judgement:
ition No. 505 of 1990 etc.etc.
(Under Article 32 of the Constitution of India) R.N. Sachtey, S.K. Bhattacharya, S.C. Patel, Anip Sachthey, Mahabir Singh, R.K. Agnihotri, R.K. Kapur, Ms. Anil Katyar, N.D, Garg, C.M. Nayar (NP), H.S. Munjral, V. B. Joshi, V.K. Verma, S.K. Agnihotri, Sakesh Kumar, N. Ganapathy, M. Veerappa, ,Mrs. Rani Chhabra, M.N. Shroff, Indra Makwana, Sushil Kumar Jain, S.N. Aggarwal, Ms. Vijay Lakshmi Menon, C.V.S Rao, Aruneshwar Gupta and Sushil Kumar for the appearing parties.
The Judgement of the Court was delivered by RANGANATH MISHRA, CJ.
These are applications under Article 32 of the Constitution on behalf of petitioners who hold All India Tourist Permits granted under section 63(7) of the .
corresponding to section 88(9) of the .
The respondent States in these writ petitions are Haryana, Punjab, Gujarat, Rajasthan and Madhaya Pradesh .
There is a common Act the Punjab Motor Vehicles Taxation Act, 1924 which is applicable to the States Punjab and Haryana.
In each of the other States there is a similar separate legislation.
Under the taxing power in the several Act provision has been made for taxation as also for levy of additional tax.
It is the contention of the petitioners that the demand of additional tax is neither compensatory nor regulatory and , therefore, the levy is violative of Article 10(1)(g) read with Article 301 of the Constitution.
In regard to the State of Punjab and Haryana a special contention has been raised to effect that rule 8(v) of the Punjab Motor Vehicles Taxation Rules, 1925 provide total exemption from liability of tax if the vehicle is brought into Punjab and kept for use within the State for a period not exceeding 30 days in a year and it is the contention of the petitioners that since the vehicles registered outside the State of Punjab and Haryana are not kept within State for more than 30 days a year, the demand of tax in the face of rule 8(v) is contrary to law.
In the State of Gujarat, the Bombay Motor Vehicles Tax Act, 1958 has been amended, Section 3A of the Amending Act provides that: "3A (1) On and from the first day of April 1982 there shall 527 be levied and collected.
on all ominibuses which are exclusively used or kept for use in the State as contract carriages (hereinafter in this section referred to as the omnibus) a tax (hereinafter referred to as " the additional tax") in addition to the tax levied under section 3, at the rates fixed by the State Government by notification in the official Gazettte but not exceeding the maximum rates specified in the table below: Description of Maximum rate of an omnibus additional tax.
A. ordinary (i) Monthly rate of Rs. Omnibuses 240 per passenger permitted to be carried.
(ii) Weekly rate of Rs. 80 per passenger permitted to be carried.
(iii)Daily rate of Rs. 16 per passenger permitteed to be carried.
B. Luxury or tourist(i) Monthly rate of Rs. 360 Omnibuses per passenger permitted to be carried.
(ii)Weekly rate of Rs. 120 per passanger permitted to be carried.
(iii)Daily rate of Rs. 24 per passenger permitted to be carried.
The validity of levy of this type came up for consideration before this Court in the case of the Automobile Transport (Rajasthan) Ltd.v.
The State of Rajasthan and Ors., [1963] 1 S.C.R.491.
Four learned Judges who constitued the ,majority held that the provisions of Rajasthan Motor Vehicles Taxation Act, 1951 did not violate the provisions of Article 301 of the Constitution and the taxes imposed under the Act were compensatory or regulatory in nature which did not hinder the freedom of trade, commerce and intercourse assured by that Article, At page 586 of the Report the following test was indicated: 528 "It seems to us that working test for deciding whether a tax is compensatory or not is to inquire whether the trades people are having the use of certain facilities for the better conduct of their business and paying not patently much more than what is required for providing the facilities .
It would be impossible to judge the compensatory nature of a tax by meticulous test, and in the nature of things that cannot be done.
The same question came up for consideration before a Two Judge Bench in M/s. International Tourist Corporation and Ors.
vs State of Haryana and Ors,.
, ; This Court followed the decision referred to above of the larger group and observed: "There cannot be the slightest doubt that the State of Haryana incurs considerable expenditure for the maintanance of roads and providing facilities for the transport of goods and passengers within the State of Haryana .
The maintenance of highways other than the National Highways is exclusively the responsibility of the State Government.
While the maintenance of National Highwauyys is the responsibility of the Union Government, under section 5 of the National Highways Act, that very provision empowers the Central Government to direct that any function in relation to the developement and maintenance of a National Highway shall also be exercisable by the concerened State Government.
Section 6 further empowers the Central Government to give directions to the State Government as to the carrying out of the provisions of the Act and section 8 authorises the Central Government to enter into an agreement with the State Government in relation to the developement and maintenance of the whole or part of a National Highway situated within the State including a provision for sharing of expenditure.
Therefore, the State government is not altogether devoid of responsibility in the matter of developement maintenance of National Highway, though the primary responsibility is that of the Union Government.
It is under a statutory obligation to obey the directions given by the Central government with respect to the development and maintenance of National Highways and may enter into an agreement to share the expenditure.
That part of the Highway which is within a municipal area is excluded from the definition of a National 529 highway and therfore, the responsibility for the development and maintenace of that part of the Highway is certainly on the State Government and the Municipal Committee concerned.
Since the development and maintenance of the part of the Highway which is within a municipal area is equally inportant for the smooth flow of passengers and goods along the National Highway it has to be said that in developing and maintaining the Highway which is within a municipal area, the State Government is surely facilitating the flow of passengers and goods along the National Highway.
Apart from this , other facilities provided by State Government along all Highways including National Highways, such as lighting, traffic control, amenities for passengers, halting places for buses and trucks are available for use by everyone including those travelling along the National Highways .
It cannot, therfore, be said that the State Government confers no benefits and renders no service in connection with traffic moving along National Highways and is, therfore, not entitled to levy a compensatory and regulatory tax on passengers and goods carried on National Highways.
We are satisfied that there is sufficient nexus between the tax and passengers and goods carried on National Highways to justify the imposition.
" This view has been appoved in B.A. Jayaram and Ors.v.
Union of India and Ors.
,[1984] 1 S.C.C. 168.
That case also relates to permit holders under section 63(7) of the , and challenge of the present type was negatived in the case.
Law is settled that uphold levy of a tax of this type, what is necessary is existence of a nexus between the subject and the object of the levy and it is not necessary to show that the whole or substantial part of the tax collected is utilised.
We are, therefore, satisfied that the demand of tax is not open to challenge and the plea raised against the levy, whether of tax or additional tax, is not justified.under the taxing provision a statutory outer limit has been provided and the actual amount is left to be determined by the State Government by notification.
Obviously, discretion is left with the State Government to demand at a rate which in a given situation would be justified.
Once it is held that the tax is either compensatory or regulatory that forms the guideline for the State Government to keep in view to determine the rate at which within the upper limit fixed by law the demand has to be made.
The second contention which has been raised is applicable to the 530 State of punjab and Haryana and that depends upon the scope of rule 8(v) of the Punjab Motor Vehicles Taxation Rules,1925.
We note that the provision perscribes that a motor vehicle temporarily brought into Punjab and kept for use therein for a period not exceeding 30 days is entitled to total exemption and that is not in dispute before us.
Nor is it in dispute that the rule applies to Haryana .
The words 'Kept for use ' came up for consideration in the case of International Tourist Corporation (supra) where this Court held that once a vehicle is used within the State the Taxable event occured and it must be taken for use.
In State of Mysore and Ors.v.
M/s. T.V. Sundaram Iyengar & Sons(P) Ltd., ; the meaning of 'kept 'was examined at length and this Court held that vehicle in transit through the State of Mysore, or even making a necessary halt for a short interval, during transit , cannot be said to be a vehicle 'kept ' for use on roads in the State of Mysore.
The word 'kept ' has not been defined in the Act.
It must , tharefore, be interpreted in its ordinary popular sense consistent with the context.
The ordinary dictionary meaning of the word 'kept ' is 'to retain ', 'to maintain ' or 'cause to stay or remain in place ' or 'to detrain ' or 'to stay or continue in specified condition, position etc. ' It is something different from a mere state of transit or a course of journey through the State.
It is something more than a mere stoppage or halt for rest, food or refreshment, etc.
in the course of transit through the territory of the State.
That being the position rule 8(v) which uses the terms 'kept for use ' may not cover a case of bare transit and in terms of the rule exemption is available for vehicle kept upto 30 days in a year.
