judgement:
ition No. 6607 of 1981.
Kapil Sibal (A.C.) for the Petitioner.
N.C. Talukdar and R.N. Poddar with him for the Respondent.
Miss A. Subhashini for CBI.
Daniel Latiffi and N.K Agarwal with him for the Intervener.
The Judgment of the Court was delivered by PATHAK, J.
The petitioner, Shri Bhagwant Singh, has applied to this Court for relief in the matter of the death of his married daughter, Gurinder Kaur.
113 Shri Bhagwant Singh is a member of the Indian Revenue Service.
His daughter, Gurinder Kaur, was one of three children.
She was an intelligent and talented girl who secured a first division in the Senior Cambridge Examination and had obtained a B. Sc.
(Home Science) Degree from Lady Irwin College.
She was endowed with good looks and a pleasing personality, and her education and deportment attracted notice.
It is apparent that the father was proud of his daughter.
Shri Bhagwant Singh and Shri Kartar Singh Sawhney were colleagues in the office.
They had been friends for over thirty years.
Shri Kartar Singh has a son, Amarjit Singh.
The family lived at J 7/93, Rajouri Garden, New Delhi.
The son ran a motor parts shop at Kashmere Gate, Delhi.
It appears that the two colleagues decided on a marriage between Gurinder Kaur and Amarjit Singh in view of the close association of the two families.
From the very beginning, it seems, Shri Bhagwant Singh was opposed to the evils of the dowry system, and the sentiment was also deeply entrenched in Gurinder Kaur for, it appears, she along with other girls of her college signed a pledge in favour of the "anti dowry movement".
According.
to Shri Bhagwant Singh, there was an express stipulation between the respective parents that no dowry would be demanded in the marriage.
The marriage started off well and the young couple enjoyed a harmonious relationship for the first few months.
But very soon, it is alleged, Gurinder Kaur became conscious of broad hints from her mother in law that gifts in the shape of money and jewellery were expected from her parents.
Shri Bhagwant Singh, on being formed of this, decided to ignore it, firm inn his conviction that any insidious attempt to extract a dowry should not be countenanced.
It is alleged that from this point Gurinder Kaur became the victim of constant ill treatment by her mother in law.
She was carrying a baby, but amidst the oppressive tensions at home she suffered a miscarriage and was admitted to a Nursing Home.
According to Shri Bhagwant Singh, his daughter continued to be ill treated and was often taunted that unless the observed the family tradition of presenting a necklace to her mother in law she would remain without child.
It is said that the pressure on Gurinder Kaur continued unabated, and it was not long before her husband got it conveyed to Shri Bhagwant Singh that he required about 114 Rs. 50,000 for financing his business.
As Shri Bhagwant Singh remained firm in his resolve not to yield to these pressures, it is alleged that the girl continued to be harassed and her parents in law made it plain to her that they regretted the marriage.
The attitude and relations of her husband and his family towards her went from bad to worse, and the regard which ordinarily a bride in the house can expect to receive was replaced by a continuing scorn and contempt and ill will.
It must be recalled that Gurinder Kaur was a girl of good family, of refined character and well educated.
Brought up in a home where the dowry system was regarded as an evil to be opposed, it can be presumed that she rebelled strongly against the attempts at extortion directed against her father.
It is reasonable to assume that the relations between the young husband and wife were vitiated by bitter discord, and that she lived in the home in an atmosphere of open and continuous hostility.
On August 9, 1980, ten months after the marriage, Gurinder Kaur, aged 22 years was found dead of third degree burns from a kerosene fire in the bath room.
According to the family of Kartar Singh, all the members of the family had proceeded to the Gurudwara Bangla Sahib in the early morning, and on their return the girl had prepared breakfast for the eight members of the family.
She and her husband ate breakfast later and, it is said, the husband left for work about 10.
30 A.M.
Within an hour thereafter, the girl was found dead in the bathroom.
The tragedy occasioned universal distress, and on the versions put out by the newspapers agitated letters condemning the dowry system and calling for urgent legislative and social measures for reform poured into the press.
The police authorities, it seems, tend to believe that the case was one of suicide, but Shri Bhagwant Singh is convinced that murder cannot be ruled out.
It is not possible in this case, nor indeed would it be right for us to do so, to enter into the question whether Gurinder Kaur committed suicide or was murdered.
That is a matter which is properly involved in the trial of a criminal charge by a court possessing jurisdiction.
We are concerned here only with an examination of the question whether, after being informed of Gurinder Kaur 's death, the police authorities conducted themselves as law and justice required of them.
A counter affidavit of October, 1981 of Shri P.S. Bhinder, Commissioner of Police, Delhi states that Gurinder Kaur was admitted in the Ram Manohar Lohia Hospital on August 9, 1980 at 12.15 P.M. with "100% burn injury" by her father in law, 115 Shri Kartar Singh Sawhney, and that on receiving information a Sub Inspector of Police visited the hospital and was told by the doctor on duty at 3.
10 P.M. that Gurinder Kaur was unfit to make a statement.
His enquiries led him to believe that Gurinder Kaur had attempted to commit suicide.
He registered the case as F.I.R. No. 507 dated August 9, 1980 under section 309 of the Indian Penal Code and commenced investigation.
IS P.M.
On the same day Gurinder Kaur died.
The police investigation brought to light that Gurinder Kaur was found burning at about 11 A.M.
On August 9, 1980 in the bathroom of the first floor of the house.
The police say that the bath room was found bolted from inside, and it was broken open by a servant, Ramu, with the assistance of Smt.
Satinder Kaur, the elder daughter in law.
After the fire was extinguished, Gurinder Kaur was removed to the hospital.
It is said that a tin can of S litters of Kerosene oil, two match boxes and one looking glass with the words "Do not hold any one responsible Pinky" written on its surface with a soap cake were found.
The Central Forensic Science Laboratory experts summoned for the purpose were of opinion that the writing on the mirror was that of Gurinder Kaur.
It was also said that the door of the bathroom could have been broken open from outside.
When Shri Bhagwant Singh complained about the manner in which the police investigation was proceeding and expressed his suspicions in regard to the circumstances in which his daughter died, the police added section 4 of the Dowry Prohibition Act to the charge on November 29, 1980.
Subsequently, on May 15, 1981 reference to section 306 of the Indian Penal Code was also included.
The police continued their investigation until August 29, 1981, and from the investigation they inferred that it was a case of suicide.
It seems that thereafter the investigation was entrusted by the Minister of State for Home Affairs in the Government of India to the Central Bureau of Investigation, and the file was sent to its Director on September 10, 1981.
For that reason, it is said, no question arose of filing any report under section 173 (2) of the Code of Criminal Procedure.
Shri Bhagwant Singh has vigorously contended that the investigating agency in this case did not carry out its statutory duties in a bonafide manner and deliberately withheld the filing of a police report and resorted to delaying the progress of the investigation in order to ensure that no proceedings were taken against the accused in the case.
He disputes the version of the police that the doctor 116 on duty at the hospital had said that Gurinder Kaur was unfit to make a statement and that it was not possible for the police to obtain her statement before her death.
He has referred to the statement of Shri Kartar Singh Sawhney, the father in law of the girl, made to the police on November 13, 1980, in which he had disclosed that Shri Bhagwant Singh had come to the hospital and he found that his daughter was talking occasionally, and that during the period from 2.30 P.M. to 8.30 P.M. Shri Bhagwant Singh, his wife, his niece, who was a doctor, and his elder brother Balwant Singh, as well as the latter 's wife and two sons, had been talking to the girl.
In his affidavit Shri Bhagwant Singh also alludes to the statement of Smt.
Satinder Kaur recorded by the police on August 9, 1980 where she stated that at the time of the tragedy she rushed upstairs and fainted and that when.
she regained consciousness many people including her father in law, mother in law and brother in law, Raman Deep Singh who lived on the second floor were present.
