judgement:
vil Appeal Nos. 9 15 of 1986 etc.
From the Judgment and Order dated 4.9.1985 of the Andhra Pradesh High Court in W.P. Nos.
8120, 8121, 7932, 8095, 8032, 8107 and 8 109 of 1984.
B. Datta, Additional Solicitor General, P.P. Rao, C.V. Subba Rao, R.P. Srivastava, B. Parthasarthi, K.V. Sreekumar, D. Vidyanandam, M.K.D. Namboodary, T.V.S.N. Chaff, Ms. V. Grover, Ms. Anita, W.A. Qadri, A. Subba Rao, A.T.M. Sampath, R. Venkataramani, R.A, Perumal, S.M. Garg and section Markandeya for the appearing parties.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The question raised in these appeals is whether an 'establishment in the public sector ' or an 'establishment in the private sector ' as defined in the may make appointments to posts to which the Act applies, of persons not sponsored by the Employment Ex changes? A further question is whether the Act covers Gov ernment establishments also? A Division Bench of the High Court of Andhra Pradesh has held that the Act has no appli cation to Government establishments, that the Act casts no obligation either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the 913 Employment Exchanges only and that any insistence that candidates sponsored by the Employment Exchanges alone should be appointed would be contrary to the right guaran teed by articles 14 and 16 of the Constitution.
The learned Additional Solicitor General appearing for the Union of India argued that the object and the scheme of the Employ ment Exchanges (Compulsory Notification of Vacancies) Act and the instructions issued by the Government of India from time to time left no option to the employers but to confine their field of choice to candidates sponsored by the Employ ment Exchanges.
It was argued that such insistence that appointments should be made from candidates sponsored by the Employment Exchanges only did not offend articles 14 and 16 of the Constitution.
He also argued that the Act was applicable to Government Establishments also.
We may refer to the provisions of the Employment Ex changes (Compulsory Notification of Vacancies) Act, 1959 without further ado.
The title of the Act itself suggests that the compulsion is in regard to notifying of vacancies only and nothing more.
The preamble to the Act, like the title of the Act, also does not 'suggest any compulsion in the making of appointments, but only in the notifying of vacancies.
The preamble says "An Act to provide for the compulsory notification of vacancies to employment ex changes." Section 2(e), (f) and (g) defines "establishment", "establishment in public sector" and "establishment in private sector" as follows: "(e) "establishment" means (a) any office, or (b) any place where any industry, trade, business or occupation is carried on; (f) "establishment in public sector" means an establishment owned, controlled or managed by (1) the government or a department of the Government; (2) A Government company as defined in section 617 of the ; (3) A corporation (including a cooperative society) established by or under a Central, Provincial or State 914 Act, which is owned, controlled or managed by the Government; (4) A local authority; (g) "establishment in private sector" means an establishment which is not an estab lishment in public sector and where ordinarily twenty five or more persons are employed to work for remuneration;" The High Court thought that the definition of "establishment in public sector" as meaning an establishment owned, con trolled or managed by the Government or a Department of the Government indicated that an establishment in public sector was something different from the Government or a Department of Government and did not include the Government or Depart ment of the Government.
It had to be something which could be owned, controlled or managed by the Government or a department of the Government.
The High Court also thought that the expression 'public sector ' was used in contradic tion to 'private sector ' and that it could not include offices of the Government.
The expression would only take in an agency or instrumentality of the State, but not the State itself.
We are unable to agree with the conclusion of the High Court on this part of the case.
If the definition of 'establishment ' which includes an 'office ' is read alongside the definition of 'establishment in public sector ', it will be clear that Government offices are also included in the expression 'establishment in public sector '.
That is the interpretation which the Government itself is advancing before us and that is how the Government has always under stood the provision during these three decades as will be evident from the instructions issued by the Government from time to time to which we shall be referring later in the course of our judgment.
We are unable to agree with the view of the High Court that the Act is not applicable to Govern ment establishments.
Section 3 of the Act specifies posts, vacancies to which the Act does not apply.
Section 4 provides for the notifica tion of vacancies to employment exchanges.
It is desirable to extract the whole of sec.
4 which is as follows: "4.
(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establish ment, 915 notify that vacancy to such employment ex changes as may be prescribed.
(2) The appropriate Government, may, by notification in the Official Gazette, require that from such date as may be speci fied in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) The manner in which the vacancies referred to in subsection (1) or sub section (2) shall be notified to the employment exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such as may be prescribed.
(4) Nothing in sub sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchanges to fill any vacancy merely because that vacancy has been notified under any of the sub sections.
" Section 5 deals with the duty of the employers to furnish information and returns in prescribed forms.
Section 6 provides for official access to records and documents.
Section 7 provides for penalties.
Section 8 deals with cognizance of offences.
Section 9 provides for protection of action taken is good faith.
Section 10 vests the rule making power in the Central Government.
It is evident that there is no provision in the Act which obliges an employer to make appointments through the agency of the Employment Exchanges.
Far from it, sec.
4(4) of the Act, on the other hand, makes it explicitly clear that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under sec.
4(1) or sec.
In the face of sec.
4(4), we consider it utterly futile for the learned Additional Solicitor General to argue that the Act imposes any obligation on the employ ers apart from notifying the vacancies to the Employment Exchanges.
The learned Additional Solicitor General invited our attention to the speech of the Minister of Labour and 916 Employment and Planning (Shri Nanda) made at the time of the introduction of the Employment Exchanges (Compulsory Notifi cation of Vacancies) Bill.
Far from being of any assistance to the learned Addititional Solicitor General, the speech appears to be against his submission.
In his speech, the Minister quoted from the report of the Training and Employ ment Services Organisation Committee and observed that the recommendation of the Committee offered a full explanation of the provisions of the Bill.
The recommendation of the Committee which he quoted was, "Though we have not, for the present, recommended compulsion on private employers to recruit through the employment exchanges, we recommend that they be required on a compulsory basis to notify to the Exchanges all vacancies, other than vacancies for unskilled categories, vacancies of very temporary duration and vacan cies proposed to be filled through promotion.
" The Minister further said, "The main thing is that an obligation is being placed that after this legislation becomes operative, from that date, the employer in every establishment in the public sector shall, before filling up any vacancy in any employ ment in that establishment, notify that vacancy to such Employment Exchanges as may be prescribed.
And so far as the private sector is concerned, there is this further qualifi cation that the Government concern may specify by notifica tion that the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sectors shall, before filling up any vacancy in any employment in that establish ment, notify that vacancy to such Employment Exchanges as may be prescribed.
This is the kernel of this provision.
This is the main object, that is, an obligation placed on the employer to notify the vacancies that may occur in their establishment before filling these vacancies.
" The Minister was conscious that there was a likelihood of the Bill being misunderstood as compelling the employers to make appoint ments through the Employment Exchanges only.
He clarified the position saying, "The misunderstanding is as if this Bill gives power to the Government to compel the employers to recruit only such persons as are submitted by the employ ment exchanges.
That is not so.
This compulsion extends only to notification of vacancies.
Naturally the employer has to consider the names which are submitted by the employment exchanges but there is no compulsion that they must restrict to the choice only to the least that is submitted to them.
Of course, there is also the objection from the other side that it may not go far enough.
We believe that even this will make things very much better.
In any case, when the Committee reported, they also suggested this much advance.
At present, they said, we should have only compulsory noti fication, but, not compel the emp 917 loyers to recruit only out of the least that is sent by the employment exchanges.
" As we said the speech of the Minister, at the time of the introduction of the Bill, is totally destructive of the contention of the learned Additional Solicitor General that the employers arc under an obligation to recruit persons for appointment through the Employment Exchanges only.
The learned Additional Solicitor General requested us to give a purposive interpretation to the provisions of the Act and insist that employers, in making appointments, should re strict their field of choice to candidates sponsored by the employment exchanges.
We are unable to appreciate the argu ment since there is no provision of the Act which requires interpretation by us and which we may reasonably interpret as compelling the employer to appoint persons sponsored by the employment exchanges.
