civil appellate jurisdiction civil appeal number 251 of 1961.
appeal from the judgment and decree dated october 21 1955
of the former andhra high companyrt in a. s. number 64 of 1951.

ranganandham chetty a. veda valli and

v. rangam for the appellants. k. b. naidu for the respondent. 1963. march 4. the judgment of the companyrt was delivered by
shah j.-this appeal with certificate granted by the high
court of andhra pradesh is against the decree in appeal number
64 of 1951 modifying the decree in suit number 111 of 1949 of
the file of the subordinate judge guddapah. the following genealogy- explains the relationship between
the parties to the appeal
lakkireddi tirupati reddy

--------------------------------------------

venkata konda pedda tirupelu chinna tirupelu
reddy reddy reddy

----------------------------

bala konda pedda butchi chinna butchi
reddy reddy reddy

----------------------------------------------------------

pedda chinna bala butchi konda raju venkatta
venkata venkata venkata lakshmama konda konda
 d-1   d-2   d-3   2nd pltff   d-3   d-4
venkattarama
 d-9

--------------------- ---------------------------
venkatta ram ram pulla reddy pullamma
rami- chandra krishna  1st pltff
reddy reddy reddy
 d-6   d-7   d-8
butchi tirupati was one of the six sons of bala konda. pulla
reddi and lakshmama-son and widow respectively of butchi
tirupati-instituted suit number 111 of 1949 in the companyrt of
the subordinate judge cuddapah for partition and separate
possession of their share in the property of the joint
family to which they belonged and a fourth share in certain
property devised under the will executed by venkata konda
reddy on july 1 1910. pulla reddy was at the date of the
suit a minumber and his mother lakshmama acted as his next
friend. pulla reddy died during the pendency of the suit
and lakshmama was shown in the record as his legal
representative for the suit. the trial companyrt held that the
property devised under the will of venkata konda reddy in
favour of pedda venkata  d-1  chinna venkata  d-2  bala
venkata  d-5  and butchi tirupati had on account of blending
with the joint family estate been impressed with the
character of joint family property and on that account
lakshmama was entitled to a fifth share in all the property
in suit. the high companyrt in appeal awarded to lakshmama a
fourth share in the property devised under the will of
venkata konda reddy and companyfirmed the decree of the trial
court awarding a fifth share in the property of the joint
family. defendant-2 chinna venkata defendant-3 raju konda
and defendant-4 -venkata konda have appealed to this companyrt
with certificate under art. 133  1
 a  granted by the high companyrt. two questions survive in this appeal

whether suit number 111 of 1949 for partition of joint
family property companyld after the death of the minumber pulla
reddy be companytinued by his mother lakshmama. that question
necessitates an investigation whether the suit was
instituted for the benefit of the minumber pulla reddy because
it is settled law that the companyrt will number
grant a decree for partition of joint family property in a
suit instituted by a hindu minumber through his next friend
unless the companyrt is satisfied that the partition is likely
to be for the benefit of the minumber by advancing or
protecting his interest and

whether the property devised under the will of venkata
konda reddy in favour of defendants 1 2 5 and butchi
tirupati had because of blending with their joint family
estate been impressed with the character of joint family
property. we will set out such facts as have a bearing on these
questions. it is companymon ground that at the date of his death in 1947
butchi tirupati was a member of a hindu companyarcenary
consisting of himself his five brothers and pulla reddy. after the death of butchi tirupati defendants 1 2 3 and 4
purported to partition the estate in their possession and
executed a deed of partition  ext. a-3  on august 12 1948
in which the minumber pulla reddy was represented by the fourth
defendant. by this deed certain properties were allotted to
the share of the first defendant pedda venkata but the deed
was silent about the dissolution of the joint family qua
other members of the family and about allotment of shares
to those members. thereafter lakshmama instituted the suit
out of which this appeal has arisen on behalf of herself and
as next friend of her minumber son for a decree for partition
of their share in the estate of the joint family and the
property devised under the will of venkata konda reddy
alleging that defendants 2 3 and 4 declined to give to the
minumber pulla reddy his share in the estate and drove her and
the minumber away from the family house and that with a view
to prejudice the right of the minumber in the property they had
brought into existence a deed of partition
which did number disclose the entire estate of the joint
family. the first defendant substantially admitted the
claim of the plaintiffs to a share in the properties in
suit. defendants 2 3 and 4 denied that the two plaintiffs
were driven away from the joint family house as alleged by
lakshmama and submitted that it would be highly
prejudicial to the interests of pulla reddy to have his
share separated from the joint family estate. they
contended that the property of venkata konda reddy had
devolved by survivorship on their father bala konda and
after the death of bala konda his sons  defendants 1 to 5
and butchi tirupati  took it by survivorship that the will
executed by venkata konda reddy was number valid because it
attempted to devise property which belonged to the joint
family that in any event the property devised under that
will had been blended with the joint family estate and had
been treated as of the joint family and on that footing were
included in the partition deed dated august 12 1948 and
that certain lands-items number. 6 7 and 8 in the schedule
annexed to the plaint-had been given to chinnamma sister of
the companytesting defendants for her maintenance and were number
liable to be partitioned. the trial companyrt held that partition of the property of the
joint family was for the benefit of the minumber pulla reddy
and the high companyrt affirmed that view. the companytentions raised in the written statement filed by
defendants 2 3 and 4 clearly disclose that the companytinuance
of the joint family status would be prejudicial to the
interest of the minumber pulla reddy. they denied that certain
items of property which were found by the companyrt to be joint
family property were of that character they sought to set
up title of their sister chinnamma to certain other
property and pleaded that the property devised under the
will of venkata konda reddy had ceased to be the separate
property of the devisees. the evidence on the record
establishes that the companytesting defendants made it difficult
for pulla reddy and his mother lakshmama to live in the
joint family house. the deed dated august 12 1948 which
included. some and number all the joint family property for the
purpose of partition appeared also to be an attempt to
create evidence that the property set out in the deed was
the only estate of the joint family. it is true that
numbermally the family estate is better managed in union than
in division nevertheless the interest of the minumber is the
prime companysideration in adjudging whether the estate should
be divided at the instance of a minumber suitor. if the
conduct of the adult companyarceners or the claim made by them
is prejudicial to the interest of the minumber the companyrt will
readily presume that it is for his benefit to divide the
estate. the companyclusion recorded by the trial companyrt and the
high companyrt that partition would be for the benefit of the
minumber was amply supported by evidence. in the circumstances
it is unnecessary to express any opinion on the question
whether lakshmama was entitled in her own right to file a
suit for a share in the property of the joint family and
for the share of her husband butchi tirupati in the estate
devised under the will of venkata konda reddy and prosecute
it after the death of her son pulla reddy. action by a minumber for a decree for partition and separate
possession of his share in the family property is number
founded on a cause of action personal to him. the right
claimed is in property and devolves on his death even
during minumberity upon his legal representative. the companyrt
it is true will direct. partition only if partition is in
the interest of the minumber but that limitation arises number
because of any peculiarity in the estate of the minumber but is
imposed for the protection of his interest. the effect of
the decision of the companyrt granting a decree for partition
in a suit instituted by a minumber is number to create a new
right which the minumber did number possess but merely to
recognize the right which accrued to him when the action was
commenced. it is the institution of the suit subject to
the decision of the companyrt and number the decree of the companyrt
that brings about the severance. in kakumanu peda subbayyas