It is pointed out that if this statement is true, then it is not possible to accept the version put forward by the family of Shri Kartar Singh that the servant, Ramu, with the assistance of Smt.
Satinder Kaur had to break open the door of the bathroom because it was bolted from inside.
It is also pointed out that the servant Ramu and Smt.
Satinder Kaur were alleged to be on the ground floor when the burning took place in the both room on the first floor of the house where the mother in law, Gurbachan Kaur was present.
Gurbachan Kaur, according to her statement, was ironing clothes at that movement on the first floor, a few yards away from the bathroom and would have been the first person to have witnessed the tragedy and yet, it is questioned, there is no reason why she should not have been the first to assist the servant Ramu in breaking open the door if indeed the door had to be broken open.
It is also alleged that the police never attempted to take into possession the cake of soap in the bathroom with which the deceased is supposed to have written on the looking glass, nor did they take possession of the blanket, which according to the statement of Shri Kartar Singh Sawhney, was employed to extinguish the fire.
Several suspicious circumstances have been set forth by Shri Bhagwant Singh in his affidavit, and the opinion of the C.F.S.L. experts has been assailed on the ground that it was delivered on an examination of the mirror after more than a month.
He has also attempted to rebut the assertion of the police that he did not join in the investigation from the outset and that he had originally said that he did not suspect any foul play.
On the contrary, he has dwelt at some length on the 117 continuous attempts made by him to ensure an effective investigation into the cause of his daughter 's death, approaching in this behalf the highest authorities in the land.
When this case came before this Court, an order was made directing the filing of a detailed affidavit by the Commissioner of Police setting forth full particulars of the various steps taken by the police in connection with the investigation.
A further counter affidavit was filed by Shri P. section Bhinder, Commissioner of Police.
It is stated in the counter affidavit that the investigating officer remained busy with the investigation of other cases and with matters concerning the maintenance of law and order.
and that this particular case was with Sub Inspector Amrit Lal, who had 12 cases in hand, from August 9, 1980 to August 11, 1980.
and thereafter was entrusted to Sub Inspector Sri Ram, who had 29 cases in hand, from August 12, 1980, to November 13,1980, and subsequently to Inspector Charan Das, who had only one case in hand, from November 13, 1980 to May 28, 1981.
It is stated that these police officers "could not investigate this case all the time" because besides the other cases in hand, they had also to look after the day to day work of the Police Station.
It is said also that during the period when the case was under investigation with Inspector Charan Das, the file remained under submission to the Crime Bench of Delhi for scrutiny with a view to guide the local police on further investigation.
Finally, the case passed into the hands of Inspector R. P. Kochhar of the Crime Branch, who had four cases in hand, and he dealt with this case from May 28, 1981 to September 9, 1981.
It is pointed out that Inspector Kochhar was at that time entrusted also with the investigation of a number of cases involving a notorious dacoit as well as two sensational murders.
It is reiterated in the counter affidavit that the statement of Gurinder Kaur could not be recorded by the police as the doctor on duty had declared her unfit to make a statement.
It is admitted that the blanket with which the fire was extinguished was not taken into possession by the police, but it is asserted that the soap cake was taken on August 9, 1980.
It is also asserted that on August, 10, 1980 Sub Inspector Amrit Lal brought a team of C.F.S.L. experts to the place of occurrence and a photograph of the mirror was taken.
It is alleged that although every effort was made to record the statement of Shri Bhagwant Singh, he declined to make any statement.
It was only on April 21, 1981 that he did so.
It is conceded that reference to section 306 of the Indian Penal Code was added only on May 15, 1981, the omission 118 to do so earlier being explained as a mistake.
The delay occasioned A in the investigation is ascribed by the Commissioner of Police to the fact that Shri Bhagwant Singh permitted his statement to be recorded only as late as April 21, 1981.
We think it can be fairly stated that the police did not display the promptitude and efficiency which the investigation of the case required.
There is much that calls for comment.
It appears from the entries in the police Case Diary that a Sub Inspector visited the place of occurrence on August 9, 1980 and seized a number of articles.
But it is conceded that he did not take into custody the blanket with which the fire is said to have been put out.
On the next day, experts from the Central Forensic Science Laboratory visited the place and appear to.
have made an examination for chance prints.
They also photographed the mirror.
And yet, it was not until over five weeks later that the police were able to obtain a report from them.
Curiously, although the minor was removed from the scene of occurrence and was examined for chance prints, no "identifiable prints" could be developed.
In cases such as this, it would have been of the essence that on visiting the place of occurrence immediately on information of the incident, the mirror should have been taken into possession by the police and handed over forthwith to the Central Forensic Science Laboratory experts for an urgent report in regard to the existence and identification of the prints.
Delay in such a matter is vital and can often result in the loss of valuable clues.
It is of little consolation that, according to the entry G. D. No. 7 dated September 23, 1980 the Deputy Commissioner of Police wrote a reminder to the Director, Central Forensic Science Laboratory for an urgent examination of the writing.
An important question was whether the bathroom door was latched from inside and had to be forced open, or was in fact latched from outside.
According to the family of Shri Kartar Singh, the door was forced open with the help of the servant Ramu.
The entry C. D. No. 1 dated August 9, 1980 in the Case Diary does not indicate that Ramu 's statement was recorded by the police on that day, although it shows that the statements of other persons were recorded.
There is a suggestion by the learned counsel for the State that Ramu 's statement was also recorded on that very day, but that is not shown by the Case Diary extracts filed before us.
It is only as late as January 25, 1981, according to the entry C. D. No. 13 of that date, that the servant was examined by the Station House officer.
Ramu 119 was a material witness, and yet strangely, as it appears from the entries in the police Case Diary, he was allowed to leave the town and go to his village before he could be fully examined by the police.
There is no evidence that the police expressed any anxiety to put him through a thorough examination immediately or shortly after the date of the occurrence or at least before Shri Kartar Singh 's family allowed Ramu to leave the town for his village.
Much has been made by the police of the reluctance of Shri Bhagwant Singh to make a statement to them.
As a responsible officer of sufficiently senior status in the Government of India it would have been natural to expect that he would have come forward from the very first to have his statement recorded and to cooperate with the police, especially in view of the fact that he would have been particularly anxious to have the truth determined into the death of his own daughter.
It is indeed difficult to believe that he did not cooperate with the police in the investigation or declined to give his statement until April 21, 1981.
But if he did so, it could only be because of want of confidence in the manner in which the police investigation was being conducted.
The most vital evidence would have been the statement of Gurinder Kaur herself, and yet even on that point there is a conflict of testimony on the question whether she was fit to make a statement at 3.10 p.m. when the Sub Inspector approached the doctor for the purpose.
On the other hand, according to the statement made by her father in law, Shri Kartar Singh, himself to the police on November 13, 1980, when her father Shri Bhagwant Singh came to the hospital and entered the room, the girl was talking occasionally, and during the period 2.30.p.m.
to 8.30 p.m. Shri Bhagwant Singh, his wife, his niece who was a. doctor and other members of his family had been talking to the girl.
According to the statement of Dr. Rajinder Pal Kaur, niece of Shri Bhagwant Singh, Gurinder Kaur was in possession of her senses at the time and when Dr. Kaur suggested to one of the police officers, who was present, to record to statement of the girl, he declined to do so.
It is regrettable that there is a conflict on the question whether the girl was fit to make a statement to the police, and we are constrained to point out that the conflict centres on a vital part of the case.
There are other features of the case, including the question of the transfer of a Television set to the family of Shri Kartar Singh as a palliative by the uncle of the unfortunate girl, but.
we find it 120 unnecessary to enter into them.
It is enough to point out that A the investigation by the police does not inspire confidence.
It was, in fact, considered materially inadequate by the Crime Branch itself.