On the other hand, we have already referred to sec.
4(4) which is explicit that there is no such obligation on the part of the employer.
We also notice that the object of the Act is not to restrict the field of choice in any particular manner, but to enlarge the field of choice.
That is why in his introductory speech, the Minister said," . . a large number of employers, particularly in similar industrial establishments and in construction works, do not employ any scientific method, but depend for their supply of labour on agents or recruit in a haphazard manner from amongst these assembled at factory gates or at works sites.
The methods adopted are not always dictated by a consideration of efficient service, but as more a matter of bestowing patronage and favour.
This applies in varying degrees to a large number of employers.
" The Minister dis cussed the existing position and anticipated position in the following words: "The Act of notification of vacancies has important consequences.
In the first place, so far as the employer is concerned, he will be placed in a position to have a much wider choice for the purpose of selection.
Now, what is the present position? Any person knocks at the gate of the factory or the mill or other establishment and from those few who are there they choose.
Now it would be possible for them to have a wider area of selection.
The names of so many others who may not be able to go and knock at every gate, can be submitted and out of them, the best can be selected.
So far as the quoting of selection is concerned, it should improve because of the wider range of choice.
On the side of the worker certainly it means a more equitable distribu 918 tion of employment opportunities.
It should not be necessary for a person to be all the day moving from place to place.
It should be sufficient for him to register at a place, give all the particulars about his qualifica tions and then he should be sure that at any rate, his name will be considered along with other names and there will be some regard for fitness in the choice of people who enter these new places for employment.
" It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment.
We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the employment exchanges.
The next question for consideration is whether the instructions issued by the Government from time to time have the effect of compelling the employers to restrict their field of choice to candidates sponsored by the employment exchanges.
We may straightaway rarer to some of the instruc tions on which reliance was placed by the learned Additional Solicitor General.
In O.M. No. 14/11/64 Estt.
(D) dated March 21, 1964, the Ministry of Home Affairs addressed all the Ministries regarding recruitment of staff through the agency of the National Employment Service and the utilisa tion of Employment Exchanges by quasi government institu tions and statutory organisations.
It is enough if we ex tract paragraphs 1, 4 and 5 of this communication which are as follows: "1.
The undersigned is directed to say that in paragraph 6 of this Ministry 's office Memoran dum No. 71/40 DGS (Apptts) dated the 11th December, 1949 (copy enclosed) it was laid down that all vacancies in Central Government Establishments, other than those filled through the Union Public Service Commission should be notified to the nearest Employment Exchange and that no Department or office should fill any vacancy by direct recruitment unless the Employment Exchanges certified that they were unable to supply suitable, candi dates.
Subsequently in this Ministry 's Office Memorandum Nos.
71/49 DGS (Apptts) dated 30th January, 1951 and 71/222/56 CS(C) dated the 919 14th December, 1956 (copy enclosed).
The Ministry of Finance etc. were requested to issue immediate instructions to all quasi Government institutions and statutory Organi sations with which they were concerned asking them to fall in line, as far as possible, with the Central Government establishments in the matter of recruitments, by suitably amending their recruitment rules or adopting Resolu tions to achieve this object if necessary.
The Ministries were also requested to impress upon these institutions that it was in their own interest as well as in the interest of the country as a whole that recruitment should be made through the Employment Exchanges, as a large number of experienced and trained hands were available on their registers and the need for tapping other sources of recruitment should arise only if the Employment Exchange has certified that they were unable to nomi nate suitable recruits from their registers.
. . . . . . . . . . . . . . . . . 4.
Under the EE (CNV) Act, recruitment of staff through the Employment Service is volun tary so far as the private sector is con cerned.
Even so, efforts are made by the Employment Service to persuade the private sector to accept candidates sponsored by the Employment Exchanges.
The Directorate General of Employment and Training are placed in a very embarrassing situation when they have to approach the State Governments and establish ments in the private sector to utilise the Employment Service in filling up the vacan cies, when some establishments in the public sector do not recognise the Employment Service as the normal channel of recruitment.
It is accordingly requested that the Minis try of Finance etc., may issue instructions to all quasi Government institutions and Statuto ry Organisations with which they are concerned requiring them to notify vacancies in the manner and form prescribed in Rule 4 of the EE(CNV) Rules 1960 to the prescribed Employ ment Exchange and to fall in line with the Central Government Departments in the recruit ment of staff through the agency of the Em ployment 920 service.
The need for issuing advertisements for inviting applications or tapping other sources of recruitment should be considered only if the Employment Exchanges issue non availability certificates.
A copy of the instructions issued by the Ministry of Finance etc., may kindly be endorsed to the Ministry of Home Affairs and the Directorate General of Employment and Training.
" It will be noticed that in order to give effect to such instructions in the case of quasi Government institutions and statutory organisations, it would be necessary to suit ably amend the recruitment rules or adopt resolutions to achieve that object.
This is so mentioned in para 1.
In Office Memorandum No. 14/22/65 Estt.
(H) dated June 12, 1968, the Ministry of Home Affairs informed all the other Ministries: "The undersigned is directed to say that in paragraph 6 of this Ministry 's O.M. No. 71/49/DGS (Apptt) dated the 11th December, 1949, it was laid down that all vacancies in Central Government Establishments, other than those filled through the Union Public Service Commission, should be notified to the nearest Employment Exchange and that no Department or Office should fill any vacancy by direct recruitment unless the Employment Exchange certified that they were unable to supply candidates." In office Memorandum No. 14024/2/77 Estt(D) dated April 12, 1977, the Department of Personnel addressed all the Minis tries/Departments and said, "As the Ministry of Agriculture and Irrigation, etc. are aware, in accordance with the instructions issued by the Central Govern ment (vide marginally noted communications), all vacancies arising under Central Government Offices/establishments (including quasi Gov ernment institutions and statutory organisa tions), irrespective of the nature and dura tion (other than those filled through the Union Public Service Commission), are not only to be notified to, but also to be filled through, the Employment Exchange alone and other permissible sources of recruitment can be tapped only if the Employment Exchange concerned issued a non availability ' certifi cate.
There can be no departure from this recruitment procedure unless a different arrangement in this regard has been previously 921 agreed to in consultation with this Department and the Ministry of Labour (Directorate Gener al of Employment and Training).
Similar in structions are also in force requiring vacan cies against posts carrying a basic salary of less than Rs.500 p.m. in Central Public Employment Exchanges.
" It is clear that it is the desire of the Government of India that all Government Departments, Government Organisa tion and statutory bodies should adhere to 'the rule that not merely vacancies should be notified to the Employment Exchanges, but the vacancies should also be filled by candi dates sponsored by the Employment Exchanges.
It was only when no suitable candidates were available, then other sources of recruitment were to be considered.
While the Government is at perfect liberty to issue instructions to its own departments and organisations provided the instruc tions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authori ty of statute.
In the observation of any statutory prescrip tion the statutory authority may however adopt and follow such instructions if it thinks fit.
Otherwise, the Govern ment may not compel statutory bodies to make appointments of person from among candidates sponsored by employment ex changes only.
The question, of course, does not arise in the case of private employers which cannot be so compelled by any instructions issued by the Government.
The further question is whether the instruction issued by the Government that in the case of Government Departments the field of choice should, in the first instance, be re stricted to candidates sponsored by the employment exchanges offend articles 14 and 16 of the Constitution.
Shri P. Parmesh wara Rao, learned counsel appearing for some of the respond ents strenuously urged that such a restriction would offend the equality clauses of the Constitution, namely, articles 14 and 16.
He urged that when Parliament had gone into the question and decided that there should be no compulsion in the matter of appointment by way of restriction of the field of choice, it was not open to the Government to impose such compulsion.
He argued that it would be unreasonable to restrict the field of choice to these sponsored by the employment exchanges.
In a country so vast as India, in a country where there was so much poverty, illiteracy and ignorance, it was not fight that employment opportunities should necessarily be channelled through the employment exchanges when it is not shown that the network of employ ment exchanges is so wide, that it reaches all the 922 corners of this vast country.
