judgement:
t Petition No. 1125 of 1979 (Under Article 32 of the Constitution) M. K. Ramamurthy and R. C. Pathak for the Petitioner.
K.K. Venugopal, Addl.
Solicitor General, and Altaf Ahmed for the Respondent.
Reasons would follow.
" The reasons in support of the above order are given below: The above petition under Article 32 of the Constitution is filed by the petitioner requesting this Court to quash the order of detention bearing No. 299 304/ST dated May 23, 1979 passed by the District Magistrate, Anantnag in the State of Jammu & Kashmir under section 8(2) of the Jammu & Kashmir Public Safety Act, 1978 (Act No. VI of 1978) (hereinafter referred to as 'the Act ') directing the detention 1106 of his (petitioner 's) son, Shabir Ahmed Shah (hereinafter referred to as 'the detenu ').
The relevant part of the order of detention reads: "Whereas I, Omar Jan, District Magistrate, Anantnag, am satisfied that with a view to preventing Shri Shabir Ahmed Shah s/o Ghulam Mohammad Shah r/o Kadipora, Anantnag, from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do; Now, therefore, in exercise of the powers conferred by section 8 (2) of the Jammu and Kashmir Public Safety Act, 1978 (Act No. VI of 1978), I, Omar Jan, District Magistrate, Anantnag hereby direct that the said Shri Shabir Ahmed Shah be detained in Central Jail, Srinagar.
Sd/ (Omar Jan) District Magistrate, Anantnag".
The detenu was informed in pursuance of section 13 of the Act that his detention had been ordered on the following grounds: "1.
You originally belonged to Young Man 's LEAGUE (Hamid group) which was an anti national and pro Pak organization of youngmen.
You alongwith your erstwhile associates were responsible for creating subversion and danger to the maintenance of public order by organizing antinational demonstrations and protests.
Later in the year 1975 when the Peoples ' League was formed with the avowed object of challenging the accession of the State of India and also for furthering the cause and interest of Pakistan in the State, you joined the party as an active member.
You are currently the General Secretary of the Peoples ' League.
You and Your party have shown open sympathy and have tried to elicit public opinion in favour of Mohammad Maqbool Bhat, a die hard pro Pak subversive element who has been sentenced to death on two occasions for murder, espionage and sabotage and is currently awaiting execution.
Pamphlets and posters have been issued by the Peoples ' League in support of Mohammad Maqbool Bhat.
In January and February, 1970 you joined subversive elements of Sopore area and organized the burning of reli 1107 gious places in order to create chaos in the State.
The conspiracy was, however, unearthed by Baramulla Police in time before much damage was done.
You were arrested in Case FIR No. 38/79 u/s 436 RPC P/S Sopore registered in this connection.
Much before the execution of Mr. Z. A. Bhutto in Pakistan, you and your party sent hand bills and booklets to arouse the sentiments of the people against the State Govt.
You alongwith your party members moved secretly to maintain contacts with disgruntled and undesirable elements in the valley and to arouse their base sentiments in this connection and context.
In the third week of March, 1979, when some unemployed youth started hunger strike at Lal Chowk, Anantnag, you lent support to the CPI ML and other parties who were out to create disturbances and to incite the youth to resort to violence and disorder.
On 29 3 1979 you alongwith your colleagues held a meeting and decided to disturb public order in Anantnag town in the context of pro Bhutto sentiments and demonstrations the next day.
Consequently on 30 3 1979 you alongwith your associates moved stealthily to warn the shopkeepers to close their shops.
You also incited the people to put road blocks and stop traffic.
You and your associates organized a strike in Anantnag College when it opened on 30th.
Later in the day you alongwith your associates incited youths to resort to violence and create disorder.
Consequently a lot of violence including murderous assault on the Police and the Magistracy took place in Anantnag town in which many officials were seriously injured.
A case FIR No. 98/79 u/s 302/148/336/332/149/120 B RPC was registered.
You went underground and could not be arrested for quite some time but you were arrested in the case later.
You are presently on bail in this case.
On 7 4 1979 when normalcy was being restored in Anantnag town and shops were being opened, you alongwith your associates appeared near Lal Chowk and threatened shop keepers to close shops.
Their shouting and running had the effect of creating tension in the 1108 town and many shops were closed.
Police efforts to arrest you could not succeed as you ran away in the by lanes and later went underground.
More recently you have been collaborating with antinational, pro Pak elements who come to hold secret talks and links with you.
You are a dangerous and desparate character out to create chaos, disorder, subversion and the like to achieve your ends.
Your remaining at large is prejudicial to the maintenance of public order and also to the security of the State.
I am convinced that unless you are detained there is every likelihood that you will continue to create confusion in public minds and instigate people to lawlessness and disturbance of public peace and tranquility." (The paragraphs are numbered by us for the purpose of convenience).
It may be noted that whereas the order of detention stated that it had been passed with a view to preventing the detenu "from acting in any manner prejudicial to the maintenance of public order", in the last paragraph of the grounds furnished to the detenu, it was stated that "your remaining at large is prejudicial to the maintenance of public order and also to the security of the State".
The relevant part of section 8 of the Act under which the order of detention is passed reads: "8.
Detention of certain persons. (1) The Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the security of the State or the maintenance of the public order, or (ii) the maintenance of supplies and services essential to the community; or.
(b) . . . . it is necessary so to do, make an order directing that such person be detained.
1109 (2) Any of the following officers namely: (i) Divisional Commissioners, (ii) District Magistrates, may, if satisfied as provided in sub clauses (i) and (ii) of clause (a) of sub section (1), exercise the powers conferred by the said sub section.