In that view of the matter tourist vehicles registered outside the State of Punjab and Haryana when brought into these two States for regular use and not by way of transit and when used for more than 30 days in a year would attract taxability otherwise the exemption provision in rule 8(v) would be available .
We have settled the legal position and we leave it to the individual taxing authorities as also the operators of tourist vehilces to work out their respective rights.
We would , therefore , like to clarify that the first aspect being a challenge against the taxing provision whether by way of tax or additional tax is rejected and the question of exigibility of tax in the States of Punjab and Haryana with reference to rule 8(v) of the Punjab Motor Vehicles Taxation rules, 1925 is left to be determined in individual cases as and when raised.
There would be no order as to costs.
G.N. Petitions deposed of.

summary/full:
Under the taxing power contained in the several Motor Vehicles Tax Acts in vogue in the Respondent States, provision has been made for taxation as also for levy of additional tax.
The petitioners who hold All India Tourist Permits challenged the constitution validity of the additional tax, on the ground that it was neither compensatory nor regulatory, and therefore was violative of Articles 19(1) (g) and 301 of the Constitution.
In respect of the State of Punjab and Haryana which have a common Act, an additional contention was raised to the effect that Rule 8(v) of the Punjab Motor Vehicles Taxation Rules 1925, provides total exemption from liability of tax if the vehicle was brought into the State and kept for use within the State for a period not exceeding 30 days in a year, and since the vehicles registered outside Punjab and Haryana States are not kept within the State for more than 30 days in a year, the demand of tax in the face of Rule 8(v) is contrary to law.
Disposing of the Writ Petitions, this Court, HELD : 1.
Law is settled that to uphold levy of tax as in the present case, what is necessary is existence of a nexus between the subject and 525 the object of the levy and it is not necessary to show that the whole or a substantial part of the tax collected is utilised.
Hence the demand of tax is not open to challenge and the plea raised against the levy, whether of tax or additional tax, is not justified.
Under the taxing provision a statutory outer limit has been provided and the actual amount is left to be determined by the State Government by notification.
Obviously, discretion is left with the State Government to demand at rate which in a given situation would be justified .
Once it is held that the tax is either conmpensatory or regulatory that forms the guideline for the State Government to keep in view to determine the rate at which within the upper limit fixed by law the demand has to be made.
{525E H} Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan and Ors , {1963} 1 SCR 491; M/s. International Tourist Corporation and Ors.
vs State of Haryana and Ors.
,[1981] 2 SCC 318 and B.A. Jayaram and Ors.
vs Union of India and Ors.
, [1984] SCC 168., relied on.
The word 'kept ' has not been defined in the Punjab Motor Vehicles Taxation Act, 1924.
It must , therefore, be interpreted in its ordinary popular sense consistent with the context.
The ordinary dictionary meaning of the word 'keep ' is 'to retain ', ' to maintain ' or 'cause to stay or remain in a place ' or 'to detain ' or 'to stay or continue in a specified condition , position etc.
, It is something different from a mere state of transit or a course of journey through the State .
it is something more than a mere stoppage or halt for rest, food or refreshment, etc.
in the course of transit through the territory of the State.
That being the position, rule 8 (v) which uses the term 'kept for use ' may not cover a case of bare transit and in terms of the rule exemption is available for vehicles kept upto 30 days in a year.
In that view of the matter tourist vehicles registered outside the State of Punjab and Haryana when brought into these two States for regular use and not by way of transit and when used for more than 30 days in a year would attract taxability; otherwise the exemption provision in rule 8(v) would be available [530C F] M/s. International Tourist Corporation and Ors.
vs State of Haryana and Ors.
, [ 1981] 2SCC 318 and State of Mysore and Ors.
vs M/s. T.V. Sundaram Iyengar & Sons (P) Ltd., ; , referred to.
The question of exigibility of tax in the State of Punjab and Haryana with reference to rule 8(v) of the Punjab Motor Vehicles Taxation Rules, 1925 is left to be determined in individual cases as and when raised.
[530G].


judgement:
minal Appeal No. 187 of 1956.
Appeal by special leave from the judgment and order dated December 7, 1955, of the Patna High Court in Criminal Revision No. 875 of 1954, arising out of the judgment and order dated May 31, 1954, of the Court of the Additional Sessions Judge at Arrah in Criminal Appeal No. 293 of 1953.
B. K. Saran and K. L. Mehta, for the appellants.
B. H. Dhebar and T. M. Sen, for the respondent.
November 14.
The Judgment of the Court was delivered by GAJENDERAGADKAR, J.
This criminal appeal raises a short question about the construction of the word " detains " occurring in a. 498 of the Indian Penal Code.
It arises in ' this way.
The two appellants were charged before the trial magistrate under section 498 of the Code in that on or about October 27, 1952, at the village Mohania they wrongfully detained Mst.
59 466 Rahmatia, the legally married wife of the complainant Saklu Mian, when they knew or had reason to believe that she was the wedded wife of the, complainant and was under his protection, with intent to have illicit intercourse with her.
The prosecution case was that Mst.
Rahmatia had disappeared from her husband 's house on October 21, 1952; the complainant made J. search for her for several days but was not able to trace her whereabouts.
Ultimately he filed a complaint at the police station after he was informed by Shakoor Mian (P. W. 4) that he had seen the complainant 's wife at the house of the two appellants.
The complainant then went to the house of the appellants along with Shakoor Mian (P. W. 4), Musa Mian (P. W. 2) and Suleman Mian (P. W. 3); they saw the woman in the house of the appellants whereupon the complainant asked appellant No. I Alamgir to let his wife go with him but appellant No. I told him that he had married her and appellant No. 2 warned him to get away and said that, if he persisted, he would be driven out.
This story is corroborated by the three companions of the complainant.
The appellants denied the charge.
They pleaded that the complainant had not validly married the woman and that she had not been detained by them.
According to them, the woman was tired of living with the complainant and that she had voluntarily and of her free will come to stay with the appellants.
The learned trial magistrate believed the prosecution evidence, rejected the pleas raised by the defence, con victed the appellants of the charge framed and sentenced them to undergo simple imprisonment for two months each.
This older of conviction and sentence was challenged by the appellants by their appeal before the court of sessions.
The appellate court confirmed the conviction of the appellants but reduced their sentence from simple imprisonment for two months to a fine of Rs. 50 or in default simple imprisonment for one month each.
The appellants then moved the High Court at Patna in its revisional jurisdiction.
When the revisional application came to be heard before Choudhary, J., the learned judge thought 467 that the appellate court should not have reduced the sentence imposed on the appellants by the trial magistrate and so he issued a notice against the appellants calling upon them to show cause why their sentence should not be enhanced.
This notice and the main revisional application were ultimately heard by Ramaswamy and Imam, JJ., who confirmed the order of conviction and enhanced the sentence against both the appellants by ordering that each of them should suffer six months ' rigorous imprisonment.
An application made by the appellants to the High Court for a certificate to appeal to this Court was rejected.
The appellants then applied for and obtained special leave to appeal to this Court.
That is how this appeal has come before us for final disposal.
On behalf of the appellants, Mr. B. K. Saran has urged that the evidence in the case clearly shows that the woman was dissatisfied with her husband and had left his house and protection voluntarily and of her free will.
If having thus left the house she came to stay with the appellants and they allowed her to stay with them, it cannot be said that they have detained her within the meaning of section 498.
According to him, the word " details " used in section 498 must necessarily imply that the woman detained is unwilling to stay with the accused and has been compelled so to stay with him against her will, and desire.
It is difficult to imagine that, if a woman is willing to stay with a person, it can be said that the person has detained her.
That is not the plain grammatical meaning of the word " detains ".
It is this argument which calls for our consideration in the present appeal.
At the outset it would be relevant to remember that section 498 'occurs in Ch.
XX of the Indian Penal Code which deals with offences.
relating to marriage.
The provisions of section 498, like those of section 497, are intended to protect the rights of the husband and not those of the wife.
The gist of the offence under section 498 appears to be the deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her.
In this connection it would be material to compare and contrast the 468 provisions of section 498 with those of section 366 of the Code.
Section 366 deals with cases where the woman kidnapped or abducted is an unwilling party and does not respond to the criminal intention of the accused.
In these cases the accused intends to compel the victim afterwards to marry any person against her will or to force or seduce her to illicit intercourse.
In other words section 366 is intended to protect women from such abduction or kidnapping.
If it is shown that the woman who is alleged to have been abducted or kidnapped is a major and gave her free consent to such abduction or kidnapping, it may prima facie be a good defence to a charge under section 366.
On the other hand section 498 is intended to protect not the rights of the wife but those of her husband; and so prima facie the consent of the wife to deprive her husband of his proper control over her would not be material.
It is the infringement of the rights of the husband coupled with the intention of illicit intercourse that is the essential ingredient of the offence under a. 498.
