with such an object in view, there is no reason why the power should have been expressed to be conferred on the Standing Committee and the Chief Officer only and not on the President of the Municipality.
We, consequently, hold that, if any proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted, it must be instituted in the manner laid down in section 200(1) of the Act and in that manner only.
" It may be mentioned that the expression of the above opinion was based on a consideration of the previous decisions of this Court.
Following the ratio of the above decision it would be legitimate to hold that the complaint, in the present case, could be filed under Rule 16 only by the Secretary of the Panchayat and by no one else.
It may be.pointed out that in the Act section 213(3) is analogous to section 23A(3) of the Bombay Act.
On a parity of reasoning it could not be suggested that if there had been any 937 contravention of section 213(3) any voter or member of the public could have filed a complaint in the matter.
The other provisions also of the Act which follow, namely sections 214 to 219 indicate that it was never contemplated that a complaint for _infringe.me.at or contravention of the prohibition contained therein could be lodged before a magistrate having jurisdiction under section 233 by any private individual in the presence of a specific rule that the Secretary shall have the power to file a complaint on behalf of the Panchayat.
Most of these sections i.e. sections 217 and 218 postulate infraction of orders of the Panchayat for which the Panchayat alone would be interested in filing a complaint.
We axe satisfied that the scheme of the Act also supports the view which we are taking that a complaint could be flied only under Rule 16 of the Mysore Panchayat Secretaries ' Powers and Duties Rules, 1961 and could not have been filed by a private complainant.
The High Court seems to have relied on section 236 of the Act which deals with powers of police officers.
This section provides that any police officer may arrest any person committing in his presence any offence against any of the provisions of the Act or of any rule, regulation or bye law made thereunder.
The person arrested has to be produced before the nearest magistrate within a period of 24 hours of arrest.
The police officer effecting the arrest must give immediate information to the Chairman or the Secretary of the Panchayat of the commission of such offence and give all assistance in the exercise of his lawful authority.
The High Court was of the view that under the provisions of this section the police officer could submit a charge sheet under section 173 of the Criminal Procedure Code after necessary investigation for offences committed under the Act.
Chapter of the Act relates to establishment and constitution of Panchayats.
There are certain sections in it which by express words make offences committed under them cognizable but in the same Chapter there are other sections which do not contain any such provision; for instance, sections 15, 17,.
21 and 22 expressly provide that the offences committed under them would be cognizable but sections 16, 18, 19 and 20 do not contain any such provision.
In other words the offences committed under them must be deemed to be not cognizable.
Section 23 in the same Chapter says that no court shall take cognizance of an offence punishable under section 16 or section 17 or under section 19(2)(a) unless there is a complaint made by an order of or under authority from the Deputy Commissioner.
The High Court was, therefore, not right in saying that all offences committed under the various provisions contained in the Act would be cognizable owing to the general powers conferred on police officers by section 236.
Indeed that section gives only a limited power to the police officer to effect arrest if an offence is committed in his presence.
There is authority for the view that this will not make an offence cognizable within the meaning of section 4(f) 938 of the Criminal Procedure Code; vide Public Prosecutor(1) vs A.V. Ramiah.
In the absence of any express provision in section 220 with which we are concerned we doubt whether the offence committed under it would be cognizable and a police officer could carry on investigation in respect of it under Chapter XIV of the Criminal Procedure Code and finally submit a charge sheet under section 173 of that Code.
It may also be pointed out that in the present case we are not concerned with the powers which a police officer can exercise in respect of an offence committed under section 220 of the Act.
What has to be seen is whether a private person or an individual could file a complaint.
In the presence of Rule 16 and for the reasons given in K.M. Kanavi vs State of Mysore(2) we are of the opinion that it was the Secretary of the Panchayat who alone was competent to file the complaint.
It must be remembered that it would be the panchayat that would be largely interested in taking action against any of its members and employees for the contravention of section 220.
The Secretary would, therefore, be entitled to file a complaint on behalf of the panchayat.
The difficulty felt by the High Court that a Secretary who is subordinate to the Chairman may find it embarrassing to file a complaint against him can hardly be accepted as a serious hurdle in the way of coming to the conclusion at which we have arrived.
The Secretary has to act on behalf of the panchayat and it is the panchayat that would be vitally interested in preventing and stopping any contravention of provisions like section 220 of the Act.
The Secretary acts on behalf of the panchayat and the question of his subordination to any of its office bearers is of no consequence.
In the view we have taken the appeal is allowed and the conviction and sentence imposed on each of the appellants is set aside.
G.C. Appeal allowed.
(1) A.I.R. 1958 A.P. 392.

summary/full:
A private complaint was lodged against the appellants for an offence under section 220 of the Mysore Village Panchayats and Local Boards Act, 1959.