(3) For the purpose of sub section (1), (a) "acting in any manner prejudicial to the security of the State" means making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force, to overthrow or overawe the Government established by law in the State; (b) "acting in any manner prejudicial to the maintenance of public order" means (i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region; (ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking, otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order; (iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order; (iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order.
" It is seen from section 8(1) (a) (i) and section 8(2) of the Act extracted above that the Government or the District Magistrate may, if satisfied with respect to any person that with a view to preventing him 1110 from acting in any manner prejudicial to the security of the State or the maintenance of the public order, make an order directing that such person be detained.
The expression "acting in any manner prejudicial to the security of the State" is defined in clause (a) of subsection (3) of section 8 of the Act as making preparation for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force to overthrow or overawe the Government established by law in the State.
Clause (b) of section 8(3) of the Act defines the expression "acting in any manner prejudicial to the maintenance of public order".
The distinction between the two expressions lies in the fact that while in the case of the former, the object of making preparation or instigating or abetting the use of force etc. should be with a view to overthrow or overawe "the Government established by law in the State", in the case of the latter, the object of the acts mentioned therein should be disturbance of public order.
As already mentioned, while the order of detention states that it was being made with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, in the grounds disclosed to him, it had been stated that the detenu 's remaining at large was prejudicial to the maintenance of public order and also to the security of the State.
We shall now briefly refer to the nature of the grounds furnished to the detenu.
First we shall deal with paragraphs (1), (3) and (5) to (7) of the grounds.
In paragraph (1) of the grounds, it is stated that the detenu alongwith his erstwhile associates was responsible for creating subversion and danger to the maintenance of public order by organizing anti national demonstrations and protests.
In paragraph (3) of the grounds, it is stated that in January and February, 1979, the detenu had joined subversive elements of Sopore area and organized the burning of religious places in order to create chaos in the State.
In paragraph (5) of the grounds, it is stated that in the third week of March, 1979, the detenu had lent support to the Communist Party of India (ML) and other parties who were out to create disturbances and to incite the youth to resort to violence and disorder when some unemployed youth started hunger strike at Lal Chowk, Anantnag.
In paragraph (6) of the grounds, it is stated that on March 29, 1979, the detenu had alongwith his colleagues held a meeting and decided to disturb public order in Anantnag town.
In paragraph (7) of the grounds, there is a reference to the detenu alongwith his associates inciting the youth to resort to violence and create disorder.
It is thus clear that paragraphs (1), (3) and (5) to (7) of the grounds, there is no reference to any attempt made by the detenu to use force to overthrow or overawe the Government established by 1111 law in the State.
Paragraphs (2), (4) and (8) of the grounds are also in no way different.
In paragraph (2) of the grounds, although there is reference to the detenu joining Peoples ' League, which had been formed with an avowed object of challenging the accession of the State of Jammu & Kashmir to India and also for furthering the cause and interest of Pakistan in the State, the act attributed to the detenu is that he had tried to elicit public opinion in favour of Mohammad Maqbool Bhat who had been sentenced to death.
An attempt on the part of any citizen to elicit public opinion in favour of a person who had been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State.
Similarly the act attributed to the detenu in paragraph (4) of the grounds cannot be considered as an act prejudicial to the security of the State as what is alleged therein is that much before the execution of Mr. Z. A. Bhutto in Pakistan, the detenu had sent hand bills and booklets to arouse the sentiments of the people.
Although it is stated that the detenu had tried to arouse the sentiments of the people against the State Government, the alleged act on the part of the detenu even if it was true could not be considered to be prejudicial to the security of the State of Jammu & Kashmir because the State of Jammu & Kashmir had nothing to do with the proposed execution of Mr. Z. A. Bhutto.
Ground No. 8 which lacks material particulars appears to be a general one.
These grounds are also vague in so far as the question of security of the State is concerned.
It is thus clear that none of the grounds supplied to the detenu falls within the scope of clause (a) of section 8(3) (1) of the Act which defines the expression "acting in any manner prejudicial to the security of the State".
It is further seen that even though it is stated in the grounds that the District Magistrate was of the view that the detenu remaining at large was prejudicial to the security of the State also, he did not make the order with a view to preventing him from acting in any manner prejudicial to the security of the State.
A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it.
He, however, tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large the security of the State was likely to be prejudiced.
1112 The expressions "law and order", "public order" and "security of the State" are distinct concepts though not always separate.
Whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State".
This is borne out from the observations made by Patanjali Sastri, J. in the decision of this Court in Romesh Thappar vs The State of Madras (1) which are as follows: "As Stephen in his Criminal Law of England observes: Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries.
All of them have in common one feature, namely that the normal tranquillity of a civilized society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.
" Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code.
Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub clause (b)" and (c) right of association "sub clause (c)" may be restricted under clauses (3) and (4) of Article 19 in the interests of "public order," which in those clauses includes the security of the State.
The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation.
The Constitution thus requires a line to be drawn in the field of public order or tranquillity 1113 marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.
" As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia vs State of Bihar & Ors.
one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order ' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State".
It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State.
It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately.
An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh vs Arif Ali & Ors.(2) and Satya Brata Ghose vs Arif Ali & Ors(3).
The order of detention is, therefore, liable to be quashed and the detenu is entitled to be set at liberty.
The petition is accordingly allowed.
In view of the above conclusion, we have not gone into the other contention urged by Mr. M. K. Ramamurthi that many of the grounds furnished to the detenu being vague, the order of detention cannot be supported even on the ground that it had been passed with a view to preventing the detenu from acting against public order.
N.K.A. Petition allowed.

summary/full:
The petitioner 's son (the detenu) was detained under section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 by an order of the District Magistrate, Anantnag, Sections 8(1)(a)(1) and 8(2)2 of the Act state that the Government or the District Magistrate may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of the public order, make an order directing that such person be detained.