For on May 12, 1981, a memorandum was addressed by the Crime Branch to the Deputy Commissioner of Police, Delhi pointing out that the file showed that statements of material persons had not been recorded.
We may also advert to the fact that although the girl was taken to the hospital in a taxi, the police do not appear to have attached any importance to recording the statement of the taxi driver.
There is also an affidavit of one Shri Jagjit Singh before us from which it appears that he was among the first to reach the house when the incident occurred and that it was he who suggested that the girl, who was lying burnt half inside the bathroom and half outside in the verandah, should be taken forthwith to the hospital, and he states that it was he who wag instrumental in sending for the taxi.
Shri Jagjit Singh was an important witness, and although he was in the neighbourhood, no attempt was made to record his statement expeditiously.
Two inferences follow irresistibly from the material before us.
One is that the investigation by the police following the occurrence was desultory and lackadaisical, and showed want of appreciation of the emergent need to get at the truth of the case.
There is a powerful suggestion made by learned counsel for Shri Bhagwant Singh that the police were anxious not to embarrass Shri Kartar Singh and his family and may indeed, as it were, have looked the other way instead of vigorously pursuing the investigation.
Whatever may be the reason, there is no doubt that the investigation of the case suffered from casualness lack of incisiveness and unreasonable dilatoriness, and this is demonstrated most effectively by the manner in which the case was passed from one police official to another, being entrusted successively to Sub Inspectors and Inspectors each of whom already had his hands full with the investigation of several other cases.
There is the admission that these police officers were preoccupied with numerous other cases in their hands and they were officers who were also required to look after the day to day work of the police station.
It was only when on the repeated and insistent petitions of Shri Bhagwant Singh the case passed into the control of the Crime Branch that the investigation showed some signs of being speeded up.
The other inference which disturbs us is that the entries in the police Case Diary (set forth in the annexure to the counter affidavit 121 on the record) do not appear to have been entered with the scrupulous completeness and efficiency which the law requires of such a A document.
The haphazard maintenance of a document of that status not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained.
We think it to be of the utmost importance that the entries in a police Case Diary should be made with promptness, in sufficient detail, mentioning all significant facts in careful chronological order and with complete objectivity.
We believe it would be appropriate to make a few further observations at this stage.
It is impossible to escape the conclusion that, in a case such as this, the death of a young wife must be attributed either to the commission of a crime or to the fact that, mentally tortured by the suffocating circumstances surrounding her, she committed suicide.
Young women of education, intelligence and character do not set fire to themselves to welcome the embrace of death unless provoked and compelled to that desperate step by the intolerance of their misery.
It is pertinent to note that such cases evidence a deep seated malady in our social order.
The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation.
It is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed.
Perhaps, legislation in itself cannot succeed in stamping out such an evil, and the solution must ultimately be found in the conscience and will of the social community and in its active expression through legal and constitutional methods.
Besides this, what is important to point out is that where the death in such cases is due to a crime, the perpetrators of the crime not infrequently escape from the nemesis of the law because of inadequate police investigation.
It would be of considerable assistance if an appropriately high priority was given to the expeditious investigation of such cases, if a special magisterial machinery was created for the purpose of the prompt investigation of such incidents, and efficient investigative techniques and procedures were adopted into taking account the peculiar features of such cases.
Among other suggestions, we would recommend that a female police officer of sufficient rank and status in the police force should be associated with the investigation from its very inception.
There are evident advantages in that.
In a case where a wife dies in suspicious circumstances in her husband 's home it is invariably a matter of 122 considerable difficulty to ascertain the precise circumstances in which the incident occurred.
As the incident takes place in the home of the husband, the material witnesses are usually the husband and his parents or other relations of the husband staying with him.
Whether it was cooking at the kitchen stove which was responsible for the accident or, according to the inmates of the house, there was an inexplicable urge to suicide or whether indeed the young wife was the victim of a planned murder are matters closely involving the intimate knowledge of a woman 's daily existence.
If the incident is the result of a crime by the husband or his family, the problem of ascertaining the truth is burdened by the privacy in which the incident occurred.
In circumstances where it is possible to record the dying declaration of the victim, it would, in our opinion, be more conducive to securing the truth if the victim made the declaration in the presence of a female police officer who can be expected to inspire confidence in the victim.
Psychological factors play their part, and their role cannot be ignored.
A young wife can be the subject of varying psychological pressures, and because that is so the nuances of feminine psychology support the need for including a female police officer as part of the investigating force.
While making these observations we may emphasise that we intend no aspersion on the rectitude or efficiency of the male members of the police involved in the investigation of such cases.
Another suggestion which has found favour with us is the need to extend the application of the to other cities besides those where it operates already.
The application of the will make possible an immediate inquiry into the death of the victim, whether it has been caused by accident, homicide, suicide or suddenly by means unknown.
It contains provisions which are entirely salutary for the purpose of such inquiry, and we have little doubt that an inquiry under that enactment would be more meaningful and effective and complete in the kind of case before us.
We are aware that the Code of Criminal Procedure, 1973 contains, in sections 174 and 175, provision for a police inquiry pursuant to an information that a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising reasonable suspicion that some other person has committed an offence.
In such a case the police officer makes an investigation and submits a report to the District Magistrate or the Sub Divisional Magistrate, and thereafter the 123 District Magistrate of Sub Divisional Magistrate or other Executive Magistrate empowered in that behalf is required to hold an inquest.
The police officer making an investigation is entitled to summon two or more persons for the purpose of the investigation and any other person who appears to be acquainted with the facts of the case to attend and answer truly all questions other than questions the answer to which would have a tendency to incriminate him.
We think that in the category of cases we have in mind the more appropriate and effective procedure would be that contemplated by the , which ensures that the inquiry into the death is held by a person of independent standing and enjoying judicial powers, with a status and jurisdiction commensurate with the necessities of such cases and the assistance of an appropriate machinery.
We have referred to some of the important features of the case.
We have done so not for the purpose of determining whether the girl was murdered or had committed suicide, but solely with the object of drawing attention to the manner in which the investigation of the case was conducted.
Disappointing as it may seem to those who have desired the institution of criminal action on the basis that a crime has been committed, we do not think that on the material before us we can go that far.
The investigation of the case was transferred from the police administration of Delhi to the Central Bureau of Investigation at the instance, we understand, of the petitioner.
We hope and trust that this investigation has been completed.
It not, we would request the Central Bureau of Investigation to complete the investigation within three months from the today and take such action as may be warranted by the result of the investigation.
The petition is disposed of accordingly.

summary/full:
The petitioner Bhagwant Singh a member of the Indian Revenue Service applied to the Court for intervention and necessary relief in the matter of the death of his married daughter Gurinder Kaur alleging that due to several circumstances he was convinced that his daughter was murdered in the house of her parent 's in law by burning her and that the police investigation was improper and irregular and ineffective.
According to the petitioner: (i) that he and his daughter were opposed to the evils of the dowry system and therefore, with a stipulation that no dowry should be demanded at the time of the marriage he gave his daughter to one Amarjit Singh, son of his colleague Kartar Singh Sawhney and a friend for over thirty years; (ii) that after the marriage his daughter came to be ill treated by her mother in law hinting that gifts and jewellery were expected from her parents and such oppressive tensions at home resulted in the mis carriage of a child, from which time onwards the mother in law taunted her saying that unless she observed the family tradition of presenting a necklace to her mother in law she would remain without a child; (iii) that sometime later, the son in law got it conveyed to Bhagwant Singh that he required Rs. 50,000 for financing his business which was not acceded to; (iv) that on August 9, 1980 i.e. ten months after the marriage his daughter was found dead of third degree burns from a kerosene fire in the bath room and was admitted in the Ram Manohar Lohia Hospital by her father in law at 12.15 P.M.; (v) that the police did not get the statement of his daughter recorded though she was able to speak; (vi) that the police added section 4 of the Dowry Prohibition Act to the charge on November 29, 1980 and only on May 15, 1981 a reference to section 306 IPC was included in the F.I.R.; and (vii) that the police failed to examine material witnesses and recover material objects and proceeded in a leisurely manner.