Rule 16 of the Mysore Panchayat Secretaries ' Powers and Duties Rules, 1961 provided that the Secretary shall have power to file complaints and suits on behalf of the Panchayat, and to conduct the proceedings on its behalf and on the orders of the Panchayat.
On their conviction the appellants went to the High Court and contended that in view of Rule 16 they could not be prosecuted on a private complaint.
The High Court decided against them on the view that the said Rule did not preclude persons other than the Secretary from filing a complaint but it only debarred complaints being made by others on behalf of the Panchayat.
Against the High Court 's judgment appeal by special leave was filed in this Court.
HELD: (i) In the presence of r. 16 and for the reasons given by this Court in R. M. Kanavi 's case which dealt with similar provisions.
under the Bombay Municipal Borough Act, 1925, it must be held that it was the Secretary of the Panchayat who alone was competent to file the, complaint.
Section 213(3) of the Mysore Act is analogous to section 23A(3) of the ' Bombay Act under which the offence fell in Kanavi 's case.
On a parity of reasoning it could not be suggested that if there had been any contravention of section 213 ( 3 ) any voter or member of the public could have filed a complaint in the matter.
The other provisions.
also of the Act which follow, namely, as.
214 to ' 219 indicate that it was never contemplated that a complaint for an infringement or contravention of the prohibition contained therein could be lodged before a Magistrate having jurisdiction under section 233 by any private individual in the presence of specific rule that the Secretary shall have the power to file a complaint on behalf of the Panchayat.
Most of these sections i.e. sq. 217 and 218 postulate infraction of orders of the Panchayat for which the Panchayat alone would be interested in filing a complaint.
Thus the scheme of the Act also supports the view that a complaint could be filed only under r. 16 of the Mysore Panchayat Secretaries ' Powers and Duties Rules, 1961 and could not have been filed by a private complaint.
[936 H 937 C] K.M. Kanavi vs State of Mysore, ; , followed and ' (ii) The High Court was not fight in saying that all offences committed under the various provisions contained in the Act would be cognizable owing to the general powers conferred on police officer by section 236 of the Act.
The section gives Only a limited power to the police 934 officer to effect arrest if an offence is committed In his presence.
The present case moreover did not relate to the powers which a police officer could exercise in respect of an offence under section 220 of the Act but to the question whether a private complaint could be filed.
[937 G 938 C] Public Prosecutor vs A. V. Ramiah, A.I.R. 1958 A.P. 392 referred to.
(iii) The difficulty felt by the High Court that a Secretary who is subordinate to the Chairman may find it embarrassing to file a complaint against him can hardly be accepted as serious.
The Secretary has to act on behalf of the Panchayat and it is the panchayat that would be vitally interested in preventing and stopping any contravention of the provisions of section 220 of the Act. 'The ' Secretary acts on behalf of the Panchayat and the question of his subordination to any one of its office bearers is of no consequence.
[938 D]


judgement:
Appeals Nos.
1153 to 1160 and 1161 to 1168 of 1968.
Appeals by special leave from the judgment and order, dated November 16, 1967 of the Madhya Pradesh High Court in Misc.
Civil Cases Nos. 96 to 103 of 1967.
I. N. Shroff, for the appellant (in C.As.
Nos. 115 3 to 1160 of 1968) and the respondent (in C.As.
1161 to 1168 of 1968).
S.T. Desai, B.L. Neema and Anjali Varma, for the appellant (in C.As.
1161 to 1168 of 1968): and the respondent C.As.
1153 to 1160 of 1958).
N.D. Karkhanis and 11.
G. Ratnaparkhi, for the intervener (in C. Pa, Nos. 1153 to 1160 of 1968).
The judgment of the Court was delivered by Grover, J.
This judgment will dispose of two 'sets of cross appeals Nos.
1153 1160 & 1161 1168/68 which are from a common judgment of the Madhya Pradesh High Court and have been entertained by special leave.
The relevant assessment years for the purpose of levy of sales tax are from April 1, 1957 to March 31, 1958.
and April 1, 1964 to March 31, 1965.
For the assessment years prior to April 1, 1959 the enactment in force was the C.P. and Berar Sales Tax Act, 1947 (No; XXI of 1947) and for the subsequent two years it is the Madhya Pradesh General Sales Tax Act (Act No. 2 of 1959), which would be applicable.
material facts may be shortly stated, The assessee Madhya Pradesh Electricity Board hereinafter called the "Electricity Board? ' is a body constituted under section 5 of the Electricity Supply Act, 1948.
Under section 944 18 of that Act it was the general duty of the Electricity Board to promote coordinated development of the generation, supply and distribution of electric energy within the State of Madhya Pradesh in the most efficient and economical manner.