The detenu was informed that the order of detention had been passed with a view to preventing him from acting in any manner prejudicial to "the maintenance of public order".
The grounds of detention amongst others stated that the detenu had (i) indulged in subversive activities (ii) organised the burning of religious places to create chaos in the State (iii) disturbed the public order (iv) tried to elicit public opinion in favour of a person sentenced to death and that his remaining at large was prejudicial to the maintenance of public order and also the "security of the State".
The petitioner challenged the grounds of detention as vague.
Allowing the petition under Article 32 of the Constitution and directing the release of the detenu forthwith.
^ HELD: An attempt on the part of any citizen to elicit public opinion in favour of a person who has been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State.
The fact that the detenu had sent hand bills and booklets to arouse the sentiments of the people against the proposed execution of Z. A. Bhutto cannot be considered as an act prejudicial to the security of the State because the State of Jammu and Kashmir had nothing to do with the proposed execution.
The other grounds are also vague in so far as the question of security of the State is concerned.
[1111 B E] A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it.
He, however, tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large, the security of the State was likely to be prejudiced.
[1111 G H] 1105 The expressions "law and order", "public order" and "security of the State" are distinct concepts though now always separate.
Whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State." [1112 A B] Romesh Thapper vs The State of Madras, [1950] S.C.R. 594 at p. 600 applied.
An act may affect law and order but not public order just as an act may affect public order but not security of State.
It is for this reason that the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order ' separately.
An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to an illegal one.
[1113 C D] Dr. Ram Manohar Lohia vs State of Bihar & Others, ; Bhupal Chandra Ghosh vs Arif Ali & Others ; and Satya Brata Ghose vs Arif Ali


judgement:
Civil Appeal No. 2229 of 1978.
From the Judgment and Order dated 12 10 1978 of the Bombay High Court in Election Petition No. 2/78.
N.N. Keshwani and Ramesh N. Keshwani for the Appellant.
A.K. Ganguli for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal is filed under section 116 A of the Representation of the People Act, 1951 (Act No. 43 of 1951) (hereinafter referred to as 'the Act ') against the judgment of the High Court of Bombay (Nagpur Bench) in Election Petition No. 2 of 1978 by which the election of the appellant to the Maharashtra Legislative Assembly from the Armori Constituency (No. 151) in Chandrapur District at the general election held in February, 1978 was set aside.
1137 The Armori Constituency was reserved for Scheduled Tribes.
The appellant and respondents Nos. 1 to 4 were the candidates at the election.
As the appellant secured the highest number of votes, he was declared as having been elected by the Returning Officer.
In his nomination paper, the appellant declared that he belonged to 'Mana ' community.
Respondents Nos. 1, 2 and 4 declared themselves as belonging to 'Pradhan ' community and respondent No. 3 claimed that he belonged to 'Raj Gond ' community.
After the result of the election was declared, respondent No. 1 who had secured the next highest number of votes at the election filed an election petition under section 81 of the Act before the High Court of Bombay calling in question the election of the appellant.
One of the grounds urged in the petition was that the appellant did not belong to any of the Scheduled Tribes specified in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as 'the Order ') as it stood at the time of the election and was not, therefore, qualified to be chosen to fill the seat which was reserved for Scheduled Tribes.
It was alleged that the appellant belonged to Kshatriya Bidwaik Mana community and not to the 'Mana ' community referred to in Entry No. 18 of Part IX of the Schedule to the Order.
Respondent No. 1 also claimed that in the event of the appellant 's election being declared as void, the Court should make a declaration that he (respondent No. 1) himself had been duly elected.
The High Court upheld the contention of respondent No. 1 that the appellant did not belong to any of the Scheduled Tribes referred to in Part IX of the Schedule to the Order and declared his election as void.
The other prayer made by respondent No. 1 that he should be declared as elected was, however, rejected.
Aggrieved by the judgment of the High Court, the appellant has come up in appeal to this Court.
It should be mentioned at this stage that in the general election held in the year 1967, the appellant was declared as a successful candidate from the very same constituency which was a constituency reserved for Scheduled Tribes at that time also and that on an election petition being filed against the appellant, the High Court held that he did not belong to any of the Scheduled Tribes mentioned in the appropriate part of the Schedule to the Order at that time and therefore he was not qualified to contest the election.
Accordingly his election was set aside.
In the appeal filed before this Court, the judgment of the High Court was affirmed vide Dina vs Narayan Singh.(1) In the course of the decision of this Court, it was held that the appellant belonged to 'Kshatriya Bidwaik Mana ' community and not to the 'Mana ' community 1138 referred to in Entry No. 12 of Paragraph 5 of Part VII A of the Schedule to the Order as it stood at the time of the said election for the reasons to which we shall advert hereafter.
In the election petition out of which this appeal arises, respondent No. 1 pleaded that the appellant belonged to 'Kshatriya Bidwaik Mana ' community which was not a tribe mentioned in the Schedule to the Order and that the appellant was not a member of the 'Mana ' community referred to in Entry No. 18 of Part IX of the Schedule to the Order as it stood at the time of the election in question.
It was further alleged that the said 'Mana ' community was a sub tribe of Gond tribe and it had no relationship with the 'Kshatriya Bidwaik Mana ' community to which the appellant belonged.
The appellant denied the above allegation that there were two types of Manas viz. (a) 'Mana ' a sub tribe of 'Gond ' referred to in Entry No. 18 of Part IX of the Schedule to the Order and (b) 'Kshatriya Bidwaik Mana ' community.
He further contended that the 'Mana ' community to which he belonged had been included in that Entry after the Schedule to the Order was amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.