110 The Court admitted the writ petition and called for full details from the Inspector General of Police about the investigation of the case and the circumstances leading to the non filing of the report under section 173(2) of the Code of Criminal Procedure.
Disposing of the Writ Petition and directing the C.B.I. to complete the investigation within three months, the Court ^ HELD: 1:1 Disappointing as it may seem to those who have desired the institution of criminal action on the basis that a crime has been committed, the material on record does not, however, justify an order to that effect by the Supreme Court.
The investigation of the case now stands transferred to the C.B.I. at the instance of the petitioner.
[123 E F] 1:2.
It is not possible, in this case, nor indeed would it be right for the Court to do so, to enter into the question whether Gurinder Kaur committed suicide or was murdered.
That is a matter which is properly involved in the trial of a criminal charge by a court possessing jurisdiction.
[114 G H] 2:1.
The police did not display the promptitude and efficiency which the investigation of the case required.
There is much that calls for comment.
Though the CD entry made on August 9, 1980 indicates the visit of a sub inspector to the place of occurrence and seizure of several things, the blanket with which the fire is said to have been put out has not been seized.
On the next day when the experts from the Central Forensic Science Laboratory visited the place for getting any chance prints, the mirror was not taken possession of, nor was the report obtained for full five weeks.
In cases such as this, it would have been of the essence that on visiting the place of occurrence immediately on information of the incident, the mirror should have been taken into possession by the police and handed over forthwith to the Central Forensic Science Laboratory experts for an urgent report in regard to the existence and identification of the prints.
Delay in such a matter is vital and can often result in the loss of valuable clues.
Since Ramu the servant was reported to have helped in forcing open the door of the bathroom, he was a material witness for deposing whether the bathroom was latched from inside and had to be forced open or was in fact latched from outside.
It was only as late as January 25,1981, according to entry CD 13 of that date, that Ramu was examined by the Station House Officer.
Strangely he was allowed to leave the town and go to his village before he could be fully examined by the police.
There is no evidence that the police expressed any anxiety to put him through a thorough examination immediately or shortly after the date of the occurrence or at least before Shri Kartar Singh 's family allowed Ramu to leave the town for his village.
The fact that the investigation by the Delhi Police does not inspire confidence is clear from the memorandum dated May 12, 1981 issued by the Crime Branch to the Deputy Commissioner of Police to the effect that the statement of several material witnesses had not been recorded.
[118 B H, 119 A B, 120 B] 2:2 The investigation by the police following the occurrence was desultory and lackadaisical, and showed want of appreciation of the emergent need 111 to get at the truth of the case.
Whatever may be the reason, there is no doubt that the investigation of the case suffered from casualness, lack of incisiveness and unreasonable dilatoriness, and this is demonstrated most effectively by the manner in which the case was passed from one police official to another, being entrusted successively to sub Inspectors and Inspectors each of whom already had his hands full with the investigation of several other cases.
There is the admission that these police officers were not only preoccupied with numerous other cases in their hands but they were officers who were also required to look after the day to day work of the police station.
It was only when on the repeated and insistent petitions of Shri Bhagwant Singh the case passed into the control of the Crime Branch that the investigation showed some signs of speeding up.
Secondly, the haphazard maintenance of a police case diary not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained.
It is of the utmost importance that the entries in a police Case Diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity.
[120 E H, 121 A.B] 2.3 In a case such as this, the death of a young wife must be attributed either to the commission of a crime or to the fact that.
mentally tortured by the suffocating circumstances surrounding her, she committed suicide.
Young woman of education, intelligence and character do not set fire to themselves unless provoked and compelled to that desperate step by the intolerance of their misery.
Such cases evidence a deep seated malady in our social order.
The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation lt is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed.
Perhaps, legislation in itself cannot succeed in stamping out such an evil, and the solution must ultimately be found in the conscience and will or the social community and in its active expression through legal and constitution methods.
[121 C E] 3.
The Court suggested the following (i) Where the death in such cases is due to a crime, the perpetrators of the crime not infrequently escape from the nemesis of the law because of inadequate police investigation.
It would be of considerable assistance if an appropriately high priority was given to the expeditious investigation of such cases, if a special magisterial machinery was created for the purpose of the prompt investigation of such incidents, and efficient investigative techniques and procedures were adopted taking into account the peculiar features of such cases; [121 F G] (ii) A female police officer of sufficient rank and status in the police force should be associated with the investigation from its very inception.
There are evident advantages in that.
In a case where a wife dies in suspicious circumstances in her husband 's home its invariably a matter of considerable difficulty to ascertain the precise circumstances in which the incident occurred.
As the incident takes place in the home of the husband the material witnesses are 112 usually the husband and his parents or other relations of the husband staying with him.
Whether it was cooking at the kitchen stove which was responsible for the accident or, according to the inmates of the house, there was an inexplicable urge to suicide or whether indeed the young wife was the victim of a planned murder are matters closely involving the intimate knowledge of a woman 's daily existence.
[121 H, 122 A B] If the incident is the result of a crime by the husband or his family, the problem of ascertaining the truth is burdened by the privacy in which the incident occurred.
In the circumstances where it is possible to record the dying declaration of the victim, it would be more conducive to securing the truth if the victim made the declaration in the presence of a female police officer who can be expected to inspire confidence in the victim.
Psychological factors play their part, and their role cannot be ignored.
A young wife can be the subject of varying psychological pressures, and because that is so the nuances of feminine psychology support the need for including a female police officer as part or the investigating force; and [122 C E] (iii) The need to extend the application of the to other cities besides those where it operates already.
The application of the will make possible an immediate inquiry into the death of the victim, whether it has been caused by accident, homicide, suicide or suddenly by means unknown.
lt contains provisions which are entirely salutary for the purpose of such inquiry, and an inquiry under that enactment would be more meaningful and effective and complete than one under sections 174 and 175 of the Code of Criminal Procedure.
The procedure contemplated by the , ensures that the inquiry into the death is held by a person of independent standing and enjoying judicial powers, with a status and jurisdiction commensurate with the necessities of such cases and the assistance of an appropriate machinery.
[122 F H, 123 B C]


judgement:
N: Criminal Appeal No. 285 of 1983 Appeal by Special leave from the Judgment and order dated the 15th December, 1980 of the Karnataka High Court in Crl.
A. No. 590 of 1979.
M. Veerappa for the Appellant.
Vimal Bobde A.C, and P.R. Ramasish for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave is directed against a judgment of the Karnataka High Court dated December 15, 1980 affirming the order of acquittal passed by the Munsiff & Judicial Magistrate First Class, Krishnarajanagar dated July 10, 1979 acquitting the respondent of an offence punishable under sections 39 and 44 of the read with section 379 of Indian Penal Code.
The prosecution case in brief was as follows.
On August 25, 1976 at about 12 noon P.W. 1 Syed Ameer, Supervisor, Karnataka Electricity Board, went to the house of the respondent on a routine inspection to check the electric meter installed there.
He found the meter board at the entrance and though the meter was not recording consumption of electric energy, the lights and fans were on.
It appeared that the respondent had tampered with the main connection by fixing two switches to the wall of the house and by operating the 251 switches the lights and fans inside the house could be used without the meter recording any consumption.
Later in the day, he along A with the Assistant Engineer attached to the Karnataka Electricity Board, Krishnarajanagar and the Junior Engineer went to the house of the respondent and saw that there was theft of electric energy.
Accordingly, on the direction of the Assistant Engineer, P.W. 1 Syed Ameer lodged a report with the police exhibit P l.
After an investigation into the complaint, the Krishanrajanagar police filed a challan.