In the assessment years in question the Electricity Board sold, supplied and distributed electric energy to various consumers.
It also sold coal ash a waste product and Supplied steam to Nepa Mills of Burhanpur.
It further supplied specification and tender forms on payment to persons desirous of submitting tenders for the works undertaken by the Electricity Board.
It purchased articles like Gitti, Murram, sand etc.
from unregistered dealers.
It is common ground that under the provisions of Act XXI of 1947 and H of 1959 read with the ' Schedule contained therein sale of electricity is exempt from sales tax.
For the purpose of determining the gross turnover, however, the sale of electric energy is to be taken into account.
The Assistant Commissioner of Sales tax assessed the Electricity Board to tax on its turnover of sale of coal ash and specification and tender forms and the supply of steam to Nepa Mills.
The Board was further assessed to purchase tax on Gitti, Murram etc.
purchased from unregistered dealers.
In appeal the Deputy Commissioner, Sales Tax, upheld the assessment orders.
On second appeal the Sales Tax Tribunal which was the Board of Revenue, Madhya Pradesh, held that the Electricity Board was not a "dealer" within the meaning of that term as defined in the two Acts and that the coal ash was not produced for the purpose of sale with the result that sales of coal ash could not be subjected to tax.
As regards the supply of steam to Nepa Mills the tribunal, on examining the terms of the agreement under which the Electricity Board supplied the steam, came to the conclusion that such supply was an isolated transaction and that such activity which had been undertaken on no profit no loss basis could not be assessed to sales tax.
The specification and tender forms were held not to be marketable goods involving any profit element and for that reason could not be taxed.
As regards the purchase tax the tribunal held that as the Electricity Board was not a dealer in respect of the sale and supply of electric energy no purchase tax could be imposed on goods purchased by it and consumed "in furtherance of and in aid of the business activity of generating, supplying and distributing electricity.
" Both the Electricity Board and the Commissioner of Sales Tax.
Madhya Pradesh, filed applications requiring the Tribunal to refer to the High.
Court certain questions of law arising out of its common order.
The tribunal drew up a common statement of case and referred five questions of law.
On the first question the High Court 'held that the Electricity Board could not be held to be "dealer" as defined in section 2(c) of Act XXI of 19.47 or section 2(d) 942 of Act H of 1959 in respect of its activity of generation, distribution, sale and supply of electric energy.
On the second question it was held that as the Electricity Board regularly and continuously produced coal ash as a subsidiary product and sold it regularly it was a "dealer" in regard to the sale of coal ash and the sale, transactions relating to this product were liable to be assessed to sales tax.
The third question was answered in favour of the Electricity Board.
It was found that stem was not being supplied to the Nepa mills with profit motive although it fell within the definition of "goods" given in the two Acts.
As regards the specification and tender forms the High Court was of the view that the Electricity Board was not carrying on any business of selling such forms and therefore no sales tax could be levied in respect of them.
The fifth question was answered by holding that as the Electricity Board was not a "dealer" in respect of sale and supply of electric energy it was not entitled to purchase any taxable goods for consumption or use for producing such energy without paying sales tax to the selling dealer under section 4(6) of Act XXI of 1947 and section 7 of Act II of 1959 and therefore there.
was no liability to pay purchase tax.
Mr. Shroff, who has argued the appeals of the Commissioner of Sales Tax, has not quite properly and rightly pressed the matter relating to imposition of sales tax on supply of specification and tender forms.
Mr. S.T. Desai, who has.
appeared for the Electricity Board, after a certain amount of argument, has submitted that he had nothing much to say on the question relating to coalash except that it should be held to be exempt from payment of sales tax because electric energy is exempt from such tax as stated before.
As regards the fifth question relating to the imposition of purchase tax Mr. Desai has not pressed for any decision being given by us.
Arguments which have been addressed by both sides have therefore centered on question nos.
1 and 3 which are as follows : "(1) On the facts and circumstances of the case whether or not the Madhya Pradesh Electricity Board is a dealer within the meaning of section 2(c) of the C.P. & Berar Sales Tax Act, and section 2(d) of the Madhya Pradesh General Sales Tax Act, 1958, in respect of its activity of generation, distribution, sale and supply of electrical energy ? (2) (3) On the facts and circumstances of the case, whether or not steam is saleable goods and if they are saleable goods is the turnover representing the supply thereof liable to be assessed to sales tax m the hands of the assessee ?" 943 it is somewhat curious that both sides are almost agreed that the decision of the.
High Court on the first question is not correct.
Since enunciation of the true position is involved we proceed to give our opinion in the matter.
The definition of a "dealer" as given in the two Acts substantially is that any person who carries on the business of buying, selling, supplying or distributing the goods as a "dealer" and "goods" are defined by s.2(d) of Act of 1947 as meaning all kinds ' of movable property other than actionable claims . and include all materials articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property.
