judgement:
ivil Appeal No. 1539 of 1970.
(Appeal by Special Leave from the Award dated 1/31 10 69 of the Industrial Tribunal Allahabad in Ref.
No. 20/58 'published in the U.P. Gazette dated the 10th Jan. 1970).
I. N. Shroff, for the appellant.
P.H. Parekh, for the respondent.
KRISHNA IYER, J. A dispute between the appellant mill (the Strawboard Manufacturing Company Ltd) and its workmen, regarding a scheme of gratuity, was referred to the Indus trial Tribunal, way back in February 1958, and, long 19 years later, this Court is pronouncing on the validity of the award made by the Tribunal in favour of the workmen: Small wonder the respondent workmen, after this tiring and traumatic tantalization, have not turned up to argue their cause, although Shri Parekh, as amicus curiae, has filled the gap.
Such an unhappy and not infrequent phenomenon as considerable delay in adjudication and implementation is destructive of industrial peace and productive of disen chantment with labour jurisprudence.
Naturally, even consti tutional provisions and governmental decisions about labour and concern for its welfare cease to achieve the desired goals when the legal process limps and lingers and rights turn illusory ' when remedies prove elusive.
The life of rights is remedies and a jurisprudence of ready reliefs alone can inhibit the weaker numbers of our land asking the disturbing question: 'Is Law Dead ? '.
Dicey wrote long ago: "The saw ubi jus ibi remedium, becomes from this point of view something much more important than a mere tautological proposi tion.
In its bearing upon constitutional law, it means that the Englishmen whose labors gradually formed the complicated set of laws and institutions which we call the Constitu tion, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen." (Jurisprudence of Remedies: University of Pennsylvania Law Review, Vol. 117, Nov. 1968.
p.l, 16).
It is more than rhetoric to say that courts belong to the people.
93 'Judges occupy the public 's bench of justice.
They implement the public 's sense of justice '.
If the Courts are the fulcrum of the justice system, there is a strong case for the reform of Court methodology and bestowal of atten tion on efficient management of judicial administration.
Otherwise, the courts may be so overloaded or so mismanaged that they grind to a halt and citizens ' exercise of their rights discouraged or frustrated.
The vital aspects of the jurisprudence of remedies include speeding the pace o[ litigation 'from the cradle to the grave '.
We are reluc tant to make these self critical observation 's about putting our house in order, but when the consumers of justice like workmen lose interest in the judicial process and are ab sent, legislative unawareness of research and development as to the needs of courts and simplification and acceleration of the judicative apparatus become matters of national concern.
Law 's delays are in some measure, caused by legis lative inaction in ,making competent, radical change in the procedural laws and sufficient financing and modernising of the justice system as a high priority programme.
The chequered career of this lis and its zigzag climb up the precipice of justice contextually deserves brief narra tion.
The order of reference was made early in 1958, the usual processual exercise before the Tribunal resulted in an award on May 1, 1958 where the tribunal refused the relief bearing on gratuity.
The disappointed workers challenged the award before the High Court which set it aside in Novem ber 1963 too long a hibernation in the High Court for a labour dispute where prompt adjudication is the essence of industrial peace.
Anyway, when the case came back to the tribunal, its decision took another six inscrutable years and, on October 31, 1969 a fresh award was made whereunder the tribunal framed a gratuity scheme and gave the guide lines thereof.
This time the appellant mill straight came to the Supreme Court with the present appeal for which special leave was granted in a limited way, in the sense that it was confined to the question 'whether the correct principles on which ' gratuity should be payable have been followed in this case or not.
It is a fact, though unfortu nate, that this labour litigation arrived in this Court in 1970 but its final chapter is being written by this judgment only in 1977.
And it is noteworthy that the facts are brief, the legal issues small, the arguments brief and this judgment, but for general observations and traditional reference to rulings cited at the bar, could have been judiciously abbreviated.
The main battle at the bar has been over the correct principles in a scheme of gratuity for factory workers and further whether those principles have been departed from under the award assailed by the appellant.
We may mention.
at this stage, that the Parliament has enacted the , which has come into force with effect from September 16, 1972.
Section 4(5) of the said Act gives an option to the workers to choose between the gratui ty scheme under the award and the one under the statute.
Had the workers been represented before this Court it might have been possible for us finally to close this controversy or even produce a reasonable solution by discussion and negotiation and persuade them to opt for 94 one or the other scheme.
Early finality, credible certainty and mutually assented solutions, are the finer processes of conflict resolution a pursuit which baffles us here because of labour 's absence.
All that we can do, therefore, is to adjudicate upon the correctness or otherwise of the princi ples which have gone into the gratuity scheme prepared by the tribunal in the light of the rulings of this Court and the canons of industrial law.
We now proceed to itemise the grounds of attack levelled by Shri I.N. Shroff for the appellant .and assay their worth in the light of the submissions in defence of the award made by Shri P.H. Parekh appearing as amicus curiae.
Even here we may place on record our appreciation of Shri Parekh 's services to the Court and the fairness of Shri Shroff in making his points on behalf of the appelant.
The only dispute, which has ramified into a few issues, relates to the gratuity scheme the tribunal has framed.
Shri Parekh is right in drawing our attention in limine to the financial.
insignificance, for the appellant, of the subject matter of this lis and the consequential disinclina tion we must display to disturb the award.
He has urged that the total annual impact on the industry by the imple mentation of the award is of ,the order of Rs. 3,000/ to a substantial part of which the management has no objection.
What is more, the appellant is prosperous enough to distrib ute dividends around 20% over the years.
Further, since 1972 an obligatory statutory gratuity scheme has come into force with the result that the economic consequences of this litigation, even if the appellant loses are marginal or nil.
This makes us ponder whether, in matters of less than grave moment, this court should, as part of high judicial policy to arrest the tidal flow of unsubstantial litigation, turn away at the portals those who invoke our jurisdiction to examine every case where some legal principle has been wrongly decided, regardless of a sense of 'summit court ' perspective and the rare use of its reserve power so as to preempt a docket explosion and the injustice of delayed justice and invest the High Courts and high tribunals with final legal wisdom.
The amplitude of article 136 is ,meant more for exceptional situations than to serve as hospitable basket to receive all challenges to seemingly erroneous judgments in the country.
As stated earlier, we are confronted by an industrial dispute and are called upon .to apply the principles of industrial jurisprudence with its primary concern for peace among the parties, contentment of the worker 's, the end product being increased production informed by distributive justice.
Law, especially Labour Law, is the art of economic order sustained by social justice.
It aims at pragmatic success, but is guided by value realities.
It believes in relativity and rejects absolutes.
The recent constitutional amendment (article 43A) which emphasizes the workers ' role in production as partners in the process, read in the light of the earlier accent on workers ' rights and social justice, gives a new status and sensitivity to industrial jurispru dence in our 'socialist republic '.
This social philosophy must inform interpretation and adjudication, a caveat needed because precedents become time barred when societal ethos progresses.
We 95 are not called upon to interpret an Act since, in this area of law, the came in on a later date.
Judge made law rules the roost.
Even so, are we fattered by inflexible norms halLowed by dated decisions ? Not in this jurisdiction. 'The golden rule ' in a rapidly changing system, 'is that there are no golden rules '.
We should be guided by realistic judicial responses to societal problems, against the back drop of the new, radical values implied in 'social justice ' to labour, the production backbone of the nation, adjusted to the environs of the particular industry and its economics and kindered circumstances.
The dynamics of labour law, rather than the bonded of old time case law answers questions of current justice.
Cardozo had cautioned in his 'The Nature of the Judicial Process ': "That court best serves the law which recognizes that the rules of law which grew up on a remote generation may, in the fullness of experience, by found to serve another genera tion badly, and which discards the old rule when it finds that another rule of law repre sents what should be according to the estab lished and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule.
It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life.
It is not and i, should not be stationary.
Change of this character should not be left to the legislature.
If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors." (Cardozo: The Nature of the Judicial Process: Yale University Press pp.
151 152).
Indeed, we are stating no new proposition since the profu sion of decisions assiduously presented before us states, in sum, that each case has to be decided; on the updated justice of the fact situations therein and the only law that we can reasonably discern from the rUlings we have read is that there is no law but only justice, dependent on a varie ty of socio economic variables, that the tribunal 's award, if his performance is not perverse in the process or the end product.
must be left well alone by this Court even.
if some juristic failing or factual peccadillo can be discovered.