The prosecution led evidence of five witnesses including that of P.W. 1 Syed Ameer, Supervisor and P.W. 2 Bheemanna, Junior Engineer to substantiate the charge.
The learned trying Magistrate however acquitted the respondent of the offence with which he was charged under section 248 (1) of the Code of Criminal Procedure, 1973 on the ground that the prosecution had failed to establish that P.W. 1 Syed Ameer had been authorized to lodge a complaint.
On a reading of section SO the Act, he held that a Junior Engineer of the Electricity Board could lodge a complaint but not the Supervisor, and the mere presence of the Junior Engineer after detection of the theft, does not imply that the Supervisor had been authorised to lodge a complaint.
The High Court has upheld the order of acquittal passed by the learned trying Magistrate on the ground that the notification issued by the Karnataka Electricity Board authorizing Junior Engineers, Section officers and Supervisors to institute prosecutions in terms of section SO of the Act not having been published in the official Gazette, the Court could not take judicial notice of any such notification and it was for the prosecution to lead evidence in proof thereof to establish that P.W. 1 Syed Ameer was competent to lodge a complaint.
lt rejected a prayer of the learned public prosecutor to lead additional evidence in proof of the notification on the ground that would be tantamount to allowing the prosecution to fill up a lacuna in the case.
The decision of the appeal must turn on the construction of section SO of the Act which reads as follows: "50.
Institution of prosecutions No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same." According to the plain English language, the ordinary meaning of the phrase "at the instance of" in the collocation of words "No 252 prosecution shall be instituted . except at the instance of" A must, in the context in which it appears, mean 'at the behest of, or, at the solicitation of '.
The word 'instance ' as a verb means "to urge, entreat urgently, importune".
The meaning of the phrase "at the instance of" as given in Random House Dictionary of the English Language at p. 690 is: 'at the urging or suggestion of '. 'Instance ' does not imply the same degree of obligation to obey as does 'command '.
That is also the legal sense in which the phrase "at the instance of" in section 50 of the Act has been understood.
It is clear upon the terms of section SO that it nowhere requires that the authorization should be by a notification published in the official Gazette.
The order of acquittal recorded by the learned Magistrate and as affirmed by the High Court proceeds on a construction of section SO of the Act which is wholly unwarranted and has resulted in manifest miscarriage of justice.
There can be no doubt that the prosecution had been launched "at the instance of ' ' the Electricity Board within the meaning of section SO of the Act.
The Karnataka Electricity Board which is a statutory body had issued a notification No. KEB/A5/ 6053/7374/SOL/401/72 dated April 18, 1974 which finds place in the Karnataka Electricity Board Manual, Vol. 1, 2nd edn.
at p. 80 which is to the following effect: Section 134 (4) (iv): Superintending Engineers, Executive Engineers, Assistant Engineers, Junior Engineers, Section officers and Supervisors are authorised to institute prosecutions or make complaints to the jurisdictional officers in charge of Police Stations, for instituting prosecutions when offences under any of the Sections 39, 41, 43 and 44 of the Electricity Act or Rule 56 read with Rule 138 of the Electricity Rules are committed or are reasonably believed to have been committed in their respective jurisdictions.
" The matter is no longer res integra.
In Ram Chander Prasad Sharma vs State of Bihar & Anr.(l) the Court observed: "It is true that Bhattacharya was not himself a "person aggrieved" and that the "person aggrieved" was 253 the P.E.S. Co. The P.E.S. Co. however.
is a body corporate and must act only through its directors or officers.
A Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings.
The evidence shows that it was at his instance that Bhattacharya launched the first information report and, therefore, it would follow that the law was set in motion by the "person aggrieved".
" Interpreting the phrase "at the instance" in section SO of the Act, the Allahabad High Court in Vishwanath vs Emperor(l) stated: "If it had been the intention of the Legislature that no case should be instituted in Court except by the Electric Company itself or the other persons mentioned in section 50 of the Act, the Legislature would, we think have used the ordinary phrase "on the complaint of" and the section would have been on the lines that no Magistrate should take cognizance of any offence referred to in section SO of the Act, except upon the complaint of certain persons.
The phrase "at the instance of" means merely "at the solicitation of or at the request of".
" In that case the prosecution was in fact launched by the police at the behest of the electric supply company and the High Court held that there could be no doubt that the company desired that the accused should be prosecuted for the offences.
The officers of the company had discovered the theft and they had, as here, reported the matter to the police and asked the police to make an investigation, as in the instant case.
Upon these facts, the Allahabad High Court held that the prosecution had been launched at the instance of the electric supply company within the meaning of section SO of the Act.
That construction of section SO of the Act by the Allahabad High Court in Vishwanath 's case, supra, has throughout been followed.
We find that the Delhi High Court in State (Delhi Administration vs Dharam Pal(2) as well as the Karnataka High Court in State 254 of Karnataka vs Abdul Nabi(l) have taken the same view placing A emphasis on the circular issued by the General Manager laying down the procedure to be followed in launching prosecutions of theft of electricity which was in terms similar to the notification issued by the Karnataka Electricity Board.
It is unfortunate that the learned Judges of the Karnataka High Court should have disregarded their earlier judgment in Abdul Nabi 's case, (supra) more so, when one of them was a member to the earlier Bench.
After referring to the judgment of the Allahabad High Court in Vishwanath 's case (supra) as to the meaning of the phrase "at the instance of. ', the High Court had earlier observed in Abdul Nabi 's case, (supra): "Where, therefore, a person acting for and on behalf of the Board lodges a complaint with Police in respect of unlawful extraction of electric energy and the police in turn file a charge sheet, the prosecution must be regarded as instituted at the instance of the Board.
" In the instant case, the High Court refers to the concession of the learned Government Advocate that 'the notification had not been published in the official Gazette ' and observes: "In that view of the matter, it is plain that this Court cannot take judicial notice of existence of such notification and the facts contained in that notification.
The prosecution ought to have led in evidence on producing this notification to establish that P.W. I was legally authorized to prosecute within the meaning of section SO of the Act.
It has failed to do so.
" It appears that the High Court was obviously misled by the use of the word 'notification ' contained in the Manual.
The Karnataka Electricity Board is constituted under section 5 of the .
Under section 12 of that Act, the Electricity Board is a body corporate having perpetual succession and a common seal.
The Electricity Board therefore is an artificial person and depends on its officers and servants to carry out its powers, functions and duties.
The aforesaid notification is a general order issued by the Electricity Board in terms of section 50 of the Act authorizing the Superintending Engineers, Executive Engineers, Assistant Engineers, Junior Engineers, Section Officers and Supervisors to institute prosecutions or 255 make complaints to the police for instituting prosecutions offences under any of the Sections 39, 41, 43 and 44 of the Electricity Act or A Rule 56 read with Rule 138 of the Electricity Rules are committed or are reasonably believed to have been committed in their respective jurisdictions.
It was an internal matter for the Electricity Board and it is quite clear upon the terms of section SO that P.W. I Syed Ameer, Supervisor was authorized to lodge a complaint with the police.
The Electricity Board being a public authority, it was sufficient for the prosecution to have placed on record a copy of the Manual containing the relevant notification.
That was sufficient proof of the authorization requisite under section 50 of the .
It may not be out of place to mention that even if the requirement of section SO of the Act were that the authorization should have been by a notification published in the Official Gazette, that would hardly make a difference.
The phrase "by notification in the official Gazette" occurs in section 6(1) of the Criminal Law Amendment Act, 1952 and it is also occurred in.
section 16 of the Criminal Law Amendment Act, 1908 and section 22 of the Code of Criminal Procedure, 1908.