He argued that it is futile to expect that persons living in distant places could get themselves registered with employment exchanges situated far away.
The submission of Shri Parmeshwara Rao is indeed appealing and attractive.
Nonetheless, we are afraid we cannot uphold it.
The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job.
In the case of public employment, it is necessary to eliminate arbitrari ness and favouritism and introduce uniformity of standards and orderliness in the matter of employment.
There has to be an element of procedural fairness in recruitment.
If a public employer chooses to receive applications for employ ment where and when he pleases, and chooses to make appoint ments as he likes, a grave element of arbitrariness is certainly introduced.
This must necessarily be avoided if articles 14 and 16 have to be given any meaning.
We, therefore, consider that insistence of recruitment through employment exchanges advances rather than restricts the rights guaran teed by articles 14 and 16 of the Constitution.
The submission that employment exchanges do not reach every where applies equally to whatever method of advertising vacancies is adopted.
Advertisement in the daily Press, for example, is also equally ineffective as it does not reach everyone desiring employment.
In the absence of a better method of recruitment, we think that any restriction that employment in Government Departments should be through the medium of employment exchanges does not offend articles 14 and 16 of the Constitution.
With this modification of the judgment of the High Court, the appeals and the special leave petitions are disposed of.
No orders are necessary in the writ petition.
P.S. S Appeals dis posed of.

summary/full:
Sub section (1) of section 4 of the requires every establishment in public sector to notify vacancy in any employment to the employment exchange.
Sub section (2) lays down similar requirement in respect of every establish ment in private sector, while sub section
(4) lays down that nothing in sub sections
(1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchanges to fill any vacancy merely because that vacancy has been notified.
An 'establishment ' is de fined in section 2(e) of the Act to mean any office or any place where any industry, trade, business or occupation is carried on, an 'establishment in public sector 'in section 2(f) as an establishment owned, controlled or managed by the Government or a Department of the Government, and an 'establishment in private sector ' in section 2(g) as an establishment which is not an establishment in public sector.
Instructions issued by the Government of India from time to time enjoined upon employers Central Government offices, quasiGovernment institutions and statutory organi sations and establishments in the private sector to restrict their field of choice for vacancies to which the Act applied in the first instance, to candidates sponsored by employment exchanges.
A question arose as to whether an 'establishment in the public sector ', or an 'establishment in the private sector ', as defined in the Act, could make appointments to posts to which the Act applies, of 911 persons not sponsored by the employment exchanges, and whether the Act covers Government establishments also.
The High Court held that the Act had no application to Government establishments, that it casts no obligation either on the public sector establishments or on the private sector establishments to make the appointment from among candidates sponsored by the employment exchange only, and that any insistence that candidates sponsored by the employ ment exchanges alone should be appointed would be contrary to the right guaranteed by articles 14 and 16 of the Constitu tion.
Disposing of the Appeal of the Union of India, the Court, HELD: 1.
The High Court was wrong in holding that the Act was not applicable to Government establishments.
If the definition of 'establishment ' in section 2(e).
which includes an 'office ', is read alongside the section 2(1 '), it will be clear that Government offices are also included in the expression 'establishment in public sector '.
[914E] 2.1 There is no provision in the Act which obliges an employer to employ those persons only who have been spon sored by the employment exchanges.
Section 4(4) of the Act makes it explicitly clear that the employer is under no obligation to recruit any person through the employment exchanges to fill in a vacancy merely because that vacancy has been notified under sections 4(1) and 4(2).
The compulsion extends only to notification of vacancies that may occur in the establishment before filling them up.
[915G H; 916G] 2.2 The object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportuni ty to the worker to have his claim for appointment consid ered without having to knock at every door for employment.
[918B C] 3.
The Government is at perfect liberty to issue in structions to its own departments and organisations to adhere to the rule that not merely vacancies should be notified to the employment exchanges but the vacancies should also be filled by candidates sponsored by the employ ment exchanges, provided the instructions do not contravene any constitutional provision or any statute.
But these instructions cannot bind other bodies which are created by statute and which function under the authority of statute.
In the absence of any statutory presumption, the statutory authority may adopt and follow such instructions if it thinks 912 fit.
Otherwise, the Government may not compel statutory bodies appointment of persons from among candidates spon sored by employment exchanges only.
Private employers cannot be so compelled by any instructions issued by the Govern ment.
[921C E] 4.
Any restriction that employment in Government Depart ments should be through the medium of employment exchanges does not offend articles 14 and 16 of the Constitution.
In public employment, it is necessary to eliminate arbitrari ness and favouritism and introduce uniformity of standards and orderliness.
There has to be an element of procedural fairness in the recruitment.
A public employer cannot choose to receive applications for employment where and when he pleases and to make appointments as he likes.
The insistence on recruitment through employment exchanges therefore, advances rather than restricts the rights guaranteed by articles 14 and 16.
[922E; B D]


judgement:
: Criminal Appeal Nos.
287 288 of 1978.
From the Judgment and Order dated 14.10.1977 of the Allahabad High Court in Criminal Appeal Case No. 2242 of 1972.
966 Frank Anthony, Sushil Kumar and J.K. Das for the Appel lant in Crl.
A.No. 287 of 1978.
U.R. Lalit, S.K. Bisaria and A.D. Malhotra for the Appellant in Crl.
288 of 1978.
Prithvi Raj, C.P. Mittal and Dalveer Bhandari for the Re spondent.
The Judgment of the Court was delivered by NATARAJAN, J.
These Appeals by Special Leave arise out of a common judgment rendered by the Allahabad High Court in three Criminal Appeals filed before it by the appellants and one Raj Kishore.
Appellant Subash and appellant Shiv Shankar were convicted alongwith Raj Kishore by the 4th Additional Sessions Judge, Bareilly under Section 302 read with Section 34 Indian Penal Code and Section 324 read with Section 34 Indian Penal Code respectively for having committed the murder of one Ram Babu and for having caused hurt with a knife to witness Dinesh Shankar.
For the said convictions they were awarded imprisonment for life and three year 's R.I., respectively and the sentences were ordered to run concurrently.
One Om Kumar who was also sent up for Sessions trial under the two charges mentioned above was acquitted by the Sessions Judge.
The three convicted persons preferred appeals to the High Court and the High Court has confirmed the convictions and sentences awarded to Subash and Shiv Shankar but acquitted Raj Kishore.
The offences in question were committed on March 12, 1971 i.e., a day after Holi Festival at about 11 a.m. on the Bareilly Nainital Road in Bareilly.
The prosecution case was that while Shiv Shankar caught hold of Ram Babu, Subash, Raj Kishore and Om Kumar repeatedly stabbed him with knives and caused fatal injuries to him.
When Dinesh Shankar (P.W. 2) tried to intercede he was also stabbed by Subash and caused an injury.
Besides, Dinesh Shankar (P.W. 2) the occurrence was witnessed by an uncle of Ram Babu viz.
Budh Sen (P.W. 1) and Shyam Behari (P.W. 3) and some others.
Ram Babu and Dinesh Shankar were taken to the hospital but Ram Babu was pronounced dead in the hospital.
The motive for the occur rence was that about 15 or 20 days prior to the occurrence Ram Babu had given a machine part to Subash for being welded but Subash failed to carry out the work; nevertheless he refused to return the machine part without the repair charges being paid to him.
Ram Babu refused to pay the charges and there was an altercation but the parties were pacified by 967 Dinesh Shankar and Ram Babu took away the machine part without paying any charges to Subash.
The quarrel had taken place about 3 or 4 days before the occurrence.
Bearing this grudge in mind, when Ram Babu, accompanied by Budh Sen and Dinesh Shankar was proceeding to Qutabkhana to witness the Holi celebrations, Subash assisted by his three companions attacked Ram Babu in the manner set out earlier and caused fatal injuries to him.
There were as many as 14 injuries on Ram Babu among which 7 were punctured wounds.
Among the punctured wounds, injury nos.
7 and 8 were deep injuries which had injured the pleura, left lung, pericardium and the heart.