A quest for error and an inclination for correction, frequent ly exercised by higher Courts will do double injury.
It will take away the necessary initiative of the tribunal to produce satisfactory results.
It will delay the finality of industrial adjudication and thereby defeat the paramount purpose of early re adjustment.
Judicial decentralization claims its price and it must be paid by ignoring errors less than grave.
Once this perspective is clear, our non inter ference with this award is just.
Moreover, an industrial tribunal must act on a legal horse sense, rather than on juristic abstractions, on rugged fairness rather than on refined legalisms.
It is shop floor justice.
not five star loveliness.
The weaker qualify for protective order, in the over all view of the matter.
96 Gratuity for workers is no longer a gift but a right.
It is a vague, humanitarian expression of distributive justice to partners in production for long, meritorious service.
We have, therefore, adopt a broad and generous approach to the problems posed before us by Shri Shroff without being mechanistically precedent bound or finically looked into evidence.
Speaking generally, Shri Shroff focussed his fire power firstly on the qualifying period of five years for earning gratuity as against ten years sanctified in some earlier rulings and, secondly, on the basic wage, as contrasted with the 'consolidated ' wage being treated as the base for the computation of gratuity.
He did cite half a dozen of more cases of this court in support which, on closer scrutiny and studied in the light of other citations Shri Parekh emphasized, stand neutralized.
The Tribunal has itself referred to many rulings of this Court, noted the features of the industry in question, the high dividends and 'the low wages and reached a via media which we may regard as a prudent judicial resolution of the simple conflict.
The flavour of the social milleu, the raw realities of industrial conditions and the locale and life style out there, are sensed by the tribunal better than a distant court of last resort primarily specialising in declaration of law.
So we are loathe to upset the scheme unless the tribunal is grievously or egregiously in error.
Shri Shroff staked his case on case law alone and culled passages which upheld basic wages as basic and ten year service for eligibility.
Even here, we must mention that the basic wage at the relevant time (revised subsequently) was in the miserable range of Rs. 20/ per mensem and to calcu late gratuity on this pitiful rate, when after 'long.
and meritorious service ' the worker bids farewell to his labour life in the industry, is to be callous to basic justice.
The Human Today cannot be held captive by the less than human yesterday in a crucial area of social jus tice.
So viewed, we are constrained to negative the two preliminary contentions urged by Shri Shroff while agreeing with him on the smaller points of clarification sought.
We reproduce, at this stage, the decretal part of the award: "The award, therefore, is that the employers should be required to frame a scheme of gratuity for their workmen.
The details of the gratuity scheme are as under: (a)On death of a workman while 15 days wages for each in continous service or on att completed year of service ainment of the age of superann subject to a maximum of uation or on retirement or 15 months.
resignation due to continued ill health or on being incapi citated, 97 (b) On voluntary abandoment 15 days wages for each os service by a workman completaed year of cont in case not falling under inious service subject (a) or termination of to the condition that no service by employers gratuity will be payable on a total service of less than 5 years ,but this condition will not apply in case of resign ation or discharge on the grounds of physical disa blement or incapacity (i) For the purposes of gratuity of a period of six months or over shall be reckoned as 'one year ' while a period less than 6 months will be ignored.
(ii) Gratuity shall be payable to the nominee of the workman in case of his death or to his legal heirs, if no one has been nominated by the workman in this behalf.
(iii) 'Wages ' shall mean and include basic wages and dear food allowance but shall not include bonus.
(iv) Gratuity will not be.
allowed to a work man in case of a serious misconduct committed by him such as insubordination, acts involving moral turpitude, etc.
In case of damage to the property of employers or financial loss, the a,mount to the extent of loss shall be liable to be deducted from the amount of the gratuity.
(v) The basis of payment of gratuity shall be average earnings of a workman during the last three years.
" One of the leading cases both sides referred to is the Delhi Cloth & General Mills Co., vs Workmen & Ors.(1) In this decision the court did make the point: "That gratuity is not in its present day concept merely a gift made by the employer in his own discretion.
The workmen have in course of time acquired a right to gratuity on determination of employment provided the employer can afford, having regard to his financial conditions to pay it.
" Shah, J. speaking for the Court, also empha sized what we have already adverted to: "We consider it right to observe that in adjudication of industrial disputes settled legal principles have little play; the awards made by industrial tribunals are often the result of ad hoc determination of dispnted questions, and each determination for.as a precedent for determination of other dis pute.
An attempt to search for principle from the law built up on those precedents is a futile exercise.
To the (1) ; 98 Courts accustomed to apply settled principles to facts determined by the application of the judicial process, an essay into the unsur veyed expenses of the law of industrial rela tions with neither a compass.nor a guide, but only the pillars of precedents is a disheart ening experience.
The Constitution has howev er invested this Court with the power to sit in appeal over the awards of Industrial Tribu nals which are, it is said, rounded on the somewhat hazy background of maintenance of industrial peace, which secures the prosperity of the industry and the improvement of the conditions of workmen employed in the indus try, and in the absence of principles, prece dents may have to be adopted as guides some what reluctantly to.
secure some reasonable degree of uniformity of harmony in the proc ess.
" Several decisions which were referred to at the bar have been touched upon in the above case.
At the end of the consideration of these cases, the Court made two pregnant observations which we extract: "We may repeat that in .matters relat ing to the grant of gratuity and even general ly in the settlement of disputes arising out of industrial relations, there are no fixed principles, on the application of which the problems arising before the Tribunal or the Courts may be determined and often precedents of cases determined ad hoc are utilised to build up claims or to resist them.
It would in the circumstances be futile to attempt to reduce the grounds of the decisions given by the Industrial Tribunals, the Labour Appel late Tribunals and the High Courts to the dimensions of any recognised principle.
" x x x x x "It is not easy to extract any principle from these cases; as precedents they are conflicting.
" These cautionary signals guide us too in the instant case.
It is true that on account of the peculiar circumstances affecting the textile industry in the whole country the Court felt that the Tribunal was in error in relating gratu ity to the consolidated wage in.
stead of the basic wage.
The emphasis in the ruling is on the facts and circumstances affecting the particular industry and the promotion of industrial peace in that field.
Rightly, if we may say so with respect, did the Court high light the view that deter mination of gratuity is hot based on any definite rules and each case must depend upon the prosperity of the concern, needs of the work, men and the prevailing economic condi tions, examined in the light of the auxiliary benefits which the workmen may get on determination of employment.
In short, the core of the matter is the totally of the circumstances and the stage of evolution of industrial relations at a given time What held good a decade ago may be given the go by years later.
99 Another leading case on the question of gratuity is the British Paints(1) where, after referring to the special features of the particular industry.
and the other benefit schemes enjoyed by the employees, the Court referred to May & Baker where basic wages were treated as the basis and British India Corporation where 'gross salary i.e., basic wages plus dearness allowance ' was held to be the basis.
It may be noted that in this case the minimum qualifying serv ice for gratuity was held to be 5 years except in cases where termination resulted from resignation by the employee.
In Hydro Engineers(2) this Court apparently upheld the contentions now urged before us by Shri Shroff but stressed that no hard and fast rule could be laid down and each case must be decided on its own circumstances.
In Hindustan Antibiotics(3), again, this Court high lighted the relevant circumstances upon which the discre tion of the Tribunal could play, viz., the stability of the concern, the profits made in the past, the future prospects and capacity etc.
This Court declined to disturb the gratu ity scheme in that case even though the wages which formed the basis of the gratuity included dearness allowance.
In Bengal Chemical & Pharmaceutical Works Ltd., Calcut ta(4) a Bench of this Court entered the caveat which we have underscored in the earlier part of this judgment that: "a free and liberal exercise of the power under article 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve industrial peace.
Though article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdic tion only in cases where awards are made in violation of the principles of natural jus tice, causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this Court and discloses such other exceptional or special circumstances which merit the consideration of this Court.
" It was also mentioned, what is not oft remembered when interfering with awards, that the Industrial Disputes Act is "intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration.
Awards are given on circum stances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts." (1) (2) ; (3) (4) [1959] Suppl.
