judgement:
iminal Appeal No. 60 of 1954.
Appeal under Article 134(1)(c) of the Constitution of India from the Judgment and order dated the 19th January 1954 of the Calcutta High Court in Criminal Revision No. 865 of 1953 arising out of the Judgment and Order dated the 29th April 1953 of the Court of Third Municipal Magistrate, Calcutta in Case No. 108 A of 1951.
N. C. Chatterji, (section K. Bose and Sukumar Ghose, with him) for the appellant.
G. P. Kar, (A. K. Mukherjee and D. N. Mukherjee, with him) for the respondent.
November 17.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal against the judgment of the High Court of Calcutta affirming the order of the Municipal Magistrate, whereby he dismissed an application filed by the appellant under section 363 of the Calcutta Municipal Act, 1923, hereinafter referred to as the Act, for demolition of certain constructions on the ground that they had been erected without the previous permission of the authorities and in contravention of the prescriptions laid down in the building rules.
The respondent is the owner of house No. 36, Armenian Street, Calcutta.
On 28 10 1950 the Building Inspector of the Corporation discovered that some new masonry structures were being constructed on the fifth storey of that house.
A notice under section 365 of the Act was immediately served on the respondent directing him to stop forthwith further con 997 structions pending an application to the Magistrate under section 363 of the Act.
What followed thereon is graphically described by the learned Chief Justice of the High Court in his order dated 9 4 1954 granting leave to appeal to this Court, as a hide and seek game.
On receipt of the notice, the respondent stopped the work for a few days, and thereby lulled the Building Inspector into the belief that no further constructions would be made.
When the Inspector ceased to inspect the premises daily, the respondent resumed the work, and on 7 11 1950 when the Inspector came again on the scene, he found that the construction was being proceeded with.
A police constable was then posted for watch under section 365 (3) of the Act, and he continued there till 10 11 1950, on which date the respondent wrote to the Corporation that he would not proceed further with the construction.
The police watch was thereupon withdrawn on the respondent paying Rs. 40 being the charges payable therefor.
On 7 12 1950 the Inspector again inspected the premises, and found that the construc tion was being proceeded with, and had a constable posted again for watch.
On 13 12 1950 the appellant lodged a complaint before the Magistrate under section 488 read with Rule 62 of Schedule XVII charging the respondent with constructing two rooms in the fifth storey without obtaining permission.
Section 488(1)(a) enacts that whoever commits any offence by contravening any provisions of any of the sections or rules of the Act mentioned in the first column of the table annexed thereto, shall be punished with fine as specified in the said table.
Rule 62 provides that the erection of a new building shall not be commenced unless and until the Corporation have granted written permission for the execution of the same.
The complaint was heard on 11 4 1951.
The respondent pleaded guilty, and was fined Rs. 200.
While the proceedings under section 488 were pending before the Magistrate, the Corporation would appear to have examined the nature of the constructions put up by the respondent, and found that they contravened Rules 3, 14, 25 and 32 of Schedule XVII, 998 and decided to take action under section 363.
They accordingly issued a notice to the respondent to show cause why action should not be taken under that section.
The respondent appeared by counsel on 13 2 1951, and after hearing him, the appellant decided on 6 3 1951 to move the court for an order under section 363, and the petition out of which the present appeal arises, was actually filed on 4 4 1951.
There was delay in serving the respondent, and after he was actually served which was on 17 9 1951, the case underwent several adjournments, and finally on 29 4 1953 the Magistrate passed an order dismissing the petition.
There was no dispute that the building rules had been contravened.
The Magistrate, however, held that he had a discretion under section 363 whether he should direct demolition, and that this was not a fit case in which an order should be made for demolition, because the constructions being on the fifth storey could not obstruct light and air and thereby inconvenience the neighbours, and there was no complaint from the residents of the locality, and that as the respondent had already been fined in pro ceedings under section 488, an order for demolition would be to penalise him twice over for the same offence.
Against this order, the appellant preferred a revision to the High Court of Calcutta.
That was heard by K. C. Chunder, J. He agreed with the Magistrate that under section 363 the court had a discretion whether it should order demolition or not, and that as the Corporation had taken proceedings under section 488 and was content to have a fine imposed on the respondent for breach of Rule 62, it would be unjust to permit it thereafter to start proceedings under section 363 for the further relief of demolition of the building.
He also commented on the undue ,delay on the part of the Corporation in taking out the application, and took into account the fact that no complaint had been received from the locality.
In the result, he dismissed the revision.
The appellant applied under article 134(1)(c) for leave to appeal to this Court.
Chakravarti, C. J. and 999 section R. Das Gupta, J. who heard this application, considered that two questions of general importance arose on which it was desirable to have the decision of this Court, viz., (1) whether the Corporation was precluded from taking proceedings under section 363 of the Act by reason of its having taken proceedings prior thereto under section 488 of the Act read with Rule 62 of Schedule XVII, and (2) whether the question of inconvenience to neighbours was relevant for the purpose of deciding whether an order for demolition should be made under section 363 of the Act.
They accordingly granted leave under article 134 (1)(c), and that is how the appeal is now before us.
The first question that arises for our determination is whether the present proceedings under section 363 are barred by reason of the application which was filed under section 488.
It is conceded that there is nothing express in the statute enacting such a bar, but it is contended that it is to be implied from the proviso to section 363 that "where the Corporation have instituted proceedings under section 493, no application shall be made under this section".
Admittedly, the appellant instituted no proceedings under section 493; but it is argued that proceedings under section 488 substantially fall within section 493, and that the proviso should therefore be held to be applicable.
Under section 493, if the erection of any new building is commenced without obtaining the writen permission of the Corporation, the owner of the building shall be liable to a fine which may extend up to Rs. 500.
Then, there is a proviso that where an application had been made under section 363, no proceeding shall be instituted under this section.
This corresponds to the proviso to section 363 set out above, and reading the two provisions, it is clear that the proceedings under the two sections are mutually exclusive.
Now, the contention of the respondent is that a prosecution under section 488 for breach of rule 62 of Schedule XVII is, in essence, a prosecution under section 493(a), and that, therefore, the proviso to section 363 becomes applicable.
We are 1000 unable to agree with this contention.
When the Legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided in those sections are not the same, it obviously intends to treat them as distinct, and, therefore, where no question under section 403 of the Code of Criminal Procedure arises, proceedings taken under one section cannot be treated as falling within the other.
The penalty prescribed in section 488 for breach of rule 62 of Schedule XVII is fine up to the limit of Rs. 200, whereas the penalty provided for the same offence under section 493(a) is fine which may extend to Rs. 500.