These injuries were certified to be sufficient in the ordinary course of nature to cause death.
Dinesh Shankar (P.W. 2) also had sustained an incised wound on his left thigh.
Budh Sen (P.W. 1) got a report Exhibit Kha 1 written by his son and presented it at the Police Station at 1.12 p.m.
Therein he has stated that accused Subash was known to him but the other three assailants were not known to him but another witness Bhuvan Chand examined as C.W. 1, had in formed him that one Raja Ram was one of the assailants of Ram Babu.
It would appear that subsequently Bhuvan Chand refused to testify out of fear of the accused and hence he was not cited as a witness in the charge sheet.
Even so, having regard to the averments in Exhibit Kha 1, the Ses sions Judge examined Bhuvan Chand as a court witness.
He, however, failed to corroborate Budh Sen and stated that he did not know anything about the occurrence.
Subash was absconding and he surrendered before the court on 12.3.71.
He was subsequently questioned by the Investigating Officer and he gave information regarding the names and addresses of the other three assailants.
Raj Kishore was arrested on 23.5.1971 and Shiv Shankar was arrested on 14.6.71 from the office of the Central Excise, Bareilly where he was employed.
Om Kumar surrendered himself in Court on 15.7.71.
Test identification parades were held for Raj Kishore and Shiv Shankar on 5.5.71 wherein Shiv Shankar was identi fied by Budh Sen, Dinesh Shankar and Shyam Behari but Raj Kishore was identified only by Dinesh Shankar.
In the subse quent test identification parade held for Om Kumar on 27.7.71 none of the witnesses was able to identify him.
The defence of all the accused was one of denial.
Since accused Om Kumar was not identified by any of the witnesses at the test identification parade and since his name was not 968 mentioned in Exhibit Kha 1 the Sessions Judge acquitted him of the charges and convicted only the two appellants and Raj Kishore.
The High Court acquitted Raj Kishore because he had been identified only by Dinesh Shankar and not by the other witnesses but, however, confirmed the conviction of these two appellants and it is against such confirmation by the High Court, the appellants have preferred these Appeals.
Before dealing with the case of Subash we can conven iently deal with the appeal of Shiv Shankar.
Admittedly he was not known to any of the eye witnesses and his name does not also find a place in the First Information Report Exhib it Kha 1.
His name came to be known only through Subash when he was questioned in the jail on 7.4.1971.
Even if it were so, it is not understandable why the Investigating Officer should have taken three weeks to question Subash after his surrender in Court on 17.3.1971.
Be that as it may, even after getting the name and address of Shiv Shankar from Subash, the Investigating Officer has failed to trace him and arrest him till 14.6.1971.
Shiv Shankar was an employee in the office of the Central Excise Department at Bareilly itself.
It is, therefore, difficult to believe that the Investigating Officer would not have been able to trace him and arrest him for nearly 9 weeks after coming to know of Shiv Shankar 's name and address from Subash.
As a matter of fact, the Investigating Officer has stated in his evidence that he visited the house of Shiv Shankar two or three times to arrest him but Shiv Shankar was not to be found.
If Shiv Shankar was absent from the house the Investigating Officer could have easily learnt from the neighbours where he was working and where he had gone and located him and arrested him.
It is not the prosecution case that Shiv Shankar was absconding.
In such circumstances it is difficult to accept the prosecution case that the Investigating Officer could not trace and arrest Shiv Shankar till 14.6.71 in spite of coming to know on 7.4.71 itself that he was one of the assailants of Ram Babu.
Apart from this infirmity we further find that Shiv Shankar was not put up for test Identification parade promptly.
The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade.
There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock up or in the jail premises and make a note of his features.
Over and above all these things there remains the fact that a 969 sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade.
It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval.
It is relevant to mention here that neither in Exhibit Kha I nor in their statements during investigation, the eye witnesses have given any descriptive particulars of Shiv Shankar.
While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had 'sallow ' complexion.
If it is on account of these features the witnesses were able to identi fy Shiv Shankar at the identification, parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then.
Thus in the absence of any descriptive particulars of Shiv Shan kar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three wit nesses at the identification parade and hold that he was one of the assailants of Ram Babu.
As pointed out in Muthu Swami vs State of Madras, A.I.R. 1954 S.C 4 where an identifica tion parade is held about 2 1/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye witnesses.
In another case Mohd. Abdul Hafeez vs State of Andhra Pradesh, A.I.R. 1983 S.C. 361 it was held that where the witnesses had not given any description of the accused in the First Information Report, their identification of the accused at the Sessions trial cannot be safely accepted by the court for awarding convic tion to the accused.
In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.
Mr. U.R. Lalit, learned counsel for Shiv Shankar further contended that Shiv Shankar had certain distinctive features like scars on the face, reddish lips etc., and these marks of identification should have been furnished to the witness es before they were called upon to identify Shiv Shankar at the identification parade.
We do not think it necessary to go into the merits of this argument in the light of our conclusion already reached.
As the conviction of Shiv Shan kar is based solely with reference to his identification at the identification parade, he has to be given the benefit of doubt and acquitted in the light of our finding.
According ly, Shiv Shankar 's appeal has to succeed.
970 Coming now to the appeal of Subash it was strenuously contended by Mr. Frank Anthony, learned counsel that the prosecution evidence suffers from numerous infirmities and as such the Sessions Judge and the High Court ought not to have convicted him.
His further argument was that in any case the benefit of doubt given to Om Kumar and Raj Kishore, ought to have been given to Subash also.
Mr. Anthony argued that Exhibit Kha 1 could not have been given at 1.12 p.m. because there is no evidence to show when the report was sent to the Magistrate and when it was received by him.
The learned counsel referred to Gurdev Singh and others vs The State, [1963] Punjab Law Reporter, 409 where the dangers ensuing from a First Information Report not being lodged promptly have been pointed out.
We are unable to accept the argument of Mr. Anthony because there are no materials to warrant an inference that Exhibit Kha 1 had been given later but ante dated to cover up the delay in making the report.
It is true that the First Information Report sent to Court does not contain the Magistrate 's endorsement regarding the time of its receipt, but Ram Kishan, Head Constable (P.W. 5) has deposed that the special report was despatched to the Magistrate at 1.20 p.m. itself through constable Chiman Lal and that the General Diary contains an entry to that effect.
It was seriously urged by Mr. Anthony that the motive put forward for the occurrence Was of a flimsy nature and it is unbelievable that for non payment of repair charges Subash would have attacked Ram Babu along with his compan ions.
This argument has to fail because Dinesh Shankar has clearly deposed that there was an altercation between Subash and Ram Babu there on four days earlier and Ram Babu took away the machine part without paying repair charges to Subash.
There is, therefore, nothing improbable in Subash having nurtured a grievance against Ram Babu and wanting to settle scores with him.
The evidence of the eye witnesses is clearly to the effect that Subash told his companions on seeing Ram Babu, that he is the person who had quarrelled with him and taken away the machine part without paying the repair charges.
Making common cause of his grievance Su bash 's companions had also joined him in perpetrating an attack on Ram Babu.
The intent of Subash in launching an attack on Ram Babu can be gauged from the fact that when Dinesh Shankar tried to intervene, he had prevented him and inflicted a stab injury on him also.
The further argument of Mr. Anthony was that Budh Sen did not have proper eye sight, that Shyam Behari was a chance witness and 971 that Bhuvan Chand named in Exhibit Kha 1 had failed to support the prosecution case and as such there is no accept able evidence to convict Subash.
He also stated that even though Dinesh Shankar is an injured witness, there is no guarantee his evidence is truthful.
None of these conten tions in our opinion, has any merit.
Budh Sen has stated that his eye sight is poor without glasses but with specta cles he can see well.
It is not the case of the appellant that Budh Sen was not wearing his spectacles at the time of the occurrence.
In so far as Dinesh Shankar and Shyam Behari are concerned, their presence at the scene cannot admit any doubt because their names find a place in Exhibit Kha I. Moreover Dinesh Shankar has sustained an injury on his left thigh.