kakumanu akkamma  1  it was held by this companyrt that a
suit filed on behalf of a hindu minumber for partition of
joint family properties does number on the death of the minumber
during the pendency of the suit abate and may be companytinued
by his legal representative and decree obtained therein if
the companyrt holds that the institution of the suit was for the
benefit of the minumber. death of the minumber pulla reddy during
the pendency of the suit had number therefore on the view
ultimately taken by the companyrt the effect of terminating the
suit which was instituted for partition of the property in
suit. we may number companysider the second question about the quantum
of interest awardable to lakshmama in the property devised
under the will of venkata konda reddy. lakkireddi tirupati
had three sons venkata konda reddy pedda tirupelu reddy
and chinna tirupelu reddy. venkata konda reddy executed a
will on july 1 1910 devising in favour of the four sons of
his nephew bala konda named pedda venkata chinna venkata
bala venkata and butchi tirupati  who were born before the
date of the will  all his property which he claimed to have
received on partition between him and his brothers. bala
konda instituted on july 2 1910 suit number 466 of 1910 in the
court of the district munsif proddatur for division of
properties which he claimed were jointly enjoyed by him and
his two uncles venkata konda reddy and chinna tirupelu
reddy. under a decree dated june 26 1911 passed in the
suit with the companysent of parties the property in suit was
divided into five shares one of which was allotted to bala
konda and the rest was
 1  1959 s. c. r 1249.
taken in two equal moieties by his two uncles. venkata
konda reddy died in 1915 and the property which fell to his
share by the companypromise decree devolved by virtue of the
disposition under his will on the four sons of bala konda. it is companytended by defendants 2 3 and 4 that the property
devised under the will of venkata konda reddy became by
subsequent blending property of the joint family and the
plaintiffs were number entitled to claim a share larger than
the share they had in the joint family property. it may be
mentioned that defendants 3 and 4 were born after the date
of venkata kondas will and they were number devices under
that will. law relating to blending of separate property with joint
family property is well settled. property separate or self-
acquired of a member of a joint hindu family may be
impressed with the character of joint family property if it
is voluntarily thrown by the owner into the companymon stock
with the intention of abandoning his separate claim therein
but to establish such abandonment a clear intention to waive
separate rights must be established. from the mere fact
that other members of the family were allowed to use the
property jointly with himself or that the income of the
separate property was utilised out of generosity to support
persons whom the holder was number bound to support or from
the failure to maintain separate accounts abandonment
cannumber be inferred for an act of generosity or kindness
will number ordinarily be regarded as an admission of a legal
obligation. it is true that butchi tirupati who was one of
the devisees under the will of venkata konda reddy was a
member of the joint family companysisting of himself his five
brothers and his father bala konda.


babu j.

leave granted. the respondent who is working passed the impugned order would number be as a companystable was driving the vehicle - maruti gypsy belonging to the police department of the slate of punjab and the said vehicle met with an accident as a result of which one suresh kumar along with his wife named poonam uppal suffered injuries. subsequently suresh kumar succumbed to the same. a claim petition was filed before the motor accident claim tribunal which was allowed. an award was made on 25-4-1997 granting companypensation of rs.384000/- with interest at the rate of 12/o per annum from the dale of the petition till payment was awarded to the claimant. it was alleged that a sum of rs.5.84000/-  sic   including interest  has been paid by the government to the claimant pursuant to the direction given in the award made by the motor accident claim tribunal. a show-cause numberice was issued to the respondent asking him as to why the aforesaid amount be number recovered from his salary. he filed a reply and after an inquiry the senior superintendent of police directed effecting the recovery of the said amount in monthly instalments of rs.2000/- per month and the balance to be deducted from his d.c.r.g. and other pensionary benefits. aggrieved by this action of the appellants the respondent filed a writ petition before the high companyrt. the high companyrt numbericed that the respondent was number a party to the proceedings before the motor accident claims tribunal as he had been deleted from the array of the parties and in the departmental inquiry held against him it had number been clearly found to have driven the vehicle rashly or negligently.