In order to appreciate the rival contentions, it is necessary to make a brief survey of the law bearing on the question.
Article 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam and Nagaland, in the Legislative Assembly of every State and that the number of seats for the Scheduled Castes and the Scheduled Tribes so reserved shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State.
The expression 'Scheduled Tribes ' with which we are concerned in this case is defined in clause (25) of Article 366 of the Constitution as such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of the Constitution.
Article 342(1) of the Constitution provides that the President may with respect to any State or Union territory and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups, within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
It was in pursuance of this constitutional provision that 1139 the President issued the Order specifying the tribes or tribal communities which should be deemed to be Scheduled Tribes in relation to the several parts of India.
Article 342(2) of the Constitution confers the power on the Parliament to modify by law the order issued under Article 342(1) by including in or excluding from the list of Scheduled Tribes specified therein any tribe or tribal community or part of or group within any tribe or tribal community.
Section 5(a) of the Act provides that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless, in the case of a seat reserved for the Scheduled Tribes of that State he is a member of any of those tribes and is an elector for any Assembly constituency in that State.
The area in which the appellant and respondents Nos.
1 to 4 are residing is situate within the area known as Gadchiroli and Sironcha Tahsils of the Chandrapur District of the State of Maharashtra.
Prior to the amendment made in 1956, Entry No. 12 in the relevant part of the Schedule to the Order read as "Gond including Media (Maria) and Mudia (Muria)".
By the Scheduled Castes and Scheduled Tribes (Amendment) Act 63 of 1956, the said Entry No. 12 was substituted by Entry No. 12 in Paragraph (5) of Part VII A of the Schedule to the Order which was as follows: "12.
Gond, including Arakh or Arrakh Kandra Agaria Kalanga Asur Khatola Badi Maria or Koitar Bada Maria Koya Bhatola Khirwar or Khirwara Bhimma Kucha Maria Bhuta, Koilabhut Kuchaki Maria or Kollabhuti Bhar Madia (Maria) Bisonhorn Maria Mana Chota Maria Mannewar Dandami Maria Moghya or Mogia or Monghya Dhuru or Dhurwa Mudia (Muria) Dhoba Nagarchi Dhulia Nagwanshi Dorla Ojha Gaiki Raj Gatta or Gatti Sonjhari Jhareka Gaita Thatia or Thotya Gond Gowari Wade Maria or Vade Maria.
" Hill Maria The 30th tribe amongst the tribes included within the broad classification of 'Gond ' tribe is 'Mana ' tribe.
As mentioned earlier, the claim of the appellant that he belonged to the said tribe in the previous case 1140 was negatived.
In August, 1967, a Bill was introduced in the Lok Sabha proposing to amend the Schedule to the Order.
By that Bill, it was proposed to substitute the Schedule to the Order as it stood then by a new Schedule.
Part VIII of the new Schedule related to Maharashtra.
Entry No. 22 in that Part read as follows: ___________________________________________________________ Tribe Synonym Sub tribe __________________________________________________________ 1 2 3 ___________________________________________________________ "22.
Gond Koitur Arakh Kalanga Bada Madia Kandra Bhatola Koya Chhota Madi Khirwar Dandami Mad Kucha Madia Dhulia Kuchaki Madia Dhuru or Dwa Machalir Madia Dhoba Mana Dorla Mannewar Gaiki Mudia Gaita Nagarchi Gatta or Gi Nagwanshi Naikpod Ojha Sonjhari Jharekha Thatia or Thotia." _________________________________ __________________________ In the proposed Entry, 'Mana ' community was shown as a sub tribe of 'Gond ' tribe.
With the concurrence of the Rajya Sabha, the Bill was referred to a Joint Committee of the Parliament presided over by Shri Anil K. Chanda.
The Report of the Joint Committee on the Bill was presented to the Lok Sabha on November 17, 1969.
In so far as the amendments proposed to the Schedule to the Order were concerned, the Joint Committee inter alia observed at Paragraph 20(ii) thus: "20(ii).
The Committee feel that the proposal to specify the tribes, the synonyms and the sub tribes in three separate columns will not be appropriate.
As in the case of Schedule Castes Orders, the Committee are of the view that it would be best to follow the wording of article 342(1) of the Constitution and specify.
"The tribes or tribal communities, or parts of, or groups within, tribes or tribal communities".
Each of the Scheduled Tribes Orders have been modified accordingly, and in the lists of Scheduled Tribes the main tribe name is written first followed by the synonyms and subtribes in alphabetical order." 1141 The Joint Committee also recommended that the Mana sub tribe referred to in the Bill should be excluded from the Schedule to the Order altogether.
Thereafter the matter was again considered by the Parliament.
In the Statement of Objects and Reasons dated May 12, 1976 attached to the Bill, it was stated as follows: "Under the Scheduled Castes and Scheduled Tribes Orders some communities have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole State.
This has been causing difficulties to member of these communities in the areas where they have not been so specified.
The present Bill generally seeks to remove these area restrictions.
However, in cases where continuance of such restrictions were specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967, no change is being effected.
The Committee had also recommended exclusion of certain communities from the lists of Scheduled Castes and Scheduled Tribes.
These exclusions are not being made at present and such communities are being retained in the lists with the present area restrictions.
Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that they were not found in a State are, however, being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971. . ." Thereafter the (Act No. 108 of 1976) was passed by the Parliament and it had come into force before the election in question was held.
By the above Act, the entire Schedule to the Order as it stood prior to the amendment was substituted by a new Schedule consisting of XVI parts.
Part IX of the new Schedule relates to the State of Maharashtra.