Incidentally it may be pointed out that the offence under section 498 is a minor offence as compared with the offence under section 366.
The policy underlying the provisions of section 498 may no doubt sound inconsistent with the modern notions of the status of women and of the mutual rights and obligations under marriage.
Indeed Mr. Saran vehemently argued before us that it was time that sections 497 and 498 were deleted from the Penal Code.
That, however, is a question of policy with which courts are not concerned.
It is no doubt true that if the words used in a criminal statute are reasonably capable of two constructions, the construction which is favourable to the accused should be preferred; but in construing the relevant words, it is obviously necessary to have due regard to the context in which they have been used; and, as we will presently point out, it is the context in which the word" detains " has been used in section 498 that is substantially against the construction for which the appellant contends.
Section 498 provides: 469 " Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment, of either description for a term which may extend to ' two years, or with fine, or with both.
It would be noticed that there are three ingredients of the section.
The offender must take or entice away or conceal or detain the wife of another person from such person or from any other person having the care of her on behalf of the said person.
He must know or has reason to believe that the woman is the wife of another person; and the taking, enticing, concealing or detaining of the woman must be with intent that she may have illicit intercourse with any person.
It is clear that if the intention of illicit intercourse is not proved the presence of the first two ingredients would not be enough to sustain the charge tinder section 498.
It is only if the said intention is proved that it becomes necessary to consider whether the two other ingredients are proved or not.
It is plain that four different kinds of cases are con templated by the section.
A woman may be taken away or enticed away or concealed or detained.
There is no doubt that when the latter part of the section refers to any such woman, it does not mean any woman who is taken or enticed away as described in the first part, but it refers to any woman who is and whom the offender knows or has reason to believe to be the wife of any other man.
It is not seriously disputed that in the first three classes of cases the consent of the woman would not matter if it is shown that the said consent is induced or encouraged by the offender by words or acts or otherwise.
Whether or not any influence proceeding from the offender has operated on the mind of the woman or has co operated with or encouraged her inclimations would always be a question of fact.
If, on evidence, the court is satisfied that the act of the woman in 470 leaving her husband was caused either by the influence of allurement or blandishments proceeding from the offender, that may be enough to bring his case within either of the three classes of cases mentioned by section 498.
In this connection, when the consent or the free will of the woman is relied upon in defence, it is necessary to examine whether such alleged consent or free will was not due to allurement or blandishments or encouragement proceeding from the offender.
It is, however, urged that, when the latter part of the section speaks of detention, it must prima facie refer to the detention of a woman against her will.
It may be conceded that the word " detains" may denote detention of a person against his or her will ; but in the context of the section it is impossible to give this meaning to the said word.
If the object of the section had been to protect the wife such a construction would obviously have been appropriate; but, since the object of the section is to protect the rights of the husband, it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for her willingness has not detained her.
Detention in the context must mean keeping back a wife from her husband or any other person having the care of her on behalf of her husband with the requisite intention.
Such keeping back may be by force; but it need not be by force.
It can be the result of persuasion, allurement or blandishments which may either leave caused the willingness of the woman, or may have encouraged, or co operated with, her initial inclination, to leave her husband.
It seems to us that if the willingness of the wife is immaterial and it cannot be a defence in cases falling tinder the first three categories mentioned in section 498, it cannot be treated as material factor in dealing with the last category of case of detention mentioned in the said section.
Therefore, we are satisfied that the High Court was right in holding that the charge of detention has been proved against appellant No. I inasmuch as both the courts of facts have found that 471 he had offered to marry Mst.
Rahmatia and thereby either persuaded or encouraged her to leave her husband 's house.
It may be that Rahmatia was dissatisfied with her husband and wanted voluntarily to leave her husband; but, on the evidence, it has been held that she must have been encouraged or induced not to go back to her husband because she knew that she would find ready shelter and protection with appellant No. 1 and she must have looked forward to marry him.
In fact appellant No. 1 claims to have married her.
Thus there can be no doubt that he intended to have illicit sexual intercourse with her.
That is the effect of concurrent findings of fact recorded against appellant No. I ; and it would not be open to him to challenge their correctness or propriety in the present appeal.
This section has been the subject matter of several judicial decisions and it appears that, except for a few notes of dissent, there is a fair amount of unanimity of judicial opinion in favour of the construction which we feel inclined to place on the word " detains " in section 498.
It is, however, true that the relevant decisions, to some of which we would presently refer disclose a striking difference of approach in dealing with questions of fact.
It would appear that though the relevant portion of the section has received the same construction in dealing with same or similar facts, the learned judges have differed in their conclusion as to whether the accused person had been guilty of conduct which would bring his case within section 498.
This, however, is a difference in the method of approaching evidence and assessing its effects.
It would be futile and even improper to consider whether a particular conclusion drawn from the specific evidence adduced in the case was right or not.
What is important in such cases is to see how the section has been construed and, as we have just indicated, in the matter of construction there appears a fair amount of unanimity.
Let us now refer to some of the decisions cited before us.
In 1868, the Madras High Court held in Sundara Dass Tevan (1) that depriving the husband of his (1) (1868) IV Mad.
H.C.R. 20.
472 proper control of his wife for the purpose of illicit inter course is the gist of the offence just as it is the offence of taking away a wife under the same section; and a detention occasioning such deprivation may be brought about simply by the influence of allurement and blandishment.
On the facts of the case, however, the court was not satisfied that the accused bad offered any such allurement or blandishment and so the order of conviction passed against the appellant was quashed.
It appears that the construction put by the Madras High Court on section 498 in this case has been generally accepted in the said High Court (Vide: Ramaswamy Udayar vs Raju Udayar (1) ).
The Bombay High Court has taken the same view in Emperor vs Jan Mahomed (2).
It was held by the High Court that the offence contemplated by & 498 is complete if it appears that the accused went away with the woman in such a manner as to deprive her husband of the control of his wife; the fact that the woman accompanied the accused of her own free will does not diminish the criminality of the act.
Even in this case, the court was unable to discover any evidence, direct or indirect, about the intention of the accused or any allurement or blandishment offered by him and so the order of conviction passed against the accused was set aside.
This question came to be considered by the said High Court again in Emperor vs Mahiji Fula (3).
Mr. Justice Broomfield who delivered the main judgment of the Bench has expressed the view that " the word I detains ' means, by deprivation, and according to the ordinary use of the language I keeps back" '; and he adds that ,there may be various ways of keeping back.
It need not necessarily be by physical force.
It may be by persuasion or, as the Court " (Madras High Court) " has observed in this particular case" (Sundara Dass Thevan (4)) " by allurement or blandishment ".
On the facts, however, it appeared to the trial court that the conduct of the accused did not bring his case within the mischief of section 498.
The wife of the complainant had been taken (1) A.I.R. (1953) Mad. 333.
(3) Bom.
88, 92.
(2) (1902) IV Bom.
L. R. 435.
(4) (1868) IV Mad. H. C. R. 20.
473 away by her brother and she was subsequently married by natra marriage to the accused.
The complainant learnt about this incident and went to the accused to ask him to allow his wife to go back to him.
On seeing the complainant and his friends the accused came out with a dharia and threatened the complainant and his companions who then re turned to their village.
The conduct of the accused ' when the complainant approached him, it was said, cannot necessarily indicate that the accused had detained the woman.
This was the ' view taken by the trial court who acquitted the accused ; on appeal the High Court saw no reason to differ and so the order of acquittal was confirmed by it.
Divatia, J., who delivered the concurring judgment apparently differed from Broomfield, J., in regard to the construction of the word " detains ".
He agreed that the scheme of section 498 showed that though the woman may be perfectly willing to go with the man the offence of taking or enticing away would occur because it simply consists of taking or enticing away a woman without anything more; but according to him, in the latter part of the section, which speaks of concealing or detaining the woman, the woman would be detained only if she is prevented from going in any quarter where she wants to go.
In our opinion, this construction is not sound.
It is not easy to see how the act of concealing the woman would necessarily import any considerations of the consent of the woman ; besides, according to Divatia, J., himself, the woman 's Consent would be irrelevant in the cases of taking or enticing her away.
If that be so, it is difficult to make her consent relevant and decisive in dealing with the cases of detention.
Unfortunately the learned judge does not appear to have appreciated the fact that the primary and the sole object of section 498 is to protect the husband 's rights and not the rights of the wife.
If it is shown that the woman 's inclination to stay away from her husband was either instigated or encouraged by the offender, she can be said to have been detained or kept away from her husband within the meaning of the section 60 474 though at the time of the detention she may be willing to say with the offender.
The same view has been expressed by Broomfield and Sen, JJ., in Emperor vs
Ram Narayan Baburao Kapur (1) and by Beaumont C.J., and Sen, J., in Mahadeo Rama vs Emperor (2).