The evidence of these witnesses has been accepted by the Session Court and the High Court and we see no reason to take a different view.
In so far as Bhuvan Chand (C.W. 1) is concerned, the prosecution has satisfactorily explained why he was not cited as a witness.
He had no doubt furnished the name of Raja Ram alias Raj Kishore to Budh Sen but he subse quently backed out fearing reprisal at the hands of the accused.
Mr. Anthony argued that even if his contentions are not accepted, Subash can be convicted only for an offence under Section 324 Indian Penal Code for the injury caused to Ram Babu as well as Dinesh Shankar.
We may mention here that the Sessions Judge had framed a separate charge against the appellant Subash under Section 324 Indian Penal Code in addition to the charge under Section 302 read with Section 34 Indian Penal Code.
Mr. Anthony invited our attention to State of U.P. vs Hari Prasad, ; and Ugar Ahir vs State of Bihar, A.I.R. 1965 S.C. 277 to contend that when the sub stratum of the prosecution case fails, the entire case has to fail.
We find the facts in those cases were entirely different and hence they can have no relevance to this appeal.
In the present case, the prosecution version fully survives in spite of the acquittal of the other ac cused for want of proof of indentity.
The last argument of Mr. Anthony was that in any event when the other accused persons are acquitted, Subash alone cannot be convicted under Section 302 read with Section 34 Indian Penal Code in the absence of evidence to show that he caused any of the fatal injuries on Ram Babu.
This argument is devoid of any merit.
The case of Subash stands on a different footing from that of the other accused because he has been clearly named and the particulars of his profession and address have been furnished in Exhibit Kha 1.
All the witnesses have stated that he was known to all of them.
In contrast the names of the other accused were not known to the eye witnesses and the name of Raj Kishore alone had been furnished to Budh Sen by Bhuvan Chand.
972 Besides attacking Ram Babu Subash had also attacked Dinesh Shankar.
He was absconding and had later surrendered himself in court.
No test identification parade was held for him because his identity was never in doubt.
He had a grudge against Ram Babu and it was on his instigation the attack on Ram Babu had been launched.
His case, therefore, stands on a distinctively different footing from that of the other accused persons.
Even though the other accused are acquitted it is only for want of proof of their identity and not because the eye witnesses had not seen the occurrence or that the occurrence had taken place in a different manner.
Subash cannot, therefore, escape the consequences of the attack jointly committed by him and his accomplices in furtherance of their common intention even though the other accused stand acquitted for want of acceptable proof of their identity.
Mr. Anthony referred us to the decision in Vijay Kumar vs State of J & K, A.I.R. 1982 S.C. 1022 to contend that when the other accused stand acquitted Subash also should be acquitted of the charge under Section 302 read with Section 34 Indian Penal Code.
The facts in that case bear no comparison with the facts in this case.
On the other hand Amir Hussain vs State of U.P., A.I.R. 1975 S.C. 2211 will be the decision apt for consideration in this case.
In the above case 10 persons were acquitted by the Sessions Judge and three alone were convicted under Section 302 read with Section 34 Indian Penal Code.
Among those three, two were acquitted by the High Court and consequently only one of the accused stood convicted.
The said accused appealed to this court and contended that since the other two accused had been acquitted, he should also be acquitted of the charge under Section 302 read with Section 34 Indian Penal Code.
Repelling the contention this Court held as follows: "Much stress has been laid on behalf of the appellant upon the fact that despite the evidence of the above mentioned four eye witnesses, the High Court has acquitted Kari muddin and Mohd. Ibrahim accused.
It is, in our view, not necessary to express an opinion on the point as to whether those two accused were rightly acquitted or not.
All that we can say is that the benefit of doubt which resuit ed in the acquittal of the other two accused would not vitiate the conviction of the appel lant in case the evidence adduced against him is found to be satisfactory and convincing.
The material on record establishes that the appellant had a motive to join in the assault on Ibrahim Pradhan.
The appellant held out a threat and report about it was lodged by Ibrahim deceased at the police station about 973 3 1/2 months prior to the present occurrence.
The evidence about the motive lends assurance to the evidence of the eye witnesses regarding the complicity of the appellant.
We would, therefore, maintain the conviction of the appellant.
As regards the sentence, it may be stated that the only injury which is attribut ed to the appellant is an incised wound on the right arm of Ibrahim.
The incised wound which was found on the scalp of Mehandi Hasan was ascribed by the eye witnesses to Karimuddin who has been acquitted.
In view of the fact that a comparatively minor injury was at tributed to the appellant and he is being vicariously held liable for the fatal injuries caused by the other culprits, we consider it to be a fit case in which we might substitute the lesser sentence for the extreme penalty of death.
We accordingly maintain the conviction of the appellant but reduce his sentence to that of imprisonment for life.
" We are, therefore, of the view that even though the other accused stand acquitted and even though there is no evidence that Subash caused one of the fatal injuries, he cannot escape conviction under Section 302 read with Section 34 Indian Penal Code when his participation with three other assailants in the attack on Ram Babu has been established beyond reasonable doubt by the prosecution.
We, therefore, confirm his convictions and the sentences awarded therefor.
In the result Crl.
Appeal No. 287 of 1978 will stand dismissed while Crl.
Appeal No. 288 of 1978 will stand allowed.
Appellant Subash will surrender himself to custody failing which he should be arrested for serving out the sentence.
Appellant Shiv Shankar will stand acquitted of the convictions under Section 302 read with Section 34 Indian Penal Code and 324 read with Section 34 Indian Penal Code and his bail bonds will stand cancelled.
N.P.V. Crl.
Appeal No. 287/78 dismissed.
Appeal No. 288/78 allowed.

dataset_name: IN-Abs

summary/full:
The prosecution alleged that there was a dispute between the appellant in Appeal No. 287 of 1978 and the deceased in regard to payment of repair charges for a machine part and that three or four days later this appellant alongwith others attacked the deceased when he was accompanied by P.W. 1 and P.W. 2.
It was further alleged that while the appel lant in Appeal No. 288 of 1978 caught hold of the deceased, the appellant in the first appeal and two others repeatedly stabbed him with knives and caused several injuries.
P.W. 2 was also injured when he tried to intercede.
The deceased and P.W. 2 were taken to hospital where the deceased was pronounced dead.
P.W. 1 presented a complaint at the Police Station.
The appellant in the first appeal absconded and surren dered before the court later.
On questioning, he named the assailants, who were arrested on different dates.
Test indentification parades were held for two accused persons wherein the appellant in the second appeal was identified by three witnesses, but the other accused was identified by only of them.
In the subsequent identification parade held for another accused, none of the witnesses was able to identify him.
All the accused were tried and the two appel lants and another accused were convicted under Section 302 read with Section 34 Indian Penal Code and Section 324 read with Section 34 Indian Penal Code for having committed murder of the deceased and caused hurt with a knife to P.W. 2 and were awarded imprisonment for life and three years ' rigorous imprisonment respectively, the sentences to run concurrently.
The fourth accused who was not identified by any one of the witnesses at the identification 963 parade and whose name was not mentioned in the First Infor mation Report, was acquitted.
The High Court in appeal confirmed the conviction of the two appellants but acquitted the third accused on the ground that he had been identified by only P.W. 2 and not by other witnesses.
In the appeal to this Court, it was submitted on behalf of the appellant in Criminal Appeal No. 287 of 1978 that the prosecution evidence suffers from numerous infirmities and as such, the trial court and the High Court ought not to have convicted him, that in any case the benefit of doubt given to the two of the other accused ought to have been given to him, that there was an attempt to cover up the delay in making the report, that the motive put forward for the occurrence was of a flimsy nature and it was unbelieva ble that for non payment of repair charges the deceased would have been attacked alongwith his companions, that P.W. 1 did not have proper eye sight, that P.W. 3 was a chance witness and that C.W. 1 failed to support the prosecution case, and that even though P.W. 2 was an injured witness, there was no guarantee that his evidence is truthful.