S.C.R. 136.
100 This approach is what we earlier described as the Tribu nal 's legal hunch or horse sense.
Even Gqziabad Engineer ing Co.,(1) on which Shri Shroff heavily relied, accepts the position that while gratuity is usually related to the basic wage, a departure by relating it to the consolidated wage may be made if there be some strong evidence or excep tional circumstance justifying that course.
Calcutta Insurance Co. Ltd. (2) also placed accent on the practical approach in industrial adjudication and did not interfere with the qualifying service of 5 years except in the case of resignation by the employee where the quali fying period was raised to 10 years.
This survey of the cosmos of case law can expand, but no service will be rendered by that exercise.
All that we need say is that there is nothing fundamentally flawsome in the 5 year period being fixed as qualifying service.
The real reason why some cases like British Paints required a qualifying period of 10 years was that a longer minimum period for earning gratuity in the case of voluntary retire ment or resignation would ensure that workmen do not leave one concern for another after putting in the short minimum service qualifying for gratuity.
We think that current conditions must control the tribu nal 's conscience in finalizing the terms of the gratuity scheme.
Taking things as they are, in our country presently there is unemployment at the level of workers that being the category we are concerned with.
Colossal unemployment means that the worker will not leave his employment merely because he has qualified himself for gratuity.
In an econo, mic situation where there is a glut of labour in the market and unemployment stares the working class in the face it is theoretical to contend that employees will hop from industry to industry unless the qualifying period for earning gratui ty is raised to 10 years.
The tribunal was realistic in fixing 5 years as the period of eligibility.
Our industrial realities do not provide for easy mobility of labour.
What is more, the sense of national consciousness in this field is reflected in the which fixes a period of 5 years as the qualify ing period for earning gratuity.
Decisions have been brought to our notice some of which refer to basic wages and others to consolidated wages as the foundation for computation of gratuity.
These are matters of discretion and the "feel" of the circumstances prevalent in the industry by the Tribunal and, unless it has gone haywire in the exercise of its discretion the award should stand.
We see that in the also, not basic wages but 'gross wages inclusive of dearness allowance, have been taken as the basis.
This, incidental ly, reflects the industrial sense in the country which has been crystallised into legislation.
(1) ; (2)[1967] 2 S.C.R. 596.
101 All things considered, we are disinclined to alter the award on the two critical issues on which it was challenged.
However, there are certain minor clarifications which will eliminate ambiguity and, on that both sides are agreed.
We clarify that wages will mean and include basic wages and dearness allowance and nothing else.
This corresponds to Sec.
2(s) of the Act.
Likewise, we declare that qualify ing service is continuous service (counted with reference to completed years) as defined in Sec. 2(c).
We hold that the award will operate as directed therein i.e. from the date of reference of the dispute.
Both sides agree, in their state ment of the case, that in clause (a) of the award the ex pression due to continued ill health or on being incapaci tated ' governs only resignation although we feel on compas sionate grounds it should govern both situations.
The ambi guity must be resolved in favour of the workers.
In regard to the other conflicts of construction possible, as set out in grounds 7 and 8 of the appellant 's statement of case, we resolve them in favour Of the workmen, abandonment of serv ice being too recondite and the amount involved too trivial for variation by this Court.
Shri I.N. Shroff fairly stated that the Court may make an order regarding costs.
We direct that the appellant do pay the respondents costs which we quantify at Rs. 2000/ .
Out of this sum.
Rs. 1000/will be paid direct to Shri Parekh who has assisted the Court on behalf of the workers and the balance of Rs. 1000/ shall be drawn by the present Presi dent of the Respondent Union.
Our parting thought is that negotiating settlements should be vigorously and systemati cally pursued even by tribunals since litigation, escalat ing.
from deck to deck upto this Court, defeats both, whoev er wins or loses.
This must be a sobering influence on Labour and Management and agencies of conflictresolutions.
That is a legal beacon that can brighten the dark tunnel of industrial conflict and promote national production cheered by shared wealth.

dataset_name: IN-Abs

summary/full:
In an industrial dispute between the appellant mill and its workmen relating to the payment of gratuity, the Indus trial Tribunal framed a gratuity scheme and gave the neces sary guidelines for its implementation.
Special leave was granted to the appellant by this Court on the limited ques tion whether the correct principles on which gratuity should be payable had been followed in this case or not.
Since the making of the award, the was passed, which, by section 4(5) gave an option to the workers to choose between the gratuity scheme under the award and the one under the statute.
The workers, however, did not put in their appearance in this Court.
It was contended on behalf of the appellant that the qualifying period of service for earning gratuity was ten years and for calculating the amount of gratuity basic wages without adding dearness allowance should be the basis as laid down by some decisions of this Court and the tribu nal was wrong in holding 5 years as the qualifying service and basic wages and dearness allowance as the basis for calculating the amount of gratuity.
HELD: There is nothing fundamentally flawsome in the 5 year period being fixed as the qualifying service.
The Tribunal was realistic in fixing the period of eligible qualifying service as continUoUs service counted with refer ence to the completed years as defined in section 2(c) of the Act.
[100 C&F] (1) In some cases, this Court highlighted the view that the determination of gratuity is not based on any definite rules and each case must depend upon the prosperity of the concern, the needs of the workmen and the prevailing econom ic conditions examined in the light of the auxiliary bene fits which the workmen may get on determination of employ ment.
It was also held that stability of the concern, profits made 'in the past, the future prospects and capacity should be the relevant circumstances which the Tribunal should take into account in giving its award.
Awards are ' given on circumstances peculiar to each dispute and the Tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts.
In short, the approach of the Tribunal should be what may be de scribed as its legal hunch or horse sense.
Cases like Gaziabad Engineering Co. accept the position that.
while gratuity is usually related to the basic wage, a departure may be made by relating it to the consolidated wage if there be some strong evidence or exceptional circumstances justifying that course.
The real reason why some cases like British Paints required a qualifying period of 10 years was that a longer minimum period for earning gratuity in the case of voluntary retirement or resignation would ensure that workmen did not leave one concern for another after putting in the short minimum service qualifying for gratuity.
But current conditions must control the Tribu nal 's conscience in finalizing the terms of the gratuity scheme.
Colossal unemployment at all levels of workers in the country today means that a worker will not leave his employment merely because he has qualified himself for gratuity In an economic situation where there is a glut of labour in the market and unemployment stares the working class in the face it is theoretical to contend that employ ees will hop from industry to industry unless the qualifying period for earning gratuity is raised to 10 years.
[98 H; 99D; lOO A, D, E, F.] (2) Wages will mean and include basic wages and dearness allowance and nothing else.
This corresponds to section 2(s) of the Act.
Some of the decisions refer to basic wages and others to consolidated wages as the foundation for 92 computation of gratuity.
These are matters of discretion and the "feel" of the circumstances prevalent in the indus try by the Tribunal and, unless it has gone wrong in the exercise of its discretion the award should stand.
In the also it is not basic wages but gross wages inclusive of dearness allowance which had been taken as the basis.
[101 B; 100 G H] Delhi Cloth & General Mills Co. vs Workmen & Ors. ; , British Paints , Hydro Engi neers ; , Hindustan Antibiotics, , Bengal Chemical & Pharamaceutical Works Ltd., [1959] Suppl.
2 SCR 136, Gaziabad Engineering Co., and Calcutta Insurance Co. Ltd. ; re ferred to.


judgement:
: Criminal Appeal No. 24 of 1972.
(Appeal by Special Leave from the Judgment and Order dated 22 10 1971 of the Madhya Pradesh High Court (Indore Bench) in Crl.
A. No. 292/70).
R.L. Kohli, R.C. Kohli and A.G. Ratnaparkhi, for the appel lant.
M.K. Khan and S.K. Dhingra, for respondent No. 1.
Ram Panjwani and H.S. Parihar, for respondent No. 2.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh convicting the appellant under section 409, Indian Penal Code, and sentencing him to one 110 year 's rigorous imprisonment and to a fine of Rs. 250/ , in default further rigorous imprisonment for three months, in appeal against acquittal at the instance of the complainant (first respondent herein).
The appellant is a senior lawyer of 25 years ' standing in Indore and the complainant was acting as his junior.