We may point out that in both these cases the court was have detained the woman.
The Calcutta High Court appears to have put a similar construction on the word "detention".
In Prithi Missir vs Harak Nath Singh (3) it has been held by the said High Court that " the word ' detention ' is ejusdem generis with enticement and concealment.
It does not imply that the woman is being kept against her will but there must be evidence to show that the accused did something which had the effect of preventing the woman from returning to her husband ".
On the merits, however, the court held that the learned trial magistrate had not come to any definite finding of fact.
In fact it did not appear that the accused was keeping the complainant 's wife as his mistress; and on the whole, the court was not satisfied that the accused was responsible for the conduct of the complainant 's wife for leaving her husband 's house and so detention was held not proved against the accused.
In Mabarak Sheikh vs Ahmed Newaz (4) the same High Court held that there can be no detention of a woman within the meaning of section 498, second part, if the woman is an absolutely free agent to go away from the person charged whenever she likes.
It appears that the learned judges were inclined to hold that there could be no detention if the woman was an absolutely free agent to go away from the person charged whenever she likes to do so; and in support of this view they have referred to some of the decisions which we have already considered.
With respect, it appears that the effect of the earlier decisions has not been properly considered and the findings of fact recorded in the said decisions are assumed to lend colour to, and modify, the construction of the section (1) (3) I.L.R. (2) A.I.R. (1943) Bom. 179.
(4) 475 adopted by them.
Besides, the relevant observations appear to be obiter because, on the facts, it was found in this case that the woman was not a free agent and so the charge against the accused under section 498 was held established.
In Bipad Bhanjan Sarkar vs Emperor (1), Henderson and Khundkar, JJ., have considered the word " detains " in the same manner as we have done.
However, as in many other cases, in this case also, the court found that there was absolutely nothing to show that the accused had done anything which could bring his case within the mischief of section 498.
The Patna High Court, in Banarsi Raut vs Emperor (2), has held that providing shelter to a married woman is such an inducement as to amount to detention within the meaning of section 498.
This case shows that where a married woman was found living in the house of the accused for some time and sexual intercourse between them had been established, the court was inclined to draw the inference that there was per suasion or inducement of the woman as would come within the meaning of the word " detention ".
This is a case on the other side of the line where on facts the inference was drawn against the accused.
The Lahore High Court has taken a similar view as early as 1913 in Bansi Lal vs The Crown (3 ).
The court has held that where the accused had provided a house for the woman where she stayed after deserting her husband under the protection of the accused as his mistress, it was active conduct on his part which was sufficient to bring him within the terms of section 498.
In 1939, however, a Division Bench of the Lahore High Court has taken a contrary view in Harnam Singh vs Emperor (4).
In this case the revisional application filed by Harnam Singh against his conviction under section 498 was first argued before Din Muhammad, J., who referred it to a Division Bench because he thought that the question of law raised was of some importance.
In his referring judgment the learned judge mentioned some of the relevant decisions to which his attention was drawn and indicated his own view that (1) I.L.R. (3) (1913) XlV Punjab L. R. 1066.
(2) A.I.R. (1938) Pat.
(4) A.I.R. (1939) Lah.
476 the word " detains " would naturally imply some overt act on the part of the person who detains in relation to the person detained.
He thought that mere blandishment would not constitute any relevant factor in the matter of detention.
The matter was then placed before a Division Bench consisting of Young, C. J., and Blacker, J. Unfortunately the judgment of the Division Bench does not discuss the question of the construction of section 498 ; it merely records the conclusion of the court in these words: " In our opinion, the word " detains " clearly implies some act on the part of the accused by which the woman 's movements are restrained and this again implies unwillingness on her part.
Detention cannot include persuasion by means of blandishments or similar inducements which would leave the woman free to go if she wished ".
The learned judges also added that they were of the opinion that the word " detains " cannot be reasonably construed as having reference to the husband.
In our opinion, these observations do not correctly represent the true purport and effect of the provisions of section 498.
The position, therefore, is that, on the findings of fact made by the lower courts against appellant No. I it must be held that he has been rightly convicted under section 498.
That takes us to the question of sentence imposed on him by the High Court in its revisional jurisdiction.
We are satisfied that the High Court was not justified in directing appellant No. I to suffer rigorous imprisonment for six months by way of enhancement of the sentence.
It is unnecessary to emphasise that the question of sentence is normally in the discretion of the trial judge.
It is for the trial judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a given case.
The High Court undoubtedly has jurisdiction to enhance such sentence under section 439 of the Code of Criminal Procedure; but this jurisdiction can be properly exercised only if the High Court is satisfied that the sentence imposed by the trial judge is unduly lenient, or, that, in passing the order of sentence, the trial judge had manifestly failed to consider the 477 relevant facts.
It may be that the High Court thought that the appellate order passed by the Sessions Judge modifying the original sentence was wrong, and in that sense, the issue of notice under section 439 of the Code of Criminal Procedure against appellant No. 1 to show cause why his sentence should not be enhanced may have been justified; but, in enhancing the sentence, the High Court should, we think, have restored the sentence passed by the trial judge himself.
It is true that, in enhancing the sentence, the High Court has observed that " women in this country, whether chaste or unchaste, must be protected and that it is the duty of the court to see that they are given sufficient protection ".
We are inclined to think that the considera tion set out in this observation is really not, very helpful and not decisive because, as we have already observed, section 498 does not purport to protect the rights of women but it safeguards the rights of husbands.
Besides, in the present case, it is clear that Mst.
Rahmatia, who is a woman of loose moral character, was dissatisfied with the complainant, who is her second husband, and was willing to marry appellant No. 1.
In such a case, though appellant No. I is guilty under section 498, it is difficult to accept the view of the High Court that the sentence of two months ' simple imprisonment imposed on him, by the trial court was so unduly or manifestly lenient as not to meet the ends of justice.
It would not be right for the appellate court to interfere with the order of sentence passed by the trial court merely on the ground that if it had tried the case it would have imposed a slightly higher or heavier sentence.
We would accordingly modify the order of sentence passed against appellant No. 1 by reducing it to that of simple imprisonment for two months.
The case of appellant No. 2 is clearly different from that of appellant No. 1.
The findings of fact recorded by the courts below do not implicate appellant No. 2 in the act of persuasion or offering blandishments or inducements to Mst.
Rahmatia.
The only evidence against this appellant is that when the complainant went to take away his wife appellant No. 2 threatened 478 him.
The record shows that appellant No. 2 is the brother of appellant No. 1; and, if knowing that Rahmatia had married his brother, appellant No. 2 told the complainant to walk away, that cannot legally justify the inference that he must have offered any inducement, blandishment or allurement to Rahmatia for leaving the protection of her husband and refusing to return to him.
Indeed the courts below have not considered the case of this appellant separately on its own merits at all.
In our opinion, the conviction of appellant No. 2 is not supported by any evidence on the record.
The result is the appeal preferred by appellant No. 2 is allowed, the order of conviction and sentence passed against him is set aside and he is ordered to be acquitted and discharged.
Appeal of appellant No. 1 dismissed.
Appeal of appellant No. 2 allowed.

dataset_name: IN-Abs

summary/full:
One R, the wife of S, disappeared from her husband 's house.
She was traced to the house of the appellants, A and his brother B.
When S went there and asked A to let his wife go with him A told him that he had married her and B threatened S and asked him to go away.
The appellants were charged under section 498 Indian Penal Code for detaining R when they knew or had reason to believe that she was the wedded wife of S, with intent to have illict intercourse with her.
The appellants pleaded that R was not validly married to S and that she had not been detained by them inasmuch as she was tired of living with S and had voluntarily and of her free will come to stay with them.
The Magistrate found the appellants guilty, convicted them and sentenced them to undergo simple imprisonment for two months each.
On appeal the Sessions Judge confirmed the conviction but reduced the sentence to a fine of Rs. 50/ each.
The appellants filed a revision before the High Court.
The High Court issued a notice of enhancement and after hearing the appellants dismissed the revision and enhanced the sentence to rigorous imprisonment for six months each.
Held, that detention in section 498 means keeping back a wife from her husband or any other person having the care of her on behalf of her husband.
Such keeping back may be by force; but it need not be by force.
It can be the result of persuasion, allurement or blandishments which may have either caused the willingness of the woman, or may have encouraged, or co operated with, her initial inclination to leave her husband.
The object of the section is to protect the rights of the husband and it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for the willingness has not detained her.
A was rightly convicted as the charge of detention was proved against him on the findings of the Courts below that he had offered to marry R and had thereby either persuaded or encouraged her to leave her husband 's house.