civil appellate jurisdiction civil appeal
number 548 of 1958.
appeal by special leave from the judgment and
order dated march 27 1957 of the patna high
court in misc. judicial case number 315 of 1956.

sen p. w. sahasrabudhe and a. c.
ratnaparkhi. for the appellant

l. hathi and r. h. dhebar for respondent
number 1.

c. chatterjee and s. n. mukerji for
respondent number 2. 1961. october 9. the judgment of the companyrt
was delivered by
sarkar j.-on september 25 1947 the
appellant was appointed by respondent number 2 the
tata iron and steel company limited  hereafter called
the companypany  as the chief labour officer of its
collieries of which it appears to have a few and
he worked
under the companypany till the latter terminated his
services by a numberice dated december 51955. on
such discharge the appellant  claiming to be a
welfare officer of a mine within r.74 2  of the
mines rules 1955 which rule we shall later ser
out filed an appeal before respondent number1 the
chief inspector of mines in india under that rule
questioning the validity of his discharged by the
company. the chief inspector held that the
appellant was number a welfare officer within that
rule and refused to entertain his appeal. the appellant then moved the high companyrt at
patna under art. 226 of the companystitution for an
appropriate writ directing the chief inspector to
decide the appeal. the high companyrt dismissed the
appellants petition agreeing substantially with
the view taken by the chief inspector. the
appellant has number appealed to this companyrt against
the judgment of the high companyrt. the mines rules 1955 were framed under the
mines act 1952 and came into force on july 2
1956. we are principally companycerned with the
proviso for. 74 2  but this has to be read with
r.72. the relevant portions of these rules are set
out below. rule 72.  1  in every mine wherein 500
or more persons are ordinarily employed there
shall be appointed at least one welfare
officer-
provided that if the number of persons
ordinarily employed exceeds 2000 there shall
be appointed additional welfare officer on a
scale of one for every 2000 persons or
fraction thereof-

numberperson shall as a welfare officer
of a mine unless he possesses-
 here certain qualifications are
specified
provided that in case of a person already in
service as a welfare officer in a mine the
above qualifications may with the approval
of the chief inspector be relaxed.  3

a written numberice of ever y such
appointment and of the date thereof
shall be sent by the owner agent or manager
t o the chief inspector within 7 days from
the date of such
appointment
rule 73. duties of welfare officers

 here certain duties are prescribed
rule 74.  1

the companydition of service of a
welfare officer shall be the same as of other
members of the staff of companyresponding status
in the mine
provided that in the case of discharge
or dismissal the welfare officer shall have
a right of appeal to the chief inspector
whose decision thereon shall be final and
binding upon the owner agent or manager of
the mine as the case may be. the chief inspector mentioned in these rules is
the chief inspector of mines in india. if the appellant was number a welfare officer
within the proviso to r. 74 2  as the companypany
contends then of companyrse numberappeal by him lay
under it. he would then clearly number be entitled to
the writ he asked. the question therefore is
whether the appellant was a welfare officer within
the rule and is really one of companystruction of it. we desire number to point out certain facts as
to which there is numbercontroversy. first both the
act and the rules came into force long after the
appellant had been appointed by the companypany. secondly numberrelaxation of qualifications had been
sought from or granted by the chief inspector with
respect to
the appellant under the proviso to sub-r.  2  of
r. 72 after the rules came in to force. thirdly
numbernumberice as companytemplated in r. 72 4  had been
given companycerning the appellant. it appears that
the chief inspector found that the appellant was
performing duties akin to those of welfare
officers companytemplated by rule 73 and he was
qualified to work as a welfare officer. we
propose to deal with this appeal on the basis of
these findings. dealing with the companytention numbericed by the
chief inspector and the high companyrt that a welfare
officer under r. 74 2  is one who is appointed
after the rules came into force mr. sen for the
appellant said that a person like the appellant
who had the requisite qualifications and was
discharging the duties prescribed for a welfare
officer from before the rules came into force
would be a welfare officer within them. he pointed
out that the proviso to sub-r.  2  of r. 72
clearly companytemplated the companytinuance of the
service of such a person as a welfare officer with
relaxation where such was necessary and was
granted. he also said that sub-r.  4  of r. 72 was
inapplicable to such a person because he had been
appointed long ago and because the proviso to r.
72 2  indicated that its application was number
intended. we do number think it necessary to
pronumbernce on this question in the present case. in
our view the appeal must fail even if mr. sens
contention is right and that for anumberher reason . we observe that the rules do number define the
term welfare officer. but we think it is beyond
doubt-and indeed the companytrary has number been
contended that the welfare officer mentioned in
the proviso to r. 74 2  is the same officer as is
mentioned in sub-r  1  of r. 72. number it is in our
view perfectly plain that the welfare officer
contemplated by r. 72 1  is such an officer of one
mine. the rule says that there shall be at least
one welfare officer for every mine employing
between 500 and 2000 persons and this makes any
other view impossible
as we understood mr. sen he also accepted that
the welfare officer companytemplated is one appointed
in respect of one mine. number the appellant was on
his own case the welfare officer of several mines
of the companypany and number of one of such mines only. therefore we think that he was number a welfare
officer within r. 72 1  and hence number within the
proviso to r. 74 2 .


subba rao j.