The complainant 's father, Dinubhai, was the senior partner of a firm of Chartered Accountant, M/s. Dinubhai & Co., with its registered office in Bombay and a branch office in Indore.
The Indore office was looked after by the second partner, M.C. Mehta.
It appears that the firm was dissolved on July 5, 1960, when Mehta ceased to be a partner and Dinubhai appointed the appellant as counsel and attorney for filing suits and for recovering dues from various parties.
Dinub hai filed a suit, being suit No. 13 of 1962, for recovery of Rs. 12,500/ in the court of the Third Additional District Judge, Indore, impleading M.C. Mehta and one Chandulal Shah as defendants in that suit.
Although the suit was decreed, it appears there were two cross appeals against the decree in the High Court, one by Dinubhai and the other by Chandu lal Shah.
The appellant was appearing for Dinubhai in both the appeals.
He received some amounts in advance from Dinubhai and submitted a statement of account of Shri Dinubhai (exhibit P 1) dated February 9, 1965, wherein two items, namely, Rs. 210/ and Rs. 110/ were mentioned as being towards "paper book charges" respectively on 21 4 1964 and 22 9 1964.
The entry on 22 9 1964 shows that the amount of Rs. 110/ is one of several items mentioned therein as expenses incurred in the appeal flied by Chandu lal Shah against Dinubhai.
So far as the items mentioned in exhibit P 1 on 21 4 1964 including the last item of Rs. 210/ , there is no mention whether the expenditure was actually incurred on that date.
The complainant was not pulling on well with his father for some reason or other and also parted company with his senior, the appellant.
He filed a complaint against the appellant on December 8, 1967, making allegations under sections 409, 468 and 474 IPC.
Ultimately the appellant was charged under section 409 IPC with regard to the amounts of Rs. 210/ and Rs. 110/ which were mentioned in the statement of account (exhibit P 1) received by the complainant on February 10, 1965.
The complainant examined himself and a clerk of the High Court to prove that no paper book charges were deposited on the dates mentioned in the ac counts.
On the other hand a sum of Rs. 26.50 was deposited as paper book charges on March 18, 1965, in the particular appeal.
The appellant denied the charge and stated that there was a typing error in the accounts and the actual figures should have been Rs. 211/(and not Rs. 210/ ) and Rs. 10/ (and not Rs. 110/ ).
When the appellant 's attention had been drawn to these amounts he admitted these to be typing errors and asked for adjustment of the amount of Rs. 300/ towards his fees in the case of Kothari Book Depot.
It is rather curious that a criminal complaint should have been lodged against the appellant nearly three years after the receipt of the accounts by the complainant.
111 The trial court acquitted the accused (appellant herein) by observing as follows : "To sum up, the prosecution has been launched after inordinate unexplained delay, there is no clear and conclusive evidence of the criminal intention and dishonest mental act of the accused, the real aggrieved person has not come with the complainant but has already sought the alternative remedy in Civil Court which is being already pursued.
The question whether or not the adjustment made by the accused towards his fees was proper can more appropriately be decided by Civil Court.
Accused having reasonable claim against the complainant for any equivalent sum of money, his user of the disputed sum for his own purpose will not amount to criminal breach of trust".
The High Court, on the other hand, held that the charge was established against the accused and set aside the ac quittal.
The High Court held that the explanation of the accused did not appear to be true and, therefore, could not be accepted.
It further held that it was clear that on the dates mentioned in the accounts no amounts were deposited as paper book charges in the High Court.
The High Court con cluded as follows : "Consequently it cannot be doubted that the respondent, who as an agent of the com plainant 's father was entrusted with the amounts, showed false expenses and thereby kept the amounts with himself.
In the face of these facts and also on the finding that the explanation given by the respondent cannot be accepted, the respondent cannot escape con viction under section 409 I.P.C. as that was the only charge framed against him by the trying Magistrate".
The statement of account (exhibit P.I ) as well as the correspondence between the appellant and the complainant 's father, who was client, dearly show that there was mutual accounting and adjustment between them.
The mere fact that certain amounts were in the hands of the appellant and the accounts submitted were incorrect would not lead to the inevitable conclusion that the appellant committed criminal breach of trust in respect of these items.
The complainant, who was a junior attached to him and was looking after his cases could himself easily find out the discrepancies in the accounts and in a normal course he would have drawn the attention of his senior on receipt of the statement of account in February 1965.
The accused in his statement under section 342, Criminal Procedure Code, stated, inter alia, as follows : "Typing error has occurred in the statement of account of exhibit P 1.
The differ ence of Rs. 300.00 which has occurred, has been adjusted against my fees in Kothari Book Depot 's case at the instance of Suryakant.
I have given a receipt for it which is in possession of Suryakant.
Surya kant used to maintain account of Court expenses of Dinub hai 's cases in a register.
That register is with Suryakant.
112 Suryakant used to remain present in the court on each date along with me.
He knows every thing.
Nothing is concealed from him.
There is Gadbad of money between Suryakant and his father.
Hence on the instigation of other people this false case has been launched.
Suryakant had got typed the statement of account exhibit P I from the register".
On one side we have the solitary statement of the complainant.
Even his father is not there to corroborate him or even to show that he authorised him to file the com plaint.
As against his statement, we have the explanation of the appellant.
The trial court who had an opportunity to see the complainant giving evidence did not choose to rely on his version of the case and preferred to accept the explanation of the appellant.
In this state of the evidence we fail to see how the High Court, in an appeal against acquittal, thought it possible to hold the charge as proved.
While the complaint was filed on December 8, 1967, a few months earlier on May 16, 1967, a lawyer 's notice was ad dressed to the appellant on behalf of Dinubhai.
We may extract the following passage from that letter: "My client has instructed me to call upon you to remit to him the balance of Rs. 1700/ lying with you (after deducting your fees of Rs. 3300/ from the amount of Rs. 5,000/ paid to you) within 24 hours of the receipt of this reply otherwise my client will not only place the matter before the Bar Council of M.P. but, if so advised, will also file a suit for its recovery against you at your cost and consequences which please note".
This would clearly show that neither Dinubhai nor his lawyer ever thought of attributing any dishonest intention or criminal intent to the appellant.
In view of this letter it is not possible to accept the sole testimony of the complainant imputing dishonest intention on the part of the appellant.
We are clearly of opinion that there was no sufficient ground for the High Court to interfere with the acquittal in this case when the reasons given by the trial court were weighty and cogent and there was no compelling justification to take a contrary view.
At the conclusion of the argument by Mr. Khan on behalf of the complainant pressing for conviction of the appellant, Mr. Panjwani,appearing on behalf of the State, fairly enough, did not think it proper to support the judgment of the High Court.
In the result the appeal is allowed.
The judgment of the High Court is set aside.
The appellant shall be dis charged from his bail bond.
P.B.R. Appeal allowed.

summary/full:
The appellant was a lawyer, under whom the complainant (first respondent) was a junior.
The appellant was engaged as counsel in certain cases by the complainant 's father.
The appellant submitted statement of accounts to the complain ant 's father in respect of the sums spent by him in the suits.
After a lapse of three years the complainant filed a complaint against the appellant making allegations under sections 409, 468 and 474 I.P.C. The trial Court acquitted him holding that the prosecution had been launched after inordi nate delay and that there was no clear and conclusive evi dence of criminal intention and dishonest mental act on the appellant 's part.
The High Court, on appeal, set aside the acquittal holding that the appellant 's explanation in regard to the discrepancies was not true and could not be accepted.
Allowing the appeal to this Court, HELD: There was no sufficient ground for the High Court to interfere with the acquittal in this case when the rea sons given by the trial Court were weighty and cogent and there was no compelling justification to take a contrary view.
[112 F] The mere fact that certain amounts were in the hands of the appellant and the accounts submitted were incorrect would not lead to the conclusion that the appellant commit ted criminal breach of trust.
[111 F] In the instant case, the complainant was a junior of the appellant and he could himself easily find out the discrep ancy in the accounts and could have drawn the appellant 's attention to it.
The complainant 's father did not authorise him to file the complaint nor was he examined to corroborate the complainant.
Secondly, in a notice issued to the appel lant by the complainant 's father the latter did not at tribute any dishonest intention or criminal intent on for mer 's part.