In Balkrishan Anant vs Emperor(1), Beaumont C.J. while dealing with section 16 of the Criminal Law Amendment Act, 1908 which empowered the local Government by notification in the official Gazette to declare an association unlawful on the grounds mentioned therein which are in effect that the association constitutes a danger to the public peace, observed: "The word used in section 16 is 'notification ' and not 'insertion '. 'Notification ' is defined in Webster 's Dictionary as "Act of notifying; act of making known; an intimation or notice; esp., act of giving official notice or information by words, by writing, or by other means;" so that the essence of notification is the giving of notice, and in my opinion, the words "by notification in the official Gazette" mean simply "by giving notice in the official Gazette.
" In the context of section 16 of the Criminal Law Amendment Act, 1908 the Court required a stricter proof that all the formalities requisite to the act of notifying or in other words, publishing the notification had actually been carried out.
That was because the law under 256 which it was issued trenched upon the rights and liberties of the citizens.
Finally, a few words on the merits.
On a consideration of the evidence adduced, the learned Munsiff came to the conclusion that the prosecution had established its case against the respondent beyond all reasonable doubt, but on a misconstruction of section SO of the Act, acquitted him under section 248(1) of the Code.
In maintaining the order of acquittal, the High Court confined its decision on its interpretation of section 50 of the Act and has not touched upon the merits We have gone through the evidence and we are satisfied that the evidence led by the prosecution is sufficient to raise an inference of guilt against the respondent.
This is not contested by learned counsel for the respondent, but he only pleads that a lenient view should be taken in regard to the punishment.
For these reasons, the appeal succeeds and is allowed.
The judgment of the High Court of Karnataka upholding the order of acquittal of the respondent is set aside and he is convicted of having committed an offence punishable under section 39 of the read with section 379 of the Indian Penal Code, 1860.
The learned standing counsel made it clear at the time of grant of special leave that the State Government was only desirous that the law on the point should be settled and it was not interested in the imposition of a punishment on the respondent.
In view of this, we do not impose any sentence on the respondent, having regard to the period of time that has elapsed.
We are thankful to Shri V. A. Bobde who appeared as amicus curiae for the assistance that he has rendered.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
On a routine inspection a Supervisor of the State Electricity Board found that by tampering with the electric connection, the respondent was using switches, lights and fans inside the house without the meter recording any consumption.
On the direction of the Assistant Engineer he lodged a report against the respondent with the police alleging theft of electricity by him.
The trying Magistrate acquitted the respondent of the offence with which he was charged on the ground that section SO of the did not authorise the Supervisor to lodge a complaint.
The High Court upheld the Magistrate 's order holding that the notification issued by the Electricity Board authorizing, among others, supervisors to institute prosecutions in terms of section SO not having been published in the official Gazette, the Court could not take judicial notice of it and that the prosecution had failed to establish that the supervisor was competent to lodge the complaint.
Allowing the appeal, ^ HELD .
The order of acquittal recorded by the Magistrate as affirmed by the High Court proceeds on a construction of section 50 of the Act which is wholly unwarranted and has resulted in manifest miscarriage of justice.
Section 50 of the Act nowhere requires that the authorisation should be by a notification published in the official Gazette.
The prosecution had been launched `at the instance of the Electricity Board within the meaning of section 50 of the Act.
The meaning of the phrase 'at the instance of ' does not imply the same degree of obligation to obey as does 'command '.
That is also the legal sense in which the phrase has been understood in section SO of the Act: [252 B C Dl Ram Chander Prasad Sharma vs State of Bihar & Anr, referred to.
Vishwanath vs Emperor AIR 1936 All. 742; State (Dehli Administration) vs Dharm Pal ; State of Karnataka vs Abdul Nabi approved.
250 The High Court was misled by the use of the word 'notification ' contained in the manual.
The notification is a general order issued by the Board in terms of section 50 authorising certain of its officials to institute prosecutions or make complaints to the police for instituting prosecutions for offences under certain sections of the Act.
It was an internal matter for the Electricity Board.
It is quite clear upon the terms of section SO that the Supervisor was authorised to lodge a complaint with the police.
The Board, being a public authority, it was sufficient for the prosecution to have placed on record a copy of the manual containing the relevant notifications.
That was sufficient proof of the authorisation requisite under section 50 of the Act.
A C] Even if the requirement of section 50 was that the authorisation should have been by a notification published in the official Gazette that would have hardly made a difference.
[255 C D]


summary/full:
Sub section (l) of section S of the Bihar Finance Act, 1981 provides for the levy of a surcharge in addition to the tax payable, on every dealer whose gross turnover during a year exceeds Rs. 5 lakhs and, sub section
(3) thereof prohibits such a dealer from collecting amount of surcharge payable by him from the purchaser.
In exercise of the power conferred by this section, the State Government fixed the rate of surcharge at 10 per cent of the total amount of tax payable by a dealer.
Two of the appellants in this batch of appeals were companies engaged in the manufacture and sale of the medicines throughout India whose branches sales depots in Bihar were registered as dealers.
Their products were sold through wholesale distributors/stockists appointed in almost all the districts of the Slate and their gross turnover within the State during the relevant period ran into crores of rupees.
Most of the medicines and drugs sold by them were covered by the Drugs (Price Control) Order, 1919 issued under sub section
(l) of 131 section 3 of the Essential Commodities Act in terms of which they were expressly prohibited from selling those medicines and drugs in excess of the controlled A price fixed by the Central Government from time to time but were allowed to pass on the liability to the consumer.
During the assessment years 1980 81 and 1981 82 they had to pay the surcharge under section 5(1) of the Bihar Finance Act, 1981 at 10 per cent of the tax payable by them.
The appellants challenged the Constitutional validity of sub section
(3) of section 5 but the same was repelled by the High Court relying on the decision in section Kodar.
vs State of Kerala, [1979]1 S.C.R. 121.
It was contended on behalf of the appellants: (i) that sub section
(3) of section S of the Act which is a State law relatable to Entry 54 of List 11 of the Seventh Schedule to the Constitution and which provides that no dealer shall be entitled to collect the surcharge levied on him is void in terms of the opening words of article 246(3) of the Constitution as it is in direct conflict with paragraph 21 of the Drugs (Price Control) order 1979, issued under sub section
(1) of section 3 of the essential Commodities Act, 1955 which is a Union Law relatable to Entry 33 of List III and which enables the manufacturer or producer of drugs to pass on the liability to pay sales tax to the consumer; (ii) that the words "a law Mads by Parliament which Parliament is competent to enact ' contained in article 254(1) must be construed to mean not only a law made by Parliament with respect to one of the matters enumerated in the Concurrent List but also to include a law made by Parliament with respect to any of the matters enumerated in the Union List and therefore sub section
(3) of section 5 of the Act being repugnant to Paragraph 21 of the Control order is void under article 254(iii) that if both sub section
(1) and sub section
(3) of section 5 were relaxable to Entry 54 of List II, there was no need for the Governor to have referred the Bihar Finance Bill, 1981 to the President for his assent and that the President 's assent is justiciable; (iv) that dealers of essential commodities who cannot raise their sale prices beyond the controlled price cannot be equated with other dealers who can raise their sale prices and absorb the surcharge and since sub section
(3) of section S treats "unequals as equals" it is arbitrary and irrational and therefore Violative of article 14 of the Constitution: (v) that sales tax being essentially an indirect tax, the legislature was not competent to make a provision prohibiting the dealer from collecting the amount of surcharge and that the true nature and character of surcharge being virtually a tax on income, sub section
(3) of section 5.
is unconstitutional as it imposes an unreasonable restriction upon the freedom of trade guaranteed under article 19(1)(g).