The definition contained in section ~2(g) of Act II of 1959 is almost in similar terms except that there are certain additions with which we are not concerned.
Reference may be made, at this stage, to the definition of "movable property" which has not been defined in the two Acts given in section 2(24) of the Madhya Pradesh General Clauses Act.
It has been defined to mean "property of every description, except immovable property".
Section 2(18) of that Act says that "immovable property" includes land,.
benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth.
" The High Court went into a discussion from the point of view of mechanics relating to transmission of electric energy.
It was of the view that electricity could not be regarded as an article or matter which could be possessed or moved or delivered.
It relied on certain decisions and referred to Entries Nos. 53 and 54 in List II of Seventh Schedule to the Constitution and held that electricity did not fall within the meaning of "goods" in the two Acts and therefore the Electricity Board could not be held to be a "dealer" in respect of its activity of generation, distribution, sale and supply of electric energy.
Mr. I.N. Shroff has relied on certain decisions in which the same point was involved as in the present case.
namely, whether electricity is "goods" for the purpose of imposition of sales tax. ' In Kumbakonam Electric Supply Corporation Ltd. vs Joint Commercial Tax Officer, Esplanade Division, Madras(1), the Madras High Court was called upon to decide whether electricity is "goods" for the purposes of the Madras General Sales Tax Act, 1959 and the .
After referring to the definition of "goods" as given in the , it was observed that under that definition goods must be property and it must be movable.
According to the learned Madras Judge any kind of property which is movable would fall within the definition of "goods" provided it was transmissible or transferable from hand to hand or capable of delivery which need not necessarily be in a tangible or a physical sense.
Reference was also (1) 14 S.T.C. 600.
L6 Sup.
C I.169 9 944 made to the definition given in the General Clauses Act which was quite wide and it was held that if electricity was property and it was movable it would be "goods".
The learned Judge found little difference between electricity and gas or water which would be property and could be subjected to a particular process, bottled up and sold for consumption.
It was observed that electricity was capable of sale as property as it was sold, purchased and consumed everywhere.
A "dealer" was defined by the practically in the same way as in the Madras General Sales Tax Act and it meant a person who carried on business of buying and selling goods.
In the opinion of the learned Judge the concept of dealer, goods and sale comprehended all kinds of movable property.
He further relied on certain decisions which have been cited before and which will be presently noticed.
A similar view was expressed by Tek Chand, J. of the Punjab & Haryana High Court in Malerkotla Power Supply Company vs The Excise & Taxation Officer, Sangrur, & Ors.(1) It was held that electric energy fell within the definition of "goods" in both the Punjab Sales Tax Act, 1948 and the .
According to the learned Judge electric energy has the commonly accepted attributes of movable property.
It can be stored and transmitted.
It is also capable of theft.
It may not be tangible in the sense that it cannot be touched without considerable danger of destruction or injury but it was perceptible both as an illuminant and a fuel and also in other energy giving forms.
Electric energy may not be property in the sense of the term "movable property" as used in the Punjab & Central General Clauses Acts in contra distinction to "immovable property" but it must fall within the ambit of "goods" "even if in a sense it was intangible or invisible".
As pointed out in the Madras case the statement contained in American Jurisprudence(2) recognises that electricity is property capable of sale and it may be the subject of larceny.
In Naini Tal Hotel vs Municipal Board(a) it was held that for the purpose of article 52 of the Indian Limitation Act electricity was property and goods.
In Erie County Natural Gas & Fuel Co. Ltd. vs Carroll(4), a question arose as to the measure of damages for a breach of contract to supply gas.
Lord Atkinson delivering the judgment of the Privy Council applied the same rule which is applicable where the contract is one for sale of goods.
In other words gas Was treated to be "goods".
The High Court, in the present case, appears to have relied on Rash Behari vs Emperor(5) in which approval was accorded to the statement in Pollock & Mulla 's Commentary on Sale Goods Act, 1913 that it was doubtful whether that Act was applicable to such "goods" as gas, water 'and electricity.
The context (1) 22 S.T.C. 325.
(2) 18 American Jurisprudence 407 (section 2 Electy.) (3) A.I.R. (1946) All. 502.
(4) (5) A.I,R. 945 which this matter is discussed in the Calcutta case is altogether different and distinguishable and what was being decided there was the scope and ambit of section 39 of the Electricity Act, 1910, As regards the Entries in List 11 of the Seventh Schedule to the Constitution, the relevant ones may be produced: "53.
Taxes on the consumption or sale of electricity.
Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I".
The reasoning which prevailed with the High Court was that a well defined distinction existed between the sale or purchase of "goods" and consumption or sale of electricity; otherwise there was no necessity of having Entry No. 53.