It will not therefore be in consonance with the intention of the Legislature to hold that proceedings under section 488 are in substance the same as proceedings under section 493, so as to be subject to the disability enacted in the proviso to section 363.
If the intention of the Legislature was that proceedings taken under section 488 read with rule 62 of Schedule XVII should bar proceedings under section 363, it could have said so expressly as it did with reference to proceedings taken under section 493.
To accede to the contention of the respondent would be to read into section 363 limitations which are not to be found there.
We cannot accept such a construction.
It was next argued by learned counsel for the respondent that it was open to the Corporation to have asked for demolition of the building in the proceedings taken by it under section 488, and as it did not ask for it and was content with the imposition of fine, it was precluded from claiming that relief in the present proceedings.
This argument is based on section 536, which is as follows: "When under this Act or under any rule or bylaw made thereunder any person is liable, in respect of any unlawful work, (a) to pay a fine, and (b) to be required to demolish the work, a Magistrate may, in his discretion and subject to the provisions of sections 363, 364 and 493, direct the said person to pay the fine and also to demolish the work".
1001 In his order dated 9 4 1954, the learned Chief Justice expressed a doubt whether the Corporation could apply for a demolition order, when instituting an application under section 488 for breach of Rule 62 of Schedule XVII.
We are inclined to share this doubt.
What Rule 62 prohibits is the erection of a building without permission, and under that Rule, the breach is complete when the erection has commenced, without reference to whether the construction is being carried on or completed.
A question of demolition cannot therefore arise with reference to a breach of Rule 62.
It can arise only when the construction of the building is carried on or completed otherwise than in accordance with the terms of the permission or in breach of any of the provisions of the Act or the rules.
Now, in the table annexed to section 488, while a breach of Rule 62 of Schedule XVII is made punishable with fine which may extend to Rs. 200, there is no similar provision with reference to breach of Rules 3, 14, 25 and 32 of that Schedule.
But there is, instead, a provision that when a direction is asked for under section 363(1) for demolition, an order can be passed imposing fine which may extend to Rs. 250.
Under that section, it should be noted, an application for an order for demolition can be made on three grounds, viz., (1) that the erection of building has been commenced without permission, (2) that it has been carried on or completed otherwise than in accordance with the terms of the permission, or (3) that it has been carried on or completed in breach of the provisions contained in the Act or the rules.
But there is this difference between an application based on ground No. 1 aforesaid and one founded on grounds Nos. 2 and 3, that while a question of demolition cannot arise with reference to the former when the charge is com mencement or the construction without permission and at that stage no question of demolition of, a building necessarily arises, it does arise as regards the latter.
Therefore, when an application is made under section 488, whether an order could be made under section 536 for demolition will depend on the ground on which it is founded.
And, where, as in the 1002 present case, the application was based solely and exclusively on a breach of Rule 62 of Schedule XVII, no order could have been passed for demolition under section 536.
It is immaterial for the present purpose that the building had been completed when the order was passed on 11 4 1951 on the application under section 488, because the power to pass an order under section 536 would depend on what the charge as actually laid in the petition was and not on what it might have been.
But even if the Magistrate had the power under section 536 to order demolition of the building, we cannot hold that the appellant is precluded from asking for such an order under section 363 merely by reason of the fact that the Magistrate had failed to pass such an order, or even that the Corporation did not ask for it in the prior proceedings.
There is no question of the application of any principle of constructive res judicata, and there is nothing in the statute which bars the appellant from claiming relief under section 363.
We cannot therefore uphold the contention that the appellant is precluded in any manner by the prior proceedings taken under section 488 from instituting the present petition under section 363.
In this view, the point for decision is whether the order passed by the Municipal Magistrate and affirmed by the learned Judge in revision is open to attack on the merits.
The respondent contends that the Magistrate has under section 363 a discretion whether he should pass an order for demolition or not, and that this Court should not in appeal interfere with the exercise of that discretion especially when it has been concurred in by the High Court.
Now, the language of section 363 is that the Magistrate may pass an order for demolition of the building, and though the word 'may ' might in some contexts be construed as meaning 'shall ', that is not the sense in which it is used in section 363.
We agree with the respondent that section 363 does not require that when a building is shown to have been erected without permission or completed otherwise than in accordance with the terms of the permission or in breach 1003 of the building rules, an order for its demolition should be made as a matter of course.
In our opinion, it does give the Magistrate a discretion whether he should or should not pass such an order.
That was the construction put in Abdul Samad vs Corporation of Calcutta( ') on section 449 of the Calcutta Municipal Act, (Bengal Act III of 1899) which corresponds to section 363 of the present Act on language which is, so far as the present matter is concerned, the same.
in re enacting the present section in the same terms as section 449 of Bengal Act III of 1899, it must be taken that the legislature has accepted the interpretation put on them in Abdul Samad vs Corporation of Calcutta(1) as correctly representing its intention.
It should accordingly be held that the word 'may ' in section 363 does not mean "shall ', and that the Magistrate has under that section a discretion whether be should pass an order for demolition or not.
Then the question is whether the exercise of that discretion by the courts below is open to review by this Court.
It is a well settled principle that when the legislature entrusts to an authority the power to pass an order in its discretion, an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by an appellate court, unless it can be shown to have been based on some mistake of fact or misapprehension of the principles applicable thereto.
The appellant contends that the orders under appeal are based on mistakes and misapprehensions, and are therefore liable to be reversed, and that contention must now be examined.
The grounds on which the orders of the courts below are based are (1) that there has been considerable delay on the part of the appellant in moving in the matter, (2) that as in the proceedings taken under section 488 the respondent has been fined, an order for demolition was not called for, and (3) that the breach of the building rules has not resulted in any inconvenience to the public, nor has there been any complaint from the residents of the locality about this.
The materials placed before us do not show (1) Cal.
127 1004 that there has been any great delay on the part of the appellant, The learned Judge has stated that the present proceedings for demolition were taken subsequent to the imposition of fine on 11 4 1951 in the proceedings under section 488.
This is a mistake.
The proceedings under section 363 bad been commenced as early as February 1951 when notice was issued to the respondent under the provisions of that section, and the petition was actually filed in court on 4 4 1951.
It is true that the proceedings were pending for nearly two years before the Magistrate, but as observed by the learned Chief Justice, far from the Corporation being responsible for it, it appears to have been the victim of delay on the part of the respondent.