The High Court was wrong in holding the charge as proved and in reversing the order of the trial Court.
[111 G; 112 C]


judgement:
Appeal No. 721 of 1972.
(From the Judgment and Order dated 13.10.1970 of the Punjab & Haryana High Court in Civil Writ No. 1831 of 1968).
K.S. Suri, for the appellants.
R.S. Sharma and A. D. Mathur, for the respondent.
The Judgment of the Court was delivered by SARKARIA, J.
The short question involved in this appeal on certificate, directed against a judgment of the High Court of Punjab and Haryana is: Whether the sales made to.
a dealer who has applied for registration under the Punjab General Sales Tax Act 1948, before his application is al lowed, are to be treated as sales to an unregistered dealer or registered dealer, when the registration is effected from the date of the application ? M/s.
Patiala Biscuits Manufacturers Pvt.
Ltd. (hereinaf ter referred to as the assessees) appointed M/s. Rajpura Biscuit Company as their sole selling agents.
The agents made an application on 1.1.1966 in the appropriate form for registration as a dealer under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act).
On the same day, the agents (referred hereafter as the purchasing dealer) made a similar application for obtaining registration cer tificate, under the Central Sales Tax Act.
The appropriate Assessing Authority accepted both these applications and on March 27, 1966 issued the registration Certificate with effect from 1.1.1966.
The assessees filed their return for the quarter ending March 31, 1966 in April, 1966 and claimed deductions under section 5(2)(a)(ii) in respect of sales of the value of Rs. 32,56,267.35 made by them between 1 1 1966 to 31 3 1966 to the purchasing dealer.
The Assessing Authority, Patiala rejected this claim and assessed tax, amounting to Rs. 1,99,558.94.
on the proceeds of the sales made by the asses sees to the purchasing dealer between 1.1.1966 and 27.3.1966.
The reason given by the Assessing Authority for refusing this relief to the assessees was that during this period, the purchasing dealer was not in possession 87 of the registration certificate, the same having been issued only on March 27, 1966.
The assesses impugned the validity of this order of the Assessing Authority by a writ petition in the High Court, under Articles 226/227 of the Constitution.
The High Court held that since the certificate of registration had been granted with effect from 1 1 1966, which was the date of the application, it could not be said that the sales during this period commencing from 1.1.1966, were made to an unregis tered dealer.
It further noted that apart from the asses sees, the purchasing dealer had also, been taxed with regard to the same transactions resulting in double taxation which was against the basic scheme of the Act, the Rules and the notifications issued thereunder.
On these premises, the High Court allowed the writ petition and quashed the im pugned order to the extent to which it was contrary to s.5(2)(a)(ii) of the Act in respect of sales made between 1.1.1966 and 27.3.1966.
The High Court however granted a certificate under article 133(1)(a) and (c) of the Constitu tion, on the basis of which the Revenue has come in appeal to this Court.
It would be appropriate to have, at the outset, a look at the relevant provisions of the Act and the Rules.
The material provision is in section 5(2) (a) (ii) which reads as under: "In this Act the expression "taxable turnover" means the part of a dealer 's gross turnover during any period which remains after deducting therefrom: (a) his turnover during that period on . . (i) . . (ii) sales to a registered dealer of goods . declared by him in a prescribed form as being intended for re sale in the State of Punjab . .
Provided that in case of such sales, a declaration duly filled up and signed by the register dealer to whom the goods are sold and containing prescribed particulars on a pre scribed form (obtained from the prescribed authority) is furnished by the dealer who sells the goods.
" Section 7 provides for the registration of dealers.
It says: "(1) No dealer shall, while being liable to pay tax under this Act, carry on business as a dealer unless he has been registered and possesses a registration certificate.
(2) Every dealer required by sub section (1) to be registered dealer shall make appli cation in this behalf in the prescribed manner to the prescribed authority.
(3) If the said authority is satisfied that an application for registration is in order, he shall, in accordance with 7 240SCI/77 88 such rules and on payment of such fees as may be prescribed, register the application and grant him a certificate of registration in the prescribed forms which may specify the class or classes of goods for the purpose of sub clause (ii) of clause (a) of subsection (2) of section 5.
(4) . (5) When any dealer has paid the amount of penalty imposed under section 23 in respect of any contravention of sub section (1) of this section, the Commissioner shall register such dealer and grant him a certificate of regis tration, and such registration shah take effect as it had been made under sub section (3) of this section on the dealer 's applica tion.
In case a dealer commits default is not getting himself registered as required by Sec. 7, certain consequences follow.
Under s.11(6) such a defaulting dealer is liable to be assessed on the basis of best judgment and the Assessing Authority may, in addition to the tax so assessed, impose on him by way of penalty a sum not exceeding one and half times that amount.
Such a defaulter is further liable to prosecution under section 23 (1) for carrying on business as a dealer in contravention of the provisions of section 7(1), and on conviction, he can be sentenced to fine not exceeding Rs. 1,000/ .
The application for registration has to be made to the appropriate Authority in the prescribed Form.
The manner in which such an application is to be dealt with by the Authority is provided in Rule 5 of the Punjab General Sales Tax Rules, 1949 framed under the Act.
This Rule as it stood before the amendment of October 10, 1966 was as follows: "When the appropriate Assessing Authori ty, after making any enquiry that he may think necessary, is satisfied that the applicant is a bona fide dealer and has correctly given all the requisite information that he has deposit ed the registration fee into the appropriate Government treasury and that the application is in order, he shall register the dealer and shall issue a Certificate of registration in Form S.T.III or S.T. IV according as the dealer has one or more than one place of business in Punjab.
" Rule 5 was amended by Punjab Government Notification No. GSR237/PA 46/48/S 27/Amd(5)/66 dated 10th October, 1966, and in place of the last sentence commencing with the words "in .Form S.T . "of the old Rule, the following was substituted: " . in Form S.T. IV which shall be valid from the date of receipt of application for registration by the Assess 89 ing Authority or from the date of commencement of the liability to pay tax, whichever is later.
" Ride 26 provides: "A dealer, who wishes to deduct from his gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provisions of subclause (ii) of clause (a) of sub section (2) of section 5 of the Act, shall, on demand, pro duce in respect of such a sate the copy of the relevant cash memo or bill, according as the sale is a cash sale or a sale on credit, and a declaration in writing in Form S.T. XXII by the purchasing dealer or by his agent, that the goods in question are intended for re sale in the State of Punjab or such goods are specified in his certificate of registration for use by him in the manufacture in the State.
of Punjab of any goods for sale.
" Rule 26 was also amended later.
The amended Rule is, in substance, the same, excepting that it was clarified that the dealer claiming deduction has to produce the declaration of the purchasing dealer, in the prescribed form, at the time of assessment.
The main contention of Shri K.S. Suri, learned Counsel for the appellant is that the declaration form prescribed under the old Rule 26, as it stood at the material time, required the purchasing dealer to specify at the time of the sale, in the prescribed Form S.T. XXII, the number of the registration certificate.
Stress has also been placed on the words "registered and possesses" used in sub section (1) of Sec. 7, which according to Counsel, indicate that a dealer having a taxable turnover, cannot validly carry on his business, unless he is actually registered and is in physical possession of the registration certificate issued under Sec. 7.
A compliance with the aforesaid mandatory requirement of section 7(1) and Rule 26, Form XXII proceeds the argument could be possible only if at the time of the sales in question, the purchasing dealer as well as the selling dealer, both, were in actual possession of the requisite registration certificates.
Shri Suri has adopted the reasoning of the Sales Tax Tribunal in Appeal No. 109 of 1967 68 (M/s. Darshan Soap Mills, Batala Road, Amritsar vs The State) decided on 12 2 1968.
It is contended that Rule 5, as it stood at the material time, did not empower the registering Authority to grant the registration Certificate retrospectively, with effect from the date of the application.
It is maintained such a power was conferred on the Authority, only by the Punjab Govern ment Notification No. GSR 237/PA 46/48/S 27 Amd.(5)/16 with prospective effect from October 10, 1966.
Taking the last point first, we are of opinion that the amendment of Rule 5 by the Punjab Government Notification, dated October 10, 1966, did not confer any new or additional power on the registering Authority.
The power to grant the registration Certificate with effect from the date of the application was already there.