Entry No. 18 of Part IX of the new Schedule corresponds to Entry No. 22 of the Bill referred to above and to Entry No. 12 in Paragraph (5) of Part VII A of the Order as it stood prior to the amendment.
Entry No. 18 of Part IX of the Schedule to the Order after the amendment reads thus: "18.
Gond; Rajgond, Arakh, Arrakh, Agaria, Asur Badi Maria, Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar, Bisonhorn Maria, Chota Maria, Dhandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Kalanga, 1142 Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghnya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya, Wade Maria, Vade Maria.
" It is seen from the above Entry that 'Mana ' community is one of the communities included in the group of communities headed by Gond community.
It appears that the recommendation of the Joint Committee to exclude it from the Schedule to the Order was not accepted by the Parliament.
If the Schedule to the Order had not undergone any change, there would not have been any room for argument that the appellant was a person belonging to a Scheduled Tribe eligible to contest as a candidate at an election to fill a seat from the reserved constituency as the question was conducted by the judgment of this Court in Dina 's case (supra).
Mr. M. M. Phadke, learned counsel for the appellant, however, argued that a comparison of Entry No. 12 as it stood prior to the amendment and Entry No. 18 as it stood on the date of the election in question would show that the Parliament while substituting the Schedule by a new Schedule by Act No. 108 of 1976 intended to make a departure from the old law and that every person who belonged to any 'Mana ' community whether it had any affinity with Gond tribe or not would be entitled to the privilege of contesting at the election from the reserved constituency.
The question for consideration before us therefore is whether by reason of the amendment made in the year 1976, persons belonging to the Mana community to which the appellant belonged and which was not a Scheduled Tribe before such amendment can be considered as persons belonging to a Scheduled Tribe after such amendment.
Apart from Article 366(25) of the Constitution, there is no other definition of the expression "Scheduled Tribes".
Scheduled Tribes are, therefore, only those which are deemed under Article 342 of the Constitution to be Scheduled Tribes.
Hence in order to find out whether a community is a Scheduled Tribe or not, we have only to see the order which is made under Article 342 of the Constitution.
Mr. M. N. Phadke, learned counsel for the appellant drew the attention of the Court to the omission of the word 'including ' which according to him, had been used in Entry No. 12 of the Schedule as it stood prior to the amendment to indicate that the communities mentioned after it were those having affinity with the 'Gond ' tribe, from the new Entry No. 18 of Part IX of the Schedule to the Order and 1143 contended that the group of communities mentioned in Entry No. 18 need not necessarily be those having mutual affinity amongst them.
On the above basis, it was urged on behalf of the appellant that a person belonging to any 'Mana ' community should be treated as a person belonging to a Scheduled Tribe even though it had no affinity with the 'Gond ' tribe.
We find it difficult to agree with the submission made by him.
Sometimes, the word 'including ' is used in a definition to give an extended meaning also to the word defined.
In Dilworth vs Commissioner of Stamps(1), Lord Watson observed that when the word 'include ' is used in an interpretation clause to enlarge the meaning of words or phrases in a statute "these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include".
Sometimes the word 'includes ' is used as a synonym for 'means ' and not as a word of extension, but limitation.
This again is clear from the following observations of Lord Watson in the decision referred to above: "But the word 'include ' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined.
It may be equivalent to 'mean and include ', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." In South Gujarat Roofing Tiles Manufacturers Association & Anr.
vs State of Gujarat & Anr.(2) this Court interpreted the expression 'includes ' found in Entry No. 22 which had been included in Part I of the Schedule to the by the Gujarat Government as being equivalent to 'means '.
It is significant that even when it was possible to give an extended meaning to the expression 'Mana ' appearing in Entry No. 12 in the Order before the amendment relying on the presence of the word 'including ' in that Entry, this Court gave a restricted meaning to it and held that only that 'Mana ' community which had affinity with the Gond community could be considered as a Scheduled Tribe and that Kshatriya Bidwaik Mana community to which the appellant belonged could not be treated as a Scheduled Tribe.
Now that the word 'including ' has been omitted from the present Entry No. 18, is it open to construe it as including communities which had no affinity with the principal tribe 'Gond ' mentioned first in that Entry? 1144 We do not think that it is possible to do so.
Even though the proceedings of the Joint Committee cannot be relied upon for the purpose of construing the Order, they may be looked into to ascertain the circumstances in which the several communities were grouped under one Entry or the other.
The extract from the proceedings of the Joint Committee quoted above shows that in order to avoid confusion, the Committee recommended to follow the words in Article 342 of the Constitution and to enlist the "tribes or tribal communities or parts of, or groups within, tribes or tribal communities" under specific Entries.
It also recommended that the main tribe should be mentioned first in any Entry followed by its synonyms and its sub tribes in alphabetical order.
Even without the aid of the proceedings of the Joint Committee, it is possible to arrive at the same conclusion in the context in which the word 'Mana ' is found in Entry No. 18.
Part IX of the Schedule to the Order as it stands today contains 47 Entries.
In certain entries only one community is mentioned and in certain others.
two or more communities are mentioned.
It is obvious that certain communities have been grouped together under a single entry in the light of Article 342 of the Constitution which requires parts of or groups within a tribal community also to be specified in the order issued thereunder.
It is, therefore, reasonable to hold that the communities mentioned against any specific entry are those which have mutual affinity amongst them.
It is also not possible to hold that by replacing the Schedule to the Order by a new Schedule by the , the Parliament intended to treat persons belonging to 'Kshatriya Bidwaik Mana ' community also as Scheduled Tribes.
If really that was the intention, the Parliament would have mentioned 'Mana ' community under an independent entry.