(vi) that sub section
(3) of section S of the Act which is a State law being repugnant to paragraph 21 of the Drugs (Price Control) Order which is issued under a Union law, the latter must prevail in view of the non obstants clause in section 6 of the Essential Commodities Act and the former which is inconsistent therewith should be by passed in terms of the decision in Hari Shankar Bagla and Anr.
vs State of Madhya Pradesh, [1955] I S.C.R. 380.
and (vii) that in view of the decision in A. V fernandez vs State of Kerala.[1957] S.C.R. 837, sub section
(1) of section 5 of the Act which makes the "gross turnover" as defined in section 2(j) of the Act which includes transactions taking place in the course of inter state or International Commerce to be the basis for the levy of surcharge is ultra vires the State Legislature, 132 Dismissing the appeals, ^ HELD: 1. (a) It cannot be doubted that the surcharge partakes of the nature of sales tax and therefore it was within the competence of the State Legislature to enact sub section (1) of section 5 of the Act for the purpose of levying surcharge on certain class of dealers in addition to the tax payable by them.
When the State Legislature had competence to levy tax on sale or purchase of goods under Entry 54 of List II of the Seventh Schedule it was equally competent to select the class of dealers on whom the charge would fall.
If that be so, the State Legislature could undoubtedly have enacted sub section
(3) of section S prohibiting the dealers liable to pay the surcharge under sub s.(l) thereof from recovering the same from the purchaser.
[156 H 157 B] (b) The power of the State Legislature to make a law with respect to the levy and imposition of a tax on sale or purchase of goods relatable to Entry 54 of List II and to make ancillary provisions in that behalf is plenary and is not subject to the power of Parliament to make a law under Entry 33 of List III.
There is no warrant for projecting the power of Parliament to make a law under Entry 33 of List III into the State s power of taxation under Entry 54 of List II.
Otherwise, Entry 54 of List II will have to be read as: "Taxes on sale or purchase of goods other than the essential commodities, etc.
" When one entry is made 'subject to ' another entry, all that it means is that out of the scope of the former entry, a field of legislation covered by the latter entry has been reserved to be specially dealt with by the appropriate legislature.
Entry 54 of List II is only subject to Entry 92A of List I and there can be no further curtailment of the State 's power of taxation.
[183 F H, 184 A B] (c) The Constitution effects a complete separation of the taxing power of the Union and of the States under article 246 The various entries in the three lists are not 'powers of legislation, but 'fields of legislation.
The power to legislate is given by article 246 and other Articles of the Constitution.
Taxation is considered to be a distinct matter for purposes of legislative competence.
Hence, the power to tax cannot be deduced from a general legislative entry as an ancillary power.
Further, the element of tax does not directly flow from the power to regulate trade or commerce in, and the production supply and distribution of essential commodities under Entry 33 of List II, although the liability to pay tax may be a matter incidental to the Centre 's power of price control.
[184 E G] (d) A scrutiny of Lists I and II would show that there is no overlapping anywhere in the taxing power and that the Constitution gives independent sources of taxation to the Union and the States.
There is a distinction made between general subjects of legislation and taxation and these are dealt with in separate groups of entries: in List I, Entries I to 81 deal with general subjects of legislation and entries 82 to 92A deal with taxes; in List II Entries I to 44 deal with general subjects of legislation and Entries 45 to 63 deal with taxes.
This mutual exclusiveness is also brought out by the fact that in List III, there is no entry relating to a tax it only 133 contains an entry relating to levy of fees.
Thus, in our Constitution, a conflict of taxing power of the Union and of the States cannot arise.
The two A laws viz., sub section
(3) of section S of the Act and paragraph 21 of the Drugs (Price Control) order issued under sub s (I) of section 3 of the Essential Commodities Act operate on two separate and distinct fields and both are capable of being obeyed.
There is no question of any clash between them.
[184 H 185 F] M.P. Sundararamier and Co. vs State of Andhra Pradesh and Anr., ; , referred to.
Seervai: Constitutional Law of India, 3rd Ed., Vol, I, pp. 81 82, referred to.
(e) The words `Notwithstanding anything contained in cls.
(2) and (3) in cl.
(1) of article 246 and the words "Subject to cls.
(1) and (2)" in cl.
(3) thereof lay down the principle of Federal Supremacy viz., that in case of inevitable conflict between Union and State powers, the Union power as enumerated in List I shall prevail over the State power as enumerated in Lists ll and III, and in case of overlapping between Lists li and III, the former shall prevail.
But the principle of Federal Supremacy laid down in article 246 cannot be resorted to unless there is an 'irreconcilable ' conflict between the Entries in the Union and State Lists.
The non obstante clause in cl.
(I) of article 246 must operate only if reconciliation should prove impossible.
However, no question of conflict between the two Lists will arise is the impugned legislation, by the application of the doctrine of 'pith and substance ' appears to fall exclusively under one List, and encroachment upon another List is only incidental [165 A E] (f ) The true principle applicable in judging the constitutional validity of sub section
(3) of section S of the Act is to determine whether in its pith and substance it is a law relatable to Entry 54 of List II and not whether there is repugnancy between it and paragraph 21 of the Drugs (Price Control) order The constitutionality of the law has to be judged by its real subject matter and.
not by its incidental effect upon any topic of legislation in another field.
Once it is found that in pith and substance the impugned Act is a law on a permitted field any incidental encroachment on a forbidden field does not affect the competence of the legislature to enact that Act.
No doubt, in many cases it can be said that the enactment which is under consideration may be regarded from more than one angle and as operating in more than one field.
If, however, the matter dealt with comes within any of the classes of subjects enumerated in List II, then, under the terms of article 246(3) it is not to be deemed to come within the classes of subjects assigned exclusively to Parliament under article 246(1) even though the classes of subjects looked at singly overlap in many respects.
The whole distribution of powers must be looked at from the point of view of determining the question of validity of the impugned Act.
It is within the competence of the State Legislature under article 246(3) to provide for matters which though within the competence of Parliament, are necessarily incidental to effective legislation by the State Legislature on the subject of legislation expressly enumerated in List II.
[162 B, 171 D, 177 C E] 134 In the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, ; Citizen Insurance Company vs William Parsons, ; Attorney General for the Province of ontario vs Attorney General for the Dominion of Canada, ; A.L.S.P.P.L. Subrahmanyam Chettiar vs Muttuswami Goundan, ; Governor General in Council vs Province of Madras, ; The Province of Madras vs Messers Boddu Paidanna & Sons, , Prafulla Kumar Mukherjee & Ors vs Bank of Commerce Ltd., Khulna, A.I.R. ; and Grand Trunk Railway Company of Canada vs Attorney General of Canada, L R [19071 A.C. 65, referred to.
2.(a) The question of repugnancy under article 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and there is direct conflict between the two laws.
It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void.
article 254(1) has no application to cases of repugnancy due to overlapping found between List ll on the one hand and List I and List Ill on the other.
If such overlapping exists in any particular case, the State law will be ultra Vires because of the non obstante clause in article 246(1) read with the opening words 'Subject to ' in Art 246(3).
In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence.
[145 C, 181 F] (b) It is no doubt true that the expression "a law made by Parliament which Parliament is competent to enact" in article 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the Concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as List I.
But, if article 254(1) is read as a whole, it will be seen that it is expressly made subject to cl.
(2) which makes reference to repugnancy in the field o Concurrent List.
In other words, if cl.
(2) is to be the guide in the determination of the scope of cl.
(l), the repugnancy between Union and State law must be taken to refer only to the Concurrent field.
article 254(1) speaks of a State law being repugnant to a law made by Parliament or an existing law.
The words "with respect to qualify both the clauses in article 254(1) viz., a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law.
The underlying principle is that the question of repugnancy arises only when both the legislatures are competent to legislate in the same field, i.e., with respect to one of the matters enumerated the Con current List.
[181 G 182 A, R C] Deep Chand vs State of Uttar Pradesh & Ors [1959] Supp. 2 S.C.R. 8 Ch.
Tika Ramji & ors vs State of Uttar Pradesh & Ors., ; zaverbhai Amidas vs State of Bombay, [1955] I S.C.R. 799; M. Karunanidhi vs Union of India, ; ; T. Barai vs Henry Ah Hoe, [1983] I S.C.C. 177; A. section Krishna vs State of Madras, [1957] S.C.R. 399; Clyde Engineering C xf8.