But the charge was not made out against B as it was not proved that he had offered any inducement, blandishment or allurement to R for leaving the protection of her husband and for refusing to return to him.
465 Sundara Dass Teva, (1868) IV Mad. H. C. R. 20; Ramaswamy Udayar vs Raju Udayar, A. 1.
R. ; Emperor vs Jan Mohomed, (1902) IV Bom.
L.R. 435; Broomfield, J., in Emperor vs
Mahiji Fula, Bom.
88, Emperor vs Ram Narayan Baburao Kapur, ; Mahadeo Rama vs Emperor, A.I.R. (1943) Bom.
179; Prithi Missir vs Harak Nath Singh, I.L.R. ; Bipad Bhanjan Sarkar vs Emperor, I.L.R. ; Banarsi Raut vs Emperor, A.I.R. (1938) Pat.
432 and Bansi Lal vs The Crown, (19I3) Punj.
L.R. 1066, approved.
Divatia, J., in Emperor vs Mahiji Fula, Bom.
88, Mabarak Sheikh vs Ahmed Newaz, and Harnam Singh vs Emperor, A.I.R. (1939) Lah.
295, disapproved.
Held further, that the High Court was not justified in en hancing the sentence to six months rigorous imprisonment, and it should have only restored the sentence passed by the trial Court.
The question of sentence is normally in the discretion of the trial Court and the High Court can enhance the sentence only if it is satisfied that the sentence imposed by the trial Court is unduly lenient, or, that in passing the order of sentence, the trial Court had manifestly failed to consider the relevant facts.
The sentence of two months simple imprisonment imposed by the trial Court was not so unduly or manifestly lenient as not to meet the ends of justice.


judgement:
ivil Appeal Nos.
998 999 of 1991.
From the Judgment and Order dasted 1.3.1990 of the Allahabad 480 High Court in C.M.W.P. Nos. 11465 & 3085 of 1987.
Satish Chandra, and Prashant Bhushan for the Appellants.
V.C.Mahajan, S.D. Sharma, S.N.Terdol and Mrs.Suri for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
1.
Civil Appeal Nos.
998 and 999 of 1991 have been filed against the judgment of the Division Bench of the Allahabad High Court dated 1st March, 1990 whereby the Allahabad High Court dismissed the writ petitions filed by the District Exhibitors Association, Muzaffarnagar and others as well as some other Theatres upholding the Notification dated 30th April, 1986 issued by the Central Government under Section 5 read with sub section (1) of Section 7 of the Employees ' Provident Funds and Miscellaneous Provisions Act,1952 (hereinafter referred to as`the Provident Funds Act ').The main judgment was delivered by the High Court in the Civil Miscellaneous Writ Petition filed on behalf of Shakti Theatre, Civil Lines, Bijnore, which was followed in the petition filled by the District Exhibitors Association Muzaffarnagar and others and some other writ petitions.
Before us also the Notification dated 30th April, 1986 of the Goernment of India, Ministry of Labour, amending the Employees ' provident Funds Scheme, 1952 (For short `Scheme ') issued under the Provident Funds Act has been challenged.
2.The Provident Funds Act came into force on 14th March,1952.
The preamble of the Act states that it is an Act to provide for the institution of provident funds, family pension fund and deposit linked insurance fund for employees in factories and other establishments.
The Act by Section 1(3) makes it applicable to every factory referred to in clause (a) and also to any other establishment referred to in clause (b) employing twenty or more persons or class of such establishments which the Central Government may, by Notification in the Official Gazette, specify in that behalf.
The scheme under Section 5 alongwith other schemes were issued in 1952.
The Provident Funds Act by Notification of the Government of India issued on 31st July, 1961, under Section 1(3) was made applicable to cinema theatres employing twenty or more persons.
The (hereinafter referred to as `the Cinema 481 Theatre Workers Act) received the assent of the President on 24th December, 1981, and was published in the Gazette on the same day.
The Cinema Theatre Workers Act came into force with effect from 1st October, 1984.
The preamble of the Act says that it is to provide for the regulation of the conditions of employment of certain cine workers and cinema theatre workers and for matters connected therewith.
Section 2(a) defines `cinema theatre ' to mean a place which is licensed under of the , or under any other law for the time being in force in a State for the exhibition of cinematograph films.
Section 24 enacts: "The provisions of the Employees~ Provident Funds and Miscellaneouss Provisions Act, 1952, as in force for the time being, shall apply to every cinema theatre in which five or more workers are employed on any day, as if such cinema theatre were an establishment to which the aforesaid Act had been applied by a notification of the Central Government under the proviso to sub section (3) of section 1 thereof, and as if each such worker were an employee within the meaning of that Act." 4.
The Notification of the Government of India amending the Scheme under the Provident Funds Act was issued in conformity with Section 24 of the Cinema Theatre Workers Act.
The impugned Notification dated 30th April, 1986 is being reproduced for facility of under standing the submissions made on behalf of the appellants: `NOTIFICATION G.S.R.
In exercise of the powers conferred by Section 5 read with Sub section (1) of Section 7 of the (19 of 1952), the Central Government hereby makes the following Scheme further to further to amend the Employees ' Provident Funds Scheme, 1952 namely; 1.
This Scheme may be called the Employees ' Provident Funds (Amendment) Scheme, 1986.
In the Employees ' Provident Funds Scheme in paragraph 1, in sub paragraph (3), in clause (b) after item (XOV11) the following item shall be added, namely: 482 `(XOV11) as respect the Cinema Theatre employing 5 or more workers as specified in Section 24 of the Cine WorKers and Cinema Theatres Workers (Regulation of Employment) Act, 1981 (50 of 1981) be deemed to have come into force with effect from the 1st day of October, 1984 '.
(No. S 35016/1/86 SS11) Sd/ A.K.Bhattari Under Secretary 30.4.1986 ' 5.
A perusal of the Notification shows that the Scheme has been retrospectively made applicable in respect of cinema theatres employing five or more workers as specified in Section 24 of the Cinema Theatre Workers Act with effect from 1st October , 1984 though the Notification was issued on 30th April, 1986.
1st October, 1984 is also the date of coming into force of Cinema Theatre Workers Act.
Before the High Court the main arguments raised by the appellants were: a) that the Notification dated 30th April 1986 was ultra vires of the provisions of the provident Funds Act inasmuch as the Central Government could not extend the scheme to an establishment which is neither an industry nor a notified establishment under Section 3(b) of the Provident Funds Act; b) that there was no liability under the scheme framed by the Central Government to make contribution towards the provident fund in respect of the employees who ceased to be a cinema employee before the Provident Funds Act came into force from 30th April,1986:and c) that the demand of the Provident Funds Commissioner from the employers about the arrears of contribution even for prediscovery period i.e. the date from which the scheme became applicable to employers, who were called upon to pay contribution by notice, leads to hardship and injustice and, therefore, violates Article 14 of the Constitution.
483 7.
The High Court while dealing with these submissions took the view that Section 24 of the Cinema Theatre Workers Act has applied the provisions of the Provident Funds Act to every cinema theatre in which five or more workers were employed on any day, as if such cinema theatre were an establishment to which the provisions of the Provident Funds had been applied by a Notification of the Central Government under the proviso to clause (b) of sub section (3) of Section 1 of the Provident Funds Act.
The High Court, in view of the averments made in the counter affidavit filed on behalf of the respondent as well as on the interpretation of the scheme, took the view that only those employees who were in employment on 30th April, 1986 and had not ceased working in a cinema in respect of whom the benefit was being claimed, could be entitled to get the benefit of the scheme.
In the notice the demand of contribution was sought under the Sachem in respect of the employees working on 30th April, 1986 with effect from Ist October, 1984.
The High Court took the view that since the demand was made for the employers ' contribution in respect of the employees who were working on 30th April, 1986, it was wrong to argue that the scheme was being incorrectly applied.
Those workers who had left the cinema and had ceased to be its workers on 3oth April, 1986, would certainly not be entitled to any benefit under the scheme.
Regarding the challenge to the demand by the Provident Fund Commissioner from the employers about the arrears of contribution, the High Court felt that there was no substance in that argument.
Before us Mr. Satish Chandra, learned counsel for the appellants submitted: i) that the Provident Funds Act would not be applicable so long as the Notification as required by the proviso to Section 1(3)(b) has not been issued; ii) even if we assume that Section 24 of the Cinema Theatre Workers Act takes the place of a Notification being issued as contemplated by the proviso to Section 1(3)(b) of the Provident Funds Act, an express Notification under Section 5 is required to make the scheme applicable to those establishments and without such a Notification the scheme will not be applicable: iii) that under Section 6 of the Provident Funds Act, the liability is only fixed for employers; share of contribution towards Provident Funds and there is no liability fixed to 484 pay employees ' share, and unless paragraph 30 of the scheme is made applicable there is no inability of the employers to pay employees ' share; iv) that the Notification is very harsh and unjust as the appellants are being asked to pay the contribution of the employees share to the Provident Fund Account retrospectively without the corresponding right of employer to recover it from the wages of employees.