But under Entry 53 taxes can be levied not only on sale of electricity but also on its consumption which could not probably have been done under Entry 54.
It is difficult to derive much assistance from the aforesaid entries.
What has essentially to be seen is whether electric energy is "goods" within the meaning of the relevant provisions of the two Acts.
The definition in terms is very wide according to which "goods" means all kinds of movable property.
Then certain items are specifically excluded or included and electric energy or electricity is.
not one of them.
The term "movable property" when considered with reference to "goods" as defined for the purposes of sales tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece.
of wood or a book it cannot cease to be movable property when it has all the attributes of such property.
It is needless to repeat that it is capable of abstraction, consumption and use which, if done dishonestly, would attract punishment under section 39 of the .
It can be transmitted, transferred, delivered, stored, possessed etc.
in the same way as any other movable property.
Even in Banjamin on Sale, 8th Edn., reference has been made at page 171 to County of Durham Electrical, etc., Co. vs Inland Revenue(1) in which electric energy was assumed to be "goods".
If there can be sale and purchase of electric energy like any other movable object we see no difficulty in holding that electric energy was intended to be covered by the definition of "goods" in the two Acts.
If that had not been the case there was no necessity of specifically exempting sale of electric energy from the payment of sales tax by making a provision for it in the Schedules to the two Acts.
It cannot be denied that the Electricity Board carried on principally the business of selling, supplying or distributing electric energy.
It would therefore clearly fall within the meaning of the expression "dealer ' ' in the two Acts.
(1) 946 As regards steam there has been a good deal of argument on the question whether it is liable to be assessed to sales tax in the hands of the Electricity Board.
According to Mr. Shroff the Electricity Board carried on the business of selling steam to the Nepa Mills and that this has lasted for a number of years.
It has been submitted that simply because the Electricity Board does not have any profit motive in supplying steam it cannot escape.
payment of sales tax because the steam is nevertheless being sold as "goods".
The High Court was of the view that the water which the Nepa Mills supplied free to the Electricity Board became the property of the Board and in return for this free supply the Board agreed to give steam to Nepa Mills at a rate based solely on the coal consumed in producing steam.
The mills had also agreed to reimburse the Electricity Board for the loss sustained on account of the mills not taking the "full demand of steam".
According.
to the High Court there was no contract for the sale of steam as such and it was only for the labour and cost involved in its supply to the mills.
The High Court relied on the findings of the Tribunal on this point and held that the turnover in respect of steam was not taxable.
The tribunal in its order dated June 16, 1966 referred to certain conditions of working arrangement which was reduced to writing but which had not been properly executed as a contract which showed that the mills was supplying water free and the Electricity Board was making a pro rata charge of conversion of water into steam.
It seems to us that the High Court was right in coming to the conclusion, on the finding of the tribunal, that the real arrangement was for supplying steam on actual cost basis and in that sense it was more akin to a labour contract than to sale.
Mr. Shroff has argued that the document which was relied upon by the tribunal could not be looked at as it was neither admissible in evidence nor had it been properly executed as a contract between the Electricity Board and the mills and it happened to be a mere draft of an agreement which was proposed to be entered into.
It is too late for Mr. Shroff to take these objections because these should have been raised before the Tribunal and the High Court.
It is stated in Halsbury 's Laws of England, III Edn.
34, page 6 that "a contract of sale of goods" must be distinguished from a contract for work and labour.
The distinction is often a fine one.
A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of possession of, a chattel as a chattel to the buyer.
Where the main object of work undertaken by the payee.
of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour.
It has been laid down by this Court in The Government of Andhra Pradesh vs Guntur Tobaccos Ltd.(1) that in business transactions (1) 16 S.T.C. 240.
947 the works contracts are frequently not recorded in writing setting out all the covenants and conditions thereof, and the terms and incidents of the contracts have to be gathered from the evidence and attendant circumstances.
The question in each case is one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all the attendant circumstances.
On the findings of the tribunal and the High Court we are of the opinion that the arrangement relating to supply of steam in return for the water supplied by the mills on payment of actual cost was not one of sale but was more in the nature of a works contract.
In the result the answer of the High Court to the first question is discharged and it is held that the Electricity Board is a "dealer" within the meaning of the relevant provisions of the two Acts in respect of its activities of generation, distribution, sale and supply of electric energy.
The answers to the second, third and fourth questions are affirmed.
The answer given by the High Court to the fifth question is discharged.
It is unnecessary to express any opinion on that question because Mr. Desai has not pressed for any decision being given by us and has accepted the liability in respect of the purchase tax as determined by the assessing authorities for the assessment orders in question.
The appeals are allowed to the extent indicated above.
In view of all the circumstances the parties are left to bear their own costs.