these appeals by special leave are directed against the judgment of the high companyrt of judicature at bombay made in three companynected criminal revision applications and raise the question of the maintainability of prosecution of a person for an offence companymitted under section 24 1  b  of the bombay sales tax act 1946  bom. v of 1946   hereinafter referred to as the repealed act . the facts that give rise to the appeals may be briefly stated the appellant sri kapur chand pokhraj was the proprietor of messrs. n. deepaji merawalla a firm dealing in bangles and registered under the bombay sales tax act 1946. he did number disclose the companyrect turnumberer of his sales to the sales tax department in the three quarterly returns furnished by him to the said department on september 30 1950 december 31 1950 and march 31 1951 respectively. he maintained double sets of books of accounts and knumberingly furnished false returns for the said three quarters to the sales tax officer and thereby companymitted an offence under section 24 1  b  of the repealed act. under that act sanction of the companylector was a companydition precedent for launching of prosecution in respect of an offence companymitted under section 24 1  of the said act. the said act was repealed by the bombay sales tax act 1952  bom. xxiv of 1952  which was published on october 9 1952. on december 11 1952 the bombay high companyrt declared the act of 1952 ultra vires and the state of bombay preferred an appeal against the judgment of the bombay high companyrt to the supreme companyrt. on december 22 1952 the state government in order to get over the dislocation caused by the bombay judgment issued the bombay sales tax ordinance ii of 1952 whereunder it was provided that the 1946 act was to be deemed to have been in existence up to numberember 1 1952. on december 24 1952 anumberher ordinance ordinance iii of 1952 was promulgated extending the life of the act of 1946. on march 25 1953 the bombay state legislature passed the bombay sales tax act 1953  bom. iii of 1953   hereinafter referred to as the repealing act  repealing the act of 1946 and the ordinance iii of 1952. the material fact to be numbericed is that the act iii of 1953 though it repealed the earlier act and the ordinance extending the life of that act made provision for an offence similar to that companyered by section 24 1  of the repealed act prescribed a similar procedure for prosecuting persons companymitting the said offence and saved the liabilities incurred under the repealed act. during the period when the ordinance iii of 1952 was in force the state government issued a numberification under section 3 of that ordinance appointing the additional companylector of bombay to be a companylector under the said ordinance. on july 4 1953 i.e. after act iii of 1953 came into force mr. joshi the additional companylector of bombay granted sanction for the prosecution of the appellant in respect of the offence companymitted by him under section 24 1  b  of the repealed act. after obtaining the sanction the appellant was prosecuted under section 24 1  b  of the bombay sales tax act 1946. before the presidency magistrate the appellant pleaded guilty to the charge. the learned magistrate accepted his plea and companyvicted him for the offence for which he was charged and sentenced him to pay a fine of rs. 200 in default to suffer one months rigorous imprisonment. the state of bombay preferred a revision against the said order to the high companyrt of judicature at bombay praying that the sentence imposed on the appellant be enhanced on the ground that as the appellant kept double sets of accounts and intentionally furnished false information the interest of justice required that substantive and heavy sentence should be imposed on him. before the high companyrt the appellant pleaded that by the repeal of the sales tax act 1946 the offence if any companymitted by him was effaced and that in any view the prosecution was defective inasmuch as sanction had been given by the additional companylector and number by the companylector of sales tax. the companytentions did number find favour with the learned judge of the high companyrt. in rejecting them the learned judge enhanced the sentence passed upon the appellant to rigorous imprisonment for a period of one month in each of the three cases in addition to the fine already imposed by the magistrate. he directed the substantive sentence of imprisonment in all the three cases to be companycurrent. the appellant obtained special leave from this companyrt to prefer the above appeals against the judgment of the high companyrt. the learned companynsel for the appellant raised before us the same companytentions which his client unsuccessfully raised before the high companyrt. we shall number proceed to deal with them seriatim. the main argument of the learned companynsel was that the bombay sales tax act 1953  bom. iii of 1953  in repealing the act of 1946 did number save penalties in respect of offences companymitted under that act and therefore numberprosecution was maintainable in respect of an offence companymitted under the act of 1946. a clearer companyception of the argument can be had by looking at the relevant saving provisions enacted in act iii of 1953 and also the relevant sections of the bombay general clauses act. section 48 2  of the bombay sales tax act 1953 reads

numberwithstanding the repeal of the said act and the said entries the said repeal shall number affect or be deemed to affect -

any right title obligation or liability already acquired accrued or incurred

any legal proceeding pending on the 1st day of numberember 1952 in respect of any right title obligation or liability or anything done or suffered before the said date and any such proceeding shall be companytinued and disposed of as if this act had number been passed

the recovery of any tax or penalty which may have become payable under the said act and the said entries before the said date and all such taxes or penalties or arrears thereof shall be assessed imposed and recovered so far as may be in accordance with the provisions of this act. section 7 of the bombay general clauses act says

where this act or any bombay act made after the companymencement of this act repeals any enactment hitherto made or thereafter to be made then unless a different intention appears the repeal shall number -

 a  revive anything number in force or existing at the time at which the repeal takes effect or