Both the courts below have mainly based their order on the fact that the, Corporation having taken proceedings under section 488 and a fine having been imposed on the respondent, it would be unjust to impose a further penalty for the same offence by way of demolition.
The assumption on which this reasoning rests is that the charge on which the present proceedings have been taken is the same as that on which the petition under section 488 was laid.
But, as already pointed out, that is not correct.
The proceedings under section 488 were taken for erecting a building without permission whereas the present proceedings are taken substantially for breaches of the building rules, which are quite independent of the charge under Rule 62, and the respondent is therefore not punished twice over for the same default.
The learned Judge observes that this was not a fit case for exercising the discretion in favour of the appellant, because in the prior proceedings under section 488, it did not ask for an order for demolition, nor was such an order made by the Magistrate.
That is obviously with reference to section 536 which we have held to be inapplicable to the present case.
Moreover , when that section enacts that the Magistrate could both impose a fine and order demolition of the building, that clearly indicates that the fact that a fine has been imposed should not by itself and with 1005 out more, be taken as sufficient ground for refusing demolition.
The courts below were also influenced by the fact that there was no complaint from the neighbours about the erection of the building.
It must be remembered that the building rules are enacted generally for the benefit of the public, and where those rules have been violated and proceedings are taken for an order for demolition of the building under section 363, what has to be decided is whether the breaches are of a formal or trivial character, in which case the im position of a fine might meet the requirements of the case, or whether they are serious and likely to affect adversely the interests of the public, in which case it would be proper to pass an order for demolition.
Whether there has been a complaint from the public would not as such be material for deciding the question, though if there was one, it would be a piece of evidence in deciding whether the interests of the public have suffered by reason of the breaches.
The position, therefore, is that the orders of the courts below are based on mistakes and misdirections, and cannot be supported.
The conduct of the respondent in adopting a hide and seek attitude in completing the constructions in deliberate defiance of the law calls for severe action.
It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it on payment of fine.
All this would be good justification for making an order for demolition.
But then, it is now nearly five years since the building was completed, and though section 363(2) which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work does not, in terms, apply as the proceedings have been started in time, we do not feel that after the lapse of all this time, an order for demolition is called for in the interests of the public.
We also take into account the fact that the orders in question would not have come before Us in the normal course by way of appeal, 1006 were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and that purpose has been achieved.
On a consideration of all the circumstances, we do not think that this is a fit case in which we should pass an order for demolition.
We should, however, add that we find no justification for the strictures passed on the appellant by the court below.
In the result, the appeal is dismissed.

summary/full:
The Corporation of Calcutta is not precluded from taking proceedings under section 363 of the Calcutta Municipal Act, 1923 by reason of its having taken proceedings prior thereto under section 488 of the Act read with Rule 62 of Schedule XVII.
The question of inconvenience to neighbours is not relevant for the purpose of deciding whether an order for demolition should be made under section 363 of the Act.
When the Legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided in those sections are not the same, it obviously intends to treat them as distinct, and, therefore, where no question under section 403 of the Code of Criminal Procedure arises, proceedings taken under one section cannot be treated as falling within the other.
The word. "may" in section 363 of the Act does not mean "shall" and the Magistrate has under that section discretion whether he should pass an order for demolition or not.
It is a well settled principle that when the legislature entrusts to an authority the power to pass an order in its discretion an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by an appellate court, unless it can be shown to have been based on some mistake of facts or misapprehension of the principles applicable thereto.
In the present case, however, the orders of the courts below were based on mistakes and misdirections and therefore could not be supported.
But the Supreme Court did not think this to be a fit case for an order for the demolition of the buildings in view of certain special circumstances, viz, (1) though section, 363(2), which directs that no appli 126 996 cation for demolition shall be instituted after the lapse of five years from the date of the work, did not, in terms, apply as the proceedings had been started in time, it was nearly five years since the building bad been completed and the interests of the public did not call for its demolition, and (2) the appeal came on a certificate granted under article 134(1)(c) with a view to obtaining the decision of the Supreme Court on certain questions of importance.
Abdul Samzad vs Corporation of Calcutta ([1905] I.L.R. , referred to.


judgement:
: Criminal Appeal No. 230 of 1976.
(Appeal by Special Leave from the Judgment and order dated 11.9.1975 of the Punjab & Haryana High Court in Crl.
Appeal No. 392 of .1975 and Murder Reference No. 14/75).
S.K. lain, for the Appellant.
O.P. Sharma, for the Respondent.
Judgment The Judgment of the Court was delivered by P.N. Bhagwati, J.
S. Murtaza Fazal Ali, J. gave a separate Opinion.
BHAGWATI, J.
This appeal, by special leave, raises an interesting question of law relating to the construction of section 235(2) of the Code of Criminal Procedure, 1973.
The appellant was tried before the Sessions Judge, Ludhiana for.committing a double murder, one of his mother and the other of her second husband.
He was represented by a lawyer during the trial and after the evidence was concluded and the arguments were heard, the learned Sessions Judge ad journed the case to 13th February, 1975 for pronouncing the judgment.
It appears that on 13th February, 1975, the judgment was not ready and hence the case was adjourned to 20th February, 1975 and again to 26th February, 1975.
The Roznamcha of the proceedings shows that on 26th February, 1975 the appellant was present without his lawyer and the learned Sessions Judge pronounced the judgment convicting the appellant of the offence under section 302 of the Indian Penal Code and sentenced him to death.
It was common ground that after pronouncing the judgment convicting the appel lant, the learned Sessions Judge did not give the appellant an opportunity to be heard in regard to the sentence to be imposed on him and by one single judgment, convicted the appellant and also sentenced him to death.
The appellant preferred an appeal to the High Court and the case was also referred to the High Court for confirmation of the death sentence.
The High Court agreed with the view taken by the learned Sessions Judge and confirmed the conviction as also the sentence of death.
The appellant thereupon preferred the present appeal with special leave obtained from this Court.
The appeal is limited to the question of sentence and the principal argument advanced on behalf of the appellant is that in not giving an opportunity to the appellant to be heard in regard to the sentence to 232 be imposed on him after the judgment was pronounced convict ing him, the learned Sessions Judge committed a breach of section 235 (2) of the Code of Criminal Procedure, 1973 and that vitiated the sentence of death imposed on the appel lant.
This argument is a substantial one and it rests on the true interpretation of section 235(2).
This is a new provision and it occurs in section 235 of the Code of Crimi nal Procedure, 1973 which reads as follows: "235 (,1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
" This provision is clear and explicit and does not admit of any doubt.