The inclusion of the 'Naikpod ' community amongst the group of communities in Entry No. 18 for the first time also is of no special significance since the appellant has admitted in the course of his evidence that 'Naikpod ' is also a tribe, found alongwith other Scheduled Tribes in that area and it is not stated that the said tribe has no affinity with them.
It may have been omitted from the order earlier due to oversight.
A reading of the Schedule to the Order also shows that where there are two communities with the same name, one having affinity with a tribe and the other not having anything to do with such tribe and both are treated as Scheduled Tribes the community which has affinity with another tribe is shown alongwith it in the same group against a single entry and the other is shown against a different entry.
This is illus 1145 trated by the inclusion of the 'koya ' community having affinity with 'Gonds ' in Entry No. 18 and the 'koya ' community having no such affinity in Entry No. 33 of Part IX of the Schedule to the Order.
If the Parliament intended to treat the appellant 's community also as a Scheduled Tribe, it would have shown 'Mana ' community under a separate entry.
No such entry is found in the Schedule.
Some arguments were addressed at the Bar on the basis of the difference in the punctuation marks used in Entry 12 and in entry 18.
It is well known that punctuation marks by themselves do not control the meaning of a statute when its meaning is otherwise obvious.
Hence we do not feel that we should deal with it in greater detail having regard to the nature of this case.
We are, therefore of the view that the 'Mana ' community included in Entry No. 18 can only be that which has affinity with 'Gonds ' and any other community which also bears the name 'Mana ' but does not have any such affinity cannot be deemed to fall within the scope of 'Mana ' in Entry No. 18.
The appellant has categorically admitted in the course of his evidence that there was no connection between his community and Gonds.
His evidence is, "We have no concern with the Gond community also.
The customs and traditions with regand to marriage of our community are different from those of the Gonds".
He has also stated in his deposition that 'I have no concern whatsoever with Gonds.
There are sub castes amongst Gonds.
Some of them are Arak, Gowari, Raj gond, Bada Magia, Madia, Ojha and Wanjari.
It is not true that Mana is a sub caste of the Gonds.
There is no community known as Gond '.
That the appellant was a member of the 'Mana ' community which has the qualification of 'Kshatriya ' is established by his admission in his deposition that he was a member of the Kshatriya Mana Shikshana Sahayak Mandal, Chandrapur.
Although in another part of his statement of objections, there are some contradictory statements, the following plea in para 9 of the said statement makes it obvious that there is a community called Kshatriya Bidwaik Mana community: "9 As to Para 11 : It is admitted that the respondent No. 1 was the Vice President for some time and also an active worker of the Kshatriya Bidwaik Mana Shikshana Sanastha.
The object of the said institution was not limited to spread education amongst the boys belonging to Kshatriya Bidwaik Mana community, and it is denied that the said 1146 society has been founded in order to give educational facilities to the students belonging to this community only".
In the appeal filed by the appellant where the question was whether he belonged to a Scheduled Tribe or not, this Court observed: "That there are sub tribes amongst the Gonds is not denied.
Names of some of those sub tribes are included in Entry 12 of Item 5 of Part VII A of the Schedule is also a matter which is beyond dispute.
The customs, manners, form of worship, and dress of the members of the Maratha Mana community are all different from the customs manner, form of worship and dress of the Gonds.
No rational explanation has been suggested why the Parliament should have, while including under Entry 12 several sub tribes of Gonds, specified Mana under that entry, if Manas had no affinity at all with Gonds.
The appellant was uncertain about the claim that he was making.
In the nomination paper filed by him he claim to be a Gond (Mana).
His subsequent explanation that he did so because the rules so required cannot be accepted as true.
He relied upon the status of a Mana in the belief that all Manas were intended to be given the benefit of the privileges conferred by the Scheduled Tribes Order.
He described himself as a Gond (Mana).
Realizing thereafter that his community had no affinity with the Gonds he stated that he was not a Gond; that he had nothing to do with the Gonds, and that his community had also nothing to do with the Gonds.
He rested his claim solely upon the description in Entry 12 in item 5 of Part VIIA of the Schedule.
But the form in which the entry is made prima facie indicates that in the view of the Legislature, Mana was a sub tribe of Gonds and a Mana who was a member of the sub tribe of Gonds alone was entitled to the privileges conferred by the Schedule to the Scheduled Tribes Order.
We therefore agree with the High Court that the appellant, merely because he belonged to the Mana community amongst the Marathas, is not eligible to stand as a candidate for election to the Maharashtra Legislative Assembly from the reserved seat of the Armori constituency in Gadchiroli tahsil of Chanda District.
" The position has not since changed even though the Schedule to the Order is substituted by a new Schedule.
There has only been a 1147 re arrangement of the Schedule with slight modification which has no effect on the question at issue in this case.
The High Court was, therefore, right in rejecting the case of the appellant that he belonged to a Scheduled Tribe, and in setting aside his election to the Maharashtra Legislative Assembly.
In the result the appeal fails and is hereby dismissed with costs.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Entry 12 of Part IX of the Schedule to the Constitution (Scheduled Tribes) Order 1950 prior to its amendment in 1956 read as "Gond including Media (Maria) and Mudia, (Muria)".
By the Scheduled Castes and Scheduled Tribes (Amendment) Act 63 of 1956 the said Entry was substituted by Entry 12 in Paragraph 5 of Part VII A of the Schedule to the Order.
It read as "12 Gond, including: Arakh or Arrah. Mana. " "Mana" was the 30th community amongst the communities included in that Entry.
In 1976 the entire Schedule to the order as it stood prior to the amendment was substituted by a new Schedule.
Entry 18 of Part IX of the new Schedule corresponding to Entry 12, prior to the amendment, showed 'Mana ' community as one of the communities included in the group of communities headed by "Gond" community.