It may be mentioned that the vires of any of the provision of the Provident Funds Act or the Scheme has not been challenged before us.
As would be seen from the preamble of the Provident Funds Act, the Act is intended for the benefit of the employees.
It is also so clear from its objects and reasons extracted below: "The question of making some provision for the future of the industrial worker after he retires or for his dependants in case of his early death, has been under consideration for some years.
The ideal way would have been provision through old age and survivors ' pensions as has been done in the industrially advance countries.
But in the prevailing conditions in India the institution of a pension scheme cannot be visualised in the near future.
Another alternative maY be for provision of gratuities after a prescribed period of service.
The main defect of a gratuity scheme, however, is that amount paid to a worker or his dependants would be small, as the worker, would not himself he making any contribution to the fund.
Taking into account the various difficulties, financial and administrative, the most appropriate course appears to be the institution compulsorily of contributory provident funds in which both the worker and the employer would contribute.
Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly.
The institution of a provident fund of this type would also encourage the stabilisation of a steady labour force in industrial centres".
It is a legislation for the benefit of the worker sections of the society and the beneficial legislation is made applicable to cinema theatres if it employs five or more workers.
The classification of cinema theatres as a separate class for purposes of coverage under the Provi 485 dent Funds Act has also not been challenged.
Further no challenge has been made to any of the provision of the Cinema Theatre Workers Act.
Before we deal with the submissions of learned counsel for the appellants we may notice the relevant part of provisions of the Provident Funds Act and the Scheme.
Section 1(3) of the Provident Funds Act reads as follows: "Subject to the provisions contained in Section 16, it applies (a) to very establishment which is a factory engaged in any industry specified in Schedule 1 and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months ' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification.
Section 5(1) and (2) provide as follows: "5.
Employees ' Provident Fund Schemes (1) The Central Government may, by notification in the Official Gazette, frame a Scheme to be called the Employees ' Provident fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply and there shall be established as soon as may be after the framing of Scheme, a Fund in accordance with the provisions of this Act and the Scheme.
(1 A). . . (1 B). . . 486 (2) A Scheme framed under sub section (1) may provide that any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in this behalf in the Scheme" 14.
The relevant part of Section 6 reads as follows: "6.
Contributions and matters which may be provided for in Schemes The contribution which shall be paid by the employer to the Fund shall be eight and one third per cent of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, whether employed by him directly or by or through a contractor, and the employee 's contributions shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires, b an amount exceeding eight and one third per cent of his basic wages, dearness allowance and retaining allowance, if any, subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under this section.
Para 1(1) and relevant parts of paras 1(3)(a) and 1(3)(b) of the Scheme read as follows: "1.
Short title and application (1) This Scheme may be called the Employees ' Provident Funds Scheme 1952.
(2). . . (3)(a) Subject to the provisions of Sections 16 and 17 of the Act, this Scheme shall apply to all factories and other establishments to which the Act applies or is applied under sub section (3) or sub section 4(1) of Section 1 or Section 3 thereof: . . . (b) Provisions of this Scheme shall . . . . (xcviii) as respect the cinema theatres employing 5 or more workers as specified in Section 24 of the Cine Workers and Cinema Theatres Workers (Regulations of Employment) Act, 1981 (50 of 1981) be deemed to have come into force with effect from the 1st day of October, 1984." 487 16.
The relevant parts of paras 30 and 32 of the Scheme read as follows: "30.
Payment of contribution (1) The employer shall, in the first instance, pay both the contribution payable by himself in this Scheme referred to as the employer 's contribution and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member 's in the Scheme referred to as the member 's contribution.
(2). . . (3) It shall be the responsibility of the principal employer to pay both the contribution payable by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor and also administrative charges.
Explanation . . . . 32.
Recovery of a member 's share or contribution (1) The amount of a member 's contribution paid by the employer or a contractor shall, notwithstanding the provisions in this Scheme or any law for the time being in force or any contract to the contrary, be recoverable by means of deduction from the wages of the member and otherwise: Provided that no such deduction may be made from any wage other than that which is paid in respect of the period or part of the period in respect of which the contribution is payable: . . . .
Provided further that where no such deduction has been made on account of an accidental mistake or a clerical error, such deduction may, with the consent in writting of the Inspector, be made from the subsequent wages.
(2). . . (3). . . 17.
A combined reading of Section 6 of the Provident Funds Act 488 and paras 30 to 32 of the Scheme is that the contribution to the Provident Fund is to be 12 1/2% of the basic wages and dearness allowance, that is to be borne equally by the employer and the employee and that the employer is to pay the whole of it, half on his account, and the other half on account of the employee and he is to recoup himself by deducting it from the wages of the employee.
A bare reading of Section 24 of the Cinema Theatre Workers Act shows that it has fulfilled the purpose of the Notification which the Central Government could have issued under Section 1(3)(b) of the Provident Funds Act read with the proviso.
Therefore, no further Notification as contemplated by Section 1(3)(b) of the Provident Funds Act was necessary.
Section 24 has taken the place of the Notification contemplated by Section 1(3) (b) of the Provident Funds Act read with the proviso thereto.
Therefore the Provident Funds Act became applicable to the theatres who employ five or more workers with effect from 1st October, 1984.
Again in view of Section 6 of the Provident Funds Act, noticed earlier, the employers became liable to pay their contribution to the fund as soon as the Act came into force i.e. w.e.f. 1st October, 1984.
It is also clear from reading of Section 5 of the Provident Funds Act that before the Provident Funds Scheme can become applicable, the Central Government has to frame a Scheme and also specify the establishment to which the said Scheme shall apply.
Till the impugned Notification dated 30th April, 1986 was published the Scheme was not applicable to such cinema theatres who are employing less than 20 employees and it became applicable to cinema theatres employing five or more workers only when the impugned Notification was issued under Section 5 of the Provident Funds Act.
It is only by the impugned Notification that the scheme was amended so as to be made applicable in respect of cinema theatres employing five or more persons.
Without such a Notification the Scheme would not have became applicable.
The Notification on the face of it shows that the Scheme has been made applicable to the cinema theatres covered by the Notification with effect from 1st October, 1984.
This could be done in view of not only the provisions of Section 5(2) of the Provident Funds Act but also in view of Section 7(1) of the Provident Funds Act.
Both these provisions confer express powers of making the Scheme applicable retrospectively.
The question however, is whether by making the Scheme with retrospective operation, the employer could be saddled with the 489 liability to pay employees ' contribution w.e.f.
1st October, 1984 and if not from what other date? The answer to the question turns upon the implementation of the Scheme and in particular the giving effect to paras 30 and 32 of the Scheme.
Para 30 provides that the employer shall, in the first instance, pay both the contributions payable by himself and also the contribution payable by the employees.
It shall be the responsibility of the principal employer to pay both the contributions payable by himself and also in respect of the employees directly employed by himself and also in respect of the employees directly employed by himself and also in respect of the employees employed by him or through a contractor.
Para 32 confers upon the employer the right to recover the employees contribution that has been paid by him under para 30.
That could be recovered by the employer by means of deduction from the wage of the employees who are liable to pay.
First proviso to para 32(1) however, limits that liability in expressly stating that no such deduction may be made from any wage other than that which is paid in respect of the period of which the contribution, is payable.
It is obvious from paras 30 and 32 that the employer has to pay the contribution of the employee 's share but he has a right to recover that payment by deducting the same from the wages due and payable to the employees.
It is significant to note that the deduction is not from the wages payable for any period, but only from the wages for the period in respect of which the contribution is payable and no deduction could be made from any other wages payable to the employees.
In other words, the payment of employees contribution by the employer with the corresponding right to deduct the same from the wages of the employees could be only for the correct period during which the employer has also to pay his contribution.
In the instant case for the period from 1st October, 1984 up to the date of the impugned Notification the employer has paid the full wages to the employees since during that period, there was no scheme applicable to his establishment.
By retrospectively applying the scheme, could he be asked to pay the employees contribution for the period antecedent to the impugned notification.
We think not.
The Act and the Scheme neither permit any such payment nor deduction.
He cannot be saddled with the liability to pay the employees ' contribution for the retrospective period, since he has no right to deduct the same from the future wages payable to the employees.
Mr. Vikram Mahajan, learned counsel for the Central Government submitted that it may be possible for the employers to make deduction from subsequent wages of the workmen with the consent in writing of the Inspector as required under the third proviso to 490 para 32(1) of the Scheme.