It requires that in every trial before a court of sessions, there must first be a decision as to the guilt of the accused.
The court must, in the first instance, deliver a judgment convicting or acquitting the accused.
If the accused is acquitted, no further question arises.
But if he is convicted, then the court has to "hear the accused on the question of sentence, and then pass sentence on him according to law".
When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it ' is only after hearing him that the court can proceed to pass the sentence.
This new provision in section 235(2) is in consonance with the modern trends in penology and sentencing proce dures.
There was no such provision in the old Code.
Under the old Code, whatever the accused wished to submit in regard to the sentence had to be stated by him before the arguments concluded and the judgment was delivered.
There was no separate stage for being heard in regard to sentence.
The accused had to produce material and make his submissions in regard to sentence on the assumption that he was ulti mately going to be convicted.
This was most unsatisfacto ry.
The legislature, therefore, decided that it is only when the accused is convicted that the question of sentence should come up for consideration and at that stage, an opportunity should be given to the accused to be heard in regard to the sentence.
Moreover, it was 'realised that sentencing.
is an important stage in the process of adminis tration of criminal justice as important as the adjudica tion of guilt and it should not be consigned to a subsidi ary position as if it were a matter of not much consequence.
It should be a matter of some anxiety to the court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the court.
In most of the countries of the world, the problem of sen tencing the criminal offender is receiving increasing atten tion and that is largely because of the rapidly changing attitude towards crime and criminal.
There is in many of the countries, intensive study of the sociology of crime 233 and that has shifted the focus from the crime to the crimi nal, leading to a widening of the objectives of sentencing and, simultaneously, of the range of sentencing procedures.
Today, more than ever before, sentencing is becoming a delicate task, requiring an inter disciplinary approach and calling for skills and talents vary much different from those ordinarily expected of lawyers.
This was pointed out in clear and emphatic words by Mr. Justice Frankfurter: "I myself think that the bench we lawyers who become judges are not very competent, are not qualified by experience, to impose sentences where any discretion is to be exercised.
I d9 not think it is in the domain of the training of lawyers to know what to do with a fellow after you find out he is a thief.
I do not think legal training gives you any special competence.
I, myself, hope that one of these days, and before long, we will divide the functions of criminal justice.
I think the lawyers are people who are competent to ascertain whether or not a crime has been committed.
The whole scheme of common law judicial machinery the rule of evidence, the ascertainment of what is relevant and what is irrelevant and what is fair, the whole question of whether you can introduce prior crimes in order to prove intent I think lawyers are peculiarly fitted for that task.
But all the questions that follow upon ascertainment of guilt, I think require very different and much more diversified talents than the lawyers and judges are normally likely to posses.
" The reason is that a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record ', if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, society and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possi bility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence.
These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and there fore, the legislature felt that, for this purpose, a separate stage should be provided after convic tion when the court can bear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused.
Hence the new provision in section 235(2).
But, on the interpretation of section 235(2), another question arises and that is, what is the meaning and content of the words "hear the accused".
Does it mean merely that the accused has to be given an opportunity to make his submissions or he can also produce 17 1003 SCI/76 234 material bearing on sentence which has so far not come before the Court? Can he lead further evidence relating to the question of sentence or is the hearing to be confined only to.
oral submissions ? That depends on the interpreta tion to be placed on the word 'hear '. 'Now, the word 'hear ' has no fixed rigid connotation.
It can bear either of the two rival meanings depending on the context in which it occurs.
It is a well settled rule of interpretation, hal lowed by time and sanctified by authority, that the meaning of an ordinary word is to be found not so much in strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be attained.
It was Mr. Justice Holmes who pointed out in his inimitable style that "a word is not a crystal, transparent and unchanged: it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used".
Here, in this provision, the word 'hear ' has been used to give an opportunity to the accused to place before the court various circumstances bearing on the sen tence to be passed against him.
Modern penology, as pointed out by this Court in Ediga Annamma vs State of Andhra Pradesh(1) ' "regards crime and criminal as equally material when the right sentence has to be picked out".
It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element.
It is necessary for this purpose that "facts of a social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined".
We have set out large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full and adequate material relating to these factors would have to be brought before the court in order to enable the court to pass an appropriate sen tence.
This material may be placed before the court by means of affidavits, but if either party disputes the cor rectness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bring ing such material on record.
The hearing on the question of sentence, would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various fac tors beating on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court.
This was also the opinion expressed by the Law Commission in its Forty Eighth Report where it was stated that "the taking of evidence as to the circum stances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to cooper ate in the process." The Law Commission strongly recommend ed that 'if a request is made in that behalf bY either the prosecution or the accused, an opportunity for leading "evidence on the question" of sentence "should be given".
We are, therefore, of the view that the hearing.
(1) ; 235 contemplated by section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors beating on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.
Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings.
The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings.
Now there can be no doubt that in the present case the requirement of section 235(2) was not complied with, inas much as no opportunity Was given to the appellant, after recording his conviction, to produce material and make submissions in regard to the sentence to be imposed on him.
Since the appellant was.
convicted under section 302 of the Indian Penal Code, only two options were available to the Sessions Court in the matter of sentencing the appellant: either to sentence him to death or to impose on him sentence of imprisonment for life.
It the Sessions Court had, in stead of sentencing him to death, imposed on him sentence of life imprisonment, the appellant could have made no griev ance of the breach of the provision of section 235(2), because, even after hearing the appellant, the Sessions Court would not have passed a sentence more favourable to the appellant 'than the sentence of life imprisonment.
In such a case, even if any complaint of violation of the requirement of section 235 (2) were made, 'it would not have been entertained by the appellate court as it would have been meaningless and futile.
But, in the _present case, the Sessions Court chose to inflict death sentence on the appel lant and the possibility cannot be ruled out that if the accused had been given opportunity to produce material and make submissions on the question of sentence, as contemplat ed by section 235(2), he might have been able to persuade the Sessions Court to impose the lesser penalty of life imprisonment.
The breach of the mandatory requirement of section 235(2) cannot, in the circumstances, be ignored as inconsequential and it must be held to vitiate the sentence of death imposed by the Sessions Court.
It was, however, contended on behalf of the State that non compliance with the mandatory requirement of section 235(2) was a mere irregularity curable under section 465 of the Code of Criminal Procedure.
1973 as no failure of jus tice was occasioned by it and the trial could not on that account be held to be bad.