In the election to the State Assembly held in February, 1978 the appellant was declared successful from a constituency reserved for Scheduled Tribes.
In his election petition impugning the appellant 's election respondent No. 1 who was the unsuccessful candidate challenged the election on the ground that the appellant did not belong to any of the Scheduled Tribes specified in Part IX of the Schedule to the 1950 Order as it stood at the time of the election and was therefore not qualified to be chosen to fill the seat reserved for the Scheduled Tribes.
The High Court set aside the appellant 's election.
In appeal to this Court it was contended on behalf of the appellant that while the word "including" in Entry 12 of the 1950 Order as it stood after its amendment in 1956 showed that the communities referred to therein were those having affinity with the Gond Tribe and its omission in Entry 18 as amended in 1976 showed that the group of communities mentioned in this Entry, need not necessarily be those having mutual affinity amongst them so that a person belonging to any "Mana" community should be treated as a person belonging to a Scheduled Tribe even though it had no affinity with the "Gond" tribe.
Dismissing the appeal ^ HELD: 1.
The High Court was right in setting aside the appellant 's election on the ground that he did not belong to a Schedule Tribe.
[1147 B] 1136 2.
(a) Even when the Order, before its amendment in 1976 used the term "including", this Court giving a restricted meaning to "Mana", held that only 'Mana ' community which had affinity with the 'Gond ' community could be considered as a Scheduled Tribe and that 'Kshatriya Bidwaik Mana ' community to which the appellant belonged could not be treated as a Scheduled Tribe.
[1143F G] (b) A reading of Part IX of the Schedule to the Order shows that certain communities had been grouped together under a single Entry in the light of Article 342 of the Constitution which requires part of or groups within a tribal community also to be specified in the Order.
Therefore the communities mentioned against any specific Entry are those which have mutual affinity amongst them.
[1144C E] (c) Merely because a new Schedule had been substituted for the old one it cannot be said that Parliament had intended to treat persons belonging to "Kshatriya Bidwaik Mana" community also as a Scheduled Tribe.
Where there are two communities with the same name one having affinity with a tribe and the other not having anything to do with it and both are treated as Scheduled Tribes, the community which has affinity with another tribe is shown along with it in the same group against a single Entry and the other is shown against a different Entry.
Therefore the Mana community included in Entry 18 can only be that which has affinity with 'Gonds ' and any other community which also bears the name 'Mana ' but does not have any such affinity cannot be deemed to fall within the scope of 'Mana ' in Entry 18.
[1144H, 1145C D] 3.
The term "including" is sometimes used in a definition to give an extended meaning to the word defined.
Sometimes it is used as a synonym for "means" and not as a word of extension but limitation.
[1143C D] Dilworth vs Commissioner of Stamps, [1899] A.C. 99 at pp.
105 106, South Gujarat Roofing Tiles Manufacturers Association & Anr.
vs State of Gujarat & Anr.
, ; , referred to.


judgement:
ON: Criminal Appeal No. 147 of 1955.
Appeal by special leave from the Judgment and Order dated the 10th May 1955 of the Pepsu High Court at Patiala in Criminal Appeal No. 93 of 1954 arising out of the Judgment and Order dated the 21st June, 1954 of the Court of Sessions Judge at Barnala in Sessions Case No. 18 of 1954.
J.N. Kaushal and Naunit Lal, for the appellant.
Porus A. Mehta and P. G. Gokhale, for the respondent.
April 17.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
The appellant Basdev of the village of Harigarh is a retired military Jamadar.
He is charged with the murder of a young boy named Maghar Singh, aged about 15 or 16.
Both of them and others of the same village went to attend a wedding in another village.
All of them went to the house of the bride to take the midday meal on the 12th March, 1954.
Some had settled down in their seats and some bad not.
The appellant asked Maghar Singh, the young boy to step aside a little so that he 365 may occupy a convenient seat.
But Maghar Singh did not move.
The appellant whipped out a pistol and shot the boy in the abdomen.
The injury proved fatal.
The party that had assembled for the marriage at the bride 's house seems to have made itself very merry and much drinking was indulged in.
The appellant Jamadar boozed quite a lot and he became very drunk and intoxicated.
The learned Sessions Judge says "he was excessively drunk '? and that "according to the evidence of one witness Wazir Singh Lambardar he was almost in an unconscious condition".
This circumstance and the total absence of any motive or premeditation to kill were taken by the Sessions Judge into account and the appellant was awarded the lesser penalty of transportation for life.
An appeal to the PEPSU High Court at Patiala proved unsuccessful.
Special leave was granted by this Court limited to the question whether the offence committed by the petitioner fell under section 302 of the Indian Penal Code or section 304 of the Indian Penal Code having regard to the provisions of section 86 of the Indian Penal Code.
Section 86 which was elaborately considered by the High Court runs in these terms: "In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who doe& the act in a state of intoxication shall be liable to be dealt with as if he bad the same knowledge as he would have had if he bad not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will".
It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission.
If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required.
Are we at liberty to place in 48 366 tent on the same footing, and if so, why has the section omitted intent in its latter part? This is not the first time that the question comes up for consideration.
It has been discussed at length in many decisions and the result may be briefly summarised as follows: So far as knowledge is Concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober.
But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication.
Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention.
But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts.
Of course, we have to distinguish between motive, intention and knowledge.
Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act.
In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge.
The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things.
Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.
In the old English case, Rex vs Meakin(1) Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words: "However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used.
If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if be bad used a different kind (1) ; ; 7 Car.
& P. 295.
367 of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party.
" In a charge of murdering a child levelled against a husband and wife who were both drunk at the time, Patteson J., observed in Regina vs Cruse and Mary his wife (1) "It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention.