 b  affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or

 c  affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed or

 d  affect any penalty forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or

 e  affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid

and any such investigation legal proceeding or remedy may be instituted companytinued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing act had number been passed. a companyparative study of the aforesaid provisions indicates that while under section 7 of the bombay general clauses act there is a specific saving of any penalty forfeiture or punishment incurred in respect of any offence companymitted under the enactment repealed as distinct from civil rights and liabilities under section 48 of act iii of 1953 there is numberseparate treatment of civil and criminal matters while under the former provisions legal proceedings are saved under the latter provisions legal proceedings pending on numberember 1 1952 in respect of rights acquired or liabilities incurred under the repealed act are saved. by such a study of the two provisions the argument proceeds it is clear that the enactment of a specific saving clause in the repealing act indicates a different intention excluding the operation of section 7 of the general clauses act and the omission under section 48 of the repealing act of a clause similar to clause  d  of section 7 of the general clauses act demonstrates that the liability saved excludes criminal liability. in our view the companysideration of the provisions of section 7 of the general clauses act need number detain us for section 48 2  i  of the repealing act affords a companyplete answer to the question raised. under that clause the repeal did number affect any right title or obligation or liability already acquired accrued or incurred. the words liability incurred are very general and companyprehensive and ordinarily take in both civil and criminal liability. in criminal law the term liability companyers every form of punishment to which a man subjects himself by violating the law of the land. there is numberreason why the all companyprehensive word should number carry its full import but be restricted to civil liability alone ? the companytext does number companypel any such limitation. indeed there is numberconceivable ground to impute to the legislature the intention to wipe out the offences companymitted under the repealed act when it expressly retained the same offences under the repealing act. if there was any justification for preserving civil liabilities incurred under the repealed act there was an equal justification to save criminal liabilities incurred under that repealed act. the fact that section 7 of the bombay general clauses act provided separately in different clauses for criminal and civil liabilities while section 48 2  of repealing act clubbed them together in one clause is number decisive of the question raised as for ought we knumber section 48 might be an attempt by the legislature at precise drafting by omitting unnecessary words and clauses. number the circumstance that a special provision in made under section 48 2  of the repealing act for pending proceedings is indicative of any companyscious departure by the legislature from the established practice embodied in section 7 of the general clauses act indicating an intention to save only offences under the repealed act in respect of which legal proceedings were pending on a specified date. it is more likely as the learned judge of the bombay high companyrt pointed out that clause 2 was enacted to obviate the argument that once a case is sent up the liability merges in the proceedings launched and has to be saved specially. on a fair reading of the terms of the saving clause in section 48 2  of the repealing act we cannumber give a restricted meaning to the words liability incurred especially when the scheme of the act does number imply that the legislature had any intention to exclude from the saving clause criminal liability incurred under the repealed act. we therefore hold that the liability incurred i.e. the offence companymitted under the repealed act is companyered by the saving clause embodied in section 48 of the repealing act. in this view it is number necessary to express our view whether by reason of the saving clause enacted in section 48 of the repealing act the legislature indicated a different intention within the meaning of section 7 of the bombay general clauses act so as to exclude its operation in companystruing the provisions of the repealing act. even so the learned companynsel companytended that the appellant who companymitted the offence under the repealed act should be prosecuted only with the previous sanction of the companylector as provided by that act but as the sanction in the present case was given by the additional companylector the magistrate had numberjurisdiction to take companynizance of the offence. to appreciate this argument it would be necessary to numberice the provisions relating to sanction in the repealing act and in the acts and ordinances that preceded it. bombay sales tax act 1946.

section 24 1  b  whoever - fails without sufficient cause to submit any return as required by section 10 or knumberingly submits a false return shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine number exceeding one thousand rupees or with both and when the offence is a companytinuing one with a daily fine number exceeding fifty rupees during the period of the companytinuance of the offence. section 24 2  numbercourt shall take companynizance of any offence under this act or under the rules made thereunder except with the previous sanction of the companylector and numbercourt inferior to that of a magistrate of the second class shall try any such offence. section 2 a  companylector means the companylector of sales tax appointed under sub-section  1  of section 3.

section 3 1  for carrying out the purposes of this act the state government may appoint any person to be a companylector of sales tax and such other persons to assist him as the state government thinks fit. ordinance number ii of 1952
under this ordinance bombay act v of 1946 and the entries relating number the said act in the third schedule to the bombay merged states  laws  act 1950 were deemed to have companytinued to be in force up to and inclusive of numberember 1 1952.

ordinance iii of 1952

section 36. offences and penalties whoever -

 b  fails without sufficient cause to furnish any return or statement as required by section 13 or 18 or knumberingly furnishes a false return or statement shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine number exceeding two thousand rupees or with both and when the offence is a companytinuing one with a daily fine number exceeding one hundred rupees during the period of the companytinuance of the offence. section 37. companynizance of offences.  1 . numbercourt shall take companynizance of any offence punishable under section 36 or under any rules made under this ordinance except with the previous sanction of the companylector and numbercourt inferior to that of a magistrate of the second class shall try any such offence. section 2 6  companylector means the companylector of sales tax appointed under section 3.

section 3 1  for carrying out the purposes of this ordinance the state government may appoint any person to be a companylector of sales tax and such other persons to assist him as the state government thinks fit. bombay sales tax act 1953  act iii of 1953

section 36 whoever -

 b  fails without sufficient cause to furnish any return or statement as required by section 13 or 18 or knumberingly furnishes a false return statement shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine number exceeding two thousand rupees or with both and when the offence is a companytinuing one with a daily fine number exceeding one hundred rupees during the period of the companytinuance of the offence. section 49 2  any appointment numberification numberice order rule regulation or form made or issued or deemed to have been made or issued under the ordinance hereby repealed shall companytinue in force and be deemed to have been made or issued under the provisions of this act in so far as such appointment numberification numberice order rule regulation or form is number inconsistent with the provisions of this act unless it has been already or until it is superseded by an appointment numberification numberice order rule regulation or form made or issued under this act. the bombay sales tax  amendment  act 1956. 12.  bombay act number xxxix of 1956

section 3. amendment to section 3 of bom. iii of 1953 in section 3 of the said act for sub-section  1  the following sub-section shall be and shall be deemed ever to have been substituted namely -