The State leaned heavily on the fact that the appellant did not insist on his right to be heard under section 235(2) before the Sessions Court, nor did he make any complaint before the High Court that the Sessions Court had committed a breach of section 235(2) and this omission on the part of the appellant, contended the State, showed that he had nothing to say in regard to the question of sentence and consequently, no prejudice was suffered by him as a result of non compliance with section 235(2).
This contention is, in my opinion, without force and must be rejected.
It must be remembered that section 235(2) is a new provision intro 236 duced for the first time in the Code of Criminal Procedure, and 1973 and it is quite possible that many lawyers and judges might be unaware of it.
Before the Sessions Court, the appellant was not represented by a lawyer at the time when the judgment was pronounced and obviously he could not be aware of this new stage in the trial provided by section 235(2).
Even the Sessions Judge was not aware of it, for it is reasonable to assume that if he had been aware, he would have informed the appellant about his right to be heard in regard to the sentence and given him an opportunity to be heard.
It is unfortunate that in our country there is no system of continuing education for judges so that judges can remain fully informed about the latest developments in the law and acquire familiarity with modern methods and tech niques of judicial decision making.
The world is changing fast and in our own country, vast social and economic changes are taking place.
There is a revolution of rising expectation amongst millions of human beings who have so far been consigned to a life of abject poverty, hunger .and destitution.
Law has, for the first time, adopted a posi tive approach and come out openly in the service of the weaker sections of the community.
It has ceased to be merely an instrument providing a framework of freedom in which men may work out their destinies.
It has acquired a new dimension, a dynamic activism and it is now directed towards achieving socio economic justice which encompasses not merely a few privileged classes but the large masses of our people who have so far been denied freedom and equality social as well as economic and who have nothing to hope for and to live for.
Law strives to give them social and economic justice and it has, therefore, necessarily to be weighted in favour of the weak and the exposed.
This is the new law which judges are now called upon to administer and it is, therefore, essential that they should receive proper training which would bring about an orientation in their approach and outlook, stimulate sympathies in them for the vulnerable sections of the community and inject a new awareness and sense of public commitment in them.
They should also be educated in the new trends in penology and sentencing procedures so that they may learn to use penal law as a tool for reforming and rehabilitating criminals and smoothening out the uneven texture of the social fabric and not as a weapon, fashioned by law, for protecting and per petuating the hegemony of one class over the other.
Be that as it may, it is clear that the learned Sessions Judge was not aware of the provision in section 235(2) and so also was the lawyer of the appellant in the High Court unaware of it.
No inference can, therefore, be drawn from the omission of the appellant to raise this point, that he had nothing to Say in regard to the sentence and that consequently no prejudice was caused to him.
So far as section 465 of the Code of Criminal Procedure, 1973 is concerned, I do not think it can avail the State in the present ease.
In the first place, non compliance with the requirement of section 235(2) cannot be described as mere irregularity in the course of the trial curable under section 465.
It is much more serious.
It amounts to by passing an important stage of the trial and omitting it altogether, so that the trial cannot be aid to be that contemplated in the Code.
It 237 is a different kind of trial conducted in a manner different from that prescribed by the Code.
This deviation consti tutes disobedience to an express provision of the Code as to the mode of trial, and as pointed out by the Judicial Com mittee of the Privy Council in Subramania Iyer vs King Emperor(1), such a deviation cannot be regarded as a mere irregularity.
It goes to the root of the matters and the resulting illegality is of such a character that it vitiates the sentence.
Vide Pulukurti Kotayya vs King Emperor(2) and Magga & Anr.
vs State of Rajasthan.(3) Secondly, when no opportunity has been given to the appellant to produce material and make submissions in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit.
Section 465 cannot, in the circumstances, have any application in a case like the present.
I accordingly allow the appeal and whilst not interfer ing with the conviction of the appellant under section 302 of the Indian Penal Code, set aside the sentence of death and remand the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the appellant to be heard in regard to the question of sentence in accordance with the provision of section 235 (2) as interpreted by me.
FAZAL ALI, J. I entirely agree with the judgment pro posed by my learned brother Bhagwati, J., and I am at one with the views expressed by him in his judgment, but I would like to add a few lines of my own to highlight some impor tant aspects of the question involved in this appeal.
In this appeal by special leave which is confined only to the question of sentence an interesting question of law arises as to the interpretation of the provisions of section 235(2) of the Code of Criminal Procedure, 1973 hereniafter after referred to as 'the 1973 Code '.
In the light of the arguments advanced before us by the parties the question may be framed thus: "Does the non compliance with the provi sions of section 235(2) of the 1973 Code vitiate the sentence passed by the Court?" In order to answer this question it may be necessary to trace the historical background and the social setting under which section 235(2) was inserted for the first time in the 1973 Code.
It would appear that the 1973 Code was based on a good deal of research done by several authorities includ ing the Law Commission which made several recommendations for revolutionary changes in the provisions of the previous Code so as to make the 1973 Code in consonance with the growing needs of the society and in order to solve the social problems of the people.
Apart from introducing a number of changes in the procedure, new rights and powers were conferred on the Courts or sometimes even on the ac cused.
For instance, a provision for anticipatory bail was introduced to enable the, accused to be saved from (1) (1901) 28 I.A. 257.
(2) (1947) 74 I.A. 65.
(3) ; at pp.
983 984. 238 unnecessary harassment.
In its 48th Report the Law Commis sion,.
while recommending the insertion of a provision which would enable the accused to make a representation against the sentence to be imposed after the judgment of conviction had been passed, observed as follows: "It is now being increasingly recognised that a rational and consistent sentencing policy re quires the removal of several deficiencies in the present system.
One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.
" "We are of the view that the taking of evi dence as to the circumstances relevant to sentenc ing should be encouraged, and both the prosecution and the accused should be allowed to co operate in the process.
" In the aims and objects of 1973 Code which have been given clause by clause, a reference to this particular provision has been made thus; "If the judgment is one of conviction, the accused will be given an opportunity to make his representation, if any, on the punishment proposed to be awarded and such representation shall be taken into consideration before imposing the sen tence.
This last provision has been made because it may happen that the accused may have some grounds to urge for giving him consideration in regard to the sentence such as that he is the bread winner of the family of which the Court may not be made aware during the trial.
" Para 6(d) of the statement of objects and reasons of the 1973 Code ' runs thus: "6.
Some of the more important changes in tended to provide relief to the poorer sections of the community are : "(d) the accused will be given an opportunity to make representation against the punishment before it is imposed. ' ' The statement of objects and reasons further indicates that the recommendations of the Law Commission were examined carefully keeping in view, among others, the principle that "an accused person should get a fair trial in accordance with the accepted principles of natural justice".