It was further urged that the appellant could be convicted only for an offence under Section 324 Indian Penal Code for the injury caused to the deceased as well as P.W. 2, that as the sub stratum of the prosecution fails, the entire case had to fail and that when the other accused persons were acquitted, the appellant alone cannot be convicted under Section 302 read with Section 34 I.P.C., in the absence of evidence that he caused any of the fatal injuries on the deceased.
It was submitted on behalf of the appellant in Criminal Appeal No. 288 of 1978 that neither his name nor any of his characteristics were mentioned in the First Information Report by any of the eye witnesses, that he was falsely implicated, that there was no motive for him to murder the deceased, that one of the prosecution witnesses had alto gether denied his presence, that there was delay in his arrest and ho1ding of the identification parade and he was exposed to the identifying witnesses by not covering his distinctive features, that the prosecution had failed to prove beyond reasonable doubt his participation in the commission of the occurrence and that when the other ac cused, one of whose name figured in the First Information Report, were acquitted by giving the benefit of doubt.
he should also have been given the same benefit of doubt.
Dismissing the appeal of the appellant in Appeal No. 287 of 1978 and allowing the appeal of the appellant in Appeal No. 288 of 1978, this Court, 964 HELD: 1.
When participation of the appellant with the other assailants is established beyond reasonable doubt by the prosecution, he cannot escape the consequences of the attack committed by him and his accomplices in furtherance of their common intention and conviction under Section 302 read with Section 34 Indian Panel Code even though the other accused stand acquitted and even though there may be no evidence that the accused caused one of the fatal injuries.
[973E] 2.
The other accused were acquitted only for want of acceptable proof of their identity and not because the eye witnesses had not seen the occurrence or that the occurrence had taken place in a different manner.
Therefore, there is no merit in the contention that when the other accused persons were acquitted, the appellant in Criminal Appeal No.287 of 1978 alone cannot be convicted under Section 302 read with Section 34 Indian Penal Code, in the absence of evidence to show that he caused any of the fatal injuries on the deceased.
The appellant, therefore, cannot escape the consequences of the attack jointly committed by him and his accomplices in furtherance of the common intention.
[972B E] 3.
There is nothing improbable in the appellant having nurtured a grievance against the deceased and wanting to settle scores with him.
The evidence of the eye witnesses was clearly to the effect that the appellant told his com panions on seeing the deceased that he was the person who had quarreled with him and taken away the machine part without paying the repair charges.
Making common cause of his grievance, the appellant 's companions had also joined him in perpetrating an attack on the deceased.
The trial court and the High Court were right in accepting the evi dence of these witnesses.
[970F G] 4.
There is no merit in the contention that the appel lant can be convicted only for an offence under Section 324 Indian Penal Code for injury caused to the deceased as well as P.W. 2.
The trial court had framed a separate charge against the appellant under Section 324 Indian Penal Code in addition to the charge under Section 324 read with Section 34 Indian Penal Code.
There is also no merit in the conten tion that when the sub stratum of the prosecution case fails, the entire case has to fail.
The prosecution version fully survives in spite of the acquittal of the other ac cused for want of proof of identity.
[971 D F] 5.
Where there is delay in holding an identification parade, it would not be safe to place reliance on the iden tification of the accused by the eye witnesses.
[969D E] 965 6.
Where the witnesses had not given any description of the accused in the First Information Report or in the state ments during the investigation, their identification of the accused at the trial cannot be safely accepted by the court for convicting the accused.
[969E] 7.
The appellant in Criminal Appeal No. 288 of 1978 was not arrested for nearly nine weeks after coming to know of his name and address from the other appellant.
It was not the case of the prosecution that the appellant was abscond ing.
Apart from this infirmity, the appellant was not put up for test identification parade promptly and it was held three weeks after his arrest and no explanation was offered for the delay in holding it.
There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock up or in the jail premises and make a note of his features.
A sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen the appellant for a few minutes and the date of the identification parade.
[968D H; 969A] 8.
Although all the three witnesses had identified the appellant at the identification parade, after nearly four months, in the absence of any descriptive particulars of the appellant in the First Information Report or in the state ments of witnesses during the investigation, it would not be safe and proper to act upon the identification of the appel lant by the three witnesses at the identification parade and hold that he was one of the assailants of the deceased.
[969A D] 9.
As the conviction of the appellant was based solely with reference to his identification at the parade, he has to be given the benefit of doubt and acquitted.
[973E] Muthu Swami vs State of Madras, AIR 1954 SC 4; Mohd. Abdul Hafeez vs State of Andhra Pradesh, ; Gurdev Singh and others vs The State, 1963 Punjab Law Re porter, 409; State of U.P. vs Hari Prasad, ; ; Ugar Ahir vs State of Bihar, AIR 1965 SC 277; Vijay Kumar v: State of J & K, AIR 1982 SC 1022; and Amir Hussain vs State of U.P., AIR 1975 SC 2211, referred to.


judgement:
vil Appeal No. 1598 (NT) of 1974.
From the Judgment and Order dated 26.2.1971 of the Allahabad High Court in I.T. Reference No. 92 of 1966.
C.M. Lodha, N.M. Tandon and Miss A. Subhashini for the Appellant.
Dhananjoy Chandrachud (Amicus Curiae) for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal from the judgment and order of the High Court of Allahabad dated 26th February, 1971.
The assessee is a partnership firm which at the relevant time enjoyed the status of a registered firm for the assessment years 1960 61, 1961 62 and 1962 63.
In the assessment proceedings for the assessment year 1960 61, the assessee suffered a loss of Rs.60,054 in the speculation business which was to be carried forward for adjustment against speculation profits of future years.
For the assess ment year 1961 62 also, the assessee had suffered a loss amounting to Rs.6,839 in 945 speculation business and this was also to be carried forward for adjustment against speculation profits of future years.
For the assessment year 1962 63 which is the year with which this appeal is concerned, the assessee made a profit of Rs.58,102 from speculation business.
In the assessment proceedings for that year the assessee claimed that a loss of Rs.60,054 suffered in respect of the assessment year 1960 61 and the loss of Rs.6,839 suffered in respect 0" the assessment year 1961 62 should be set off against this speculation profit of Rs.59,102 for this year.
If that had been done, the speculation profits of the year under consid eration would have been absorbed completely by the losses brought forward from the preceding years.
The Income tax Officer, however, rejected the assessee 's claim.
He held that as the assessee was a registered firm, the losses could be carried forward and set off only by the partners and not by the firm.
The appeal by the assessee before the Assistant Appellate Commissioner was dismissed.
The assessee went up in appeal to the Tribunal.
The Tribunal held that the right to carry forward the losses relating to the assessment years 1960 61 and 1961 62 was governed by the Indian Income tax Act, 1922 (hereinafter called the '1922 Act ') and the section 75(2) of the Income tax Act, 1961 which was applicable to the assessment year 1960 61 had no application in the facts of this case.
The Tribunal was of the view that when an Act was passed repealing an earlier enactment, it could not be said to supersede any right already accrued under the repealed enactment unless there was something in the repealing Act to indicate that clearly.
The Tribunal, therefore, held that the assessee was entitled to have the losses brought forward from the preceding two years and set off against the profits earned for the year 1962 63 and accordingly allowed the appeal.
The revenue sought for reference to the High Court of Allahabad on the following question: "Whether, the assessee is, in law, entitled to set off of the speculation losses suffered in the assessment years 1960 61 and 1961 62 against the speculation profits of the previous year?" The High Court considering the provisions of section 75 of 1961 Act came to the conclusion that a right had accrued to the assessee by virtue of 1922 Act which entitled him to have the losses from speculation business in respect of the assessment year 1960 61 and 1961 62 to be carried forward and set off against the profits in speculation busi 946 ness of future years.
The High Court was of the view that that was a right which had accrued to it before the 1961 Act was brought into force.
The High Court came to the conclusion that by virtue of section 6 of the that right continued to subsist.
The High Court, therefore, was of the view that the Tribunal was fight in holding that the assessee was entitled to set off the specu lation losses suffered in the assessment years 1960 61 and 1961 62 against the speculation profits of the previous year 1962 63.