Appeals allowed in pan.

summary/full:
The assessee Electricity Board constituted under the Electricity Supply Act, 1948, supplied and distributed electric energy within the State of Madhya Pradesh.
In the assessment years in question the Electricity Board sold, supplied and distributed electric energy to various consumers, It also supplied steam to Nepa Mills.
The mill was supplying water free and the Electricity Board was making a pro rata charge of conversion of water into steam.
The mill had also agreed to re imburse the Board for the loss sustained on account of the mills not taking the full demand of steam.
In proceedings under the C.P. & Bearar Sales Tax Act, 1947 'and the Madhya Pradesh General Sales Tax Act, 1959 the question for consideration, inter alia, were (i) whether electricity was 'goodS ' within the meaning of the two Acts and whether the Board was a 'dealer ' within the, meaning of section 2(c) of the 1947 Act and section 2(d) of the 1959 Act; and (ii) whether the supply of steam amounted to 'sale ' 'and was therefore taxable.
The High Court, in reference, held that electricity was not 'goods ', that the Board was not a 'dealer"in electricity and that the supply of steam was not taxable as it was not supplied With 'a profit motive.
In appeal by special leave to this Court by the Commissioner of Sales Tax, HELD: (i) The Electricity Board carried on the business of selling, supplying and distributing electricity which fell within the meaning of the expression 'goods ' in the two Acts and was therefore a 'dealer '.
[945 H] The definition of "goods" is very wide and includes all kinds of movable property.
The term 'movable property ' when considered with reference to 'goods ' as defined for the purposes of sales tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched, like, for instance, a piece of wood or a book, it cannot cease to be movable property when it has all the attributes of such property.
It is capable of abstraction, consumption and use which, if done dishonestly, would attract punishment Under section 39 of the .
It can be transmitted, transferred, delivered, stored, possessed etc.
in the same way as any other movable property.
If there can be sale and purchase of electric energy like any other movable object, it st be held that electric energy was intended to be covered by the definition of 'goods ' in the two Acts.
If that had not been the case there was no necessity of specifically exempting sale of electric energy from the payment of sales tax by making a provision for it in the Schedule to the two Acts.
[945.E H] 940 Kumbakonam Electric Supply Corporation Ltd. vs Joint Commercial Tax Officer, Esplanade Division, Madras, 14 S.T.C. 600, Malerkotla Power Supply Company vs The Excise & Taxation Officer, Sangrur & Ors.
22 S.T.C. 325, Naini Tal Hotel.
Municipal Board, A.I.R. 1946 All.
502, Erie County Natural Gas & Fuel Co. Ltd. vs Carroll, , County of Durham Electrical etc.
Co. vs Inland Revenue , referred to.
Rash Behari vs Emperor, A.I.R. 1936 Cal.
753 distinguished.
(ii) On the facts of the present case the arrangement relating to supply of steam in return of water supplied by the mills on payment of actual cost was not one of sale but was more in the nature of a workS ,contract Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour.
[946 G H] The Government of Andhra Pradesh vs Guntur Tobaccos Ltd., 16 S.T.C. 240, and HaLsbury 's Laws of England, HI Edn.
34 page 6, referred to.


judgement:
minal Appeal No. 152 of 1967.
Appeal by special leave from the judgment and order dated November 19, 1966 of the Judicial Commissioner Court, Goa, Daman and Diu in Criminal Reference No. 103, of 1966.
R.N. Sachthey, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Grover, J.
The sole point for decision in this appeal by special leave is whether a complaint which had been filed against the appellant and four other persons by the respondent for various alleged offences could be entertained without necessary sanction being obtained for the prosecution of the appellant, who at the material time, was the Deputy Superintendent of Police, under section 197 of the Criminal Procedure Code.
The original complaint is not before us as it has not been included in the appeal record but the allegations contained therein are given in the judgment of the learned Judicial Commissioner.
The complainant alleged that on March 5, 1966 at about 4 p.m. accused Nos. 2 to 5 who were hawkers by profession and some other persons attempted to trespass on his land in Margao town with the intention of putting up stalls there.
The complainant having been threatened by them, sent his brother to the police station.
The police came and asked the hawkers to keep their handcarts at the place where they were kept before.
Later on at about 5 30 p.m. the appellant came to the spot and spoke to the complainant in a very arrogant tone.
The appellant informed the complainant that he was Deputy Superintendent of Police and that he had in his possession documents which proved that the land belonged to one Alma Ram.
The appellant asked the complainant to produce his documents of.
title but the complainant replied that those documents had been produced by him in some litigation in the civil courts.
The appellant is then alleged to have threatened the complainant that he would lock him up in case there was any interference with what the hawkers Wanted to do.