In these circumstances, therefore, I feel that the provisions of section 235 (2) are very salutary and contain one of the cardinal features of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him.
239 Section 235 of the 1973 Code runs thus: "235(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
" A perusal of this section clearly reveals that the object of the 1973 Code was to split up the sessions trial or the warrant trial, where also a similar provision exists, into two integral parts (i) the stage which culminates in the passing of the judgment of conviction or acquittal; and (ii) the stage which on conviction results in imposition of sentence on the accused.
Both these parts are absolutely fundamental and non compliance with any of the provisions would undoubtedly vitiate the final order passed by the Court.
The two provisions do not amount merely to a ritual formula or an exercise in futility but have a very sound and definite purpose to achieve.
Section 235 (2) of the 1973 Code enjoins on the Court that after passing a judgment of conviction the Court should stay its hands and hear the accused on the question of sentence before passing the sentence in accordance with the law.
This obviously postulates that the accused must be given an opportunity of making his representation only regarding the question of sentence and for this purpose he may be allowed to place such materials as he may think fit but which may have bear ing only on the question of sentence.
The statute, in my view, seeks to achieve a socio economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society.
The modern concept of punishment and penology has undergone a vital transformation and the criminal is now not looked upon as a grave menace to the society which should be got rid of but is a diseased person suffering from mental malady or psychological frus tration due to subconscious reactions and is, therefore, to be cured and corrected rather than to be killed or de stroyed.
There may be a number of circumstances of which the Court may not be aware and which may be taken into consideration by the Court while awarding the sentence, particularly a sentence of death, as in the instant case.
It will be difficult to lay down any hard and fast rule, but the statement of objects and reasons of the 1973 Code itself gives a clear illustration.
It refers to an instance where the accused is the sole bread earner of the family.
In such a case if the sentence of death is passed and executed it amounts not only to a physical effacement of the criminal but also a complete socio economic destruction of the family which he leaves behind.
Similarly there may be cases, where, after the offence and during the trial, the accused may have developed some virulent disease or some mental infirmity, which may be an important factor to be taken into consideration while passing the sentence of death.
It was for these reasons that section 235(2) of the 1973 Code was enshrined in the Code for the purpose of making the Court aware of these circumstances so that even if the highest penalty of 240 death is passed on the accused he does not have a grievance that he was not heard on his personal, social and domestic circumstances before the sentence was given.
My learned brother has very rightly pointed out that our independence has led to the framing of numerous laws on various social concepts and a proper machinery must be evolved to educate not only the people regarding the laws which have been made for their benefit but also the Courts, most of whom are not aware of some of the recent and the new provisions.
It is, therefore, the prime need of the hour to set up Training Institutes to impart the new judicial re cruits or even to serving judges with the changing trends of judicial thoughts and the new ideas which the new judi cial approach has imbibed over the years as a result of the influence of new circumstances that have come into exist ence.
The next question that arises for consideration is whether noncompliance with section 235(2) is merely an irregular ity which can be cured by section 465 or it is an illegality which vitiates the sentence.
Having regard to the object and the setting in which the new provision of section 235(2) was inserted in the 1973 Code there can be no doubt that it is one of the most fundamental part of the criminal procedure and non compliance thereof will ex facie vitiate the order.
Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this statutory provision, because the accused has been completely deprived of an opportunity to represent to the Court regarding the proposed sentence and which manifestly results in a serious failure of justice.
There is abundant authority for this proposition to which reference has been made by my learned brother.
The last point to be considered is the extent and import of the word "hear" used in section 235(2) of the 1973 Code.
Does it indicate, that the accused should enter into a fresh trial by producing oral and documentary evidence on the question of the sentence which naturally will result in further delay of the trial? The Parliament does not appear to have intended that the accused should adopt dilatory tactics under the cover of this new provision but contem plated that a short and simple opportunity has to be given to the accused to place materials if necessary by leading evidence before the Court bearing on the question of sen tence and a consequent opportunity to the prosecution to rebut those materials.
The Law Commission was fully aware of this anomaly and it accordingly suggested thus: "We are aware that a provision for an oppor tunity to give evidence in this .respect may necessitate an adjournment; and to avoid delay adjournment, for the purpose should, ordinarily be for not more than 14 days.
It may be so provided in the relevant clause.
" 241 It may not be practicable to keep up to the time limit suggested by the Law Commission with mathematical accuracy but the Courts must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed.
I, therefore, agree with the order of my learned Bhag wati, J., that the appeal should be allowed on the question of the sentence and the, matter should be sent back to the Trial Court for giving an opportunity to the accused to make a representation regarding the sentence proposed.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was convicted by the Sessions Court under section 302, IPC, and sentenced to death.
On the date of the judgment his advocate was not present.
The trial court did not give the accused an opportunity to be.
heard in regard to the sentence as required by section 235(2), Cr.P.C., 1973.
The appellant also did not insist on his right to be heard.
The conviction and sentence.
were, confirmed by the High Court.
Even in the High Court the accused did not complain that the trial court had committed a breach of section 235(2).
On the question whether the sentence is vitiated because of the violation .of section 235(2), HELD: The matter should be remanded to.
the trial court for giving an opportunity to the appellant on the question of sentence.
Per Bhagwati, J: (1) Under section 235(1) the court must, in the first instance, deliver a judgment convicting or acquit ting the accused.
If the accused is acquitted, no further question arises.
If the accused is convicted, at that stage, he must be given an opportunity to be heard in regard to the sentence, and it is only after hearing him that the court can pass sentence.
[232 D E] (2) Section 235(2) is a new provision in consonance with the modern trends in penology and sentencing procedures.
Sentencing is an important stage in the process of adminis tration of criminal justice, and should not be consigned to a subsidiary position.
Many factors have to be considered before a proper sentence is passed such as the nature of the offence; the circumstances extenuating or aggravating of the offence; the prior criminal record, if any, of the offender; his age; his record of employment; his background with reference to education; home life.
sobriety and social adjustment; his emotional and mental condition; the pros pects for his rehabilitation; the possibility of his return to a normal life in the community; the possibility of treat ment or training Of the offender; the possibility that the sentence may Serve as a deterrent to crime by the offender or by others and the current community need, if any for such a deterrent in respect to the particular type of of fence.
The material relating to these factors may be placed before the court by means of affidavits.
The hearing contem plated by section 235(2) is not confined merely to hearing oral submissions, but .it is also intended to give an opportunity to the prosecution and the accused to place.
before the court facts and material relating to the various factors bearing on the question of sentence, and if they are con tested by the other side, then to produce evidence for the purpose of establishing those factors.