The amendment was only clarificatory of the law as it stood prior to it.
It only 90 made explicit which was formerly implicit.
A definite indication is available in the language of sub section (5) read with sub sections (2) and (3) of section 7, .
itself, that the registering Authority had the power to give effect to the registration from the date of making the application.
Be that at it may, the words "has been registered and possesses a registration certificate" used in sub section
(1 ) of section 7 have to be construed in accord with the general tenor of the Section as a whole, and in a manner which would avoid oppressive, unreasonable and anomalous results.
As rightly pointed out in Chandra Industries vs The Punjab State and ors.(1), it could never be the intention of the Legislature that a dealer liable to pay tax who has in compliance with the requirements of sub sections (2) and (3) of section 7, "done all which lay in power to obtain the regis tration certificate, should pull down his shutters and keep his business closed under pain of being punished under section 23(1) and await indefinitely the pleasure and leisure of the prescribed authority in issuing the registration certifi cate.
Adoption such a construction would be to make the applicant liable to punishment for the laches and delays of the authority and its office." As regards the requirement enjoined by the Form pre scribed under Rule.
26, to enter the number of the registra tion certificate in the declaration of the purchasing dealer at the time of sale, the same has to be viewed with rea sonable flexibility and reconciled with Rule 5 as clarified by the Notification, dated October 10, 1966.
Thus con strued harmoniously with the related statutory provisions, the requirement of Rule 26 will be substantially satisfied, if the number of the registration certificate granted subsequently, but covering retrospectively the period of the sales in respect of which deduction is claimed is supplied by the claimant along with the declaration of the purchasing dealer at the time of assessment to the Assessing Authority.
It is thus clear as daylight that at the relevant time, also, the registering Authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing the applica tion.
A perusal of the registration certificate would show that it was, in terms, made effective from January 1, 1966.
This is manifest from the words "the dealer is liable to pay tax w.e.f.
1.1.1966" used by the Authority, prominently, in the heading of the Certificate.
It necessarily follows, therefore, that during the period from 1.1.1966 to 27.3.1966, also, the purchasing dealer was a registered dealer possessing a registration Certificate within the Contemplation of section 7(1) of the Act.
This being the correct position, the assessees; were enti tled to the deduction under section 5(2)(a)(ii) of the Act in respect of the sales made by them to the purchasing dealer during the whole of the quarter ending 31st March 1966.
The High Court was therefore, right in determining the question posed, in favour of the assessees and against the Revenue.
The appeal fails and is dismissed with costs.
P.B.R Appeal dismissed.

summary/full:
According to section 5(2)(a)(ii) of the Punjab General Sales Tax Act, 1948, taxable turnover means the part of a deal er 's gross turnover during any period which remains after deducting therefrom the turnover during that period, on sales to a registered dealer of goods declared by him in a prescribed form as being intended for re sale in the State.
Section 7(1) provides that no dealer shall carry on business as a dealer unless he has been registered and possesses a registration certificate.
Rule 5 of the Punjab General Sales Tax Rules, 1949 as amended in October 1966 provides that the certificate of registration issued by the Assessing Authority shall be valid from the date of receipt by him of the application for registration or from the date of Commencement of the liability to pay tax whichever is later.
Rule 26 provides that a dealer claiming deduction under section 5(2)(a)(ii) shall produce on demand the cash memos or bill and a declaration in writing by the purchasing dealer that the goods specified in the certificate of regis tration are for use by him.
The assessee (respondent) and the purchasing dealer, the sole selling agent of the assessee, made applications on January 1, 1966 for registration as dealers.
The registra tion certificates were issued to them on March 27, 1966 with retrospective effect from January 1, 1966.
The Assessing Authority rejected the assessee 's claim for deduction under section 5(2)(a)(ii) of sales made by them to the purchasing dealer on the ground that during the period between January 1 and March 31, 1966, the purchasing dealer was not in possession of the registration certificate.
In a petition under article 226 of the Constitution the High Court held that since the certificate of registration had been granted with effect from January 1, 1966, i.e. the date of application, it could not be said that the sales during the quarter were to an unregistered dealer.
On appeal it was contended that to be entitled to deduc tion under the Act both the purchasing and selling dealers 'should be in physical possession Of the registration cer tificate at the time of sale.
Dismissing the appeal, HELD: The assessees were entitled to deduction under section 5(2)(a)(ii) in respect of sales made by them to the purchas ing dealer during the quarter.
[90 G] (a) At the relevant time, the registering authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing of the application.
The amendment of r. 5 made in October 1966 did not confer any new or additional power on the registering authority but was only clarificatory of the law.
The language of section 7 is clear that the registering authority had the power to give effect to the registration from the date of making the application.
[90 F; A] 86 (b) The words "has been registered and possesses a registra tion certificate" in section 7(1) should be construed in accord with the general tenor of the section as a whole, and in a manner which would avoid oppressive, unreasonable and anomalous results.
So construed it could never be the intention of the legislature that a dealer liable to pay tax, who has in compliance with the requirements of section 7(2) and (3) done all which lay in his power to obtain the regis tration certificate, should pull down his shutters and keep his business closed under pain of being punished and await indefinitely the pleasure and leisure of the prescribed authority in issuing the registration certificate.
Adoption of such a construction would be to make an applicant liable to punishment for the laches and delays of the authority and its office.
[90 B C] Chandra Industries vs The Punjab State & Ors. 29, S.T.O. 558, approved.
(c) The requirement of r. 26 will be substantially satisfied if the number of the registration certificate is supplied by the claimant alongwith the declaration of the purchasing dealer at the time of assessment to the Assessing Authority.
[90 E]


judgement:
: Criminal Appeal No. 343 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 27 1 1975 of the Rajasthan High Court in D.B. Crl.
Appeal No. 575/74) S.M. Jain, I. Makwana and D. Shandari, for the appellant.
Doongar Singh and S.K. Garnbhir, for the respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
The respondents were tried by the Sessions Judge, Merta (Rajasthan) for offences under sections 302, 302/149 and some other minor sections of the Indian Penal Code.
Respondent Goparam was acquitted of all the charges.
The other respondents also were acquitted of the charges under .sections 302 and 302/149, IPC.
Respondent Sangram was convicted under section 304 Part 11, IPC.
Respondent Dayal ram was convicted under section 324 IPC.
Respondents Budharam and Ramdeen were convicted under section 323 140 Being aggrieved by the judgment of the Sessions Judge, the State of Rajasthan preferred an appeal against acquittal of the major charges under section 378 of the Code of Crimi nal Procedure, 1973.
The Sessions Judge delivered the judgment on March 30, 1974 and the Code of Criminal Procedure, 1973, came into force from April 1, 1974.
The appeal was, therefore, preferred under the new Code.
It appears that the State of Rajasthan preferred a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, on June 27, 1974, which was within the period of limitation prescribed under article 114(b) of the .
Article 114(a) of the , provides for a period of limitation for appeal from.
an order of acquittal under subsection (1) or sub section (2) of section 417 of the Code of Criminal Procedure, 1898 (hereinafter to be described as the Old Code).
The being an act of the year 1963, does not naturally refer to section 378 of the Code of Criminal Procedure Code, 1973.
Section 378 of the Code of Criminal Procedure, 1973, is equivalent to section 417 of the Old Code with an important difference in case of appeal against acquittal by the State.
Under the Old Code there was no provision for taking leave of the High Court by the State for presentation of an appeal to the High Court against an original or appellate order of acquittal.
There was, however, provision for obtaining special leave to appeal under section 417(3) of the Old Code against an order of acquittal in any case instituted upon complaint.
With some changes about limitation, with which we are not con cerned, provision for special leave to appeal in any case instituted upon complaint has been retained in the new Code.
Unlike in the Old Code, section 378(3) provides that no appeal under sub section (1) or sub section (2) thereof shall be entertained except with the leave of the High Court.
Such a. provision for obtaining leave of the High Court by the State was absent in the Old Code.
Since the State flied an appeal against acquittal in this case soon after the coming into force of the new Code, the State of Rajasthan preferred an application describing it as a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, with a prayer "to accept this petition to file an appeal in the present case . "Although the application was described as one under section 387(3) of the Code of Criminal Procedure, all the facts and other requisites for a memorandum of appeal, including the grounds on which the appeal was rounded, were given in as great a detail as was necessary.