The appellant also beckoned accused Nos. 2 5 and other hawkers to enter upon the land.
When the complainant protested he was warned by the appellant that if he talked he would be slapped.
The appellant also assaulted him.
Thereafter the possession of the land was taken over by the hawkers.
The magistrate to whom the complaint was presented examined the complainant under section 200, Criminal Procedure Code 1015 and issued summons to answer the charges under sections 149, 341, 342, 352, 500, 503 and 504 read with section 34 against the appellant and other accused persons requiring them to appear on April 19, 1966.
The appellant filed a petition for revision under section 435 of the Code before the learned Sessions 'Judge in which the main point taken was that the previous sanction under section 197, Cr.
P.C., to prosecute the appellant was required which had not been obtained.
The learned Sessions Judge made an order recommending that the magistrate be directed to require the complainant to obtain the requisite sanction before prosecuting the appellant.
This matter was heard by a bench consisting of the Judicial Commissioner and the Additional Judicial Commissioner.
The Judicial Commissioner was of the view that there was no material on the record to come to the conclusion that the acts complained of would be protected by the provisions of section 197(1) of the Code.
The learned Additional Judicial Commissioner took a contrary view and held that sanction was necessary.
The order of the court was that there being no third Judge to resolve the difference of opinion, the order of the learned magistrate issuing the summons be confirmed in terms of proviso to section 7(2) of the Goa, Daman and Diu (Judicial Commissioner 's Court) Regulation, 1963.
It may be mentioned that in the statement recorded under section 200 of the Criminal Procedure Code, by the magistrate, the complainant made more or less the same allegations as were made in the complaint.
According to the learned Additional Judicial Commissioner in the statement made in court it was not affirmed that the complainant had been wrongly retrained or confined nor was it mentioned that he was actually assaulted in the sense that physical force was used against him.
The worst that could be said, according to the Additional Judicial Commissioner, was that the appellant had warned the respondent that he would be arrested if he interfered with the entry of the hawkers on the disputed land and that the appellant.
also made some gestures with the hand indicating threat of assault.
In our opinion it is not necessary to go into the allegations in the original complaint.
It would suffice to read the statement made by the complainant before the magistrate which is reproduced below: "I confirm the matter in my complaint.
On 5th instant, at about 4.00 p.m. the accused Nos. 2 to 5 attempted to trespass upon my plot situated near the market of this city with a view of setting upon thereon their mobile shops.
I, therefore, sent my brother to the Police, who came to the spot and sent the vendors away.
At about 5.30 p.m. on the same day Mr. Sinari, in civil dress turned up at that place.
At that time, I was sitting in the verandah of the shop of one Kharan 1016 gute situated at the same place.
He called me near him.
Thereafter he asked me whether I knew him, to this I replied in the affirmative.
After this, he identified himself as Dy.
Superintendent of Police and threatened me that if I interfered with vendors he would arrest me.
Subsequently, he directed the vendors to enter my plot and warned me that he should slap me on my face.
In case I oppose to this.
He told me further that he was dealing with the case, when I brought to his notice that my documents were lying with the Municipality and with the Court.
The same accused made some gestures of threats of assault with hands.
I kept myself mum in view of this unusual attitude and the vendors ' took possession of my pro The learned Judicial Commissioner as also the Additional Judicial Commissioner have discussed the case law on the subject exhaustively and have also summarised the principles deducible from the various pronouncements.
It seems to us that there is no difficulty in finding the true rule which has been laid down by numerous decisions including those of the Privy Council, Federal Court and this Court.
It is only in the application of the settled rule that certain amount of difficulty may be experienced owing to the peculiar facts of a particular case.
The language of section 197, Cr. P. Code clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the appellant when he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
This Court observed in Ronald Wood Matham vs State of West Bengal(1) that the question whether sanction under section 197 was necessary for instituting proceedings on charges of conspiracy and of bribery stood concluded by the decisions of the Judicial Committee in H. H. B. Gill vs The King(2) and Phanindra Chandra Neogy vs The King(3) and must be answered in the negative.
so far as the appellant in that case was concerned.
After a full discussion of the case law the result was stated in Matajog Dubey vs
H.C. Bhari(4): thus: "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his . . duty.
" 76 I.A. 10.
(4) ; , 934, 1017 At an earlier stage it had been observed that it did not matter if the acts exceeded were strictly necessary for the discharge the duty.
What had to be found out was whether the act and the official duty were so inter related that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation.
In Amrik Singh vs State Pepsu(x), Venkatarama lyer J. speaking for the Court summed up the result of the various decisions on the subject and said that it was not every offence committed by a public servant which required sanction for prosecution under section 197(1) of the Code of Criminal Procedure nor even every act done by him while he was actually engaged in the performance of his official duties.