Otherwise, the hearing would be devoid of meaning and content.
The Court must however be vigilant to see that this hearing on the question of sentence is not abused and turned into an in strument for unduly protracting 1he proceedings.
[232 E; G A B] Ediga Anammo vs State of Andhra Pradesh ; referred to.
(3) If the trial court had, instead of sentencing the appellant to death, imposed on him the sentence of the imprisonment, he would not be, aggrieved by the breach of section 235(2 ), because, even after hearing the appellant, the. trial court could not have passed a more favourable sen tence.
But the trial court imposed death sentence and the possibility cannot be ruled out that if the 230 appellant has been given an opportunity to produce material and make submissions on the question of sentence, he might have been able to persuade, the trial court to impose the lesser penalty.
[235 D E] (4) Since the section is a new provision it is quite possible that many lawyers and judges might be unaware of it.
In the present case obviously the trial court as well as the appellant 's advocate in the High Court were aware of it.
No inference can, therefore, be drawn against the appellant that he had nothing to say from his omission to raise this point in the High Court.
[236 A] (5)(a) Non compliance with the requirement of the sec tion cannot be described as a mere irregularity curable under section 465.
It amounts to by_passing an important stage of the trial so that the trial cannot be said to be that contemplated by the Code.
Such deviation constitutes diso bedience of an express provision of the Code as to the mode of trial and hence cannot be regarded as a mere irregulari ty.
[236 H] Subramania Iyer vs King Emperor (1901) 28 I.A. 257 referred to.
(b) The; violation goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence.
[237 B] Pulukuri Kotayya vs King Emperor, (1947) 74 I.A. 65 and Magga vs State of Rajasthan, ; referred to.
(c) When no opportunity has been given to the appellant in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit and section 465 cannot have any application.
[137 B] Per Fazal Ali J. (1) The 48th Report of the Law Commis sion and the statement of objects and reasons of the 1973 Code of Criminal Procedure show that section 235(2) is a very salutary provision.
It contains one of the cardinal fea tures of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him.
It seeks to achieve a socio econonmic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society.
Section 235 is split up into two inte gral parts, (a) the stage which culminates in the passing of the judgment of conviction or acquittal; and (b) the stage which, on conviction, results in imposition of sentence on the accused.
Both these parts are absolutely fundamental and non compliance with any of the provisions would undoubt edly vitiate the final order passed by the Court.
Section 235(2) enjoins on the Court to stay its hands after passing a judgment oF conviction and hear the accused on the ques tion of sentence before passing sentence.
[238 H; 239 E; C] (2) There may lye a number of circumstances of which the Court may not be aware but which may be taken into consider ation by the court while awarding the sentence, particularly a sentence of death.
The accused must be given an opportu nity of making his representation and placing such materials which have a bearing on the question of sentence.
Parlia ment has not intended that the accused should adopt dilatory tactics under the cover of this new provision but contem plated that a short and simple opportunity has to be given to the accused to place materials bearing on the question of sentence, if necessary by leading evidence, before the .Court, and a consequent opportunity to the prosecution to rebut those materials.
The Court must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed.
[240 F G] (3) Non compliance with the section is not a mere irreg ularity which can be cured by section 465 of the Code.
It is an illegality which vitiates the sentence.
Having regard to the object and the setting in which the new provision was in serted, there can be no doubt that it is one of the most fundamental parts of criminal procedure and non compliance thereof will ex facie vitiate the order.
231 Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this provision, since the accused has been completely deprived of an opportunity to represent to the Court regarding the proposed sentence and this manifest ly results in a serious failure of justice.
[240 B C] [Both the learned Judges indicated that there must be a system of training judges in the application of socio eco nomic laws and in modern methods and techniques of decision making and sentencing procedures]


judgement:
Criminal Appeal No. 203 1976.
358 (Appeal by Special Leave from the Judgment and Order dated 4 2 1976 of the Patna High Court in Crl.
Peti tion No. 441/76.) A.B. Sinha and Pramod Swarup, for the appellant.
S.N. Jha and U.P. Singh, for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
There is a club in Patna called Bankipore Club.
The appellant is the Honorary Secretary of that Club.
It appears that at about 10.25 p.m. on 31st December, 1975 when the New Year eve was being celebrated at the Club, a raid was carried out by the Assistant Commissioner of Ex cise, Inspector of Excise and SubInspector (Excise) and it was found that two women and five men were singing and dancing in the club premises.
The Excise Inspector filed a complaint against the appellant on 2nd January, 1976 charg ing him with having committed offences under Section 54(1)(a) and Section 57 (c) of the Bihar and Orissa Excise Act 1915.
The allegations on the basis of which the complaint was filed are material and we may set them out in extenso: "A Cabaret dance with women was in progress at Banki pore Club, Patna.
Two women and five men were singing and dancing.
This dance was being performed inside the premises of the Bankipore Club, Patna before a large gather ing of men and women.
I asked Dr. Sharda Prasad Singh, Honorary Secretary and his Manager Sri Banke Bihari Prasad Sinha to show the permission obtained from the District Magistrate or from any other authori ty for organising the Cabaret dance because licence vending 'Off ' foreign liquor is given to Bankipore Club in form 2.
The validity period of licence is from 1 4 75 to 31 3 1976 and under Section 25 (2), conducting of Cabaret dances without obtaining the prior permission from any proper authority is ille gal.
Dr. Sharda Prasad Singh who is Honorary Secretary of Patna Bankipore Club did not show any permission of the District Magis trate or of any other authority for conducting the Cabaret and he said that he had not ob tained any such permission.
Therefore, Dr. Sharda Prasad Singh, Honorary Secretary is guilty of the aforesaid.
offence.
It is therefore, prayed that Dr. Sharda Prasad Singh, Honorary Secretary be prosecuted in a Court of law for violating Section 54(a) and Section 57(c) of the Excise Act for which I have been authorised to submit charge sheet to him by the District Magistrate, Patna".
These allegations according to the appellant did not con stitute any offence and hence the appellant filed an appli cation in the High Court of Patna under Section 482 of the Code of Criminal Procedure for quashing the order passed by the Sub Divisional Magistrate, Patna taking cognizance of the offences charged against the appellant.
The 359 High Court by an order dated 4th February, 1976 summarily rejected the application.
The appellant thereupon preferred an application to the High Court for leave to appeal to this Court, but this application was also rejected by the High Court on the ground that the allegations set out in the complaint made out a prima facie case against the appellant.