The High Court after hearing the State granted leave to appeal on August 16, 1974.
The State thereafter filed again a petition of appeal on September 10, 1974.
This date is clearly.
beyond the period of ninety days prescribed under article 114(e) of the .
The High Court dismissed the appeal on January 27, 1975 as time barred.
In view of section 8 of the , it is not disputed before us that article 114(a) is applicable in this case.
The respondents, however, submit that the petition of appeal should have 141 been presented within ninety days of the judgment of the Sessions Judge which was on March 30, 1974.
Since that was not done and there was not even an application for condona tion of delay, the High Court had no alternative then to dismiss the appeal as time barred.
The respondents further add that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining leave of the High Court.
It was, therefore, incumbent upon the appellant to have preferred the petition of appeal within ninety days as prescribed under the law.
The High Court also while refusing leave to appeal to the Supreme Court observed in its order that "the practice of this court is that separate memo of appeal has to be filed in all matters relating to the grant of leave to appeal under section 378 Cr. P C.".
It is difficult to appreciate the reference to practice, by the High Court, so far as appeals by State are concerned when the new Code of Criminal Procedure, for the first time, provided for obtaining leave to appeal by the State only from April 1, 1974.
It is admitted that there are no rules laid down by the High Court in the matter of application for leave to appeal by the State.
It is, therefore, not possi ble to decide the matter relying upon the so called practice soon after the provision has been introduced.
The matter will, therefore, have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973.
Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal.
Sub section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court.
Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal.
It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal.
If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time barred if the High Court takes more than ninety days for disposal of the application for leave.
The possibility that the High Court may always in such cases condone the delay on applica tion filed before it does not, in law, solve the legal issue.
The right conferred by section 378(1), Cr.
P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay.
The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.
P.C. which is likely to affect adversely or even perhaps to destroy that right.
Besides, under article 114 of the , in an appeal from an order of acquittal by the State, the period of limitation is 142 ninety days from the date of the order appealed from; where as in an appeal from an order of acquittal, in any case instituted upon complaint, the period is thirty days from the date of the grant of special Leave.
Thus there is a clear distinction between the two types of appeals with regard to terminus a quo under article 114 It is there fore, not fiecessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquit tal at the instance of the State.
Thus appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under sub section (3) of section 378, Cr.
If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dis missed.
We are, therefore, clearly of opinion that the application for leave to appeal, which was made by the State in this case, is equivalent to a memorandum of appeal under section 373(1) read with sub section (3) of that section of the Code of Criminal Procedure 1973.
The fact that the application mentioned section 378(3) is not deci sive of the true character of the applicant1on which to all intents and purposes was a memorandum of appeal.
There was There was therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay in this case.
The petition of appeal was filed within time and the High Court committed an error of law in dismissing the same as time barred.
In the result the appeal is allowed.
The order of the High Court is set aside.
The petition of appeal of June 27, 1974, shall be restored to the file of the High Court and treated as a memorandum of appeal under section 378(1) of the Code of Criminal Procedure, 1973, and, since leave had already been granted by the High Court, the appeal will be disposed of in accordance with law.
Appeal allowed.

summary/full:
The State filed an application under section 378(3) of the Cr.P.C, 1973, for leave to appeal against the acquittal of the respondents, of the charges under section 302 and 302/149 I.P.C., by the Trial Court.
The application, although made under section 378(3) contained all the requisites for a memoran dum of appeal.
The High Court granted the appellant leave to the appeal, but dismissed the appeal filed thereafter, on the ground that it had not been filed within ninety days of the date of judgment appealed from, and was therefore time barred under article 114(a) of the .
Allowing the appeal by special leave the Court, HELD (1) The High Court has not laid down any rules in the matter of application for leave to appeal by the State.
The matter will have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973.
An appeal can be filed by the State within ninety days from the date of the order of acquittal, and a prayer may be included in that appeal for entertaining the appeal under sub section (3) of section 378 Cr.
The appeal may otherwise become time barred if the High Court takes more than ninety days for disposal of the application for leave, and refuses to exercise its jurisdiction to condone the delay.
The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.
P.C. which is likely to affect adversely or even perhaps to destroy that right.
[141 C H] (2) The fact that the appellant 's application mentioned section 378(3) is not decisive of the true character of the application which to all intents and purposes was a memoran dum of appeal.
[142 C D]


judgement:
: Criminal Appeal No. 190 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 15 7 1975 of the Madras High Court in Criminal Appeal No. 162/ 75.
Vineet Kumar and M. Mudgal, for the appellant.
A.V. Rangam and Miss A. Subhashni, for respondent No. 1 K. Jayaram and K. Ram Kurnar, for respondents Nos. 2 4.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellant, Palaniappa Gounder, was convicted by the learned Principal Sessions Judge, Salem, under section 302 of the Penal Code and was sentenced to death on the charge that on August 23, 1974 he had committed the murder of one Sengoda Goundar.
Two appellant 's son and daughter in law were convicted by the learned Judge for abetting the murder and were sentenced to life imprisonment.
The three accused filed an appeal in the High Court of Madras which upheld the appellant 's conviction under section 392 but reduced the sentence from death to imprisonment of life.
However, while reducing the substantive sentence the High Court imposed a fine of Rs. 20,000/ on the appellant and directed that out of the fine, if realised, a sum of Rs, 15,000/ should be paid to the son and daughters of the deceased under section 357(1) (c) of the Criminal Procedure Code, 2 of 1974.
The other two accused were acquitted by the High Court.
We are not concerned in this appeal with the legality of the appellant 's conviction or with the acquittal of his daughter and son in law.
The special leave granted by this Court is limited to the question of the propriety of the fine imposed by the High Court.
The reason and occasion for imposing the sentence of fine was that an application was filed before the High Court under section 482 of the Criminal Procedure Code by a son and two daughters of the decased praying that the appellant, his son and daughter in law be asked to pay to them, as heirs of the deceased, compensation in the stun of Rs. 40,000/ for the death of their father.
Section 482 of the Code under which the heirs of the deceased filed the application for compensation corresponds to section 561 A of the Criminal Procedure Code of 1898.
It saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
A provision 134 which saves the inherent powers of a Court cannot over ride any express provision contained in the statute which saves that .power.
This is put in another form by saying that if there is an express provision in a statute governing a par ticUlar subject matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which arc made advisedly to govern the particUlar subject matter.
From this it will be clear that the application made by the heirs of the deceased for compensation could not have been made under section 482 since section 357 expressly confers power on the court to pass an order for payment of compensation in the circumstances mentioned therein.
That did not, howev er, affect the power of the High Court to deal with the application because though the application was wrongly described as having been made under section 482 the High Court could deal with it as if it were made under section 357 of the Code.
That in fact is what the High Court proceeded to do, for it passed the order of compensation not under section 482 but under section 357(1)(c) of the Code.
Section 357 of the Code of Criminal Procedure, 2 of 1974, reads thus: "357.
Order to pay compensation.
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied : (a) in derraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compen sation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which illdudes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assist ed in disposing of, stolen property knowing or having reasons to believe the same to be stolen, in compensating any bona fide purchas er of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
135 (2) If the fine is imposed in a case which iS subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or of an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a Part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Sessions when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.
" Clauses (a), (b) and (d) of section 357(1) need not be con sidered firstly because the High Court has passed the order of compensation trader cl.
(c) and secondly because those clauses have no application.
No order having been passed by the High Court for derraying the expenses incurred in the prosecution cl.
(a) does not come for consideration.
Clause (b) has no application to cases in which the heirs of a person whose death has been caused apply for compensation because that clause deals with the payment of compensation to the very person to whom.
any loss or injury has been caused as a result of the offence committed against him or his property and when compensation is recoverable by such person in a Civil Court.
Clause (d) deals with a different Class of cases altogether and need not detain us.
Clause (c) of section 357(1) under which the High Court has passed the order for compensation enables the Court to direct that the whole or any part of the fine recovered may be applied in paying compensation to the persons who are under the entitled to recover damages from the person sentenced for the loss resulting to them from the death of the person whose heirs, as described in the Act of 1855, they claim to be.