Ltd. vs Cowburn, [1926] 37 Com.
L.R. 465; Ex Parte Mclean, [1930] 43 ; and Stock Motor Ploughs Limited vs Forsyth, , referred to.
(c) Entry 54 of List II is a tax entry and therefore there is no question of repugnancy between sub section
(3) of section 5 of the Act and paragraph 21 of the Control order.
The question of repugnancy can only arise in connection with the subjects enumerated in the Concurrent List as regards which both the Union and the State Legislatures have concurrent powers.
[178 G 179 B] B 3.
It is clear from articles 200 and 201 that a Bill passed by the State Assembly may become law if the Governor gives his assent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President.
There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President.
It is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication.
Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent.
This aspect of the matter, as the law now stands, is not open to scrutiny by the Courts.
In the instant case, the Finance Bill which ultimately became the Act in question was a consolidating Act relating the Different subjects and perhaps the Governor felt that it was necessary to reserve it for the assent of the President The assent of the President is not justifiable and the Court cannot spell out any infirmity arising out of his decision to give such assent.
[193 A 194 B] Teh Chang Poh @ Char Meh.
vs Public Prosecutor.
, Malaysia, referred to.
(a) There is no ground for holding that sub section
(3) of section 5 of the Act is arbitrary or irrational or that it treats "unequals as equals" or that it imposes a disproportionate burden on a certain class of dealers.
A surcharge in its true nature and character is nothing but a higher rate of tax to raise revenue for general purposes.
The levy of surcharge under sub section
(l) of section S falls uniformly on a certain class of dealers depending upon their capacity to bear the additional burden.
The economic wisdom of a tax is within the exclusive province of the legislature.
The only question for the Court to consider is whether there is rationality in the behalf of the legislature that capacity to pay the tax increases by and large with an increase of receipts.
The view taken by the Court in kodar 's case that, to make the tax of a large dealer heavier is not arbitrary discrimination, but an attempt to proportion the payment to capacity to pay, and thus to arrive at a more genuine equality, is in consonance with social justice in an egalitarian State.
[186 H 187 A, 191 B, 191 A] section Kodar vs State of Kerala, [1975] I S.C.R. 121, relied on.
136 (b) There is no basis for the submission that the Court was wrong in Podar 's case.
The contention that ability to pay is not a relevant criterion for upholding the validity of sub section
(3) of section 5 of the Act in question cannot be accepted.
On questions of economic regulations and related matters, the Court must defer to the legislative judgment.
When the power to tax exists, the extent of the burden is a matter for the discretion of the law makers It is not the function of the Court to consider the propriety or justness of a tax or enter upon the realm of legislative policy.
If the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the constitutional requirement is satisfied The equality clause in article 14 does not take away from the State the power to classify a class of persons who must bear the heavier burden of tax.
The classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequalities.
[189 H 190 G] (c) There is no lacteal foundation laid to support the contention that the levy of surcharge imposes a disproportionate burden on a certain class of dealers such as manufacturers or producers of drugs, etc.
The business carried on by the appellants in the State of Bihar alone is of such magnitude that they have the capacity to bear the additional burden of surcharge That apart under the scheme of the Control order the profit margins of manufacturers and producers of medicines and drugs is considerably higher than that of wholesalers.
If the appellants find that the levy of surcharge cannot be borne within the present price structure of medicines and drugs, they have the right to apply to the Centrals Government for revision as the retail price of 'formulations under paragraph I S of the Control order.
G, 189 G] 5.
It is no doubt true that a sales tax is, according to the accepted notions, intended to be passed on to the buyer, and the provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation.
However, it is not an essential characteristic of sales tax that the seller must have the right to pass it on to the consumer; nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales tax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not affect the competence of the legislature.
The contention based on article 19(1)(g) cannot therefore be sustained.
[191 E H] The Tata Iron & Steel Co., Ltd. vs The State of Bihar, ; ; M/s. J. K Judge Mills Co. Ltd. vs 'The State of Uttar Pradesh; , and section Kodar vs State of Kerla, [1975] I S.C.R. 121, referred to.
(a) The appellants being manufacturers or producers of 'formulations ' are not governed by paragraph 21 of the Control order but by paragraph 24 thereof and therefore the price chargeable by them to wholesaler or distributor is inclusive of sales tax.
There being no conflict between sub section (3) of 137 section 5 of the Act and paragraph 24 of the Control order, the question of the non obstante clause to section 6 of the Essential Commodities Act coming into play does A not arise.
[158 G] Hari Shankar Bagla & Anr.
vs State of Madhya Pradesh, , referred to.
(b) Even otherwise, i.e., if some of the appellants were governed by paragraph 21 of the Control order, that would hardly make any difference.
Under the scheme of the Act, a dealer is free to pass on the liability to pay sales tax payable under section 3 and additional sales tax payable under section 6 to the purchasers.
Sub section
(3) of section 5 however imposes a limitation on dealers liable to pay surcharge under sub section
(I) thereof from collecting the amount of surcharge payable by them from the purchasers which only means that surcharge payable by such dealers under sub section
(I) of section 5 will cut into the profits earned by such dealers.
The controlled price or retail price of medicines and drugs under paragraph 21 remains the same, and the consumer interest is taken care of inasmuch as the liability to pay surcharge; under sub section
(3) of section 5 cannot be passed on.
That being so, there is no conflict between sub section
(3) of section 5 of the Act and paragraph 21 of the Control order.
[158 H 159 C] The predominant object of issuing a control order under sub section
(I) of section 3 of the Essential Commodities Act is to secure the equitable distribution and availability of essential commodities at fair prices to the consumers, and the mere circumstance that some of those engaged in the field of industry, trade or commerce may suffer a loss is no ground for treating such a regulatory law to be unreasonable, unrest the basis adopted for price fixation is so unreasonable as to be in excess of the lower to fix the price, or there is a statutory obligation to ensure a fair return to the industry.
[159 G H] Shree Meenakshi Mills Ltd. vs Union of India, ; and Prag Ice & oil Mills vs Union of India, ; referred to 7.
The decision in Fernandez 's case is an authority for the proposition that the State Legislature, notwithstanding article 286 of the Constitution, while r making a law under Entry 54 of the List II can, for purposes of registration of a dealer and submission of returns of sales tax, include the transactions covered by article 286.
That being so, the constitutional validity of sub section (I) of section 5 which provides for the classification of dealers whose gross turnover during a year exceeds Rs. 5 lakhs for the purpose of levy of surcharge in addition to the tax payable by them, is not assailable.
So long as sales in the course of inter State trade and Commerce or sales outside the State and sales in the course of import into, or export out of the territory of India are not taxed there is nothing to prevent the State Legislature while making a law for the levy of surcharge under Entry 54 of the List II to take into account the total turnover of the dealer within the State and provide that if the gross turnover of such dealer exceeds Rs. 5 lakhs in a year he shall, in addition to the tax, also pay a surcharge at such rate not exceeding 10% of the tax as may be provided.
The liability to pay the surcharge is not on the Gross turnover 138 including the transactions covered by article 286 but is only on inside sales and A the surcharged is sought to be levied on dealers who have a position of economic superiority.
The definition of gross turnover in section 2(j) is adopted not for the purpose of bringing to surcharge inter State sales etc., but is only for the purpose or classifying dealers within the State and to identify the class of dealers liable to pay such surcharge.
There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them.
[196 F 197 D] A. V. Fernandez vs State of Kerala, ; ; State of Bombay vs R.M.D. Chamarbaugwala, ; ; The Tata Iron and Steel Company Ltd. vs State of Bihar, ; ; and International Tourist Corporation etc.
vs State of Haryana and Ors.
, ; , referred to.