This led to the filing of the present appeal with special leave obtained from this Court.
It is now settled law that where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magis trate taking cognizance of the offence.
The question which, therefore, arises for consideration is whether the allega tions set out in the complaint constitute any offence against the appellant.
The offences charged against the appellant are under Section 54(1)(a) and Section 57 (c) of the Act.
Section 54(1) (a) provides that if any licensed vendor or any person in his employ and acting on his behalf, in contravention of Section 25, employs or permits to be employed, in any part of his licensed premises referred to in that section any person under the age of 18 years or any women, he shall be liable to fine which may extend to Rs.500/ .
It is an essential ingredient of this offence that the licensed vendor should employ or permit to be employed any women in any part of his licensed premises in contravention of Section 25.
Now there can be no doubt that the Bankipore Club was a licensed vendor since it held an "OFF" licence in Form No. 2 given in the Bihar and Orissa Excise Rules.
We will also assume for the purpose of argu ment that the place where the cabaret was going on was a part of the licensed premises.
But in order that the al leged cabaret should constitute an offence under Section 54(1) (a), it was necessary that the women who were perform ing the cabaret should be employed or permitted to be em ployed by the Club and moreover that should in contravention of Section 25.
Section 25.
sub section (2) provides that no person who is licensed to sell foreign liquor for con sumption on his premises shall, without the previous writ ten permission of the Board, during the hours in which such premises are kept open for business, employ or permit to be employed, either with or without any remuneration, any woman, in any part of such premises in which such liquor is consumed by th.e public.
It will be seen that this provi sion also comes into play only when a woman is employed or permitted to be employed by a person licensed to sell for eign liquor.
Moreover, the employment of the woman should be "in any part of such premises in which such liquor is consumed by the public.
" It is therefore, obvious that there could be no offence under Section 54(1)(a) read with Section 25(2) unless it could be shown by the prosecution that the women who were performing the cabaret were employed or permitted to be employed by the Club and they were performing the cabaret in a part of the club premises in which liquor was being consumed: by the public.
We may point out that it was contended on behalf of the appellant that subsection (2) of Section 25 can have no application in case of a person who is holding an "OFF" licence as distinct from an "ON AND OFF" licence in form No. 3 and since the appellant in the present case was 7 1546 SCI/76 360 holding an "OFF" licence, he could not be guilty of contra vention of Section 25, sub sect/on (2) and hence no question of offence under Section 54(1)(a) could arise.
But we will assume for the purpose of argument that the appellant was covered by Section 25, subsection (2) and he was bound to obey the prohibition contained in that sub section.
But even so we find that the two essential ingredients of the offence under Section 54(1)(a) read with Section 25 sub section (2) were not even alleged in the complaint.
The complaint did not aver that either of the two women who were performing the cabaret was employed or permitted to be employed by the club or that liquor was being consumed by the public in that part of the club in which the cabaret was being performed.
No offence under Section 54(1)(a) could in the circumstances be said to have been committed on the allegations contained in the complaint.
Equally, it is difficult to see how the allegations contained in the complaint could be said to constitute an offence under Section 57(c) That section provides that if any holder of a licence granted under the Act or any person in his employ or acting on his behalf wilfully does any act in breach of the condition of the licence for which a penalty is not prescribed elsewhere in the Act, he shall be liable to fine which may extend to Rs.500/ .
The com plaint does not allege as to which condition of the licence was broken by the club or the appellant in allowing a caba ret to be performed in the club premises.
Nor could the learned counsel appearing on behalf of the State point out any such condition of the licence.
The allegations con tained in the complaint manifestly did not constitute an offence under Section 57(c).
This was, therefore, clearly a case where the allega tions contained in the complaint did not constitute any offence and the Sub Divisional Magistrate was in error in taking cognizance of it.
The High Court in the circum stances ought not to have rejected the application of the appellant for quashing the order of the Sub Divisional Magistrate.
We accordingly allow the appeal, set aside the order of the High Court and quash the proceedings in Case No. 2(2) 76 Trial No. 285/76 pending in the Court in Mr. S.S.P. Yadav, Executive Magistrate, Sadar Patna.
S.R. Appeal allowed.

summary/full:
Employing or permitting to employ any person under the age of 18 years or any woman in any part of the licensed premises and in contravention of section 25 constitutes an of fence section 54(1)(a) of the Bihar and Orissa Excise Act 1915.
Under section 25(2) it is an offence when a woman is employed or permitted to be employed, by a person licensed to sell foreign liquor, and the employment of such woman should be in any part of the premises in which such liquor is consumed by the public.
Section 57(c) of the Act provides a penal fine upto Rs.500/ for an action done by a licensed holder wilfully in breach of the conditions of the license for which no penalty is prescribed elsewhere in the Act.
On a complaint from the Assistant Commissioner, Excise that the appellant at the time of the raid on the New Year Eve did not have any permission of the competent authority for conducting a cabaret dance in the premises of Bankipore Club, Patna (admittedly the holder of "OFF ' foreign liquor licence), the SubDivisional Magistrate, Patna took cogni zance of the offences complained, namely, violation of section 54(1)(a) read with section 25(a) and section 57(c) of the Bihar and Orissa Excise Act 1915.
A revision filed under section 482 of the Criminal Procedure Code 1973 on the ground that the allegations in the complaint did not constitute any offence warranting the cognizance was dismissed in limine.
On appeal by special leave to this Court, HELD: Where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is compe tent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure 1973 to quash the order passed by the Magistrate taking cognizance of the offence.
[359B] The instant case was clearly one where the allegations contained in the complaint did not constitute any offence and the Sub Divisional Magistrate was in error in taking cognizance of it and the High Court also ought not to have, in the circumstances, rejected the application of the appellant for quashing the order of the Sub Divisional Magistrate.
[360E] No offence under section 54(1)(a) could be said to have been committed on the allegations contained in the complaint in the absence of specific allegation of the two essential ingredients of the offence under section 54(1)(a) read with section 25(2) and also for want of an averment that either of the two women who were performing the cabaret was employed or permitted to be employed by the Club or that liquor was being consumed by the public in the part of the Club in which the cabaret was being performed.
[359D F] The allegation contained in the complaint could not be said to constitute an offence under section 57(c), in the absence of an allegation as to which condition of the licence was broken by the Club or the appellant in allowing a cabaret to be performed in the Club premises and more so, when no such condition in the licence itself could be pointed out on behalf of the State.
[360C D]