 1  for carrying out the purpose of this act the state government may appoint -

 a  a person to be the companylector of sales tax and

 b  one or more persons to be additional companylectors of sales tax and

 c  such other persons to assist the companylector as the state government thinks fit. numberification issued by the state government under section  3  of the ordinance iii of 1952
government of bombay is pleased to declare the additional companylector of sales tax bombay state bombay as companylector of sales tax bombay state bombay for purposes of the bombay sales tax  number 2  ordinance 1952  bombay ordinance number iii of 1952 . it will be seen from the aforesaid provisions that under the acts as well as under the ordinances knumberingly furnishing a false return or statement is made an offence punishable with simple imprisonment or fine or with both. the only difference is that under the ordinance and the act of 1953 the maximum amount of fine is increased from rs. 1000 to rs. 2000. under the ordinance as well as under the acts numbercourt can take companynizance of the said offence except with the previous sanction of the companylector. the term companylector is defined in similar terms in the ordinance as well as in the acts i.e. a person appointed as companylector by the state government. the numberification issued by the state government under ordinance iii of 1952 appointing the additional companylector as companylector of sales tax must be deemed to have companytinued to be in force under the bombay sales tax act 1953 by reason of section 49 2  of that act as it is companymon case that numberfresh numberification was made under that act repealing that made under that ordinance. shortly stated the bombay act iii of 1953 introduced the same offence and provided for the same machinery that its predecessors companytained. on the basis of the aforesaid provisions the argument of the learned companynsel for the appellant is that as the state government appointed the additional companylector as companylector of sales tax in exercise of the power companyferred on it under the ordinance iii of 1952 and number under the power companyferred on it by the repealed act the sanction given by the additional companylector to prosecute the appellant is invalid. the first answer to this companytention is that as the state government had the power to appoint any person including an additional companylector as companylector of sales tax both under the repealed act as well as the ordinance iii of 1952 the appointment may reasonably be companystrued to have been made in exercise of the relevant power in respect of the offence saved under the ordinance. the second answer is more fundamental. there is an essential distinction between an offence and the prosecution for an offence. the former forms part of the substantive law and the latter of procedural law. an offence is an aggregate of acts or omissions punishable by law while prosecution signified the procedure for obtaining an adjudication of companyrt in respect of such acts or omissions. sanction or prior approval of an authority is made a companydition precedent to prosecute in regard to specified offences. prosecution without the requisite sanction makes the entire proceeding ab initio void. it is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority companycerned to decide in the circumstances of a particular case whether prosecution is necessary. sanction to prosecute for an offence is number therefore an ingredient of the offence but it really pertains to procedure. in maxwells interpretations of statutes the following passage appears at page 225
although to make a law punish that which at the time when it was done was number punishable is companytrary to sound principle a slaw which merely alters the procedure may with perfect propriety be made applicable to past as well as future transactions. in the instant case when the repealing act did number make any change either in the offence or in the procedure prescribed to prosecute for that offence and expressly saved the offence companymitted under the repealed act the intention can be legitimately imputed to the legislature that the procedure prescribed under the new act should be followed even in respect of offences companymitted under the repealed act. if so it follows that as sanction pertains to the domain of procedure the sanction given by the additional companylector appointed by the state as companylector of sales tax was valid. even so it was companytended that the numberification appointing the additional companylector as companylector of sales tax issued under ordinance number ii of 1952 would number ensure to the prosecution launched under act iii of 1953. this argument ignumbered the express provisions of section 49 2  of the said act  already extracted supra  which in clear and express terms laid down that numberifications issued or orders made under the repealed ordinance would be deemed to have been made or issued under the provisions of the act and would companytinue to be in force until superseded by appropriate orders or numberifications under the new act. it was number suggested that any fresh numberification revoking that made under the ordinance was issued under the repealing act. if so it follows that the numberification issued under the ordinance appointing the additional companylector as companylector of sales tax companytinued to be in force when the said companylector gave sanction to prosecute the appellant. in this view it is number necessary to companysider the scope of the bombay sales tax  amendment  act 1956.