In appeal on behalf of the revenue before us, it was contended that the High Court was in error.
Our attention was drawn to the provisions of section 24(2) of 1922 Act which, inter alia, provided that where any assessee sus tained any loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending 31st day of March, 1940, in any business, profession or vocation, and the loss could not be wholly set off under sub section (1) of section 24 of the said Act, so much of the loss as was not so set off or the whole loss where the assessee had no other head of income would have been carried forward in the manner indicated therein.
So, therefore, the 1922 Act 'gave a right to set off speculation losses against speculation profits and to the extent it was unabsorbed, it had a fight to carry for ward the losses for the future years to be set off against speculation profits for future years.
It was submitted that in a way it was vested right a fight on assessment to set off the losses against the profits of the year in question and if not fully absorbed to carry forward to be set off against the profits of future years.
It was submitted on behalf of the revenue that it therefore continued so long as the Act permitted the setting off in that manner.
It was, however, urged that in view of the coming into operation of 1961 Act which came into operation on 1st of April, 1962, that fight no longer was there with the assessee.
Section 75 of 1961 Act provided an entirely new scheme.
It was as follows: "75.
Losses of registered firms. (1) Where the assessee is a regis tered firm, any loss which cannot be set off against any other income of the firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73, 74 and 74A. (2) Nothing contained in sub section (1) of section 72, sub section (2) of section 73, sub section (1) of section 947 74 or sub section (3) of section 74A shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid sec tions.
" As a result of sub section (2) of section 75 of the said Act, there is prohibition, according to the revenue, enti tling the assessee being registered firm to have its loss carried forward and set off under the provisions except in the manner indicated in sub section (2) of section 75 of the Act.
It was submitted that as the assessment for the year 1962 63 had to be made under the provisions of 1961 Act, the assessee could not have the benefit of set off of the car ried forward loss.
In support of this contention reliance was placed on the decision of the Allahabad High Court in Commissioner of Income tax, Kanpur vs Mangiram Gopi Chand, where it was held that a registered firm could, so long as the 1922 Act was in force, carry forward speculation loss, if it could not be set off against specu lation income of the year in question.
However, the Court observed after coming into force of 1961 Act, specific provisions had been made in respect of losses of registered firms and such right of set off of speculation losses was no longer available.
The High Court was of the view that the right of a registered firm to set off and carry forward losses under section 24(2) of the 1922 Act was a substantive right.
However, where a repealing provision indicated the effect of the repeal on previous matters and provided for the operation of the previous law in part as also the opera tion of the new law in the other part in positive terms, the repealing and saving provision could be said to be self contained and excluded the applicability of section 6, according to the Allahabad High Court, of the .
Section 297(2) of 1961 Act, according to the Allahabad High Court, must be taken to be a self contained code in respect of the operation of 1922 Act and the rights which might have been created under it.
Inasmuch as section 297(2) of the 1961 Act did not save, said the Allahabad High Court, the right, if any, of a registered firm to set off its speculation losses, which have been carried forward, against the speculation profits of the firm, the right, if any, created by section 24(2) could not be said to remain intact after the repeal of the 1922 Act.
Speculation losses of years anterior to 1962 63 could not, therefore, be car ried forward and set off against speculation profits of a registered firm.
The Allahabad High Court considering the decision of this Court in State of Punjab vs Mohar Singh, ; observed that the principle laid down by this Court was that where the repealing provision indicated the effect of repeal on previ 948 ous matters and provided for the operation of the previous law in part and in negative terms as also for the operation of the new law in other part in positive terms, the repeal ing and the saving provision could be said to be self con tained Act.
While we respectfully agree with the principle applicable in interpreting the application of the Act, we are of the opinion that the Allahabad High Court was not fight in the application of that principle in the light of section 297(2) of 1961 Act in the aforesaid decision.
There is nothing in any of the clauses of subsection (2) of sec tion 297 of the Act which indicates that accrued rights under 1922 Act lapsed in respect of the assessment to be made after coming into operation of 1961 Act.
According to the Allahabad High Court in that decision, section 297(2)(a) provided for completion of assessment in accordance with the old Act where the return was filed before the commencement of the 1961 Act but section 297(2)(b) of the Act provided for completion of assessment in accordance with the provi sion of the new Act where the return was filed even in respect of years covered by the 1922 Act, after 31st March, 1962.
Reading section 297 in the manner it did, the Allaha bad High Court was of the view that where the provisions of the previous Act stood repealed, the set off cannot be given.
The Allahabad High Court had, it appears, no occasion to notice the judgment under appeal.
On behalf of the revenue, reliance was also placed on a decision of the Calcutta High Court in the case of Reliance Jute Mills Co. Ltd. vs Commissioner of Income tax, West Bengal 1, on the question of carry forward of the loss after the coming into operation of the Finance Act, 1955.
The principle enunciated therein, in our opinion, will have no application to the controversy in the present case.
Our attention was also drawn by the revenue to the decision of the Kerala High Court in the case of Helen Rubber Indus tries Ltd. vs Commissioner of Income Tax, Mysore, Travan core Cochin and Coorg, The Kerala High Court observed that the loss incurred in Travancore (in a Part B State) by the assessee during M.E. 1123 which could only have been carried forward for two years in accordance with the provisions of section 32(2) of the Travancore Income tax Act, 1121, could be carried forward beyond those two years for a period of six years in accordance with sections 24(2) of the Indian Income tax Act, 1922 for the assessment year 195 1 52, as the Indian Income tax Act, 1922 was applicable for that assessment year and the assessee had the right to carry forward losses in accordance with the provisions of that Act.
The High Court had to construe section 3 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950.
This case must also be understood in the back ground of 949 the facts of that case which are different from the instant case with the provisions with which we are concerned.
That was not a case of deciding whether the vested right was curtailed and if so to what extent.
This Court in Karimtharuvi Tea Estate Ltd. vs State of Kerala, ; observed that it was well settled that the Income tax Act as it stands amended on the first day of April of any financial year must apply to the assessment of the year.
Any amendments in that Act which came into force after the first day of April of a financial year, would not apply to the assessment for that year, even if the assess ment was actually made after the amendments came into force.
There, the Kerala Surcharge on Taxes Act, 1957, having come into force on 1st September, 1957, being the date appointed by the Kerala Government under section 1(3) of the Act, and not being retrospective in operation, by express intendment or necessary implication, could not be made applicable from 1st April, 1957.
Since the Act was not the law in force on 1st April, 1957, no surcharge on agricultural income tax could be levied under that Act in respect of the assessment year 1957 58.
That decision had also not dealt with the question of affecting vested rights.
In our opinion the right given to the assessee for the assessment year 1961 62 under section 24(2) of 1922 Act was an accrued right and a vested right.
It could have been taken away expressly or by necessary implication.
It has not been so done.
Neither section 297(2)(b) nor any other sub clauses of sub section (2) of section 297 indicates contrary intention of the legislature regarding any vested right of the assessee under the 1922 Act.
On the contrary section 6(c) of the indicates that right should be preserved.
Reliance may be placed on the observations of this Court in T.S. Baliah vs
T.S. Rangachari, Income tax Officer, Cen tral Circle VI, Madras, This Court observed that the provisions of section 52 of the Indian Income tax Act, 1922, do not alter the nature or quality of the offence enacted in section 177 of the Indian Penal Code, 1860.
They merely provide a new course of procedure for what was al ready an offence.
There is no repugnancy or inconsistency; the two enactments can stand together and they must be treated as cumulative in effect.
This Court, however, ob served that in enacting section 297(2) of the Income tax Act, 1961, it was not the intention of the Parliament to take away the right of instituting prosecutions in respect of proceedings which were pending at the commencement of the Act.
Parliament had not made any detailed provision for the 950 institution of prosecutions in respect of offences under the 1922 Act.
Section 6(e) of the General Clauses Act, 1987 applied for the continuation of such proceedings after the repeal of the Indian Income tax Act, 1922, and a legal proceeding in respect of an offence committed under the 1922 Act may be instituted after the repeal of the 1922 Act by the 1961 Act.