Since under the Act of 1855, persons who may be compensated are the wife, hus band, parent (including grand parents) and child (including grand children and step children), the application filed in the High Court was maintainable at the instance of the son and daughters of the deceased.
It cannot however be overlooked that the order for compensation can be passed under section 357(1)(c) only when "a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part".
We are concerned in this appeal to examine primarily the legality and propriety of.
the sentence of fine imposed by the High Court because upon that would depend the efficacy and indeed the very existence of the order for payment of com pensation to the heirs of the deceased.
The compensa tion, as 10 240SC1/77 136 provided in the section, has to come out of the fine.
Therefore, if on a proper application of the principles of sentencing, the fine imposed by the High Court is.found to be excessive and has therefore to be reduced, the order regarding the payment of compensation must suffer a corre sponding variation.
There can be no doubt that for the offence of murder Courts have the power to impose a sentence of fine under section 302 of the Penal Code.
That section provides that whoever commits murder shah be punished with death, or imprisonment for life, and "shall also be liable to fine".
That is why section.
357(1) of the Code speaks of "a sentence (includ ing a sentence of death) of which fine forms a part.
" That is only an instance of the practical application of section 302 under which not only a sentence of imprisonment for life but even a sentence of death can legitimately be combined with a sentence of fine.
But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it.
Though, therefore, the High Court had, the power to impose on the appellant a sentence of fine alongwith the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,000/ is justified in the circumstances of the case.
Economic offences are generally visited with heavy fines because an offender who has enriched himself unconscionably or unjustifiably by violating economic laws can be assumed legitimately to possess the means to pay that fine.
He must disgorge his iII gotten wealth.
But quite different con siderations would, in the generality of cases, apply to matters of the present kind.
Thought there is power to combine a sentence of death with a sentence of fine that power in sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose.
In fact the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine.
We cannot, of course, go so far as to express approval of the unqualified view taken in some of the cases that a sentence of fine for an offence of murder is wholly "inapposite" (See, for example, State vs Pandurang Shinde(1), but before imposing the sentence of fine, particularly a heavy fine, alongwith the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called for and if so, what is a proper or adequate fine to impose in the circum stances of the case.
As observed by this Court in Adam Ii Umar Dalal vs The State of Bombay, (2) determination of the right measure of punishment is often a point of great diffi culty and no hard and fast rule can ' be laid down, it being a matter of discretion which is to be guided by a variety of considerations but the court must always bear in mind the necessity of maintaining a proportion between the offence and the penalty proposed for it.
Speaking for the Court Mahajan J. observed in that case that: "in imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the (1) A.I.R. [1956] Bom. 711,714.
(2) 137 character and magnitude of the offence, and where a substan tial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases" (p. 177).
Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,300/ to Rs 4,000/ on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine.
The High Court imposed in the instant case a fine of Rs. 20,000/on the ground that "the deceased was aged about 48 years and was actively supervising the cultivation of the family lands and would have lived for another 15 to 20 years with his abilities in tact, and the loss to the dependents, viz., the son and daughters would be about Rs. 20,000/ ".
Except for the bald and bare statements contained in the petition for compensation filed by the heirs of the de ceased, there is no warrant for the assumption made by the High Court as regards the retention of "abilities in tact" or as regards the extent of "loss to the dependents".
It appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased and then imposed by way of fine an amount which was higher than the compensation because the compensation has to come out of the amount of fine.
Apart from the fact that even the compensation was not fixed on any reliable data, the High Court, with respect, put the cart before the horse in leaving the propriety of fine to depend upon the amount of compensation.
The first concern of the Court, after recording an order of conviction, ought to be to determine the proper sentence to pass.
The sentence must be propor tionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly exces sive.
In fact, the primary object of imposing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realized, which can happen only when the fine is not unduly excessive having regard to all the circumstances of the case, including the means of the offender.
Section 357(1) (c) of the new Code corresponds to s.545(1) (bb) of the Code of 1898 which was introduced by section 110 of Amending Act 26 of 1955.
The statement of objects and reasons of that Act shows that the Joint Committee took the view that, in suitable cases, the person who causes death should compensate the heirs and dependents of the deceased for the loss resulting from the death.
The Joint Committee was in full agreement with the view that in a case where death has resulted from homicide, the Court should award compensation to the heirs of the deceased because that would result "in settling the claim once for all by doing away with the need for a further claim in a civil Court, needless worry and expense to both sides of the party".
The views of the Joint Committee incorporated in the State ment of Objects and Reasons to the Amending Act of 1955 arc undoubtedly entitled to consideration but those views only reflect that there should reside in the criminal Court the power in appropriate cases to pass an order of compensation in favour of the heirs of the 138 deceased.
It cannot, however, be overlooked that since by section 35:7 (1) (c) of the new Code and its precursor, section 545(1)(bb) of the old Code, compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of line is at all called for, particularly when the offender is sentenced to death or life imprisonment.
If so, the fine must not be excessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine.
The High Court, instead of applying its mind to these factors, considered only what compensation the heirs of the deceased ought to receive.
And that question it decided on inadequate data.
in view Of the fact that the appellant was under the sentence of death since its imposition by the Sessions Court and its reduction to life imprisonment by the High Court and since a sentence of life imprisonment has been imposed on the appellant, that being the only other sentence permissible under the law, the fine of Rs. 20,000 imposed by the High Court seems to us unduly excessive.
In the circumstances we reduce it to a sum of Rs. 3,000/ and direct that the fine or so much of it as is recovered shall be paid to the son and daughters of the deceased who had flied the petition in that behalf in the High Court.
S.R. Appeal allowed in part.

summary/full:
The appellant was convicted by the Sessions Judge.
Salem for an offence under section 302 I.P.C. and was sentenced to death.
The High Court modified the sentence of death to one of life imprisonment.
However, exercising its powers under section 367(4) of the Criminal Procedure Code, 1973, the High Court imposed a fine of Rs. 20,000/ under section 357(1)(c) of the Code.
Special Leave was granted, by the court, limiting it into the question of propriety of the fine im posed by the High Court.
Allowing the appeal in part and reducing the fine the Court, HELD: (i) A saving provision which saves the inherent powers of the court cannot over ride an express provision contained in the statute which saves that power.
That did not however affect the power of the High Court to deal with the application merely because the application was wrongly described as having been made under a wrong section.
In the instant case, the High Court correctly passed an order of compensation not under 5.
482 but under section 357(1)(c) of the Code and the application filed in the High Court was main tainable at the instance of the son and daughter of the deceased.
[133 H, 135 F G] (ii) Under section 302 LP.C. not only a sentence of imprisonment for life but even a sentence of death can legitimately be combined with a sentence of fine.
For the offence of murder, the court do have the power to impose the sentence of fine.
[136 B C] (iii) Legitimacy is not to he confused with propriety and the fact that the court possesses a certain power does not mean that it must exercise it.
Though there is power to combine a sentence of death with a sentence of fine that power is to be sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose.
[136 C E] (iv) The first concern of the court, after recording an order of conviction, ought to he to determine the proper sentence to pass.
The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly excessive.
In fact, the primary object of imposing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realised which can happen only when the fine is not unduly excessive, having regard to all the circumstances of the case, including the means of the offender.
[137 D F] (v) Since by section 357(1)(c) of the code of 1973 and its pre cursor section 545(1)(bb) of the code of 1898 compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of fine is at all called for, particularly when the offender is sentenced to death or life imprisonment.
If so, the fine must not be execessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine.
The High Court in the instant case instead of applying its mind to these fac tors, considered only what compensation the heirs ought to receive.
There is no warrant for the assumption made by the High Court as regards the retention of "abilities in fact" or as regards the "extent of loss to the dependants.
" [137 A C, 138 A C] 133 State vs Pandurang Shinde, A.I.R. [1956] Born 711, 714 referred to.
Adamji Umar Dalai vs The State of Bombay, , applied.
(vi) In view of the fact that the appellant was under the sentence of death since its imposition by the Sessions Court and its reduction to life imprisonment by the High Court since a sentence of life imprisonment has been imposed on the appellant that being the only other sentence permis sible under the law, the fine of Rs. 20,000 is unduly exces sive and a sum of Rs. would meet the ends of justice.
[138 C D]