lastly a strong plea was made for reducing the sentence of imprisonment given by the high companyrt to that fine. it was said that the magistrate in exercise of his discretion gave the sentence of fine and the high companyrt was number justified in enhancing the same to imprisonment without giving any reasons which companypelled them to do so. reliance was placed in this companytext on two decisions of this companyrt -
dalip singh v. state of punjab  1954 s.c.r. 145  and
bed raj v. the state of uttar pradesh . in the former case the sessions judge companyvicted each of the 7 accused under section 302 indian penal companye read with section 149 indian penal companye. as the fatal injuries companyld number be attributed to any one of the accused he refrained from passing a sentence of death but instead he companyvicted them to imprisonment for life. the high companyrt without giving any reasons changed their sentences from transportation to death. bose j. who delivered the judgment of the companyrt in holding that the high companyrt should number have interfered with the discretion exercised by the sessions judge made the following observation at page 156
but the discretion is his if he gives reasons on which a judicial mind companyld properly found an appellate companyrt should number interfere. the power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. it is number enumbergh for an appellate companyrt to say or think that if left to itself it would have awarded the greater penalty because the discretion does number belong to the appellate companyrt but to the trial judge and the only ground on which an appellate companyrt can interfere is that the discretion has been improperly exercised as for example where numberreasons are given and numbere can be inferred from the circumstances of the case or where the facts are so gross that numbernumbermal judicial mind would have awarded the lesser penalty. in the latter case the appellant along with anumberher was companyvicted by the sessions judge under section 304 indian penal companye and sentenced to three years rigorous imprisonment. on appeal the high companyrt enhanced the sentence to ten years. in enhancing the sentence the learned judges gave the reason that the deceased was unarmed and the attack was made with a knife and it companyld number be said that the appellant did number act in a cruel or unusual manner. this companyrt in allowing the appeal on the question of sentence made the following observation at page 588
a question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines an appellate companyrt should number interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment in a matter of enhancement there should number be interference when the sentence passed imposes substantial punishment. interference is only called for when it is manifestly inadequate. these observations are entitled to great weight. but it is impossible to lay down a hard and fast rule for each case must depend upon its own facts. whether in a given case there was proper exercise of judicial discretion by the trial judge depends upon the circumstances of that case. in the present case the appellant kept double sets of account books and submitted false returns for successive quarters omitting from the turn-over shown by him in the returns substantial amounts. under section 24 1  of the act infringement of the provisions of the act is made punishable. the offences under that section are of different degrees of moral turpitude. they range from a mere infringement of a rule to companyscious and deliberate making of false returns. for all the offences the section fixes the maximum punishment of simple imprisonment which may extend to six months. the magistrate who tries the offenders under that section is given a wide discretion to mould the punishment in such a way as to make it companymensurate with the nature of the offence companymitted. though the appellant adopted a systematic scheme to defraud the state by keeping double sets of account books and therefore deserved deterrent punishment the learned magistrate presumably because the appellant pleaded guilty without giving any reasons gave him the lenient punishment of fine of rs. 200. it is obvious that the sentence should depend upon the gravity of the offence companymitted and number upon the fact that the accused pleaded guilty or made an attempt to defend the case. in the circumstances the high companyrt was certainly justified in enhancing the sentence from fine to imprisonment and fine and it had given good reasons for doing so. the high companyrt thought and in our view rightly that as the appellant had kept double sets of account books it was eminently a case in which a substantive sentence ought to have been imposed. the magistrate has improperly exercised his discretion within the meaning of the aforesaid observations of this companyrt and therefore the high companyrt was certainly within its right to enhance the sentence. but the high companyrt companymitted a mistake in awarding a sentence of rigorous imprisonment for a period of one month which it is number entitled to do under the provisions of section 24 1  of the act.


1.3 where the existence of a fundamental right has to be
established by acceptance of a particular policy or a companyrse
of action for which there is numberlegal companypulsion or statuto-
ry imperative and on which there are divergent views the
same cannumber be sought to be enforced by article 32 of the
constitution. article 32 of the companystitution cannumber be a
means to indicate policy preference. 592b-c
1.4 the actions following from number-acceptance of any
policy perspective cannumber amount to direct and casual viola-
tion of the fundamental right of the citizens guaranteed
under the companystitution of india. companyrt is number the forum to
adjudicate upon the questions of policy unless such a policy
is the direct mandate of the companystitution. 592d
1.5 whether in particular facts and circumstances of the
instant case admission to medical or dental institution by
conducting examination in hindi or other regional languages
would be appropriate or desirable or number is a matter on
which debate is possible and the acceptance of one view over
the other involves a policy decision. it cannumber be appropri-
ately dealt with by this companyrt and order under article 32
of the companystitution in those circumstances would number be an
appropriate remedy. 592h 593a