But if the act complained of was directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary and that would be so, irrespective of whether it was in fact, a proper discharge of his duties or not.
Reference may be made to Nagraj vs State of Mysore(2) in which the appellant, a Sub Inspector of Police, was committed to Sessions Court for trial on a complaint that he and another person had severely beaten one T and when he was forcibly taking him away and was requested by K to excuse T he wantonly fired on two persons.
Emphasis on the question of sanction has been laid on the rule that the jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence record We are unable to agree with the learned Additional judicial Commissioner that if the allegations of the complainant are taken to be correct it was established that the appellant held out threats to arrest the complainant or to give him a slap on his face in the discharge or purported discharge of his duties.
There are many matters on which there is complete absence of any material or information.
In the first place it is not clear in what capacity the appellant came to the spot.
According to the complainant he sent his brother to the police station because the hawkers were attempting to trespass on his land.
Normally it would be the officr in charge of the police station who would go to the spot to prevent any breach of peace or apprehended breach of peace.
Even if the appellant who was a superior officer could come to prevent any ugly situation arising between the complainant and the hawkers.
It is not established that the appellant came in the capacity of a police officer.
On the contrary the necessary implication in the statement of the complain [1955]:1 S.C.R.1302.
f2) 11964138.CR. 671.
1018 ant is that the appellant came in civil dress, wanted the hawkers to be put in possession of the disputed plot and actually directed them to enter the plot and warned the complainant that if he.
resisted he would be slapped in his face.
Until some more material is placed on the record it cannot be held that it was any part of the duty of the appellant to ensure that the hawkers were put_in possession of the disputed land.
It may be that the appellant was entitled to interfere and take proper steps if he apprehended any breach of peace but there is nothing whatsoever in the complainant 's statement which would show that any such situation existed which could justify interference by the appellant.
Ordinarily if a person is in possession of some property and other persons are threatening to dispossess him it is no part of the duty of a police officer to take sides and decide the dispute in favour of one party or the other or to force one party to give up possession to the other, even if he was satisfied that the party seeking to take possession was lawfully entitled to do so.
This the police officer could only do if there had been any direction by a competent court for rendering help in the matter of delivery of possession.
Whatever way the matter is looked at we are unable to hold on the basis of the allegations contained in the statement of the complainant that the acts alleged against the appellant were such as could be regarded to have been committed by him while acting or purporting to act in the discharge of his official duties.
It will be open to the appellant to establish during the course of further proceedings that the requisite sanction under section 197 must be obtained; but at this stage we concur in the view of the learned judicial Commissioner that no such sanction was necessary.
The appeal fails and it is dismissed.
G.C. Appeal.
dismissed.

summary/full:
A private complaint was filed against the appellant who was a Deputy Superintendent of Police.
According to the statement of the complainant there was a dispute between him and certain hawkers who wanted to trespass on his land and at his instance the police was informed.
The appellant came to the spot, threatened and assaulted him, and suggested to the hawkers to enter upon the load, whereupon the hawkers took possession of the land.
The Magistrate after recording the statement of the complainant issued summons to the appellant and others for answering charges under sections 149, 341, 342.
352, 500 and 504 of the Indian Penal Code read with section 34 thereof.
The appellant filed a petition for revision under section 435 Cr.
P.C. before the Sessions Judge in which the main point taken was that the previous sanction under section 197 Cr.
P.C. required for the prosecution of the appellant had not been obtained.
The Sessions Judge ordered that the complainant be asked to obtain the required sanction before prosecuting the appellant.
But the judicial Commissioner 's Court ordered that the order of the Magistrate issuing the summons be confirmed.
In appeal to this Court by special leave, HELD: The language of section 197 Cr.
P.C. clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the appellant when he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
In the present case it was not clear in what capacity the appellant came to the spot.
On the basis of the statement of the complainant it was not established that he came in the capacity of a police officer.
Ordinarily if a person is in possession of some property and other persons are threatening to dispossess him it is no part of the duty of a police officer to take sides and decide the dispute in favour of one party or the other or to force one natty to give up possession to the other, even if he was satisfied that the party seeking to take possession was lawfully entitled to do so.
This the police officer could only do if there had been any direction by a competent court for rendering help in the matter of delivery of possession.
[In dismissing the appeal the Court observed that it would be open to the appellant to establish during the course of further proceedings that the requisite sanction under section 197 must be obtained.] Ronald Wood Mathams vs State of West Bengal, , H.B. Gill vs The ICing, 75 I.A. 41, Phanindra Chandra Neogv vs The King, 76 I.A. 10, Matalog Dubey vs H. C. Bhari; , , 1054 934, Amrik Singh vs State of Pepsu, ; and Nagraj vs State of Mysore, ; , referred to.