A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence.
" Slightly different words but somewhat more illuminating were used by Coleridge J., in Reg.
vs Monkhouse(2) "The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man 's mind to see what was passing there at any given time.
What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision.
It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural con sequence of his act.
The consequence is sometimes so apparent as to leave no doubt of the intention.
A man could not put a pistol which he knew to be loaded to another 's bead, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered.
For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act.
Sol if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged?" (1) ; ; (2) 368 "Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention.
Such a state of drunkenness may no doubt exist".
A great authority on criminal law Stephen J., postulated the proposition in this manner in Beg.
vs Doherty(1) ". although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime".
We may next notice Rex vs Meade(2) where the question was whether there was any misdirection in his summing, up by Lord Coleridge, J.
The summing up was in these words: "In the first place, every one is presumed to know the consequences of his acts.
If he be insane, that knowledge is not presumed.
Insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to man slaughter".
Darling, J., delivering the judgment of the Court of Criminal Appeal affirmed the correctness of the summing up but stated the rule in his own words as follows: "A man is taken to intend the natural consequences of his acts.
This presumption may be rebutted (1) in the case of a sober man, in many ways: (1) (2) , 369 (2)it may also be rebutted in the case of a man who is drunk, by shewing his mind to have been so affected by the drink he had taken that he was incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury.
If this be proved, the presumption that he intended to do grievous bodily harm is rebutted".
Finally, we have to notice the House of Lord 's decision in Director of Public Prosecutions vs Beard(1).
In this case a prisoner ravished a girl of 13 years of age, and in aid of the act of rape he placed his hand upon her mouth to stop her from screaming, at the same time pressing his thumb upon her throat with the result that she died of suffocation.
Drunkenness was pleaded as a defence.
Bailhache J. directed the jury that the defence of drunkenness could only prevail if the accused by reason of it did not know what he was doing or did not know that he was doing wrong.
The jury brought in a verdict of murder and the man was sentenced to death.
The Court of Criminal Appeal (Earl of Reading C.J., Lord Coleridge J., and Sankey, J.) quashed this conviction on the ground of misdirection following Rex vs Meade(2) which established that the presumption that a man intended the natural consequences of his acts might be rebutted in the case of drunkenness by showing that his mind was so affected by the drink that he bad taken that he was incapable of knowing that what he was doing was dangerous.
The conviction was, therefore, reduced to manslaughter.
The Crown preferred the appeal to the House of Lords and it was heard by a strong Bench consisting of Lord Chancellor, Lord Birkenhead, Earl of Reading, C.J., Viscount Haldane, Lord Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster, and Lord Phillimore.
The Lord Chancellor delivered the judgment of the court.
He examined the earlier authorities in a lengthy judgment and reached the conclusion that Rex vs Meade(2) stated the law rather too broadly, though on the facts there proved the decision was right.
The position "that a person charged with a crime of violence (1) [1920] A.C. 479.
(2) 370 may show, in order to rebut the presumption that he intended the natural consequences of his acts, that he was so drunk that he was incapable of knowing what he was doing was dangerous. . . . . . which is what is said in Meade 's case, was not correct as a general proposition of law and their Lordships laid down three rules: (1)That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged; (2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; (3)That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
The result of the authorities is summarised neatly and compendiously at page 63 of Russel on Crime, tenth edition, in the following words: "There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man 's mind becomes incapable of forming a specific intention.
If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.
But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not 371 rebut the presumption that a man intends the natural consequences of his act".
In the present case the learned Judges have found that although the accused was under the influence of drink, he was not so much under its influence that his mind was so obscured by the drink that there was incapacity in him to form the required intention as stated.
They go on to observe: "All that the evidence shows at the most is that at times he staggered and was incoherent in his talk, but the same evidence shows that he was also capable of moving himself independently and talking coherently as well.
At the same time it is proved that be came to the darwaza of Natha Singh P.W. 12 by himself, that he made a choice for his own seat and that is why he asked the deceased to move away from his place, that after shooting at the deceased be did attempt to get away and was secured at some short distance from the darwaza, and that when secured be realised what he had done and thus requested the witnesses to be forgiven saying that it bad happened from him.
There is no evidence that when taken to the police station Barnala, he did not talk or go there just as the witnesses and had to be specially supported.
All these facts, in my opinion, go to prove that there was not proved incapacity in the accused to form the intention to cause bodily injury sufficient in the ordinary course of nature to cause death.
The accused had, therefore, failed to prove such incapacity as would have been available to him as a defence, and so the law presumes that he intended the natural and probable consequences of his act, in other words, that he intended to inflict bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death".
On this finding the offence is not reduced from murder to culpable homicide not amounting to murder under the second part of section 304 of the Indian Penal Code.
The conviction and sentence are right and the appeal is dismissed.

summary/full:
So far as knowledge is concerned the court must attribute to the intoxicated man the same knowledge as if he was quite sober but so far as intent or intention is concerned, the court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication.
If the man was beside his mind altogether for the time being, it would not be possible to fix him with the requisite intention.
But if he had not gone so deep in drinking and from the facts it could be found that he knew what he was about the court will apply the rule that a man is presumed to intend the natural consequences of his act or acts, That rule of law is well settled: 1.That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged; 364 2.The evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; 3.That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
Director of Public Prosecutions vs Board, ([1920] A.C. 479), referred to.
On the finding in the present case that although the accused was under the influence of drink, he was not so much under its influence that his mind was obscured to such an extent that there was incapacity in him to form the required intention the offence was not reduced from murder to culpable homicide not amounting to murder under the second part of section 304 of the Indian Penal Code.