This submission cannot be accepted since the third proviso could be taken advantage of by the employer only where no deduction has been made from the wages of the employees due to accidental mistake or clerical error when the scheme is operative.
Such deduction which has not been made by accidental mistake or clerical error, could be made from the subsequent wages with the consent in writing of the Inspector concerned.
The case with which we are concerned is not covered by the third proviso.
It is not the case of any body that the employer could not make deduction from the wages of the employees by accidental mistake or clerical error.
The employer indeed could not have made the deduction prior to the impugned notification dated 30th April, 1986 since the Scheme was not then applicable.
The Scheme has been given retrospective effect w.e.f.
1st October, 1984.
The employer therefore, cannot take the benefit of the third proviso to para 32(1) for deducting the employees contribution in their wages payable in future.
Reference was also made to the decisions of this Court in M/s. Orissa Cement Ltd. vs Union of India, [1962] (Suppl) 3 SCR 837 and in M/s. Lohia Machines Ltd., vs Union of India and Ors., [1965]2 SCR 686 by learned counsel for the appellants in support of his contentions.
It will be noticed that the Supreme Court in Orissa Cement Ltd. [1962] (Suppl) 3 SCR 837 was concerned with the validity of certain Notifications which were struck down as infringing Article 19(1)(g) of the Constitution.
The decision, has no applicability to the facts of the present case.
Equally, the decision, in Lohia Machines Ltd., has also no applicability to the facts of the present case.
In the result and for the foregoing reasons, we allow the appeals as indicated above by setting aside the judgment of the High Court.
We declare that the appellants are not liable to pay the employees contribution for the period from 1st October, 1984 to 30th April, 1986.
In the facts and circumstances of the case, however, we make no order as to costs.
G.N. Appeals partlly allowed.

summary/full:
On 30.4.1986, a Notification was issued by the Government of India amending the scheme under the in conformity with Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, with retrospective effect from 1.10.1984.
The effect of the amendment was to extend the benefit of the Provident Funds Act and the Scheme thereunder to the Cine Workers and Cinema theatre workers.
The appellants challenged the validity of the Notification before the High Court by way of writ Petitions, contending that the said Notification was ultra vires the provisions of the Provident Fund Act since the Central Government could not extent the scheme to an establishment which is neither an industry nor a notified establishment under Section 3(b) of the Act and there was no liability under the scheme to make contribution towards Provident Fund in respect of the employees who ceased to be Cinema workers before 30.4.1986.
It was further contended that calling upon the employers to contribute arrears from the date the scheme was made applicable led to hardship and injustice and hence violative of Article 14 of the Constitution of India.
The Writ Petitions were dismissed by the High Court.
In their appeals to this Court, the appellants contended that so long as the Notification as required by the proviso to Section 1(3)(b) of the Provident Funds Act has not been issued, the Act cannot be made applicable to them and even assuming that Section 24 of the Cinema Theatre Workers Act takes the place of the required Notification, an express notification under Section 5 would be required.
It was also contended 478 that under Section 6 of the Provident Funds Act the liability is fixed only for employers 'share of contribution and not the employees 'share, and since paragraph 30 of the Provident Fund Scheme was not made applicable, there arose no liability of the employers to pay employees 'share and as the appellants were being asked to pay the contribution of the employees ' share retrospectively without the corresponding right of employer to recover it from the wages of employees, it was harsh and unjust.
On behalf of the Respondents, it was contended that it might be possible for the appellants to make deduction from subsequent wages of workmen with the consent of the Inspector as required under the third proviso to para 32(1) of the Provident Fund Scheme.
Partly allowing the appeals, this Court, HELD: 1.
Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 has fulfilled the purpose of the Notification which the Central Government could have issued under Section 1(3)(b) of the Provident Funds Act read with the proviso.
Therefore, no further Notification as contemplated by Section 1(3)(b) of the Provident Funds Act was necessary.
Section 24 has taken the place of the Notification contemplated by Section 1(3)(b) of the Provident Funds Act read with the proviso thereto.
Therfore, the Provident Funds Act became applicable to the theatres who employ five or more workers with effect from 1st October, 1984.
Again in view of Section 6 of the Provident Funds Act, the employers became liable to pay their contribution to the fund as soon as the Act came into force i.e.w.e.f.1st October, 1984.
[488B D] M/s. Orissa Cement Ltd. vs union of India, [1962] (Suppl) 3 SCR 837 and M/s. Lohia Machines Ltd.v.
Union of India and Ors., , distinguished.
It is only by the Notification dated 30.4.1986 that the Provident Funds Scheme was amended so as to be made applicable in respect of the cinema theatres employing five or more persons.
Without such a Notification the Scheme has been made applicable to the cinema theatres covered by the Notification with effect from 1st October, 1984.
This could be done in view of not only the provisions of Section 5(2) of the Provident Funds Act but also in view of Section 7(1) of the Provident Funds Act.
Both these provisions confer express powers of making the 479 Scheme applicable retrospectively.[488E G] 3.
It is obvious from paras 30 and 32 of the Provident Funds Scheme that the employer has to pay the contribution of the employee 's share, but he has a right to recover that payment by deducting the same from the wages due and payable to the employees.
It is significant to note that the deduction is not from the wages payable for any period but only from the wages for the period in respect of which the contribution is payable and no deduction could be made from any other wages payable to the employees.
In other words, the payment of employees 'contribution by the employer with the corresponding right to deduct the same from the wages of the employees could be only for the current period during which the employer has also to pay his contribution.
[489A E] 4.
In the instant case, for the period from 1st October, 1984 up to the date of the Notification i.e.30th April 1986 the employer has paid the full wages to the employees since during that period, there was no scheme applicable to his establishment.
By retrospectively applying the scheme, he could not be asked to pay the employees ' contribution for the period antecedent to the notification.
The Act and the Scheme neither permit any such payment nor deduction .
The employer cannot be saddled with the liability to pay the employees ' contribution for the retrospective period, since he has no right to deduct the same from the future wages payable to the employees.
[489F G] 5.
The third proviso to paragraph 32(1)of the Provident Funds Scheme could be taken advantage of by the employer only where no deduction has been made from the wages of the employees due to accidental mistake or clerical error when the scheme is operative.
Such deduction which has not been made by accidental mistake or clerical error, could be made from the subsequent wages with the consent in writing of the Inspector concerned.
The present case is not covered by the third proviso.
The employer could not have made the deduction prior to the notification dated 30th April, 1986 since the Scheme was not applicable then.
The Scheme has been given retrospective effect w.e.f.
1st October, 1984.
The employer, therefore, cannot take the benefit of the third proviso to para 32(1) for deducting the employees 'contribution in their wages payable in future.[489H;490A C]


judgement:
(CRL.) No. 133 of 1991.
(Under Article 32 of the Constitution of India).
R.K. Jain, Ravi Prakash, Mrs. Swati Kapoor Ms. Abha R. Sharma and Ms. Rajni K. Prasad for the Petitioner.
464 Altaf Ahmed, Additional Solicitor General, Ms. Kusum Choudhary, C. Ramesh and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
On the basis of a letter received from a prisoner detained in Alipore Central Jail, Calcutta, drawing the attention of this Court to the long wait of Daya Singh, the petitioner convicted for the murder of late Chief Minister of Punjab Pratap Singh Kairon, lodged at present in Rohtak Jail Haryana, pending the execution of his death sentence, this case was registered as a writ petition and was listed before us on 27.3.1991.
All the relevant facts were not available from the letter but from the Office Report it appeared that the case of the condemned prisoner had earlier come to this Court.
We directed the Registry to examine the earlier files and place before us the relevant details.
In the meantime we stayed the execution of the death sentence.
The learned carousel for the State of Haryana was also informed about the case.
As directed, the case was placed before us again on Monday, the 1st April, 1991, when Ms. Kusum Chaudhary appeared on behalf of State of Haryana and orders were passed for notice to the counsel representing the Union of India.
Having heard about the case, the convict Daya Singh engaged his own counsel to represent him and to press this writ petition and accordingly Mr. R.K. Jain appeared for him on 5.4.1991.
We have, in the circumstances, treated this application as one directly by Daya Singh.
The Union of India is represented by Additional Solicitor General of India.
The case was further adjourned at the request of the counsel and was ultimately heard on 16.4.1991.
Mr. Jain has contended that if the relevant circumstances of this case are examined in the light of the decisions of this Court, the conslusion is irresistible that there has been inexcusable delay in executing the death sentence of the petitioner, and the sentence should, therefore, be quashed by this Court under Article 32 of the Constitution.
The petitioner was tried for the murder of Sardar Pratap Singh Karion which took place in 1965 and was convicted and sentenced to death by the trial court on 13.12.1978.
The sentence was confirmed by the High Court on 22.3.1980.