The Court reiterated that before coming to the conclusion that there is a repeal of an earlier enactment by a later enactment by implication, the court must be satis fied that the two enactments are so inconsistent or repug nant that these could not stand together and the repeal of the express prior enactment must flow from necessary impli cation of the language of the later enactment.
In Commissioner of Income Tax (Central), Calcutta vs
B.P. (India) Ltd., the Calcutta High Court was concerned with section 25(3) of the 1922 Act.
It is not necessary to set out in extenso the facts of that case.
It suffices to say that the discontinuance of the assessee 's business in that case took place on 28th February, 1962.
It could not be disputed that if the 1961 Act had not come into effect, the assessee would have been entitled to get the relief as granted by virtue of section 25(3) of the 1922 Act.
It was observed that on a reading of section 6 of the , it was clear that unless a con trary intention appears, the repeal of an Act does not affect any existing right, privilege, obligation or liabili ty.
It is, therefore, necessary to find out from the provi sions of section 297 of the 1961 Act which.repeals the 1922 Act, whether the old rights and liabilities have been in tended to be destroyed.
There was no corresponding provision under the 1961 Act dealing with the type of claims mentioned in sub section (3) or (4) of section 25 of the 1922 Act.
It was contended by the revenue that what was not said was destroyed and such intention would be apparent in that case from section 297(2)(h) of the 1961 Act.
The High Court referred to the 12th Report of the Law Commission, and Speaking for the Court, one of us (Sabyasachi Mukharji,J.) said that it was not possible to accept the submission for the revenue that whatever was not said was destroyed.
The Court reiterated that there must be a manifest intention of Parliament to destroy a right or privilege under the old Act.
There is no such provision in the new Act.
In the instant case also, section 75(2) dealt with a different scheme of carrying forward of loss but it did not speak of any accrued right.
It did not destroy either by express words or by necessary implication the vested right given to an assessee under section 24 (2) of the Act of 1922.
There fore, unless one finds in section 297 or within the four corners of the any intendment express or implied of destroying the rights created by section 24(2) of 951 carrying forward the losses to set off in subsequent years in case of speculation business that right cannot be said to be destroyed.
The fact that the fight created by the operation of section 24(2) is a vested right cannot in our opinion be disputed.
See in this connection the observations of this Court in Gujarat Electricity Board vs Shantilal R. Desai, ; at 587 and Isha Valimohamad & Anr.
vs Haji Gulam Mohamad & Haii Dada Trust, [1975] 1 S.C.R. 720 at 723.
Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years.
The fight of carrying forward and set off accrued to the assessee under the Act of 1922.
A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that fight accrued unless the re pealing statute took away such right expressly or by neces sary implication.
This is the effect of section 6 of the .
In this case the 'savings ' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued.
In other words, whatever fights are expressly saved by the 'savings ' provision stand saved.
But, that does not mean that fights which are not saved by the 'savings ' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted.
Rights which have accrued are saved unless they are taken away expressly.
This is the principle behind section 6(c) of the .
The right to carry forward losses which had accrued under the repealed Income tax Act of 1922 is not saved expressly by section 297 of the Income tax Act, 1961.
But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the Old Act of 1922.
Section 6(c) saves accrued rights unless they are taken away by the repealing statute.
We do not find any such taking away of the rights by section 297 either expressly or by implica tion.
We are, therefore, of the opinion that the Allahabad High Court was in error in the view it took in the decision in Commissioner of Income tax, Kanpur vs Mangiram Gopi Chand (supra) but the High Court of Allahabad was fight in the judgment under appeal and the question was properly an swered.
The assessee in person did not appear at the time of the heating 952 of this appeal.
We requested Shri Chandrachud to assist us as amicus curiae.
We record that Shri Chandrachud has ren dered very able assistance to us in disposing of this ap peal.
This Court records its appreciation of the help ren dered by him.
The appeal in the premises fails and is dismissed with costs assessed at Rs.2,500 which amount should be paid to the amicus curiae.
A.P.J. Appeal dis missed.

summary/full:
The assessee, a partnership firm, enjoyed the status of a registered firm for the assessment years 1960 61, 1961 62 and 1962 63.
In the assessment proceedings for the year 1962 63 the assessee claimed that a loss of Rs.60,054 suf fered in the speculation business in the assessment year 1960 61 and the loss of Rs.6,839 suffered in the assessment year 1961 62 should be set off against the speculation profit of Rs.58,102 for the assessment year 1962 63.
The Income Tax Officer rejected the assessee 's claim holding that as the assessee was a registered firm, the losses could be carried forward and set off only by the partners and not by the firm.
The appeal by the assessee before the Assistant Appellate Commissioner was dismissed.
In the appeal to the Tribunal, the Tribunal held that the right to carry forward the losses relating to the as sessment years 1960 61 and 1961 62 was governed by the Indian Income Tax Act, 1922 and that section 75(2) of the Income Tax Act, 1961 which was applicable to the assessment year 1960 61 had no application in the facts of this case; that when an Act was passed repealing an earlier enactment, it could not be said to supersede any right already accrued under the repealed enactment unless there was something in the repealing Act to indicate that clearly and, therefore, the assessee was entitled to have the losses brought forward from the preceding two years and set off against the profits earned for the year 1962 63.
In the Reference, the High Court held: (1) that a right had 943 accrued to the assessee by virtue of 1922 Act which entitled him to have the losses from speculation business in respect of the assessment year 1960 61 and 1961 62 to be carried forward and set off against the profits in speculation business of future years; (2) that was a right which had accrued to it before the 1961 Act was brought into force; (3) that by virtue of section 6 of the General Clauses Act that right continued to subsist and (4) that the Tribunal was right in holding that the assessee was entitled to set off the speculation losses suffered in the assessment years 1960 61 and 1961 62 against the speculation profits of the assessment year 1962 63.
Dismissing the Appeal of the Revenue, HELD: 1.
The Allahabad High Court was in error in the view it took in the decision in Commissioner of Income Tax, Kanpur vs Mangi Ram Gopichand, but it was right in the judgment under appeal and the question was properly answered.
[951 G H] 2.
The right created by the operation of section 24(2) of 1922 Act is a vested right.
[951 A B] Gujarat Electricity Board vs Shantilal R. Desai, ; at 587 and Isha Valimohamad & Anr.
vs Haji Gulam Mohamad & Haji Dada Trust, [1975] 1 S.C.R. 720 at 723, referred to.
Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years.
The right of carrying forward and set off accrued to the assessee under the Act of 1922.
A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the re pealing statute took away such right expressly or by neces sary implication.
This is the effect of section 6 of the .
[951B D] 4.
Whatever rights are expressly saved by the 'savings ' provision stand saved.
But, that does not mean that rights which are not saved by the 'saving ' provision are extin guished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted.
Rights which have accrued are saved unless they are taken away expressly.
This is the principle behind section 6(c) of the .
[951E F] 944 5.
The right to carry forward losses which had ac crued under the repealed Income Tax Act of 1922 is not saved expressly by section 297 of the Income Tax Act, 1961.
But it is not necessary to save a right expressly in order to keep it alive after the repeal of the Old Act of 1922.
Section 6(c) of the saves accrued rights unless they are taken away by the repealing statute.
Taking away of any such rights by section 297 either expressly or by implication is not found.
[951 F] Commissioner of Income tax Kanpur vs Mangiram Gopi Chand, , overruled.
State of Punjab vs Mohar Singh, ; ; Reliance Jute Mills Co. Ltd. vs Commissioner of Income tax, ; Helen Rubber Industries Ltd. vs Commissioner of Income Tax, Mysore Travancore Cochin and Coorg., and Karimtharuvi Tea Estate Ltd. vs State of Kerala, ; , referred to.
T.S. Baliah vs
T.S. Rangachari, Income tax Officer, Central Circle VI.
Madras, and Commissioner of Income tax (Central), Calcutta vs
B.P. (India) Ltd., , followed.