His Special leave petition was dismissed by this Court on 21.8.1980 and a further prayer for review was rejected on 2.9.1981.
He filed mercy petitions before the Governor and the President of India, which were also rejected.
465 Seveal orders of stay were passed from time to time, the details whereof are not very significant in view of the rejection by this Court of an earlier application under Article 32, being Writ Petition No. 191 of 1986, filed through his brother Lal Singh.
The case was dismissed on October 11, 1988 and the stay of the execution of the sentence stood vacated.
The reasoned judgment, however, was pronounced later and is resported in Smt.
Triveniben vs State of Gujarat; , The petitioner filed another mercy petition thereafter before the Governor of Haryana on 18.11.1988 and an order for stay of execution was again passed.
The matter remained pending and the petitioner has been awaiting the final outcome of his last petion since then.
On the basis of a newspaper report dated December 24, 1990 it is alleged that the attention of the Deputy Prime Minister was drawn to the petitioner 's case and the Deputy Prime Minister gave an assurance that he would examine the matter.
The report drew the attention of Alipore Jail prisoner which prompted him to send the letter which led the Registry of this Court to register the present writ petition.
The earlier writ petition of the petitioner Writ petition No. 191 of 1986, filed through his brother Lal Singh, was initially heard by a Division Bench of this Court and the matter, along with a number of other applications on behalf of other convicts was referred for the decision of the Constitution Bench.
The cases were heard at considerable length by the Constitution Bench of which one of us (Sharma,L) was a member and the leading argument at that stage was also made by Mr. R.K. Jain when all aspects of the cases were thoroughly considered.
Finally, this Court substituted the sentence of death of one convict (Harbhajan Singh) in another case by the sentence of imprisonment for life, but the other writ petitions including that of the prisoner were dismissed.
In the circumstances the petitioner cannot succeed on the basis of the earlier delay.
The operative part of the judgment, as stated earlier, was passed in October, 1988 and what is now relevant to consider is the delay subsequent to this date.
Before proceeding further we may refer to the decision in Smt.
Triveniben 's case laying down the principle which governs the present petition.
Although the cases were disposed of by two judgements, according to the opinion of the Bench, which was unanimous, undue delay in execution of the sentence of death entitles the condemned prisoner to approach this Court under Article 32, but this Court will examine only the nature of delay caused and circumstances ensued after the sentence was finally confirmed by the judicial process, and will have no jurisdiction to reopen the conclusions reached by the 466 Court while finally maintaining the sentence of death.
Further, while considering the grievance of inordinate delay this Court may consider all the circumstances of the case for deciding as to whether the sentence of death should be altered into imprisonment for life, and no fixed period of delay could be held to make to sentence of death inexecutable.
In the light of these observations the circumstances of the present case are to be examined.
It is true that while rejecting the earlier prayer of the petitioner on October 11, 1988 all the relevant considerations were taken into account and the petitioner cannot be permitted to raise the same plea once rejected, by repeated petitions.
But this does not deprive the petitioner the right to renew the prayer on fresh circumstances arising later and, therefore, not considered.
This is the position in the present case.
Although the matter was finally closed by this Court in October, 1988, the petitioner continues to remain in a state of suspense since then.
The main question is as to what is the effect of this delay.
The initial reason for the further delay has been a fresh mercy petition filed by the petitioner.
Does this fact justify keeping him under a sence of anticipation for more than two years? If the prayer was not considered fit be rejected at once it was certainly appropriate to have stayed the execution, but the matter should have been disposed of expeditiously and not kept in abeyance as has been done.
The counter affidavit filed on behalf of the Union of India states that on the receipt of the last mercy petition the Governor of Haryana immediately made a reference to the President of India seeking enlightenment on the question as to whether the Governor, while dealing with such applications, is bound by the advice of the Chief Minister of the State and whether it is open to the Governor to exercise his constitutional power in a case where an earlier application to the same effect had been rejected by the President.
Soon after the receipt of this communication, the matter was referred to the Department of Legal Affairs, Ministry of Law and Justice for advice, and the Ministry suggested that the question should be discussed with the Attorney General of India.
Since the matter remained under consideration no reply could be sent to the quarry and ultimately it was only in March this year, that the reply could be sent in the shape of a directive under Article 257(1) of the Constitution to all the Chief Secretaries of the State Governments and Union Territories.
The affidavit, however, does not furnish any fact or circumstance in justification of the delay.
In absence of any reasonable explanation by the respondents we are of 467 the view that if the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed, we have no doubt that the entire process of consideration of the questions referred would have been completed within a reasonable period without leaving any yawning gap rightly described by the learned Additional Solicitor General as "embarrassing gap".
There has, thus, been an avoidable delay, which is considerable in the totality of circumstances in the present case, for which the condemned prisoner in in no way responsible.
As was cautioned by this Court in Smt.
Triveniben 's case we are not laying down any rule of general application that the delay of two years will entitle a convict, sentenced to death, to conversion of his sentence into one for life imprisonment, rather we have taken into account the cumulative effect of all the circumstances of the case for considering the prayer of the petitioner.
Although the fact that the petitioner has been continuously detained in prison since 1972 was taken into account while rejecting his earlier writ petition, the same is not rendered completely irrelevant for the purpose of the present case and we have taken it into consideration merely as a circumstance assuming significance as a result of the relevant circumstances arising subsequent to the judgment rendered in October, 1988.
Having regard to all the circumstances of the case, we deem it fit to and accordingly substitute the sentence of imprisonment for life in place of the petitioner 's death sentence.
The writ petition is accordingly allowed.
In the letter from Alipore Jail a prayer has been made for the release of the petitioner.
As was indicated in Triveniben 's case, the only relief a convict awaiting execution of death sentence can get from this Court on the ground of delay is conversion of the sentence into that of life imprisonment.
However, on conversion of the death sentence to life imprisonment, the petitioner would now be governed and dealt with as a life convict for all purposes.
We are not required to say anything more in this behalf.
This prayer made in the letter is rejected.
R.P. Petition allowed.

summary/full:
The petitioner was convicted of murder and was sentenced to death by the Sessions Court on 13.12.1978.
His appeal to the High Court and Special Leave petition to this Court were dismissed.
His mercy petitions to the Government and to the President of India were also rejected.
The execution of the sentence remained stayed till it stood vacated on 11.10.1988 on dismissal of a writ petition** under Article 32 of the Constitution filed by his brother for conversion of the death sentence into one of life imprisonment on the ground of delay in its execution.
On 18.11.1988 the petitioner again filed a mercy petition before the Governor and his execution was once more stayed, and since then he was awaiting the final outcome of his petition.
meanwhile, on 24.12.1990, a prisoner sent a letter praying for release of the petitioner, which was treated as a writ petition on behalf of the convict under Article 32 of the Constitution.
It was contended on behalf of the petitioner that the death sentence awarded to him should be quashed as there had been inexcusable delay in executing the same.
On consideration on nature and effect of the delay in execution of the sentence after the petitioner filed mercy petition on 18.11.1988, in the light of the principles laid down in Triveniben 's case**.
Allowing the appeal, this Court, HELD: 1.
Once a petition for conversion of death sentence into one of life imprisonment is rejected, the plea raised in the petition so 463 rejected, cannot be permitted to be raised by repeated petitions.
But this does not deprive the convict of his right to renew the prayer on fresh circumstances arising later and, therefore, not considered.
[465B C] 2.
In the instant case, the petitioner could not succeed on the basis of the delay prior to October, 1988 as it had been considered in the earlier petition which was dismissed; but the fact that the petitioner had been continuously detained in prison since 1972 was not rendered completely irrelevant and should be considered merely as a circumstance assuming significance as a result of the relevant circumstance, arising subsequent to the judgment rendered in October, 1988.
[465E F, 467C D] 3.
The initial reason for the further delay has been a fresh mercy petition filed by the petitioner.
Althought the stay of the execution was certainly appropriate in the event of not rejecting the prayer at once, yet the matter should have been disposed of expeditiously and not kept in abeyance as was done.
If the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed, undoubtedly, the entire process of the consideration of the questions referred would have been completed within a reasonable period without leaving any yawning or "embarrassing gap".
There had been an avoidable delay considerable in the totality of circumstances, for which the petitioner was in no way responsible.
[466D E; 467A B] 4.
The only relief a convict awaiting execution of death sentence can get from this Court on the ground of delay is conversion of the sentence into that of life imprisonment.
[467F] 5.
In view of all the circumstances of the case, the petitioner 's death sentence is substituted by imprisonment for life and he would be governed and dealt with as a life convict for all purposes.
[476E, G] **Smt.
Tribeniben vs State of Gujarat, [1989] 1 S.C.C. 678, followed.