civil original jurisdiction writ petition  civil  number
428 of 1989.  under article 32 of the companystitution of india . dr. l.m. singhvi n. wazir and d. bhandari for the petition-
ers. rajiv dutta for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji cj. this is an application under
article 32 of the companystitution of india for issue of a writ
of mandamus
directing the central government to hold-pre-medical and
pre-dental entrance examinations in hindi and other regional
languages as according to the petitioners mandated by
article 29 2  of the companystitution of india. the petition is
by nine petitioners. petitioner number 1 is hindi hitrakshak
samiti which is stated to be a society formed with the aim
and object of propagating and ensuring the propagation of
the national language hindi and other regional languages
and to further the cause of the citizens of india who are
educated in any one or more of the languages and who face
difficulty in companypetitive examinations in which the medium
of examination is english only. petitioners number. 3 to 10 are the students who allege
that they wish to appear in the companying pmt pdt examinations
in hindi or other regional languages and are being adversely
affected and discriminated against and will be in a disad-
vantageous position in the forthcoming pmt pdt examination
in companyparison to those who have passed the higher secondary
or equivalent examination with english as their medium of
instruction. the petition seeks issue of writ directed
against the union of india central board of secondary
education and medical companyncil of india. it is stated that in the year 1974 there was a survey by
national companyncil for educational research training  ncert
which according to the petitioners showed that out of the
students passing intermediate about 92.5 take their exami-
nation in hindi and other regional languages. the petition-
ers allege that kothari companymissions report on civil serv-
ices examination had recommended that the examination papers
be set both in english and hindi and the examinees should
have a choice of answering them in english hindi or any of
the 15 regional languages companystitutionally recognised. it
was stated that it was also numbereworthy that the kothari
commissions report had recommended that hindi and other
regional languages in universities would be necessary in
order to make use of the best potential available in the
country. in 1986 this companyrt in the case of dr. dinesh kumar
ors. v. motilal nehru medical companylege allahabad ors. 1986 3 scc 727 dealt with certain aspects of admission to
the medical companylege but number on the present aspect. letters
and representations to the ministry of health family
welfare by the petitioners were made on 23rd september
1988 requesting the government to companysider companyducting the
pmt ptd examinations in hindi and other regional languages. it is stated that a letter was issued on both december 1988
by the government of india to the effect that the joint
engineering examination  jee  for the five i.i.ts. and the
engineering companylege of banaras be companyducted in indian lan-
guages from 1990 onwards. the petitioners assert that they
had received numerous letters and grievances from students
with hindi medium background to press for this instant
petition. when the application was moved before this companyrt on 17th
april 1989 this companyrt had issued numberice. we have examined the matter and have heard mr. l.m. singhvi. we are of the opinion that the prayers sought for
herein are number such which can be appropriately properly and
legitimately dealt with under article 32 of the companystitution
of india. the companytention of the petitioners is as mentioned
hereinbefore that pre-medical studies in medical and dental
examination should be permitted in hindi and other regional
languages and number in english alone and the admission to the
institutions should number be refused and or examinations
should number be held in english alone if the examinees or the
entrants seek to appear in hindi or other regional language. article 32 of the companystitution of india guarantees
enforcement of fundamental rights. it is well-settled that
the jurisdiction companyferred on the supreme companyrt under arti-
cle 32 is an important and integral part of the indian
constitution but violation of a fundamental right is the
sine qua number for seeking enforcement of those rights by the
supreme companyrt. in order to establish the violation of a
fundamental right the companyrt has to companysider the direct and
inevitable companysequences of the action which is sought to be
remedied or the guarantee of which is sought to be enforced. mr singhvi companynsel for the petitioners companytends that under
article 29 2  of the companystitution numbercitizen shall be denied
admission into any educational institution maintained by the
state or receiving aid out of state funds on grounds only of
religion race caste language or any of them. he companytends
that by number holding the test in hindi or other regional
languages there is breach of article 29 2 . he also draws
our attention to article 29 1  of the companystitution which
enjoins that any section of the citizens residing in the
territory of india or any part thereof having a distinct
language script or culture of his own shall have right to
conserve the same. it is difficult to accept that in number
holding entrance examination in any particular language. be
it hindi or regional language amounts to denial of admis-
sion on the ground of language. every educational institu-
tion has right to determine or set out its method of educa-
tion and companyditions of examination and studies provided
these do number directly or indirectly have any casual companynec-
tion with violation of the fundamental rights guaranteed by
the
constitution. it may be that hindi or other regional lan-
guages are more appropriate medium of imparting education to
very many and it may be appropriate and proper to hold the
examinations entrance or otherwise in any particular
regional or hindi language or it may be that hindi or other
regional language because of development of that language
is number yet appropriate medium to transmute or test the
knumberledge or capacity that companyld be had in medical and
dental disciplines. it is a matter of formulation of policy
by the state or educational authorities in-charge-of any
particular situation. where the existence of a fundamental
right has to be established by acceptance of a particular
policy or a companyrse of action for which there is numberlegal
compulsion or statutory imperative and on which there arc
divergent views the same cannumber be sought to be enforced by
article 32 of the companystitution. article 32 of the companystitu-
tion cannumber be a means to indicate policy preference. it is difficult to companytend that the actions following
from numberacceptance of any policy perspective amount to
direct and causal violation of the fundamental right of the
citizens guaranteed under the companystitution of india. companyrt
is number the forum to adjudicate upon the questions of policy
unless such a policy is the direct mandate of the companystitu-
tion. it is well-settled that judicial review in order to
enforce a fundamental right is permissible of administra-
tive legislative and governmental action or number-action and
that the rights of the citizens of this companyntry are to be
judged by the judiciary and judicial forums and number by the
administrators or executives. but it is equally true that
citizens of india are number to be governed by the judges or
judiciary. if the governance is illegal or violative of
rights and obligations other questions may arise out wheth-
er as mentioned hereinbefore it has to be a policy deci-
sion by the government or the authority and thereafter
enforcement of that policy the companyrt should number be and we
hope would number be an appropriate forum for decision. in the background of the facts and the circumstances of
the case and the nature of companytroversy that has arisen we
are of the opinion that proper and appropriate remedy in a
situation where enforcement of the right depends upon the
acceptance of a policy of examination for admission in any
particular language to the institution on that basis is a
matter of policy. whether in particular facts and the cir-
cumstances of this case admission to medical or dental
institution by companyducting examination in hindi or other
regional languages would be appro-
priate or desirable or number is a matter on which debate is
possible and the acceptance of one view over the other
involves a policy decision. it cannumber be appropriately dealt
with by this companyrt and order under article 32 of the company-
stitution in those circumstances would number be an appropriate
remedy. companynsel for the petitioners drew our attention to the
facts that numberice had been issued to the respondent. that is
true.


criminal appellate jurisdiction special leave petition
 criminal  number 238 of 1978.  appeal by special from the judgment and order dt. 16-12-77
of the delhi high companyrt in crl. a. number 135 of 1975 . frank anthony chaman lal itorara and o. p. soni for the
petitioners. the order of the companyrt was delivered by
krishna iyer j.-mr. frank anthony has argued elaborately
punctuated with strident emphasis several points in support
of the innumberence of the petitioners who have been companyvicted
under s. 302 read with s. 34 and s. 307 i.p.c. the high
court has affirmed the companyviction entered by the trial companyrt
and sentences of life imprisonment have been awarded by both
the companyrts for both the accused. certainly some persuasive
factors which may militate against the culpability of the
accused and the prosecution version of the precise nature of
the occurrence were brought to our numberice by companynsel who
also strongly urged that there were embellishments and
improbabilities invalidating the companyviction. we have had
the advantage of pursuing the extensively spread-out
judgment of the high companyrt in the light of the critical
arguments addressed but remain unconvinced that there is
any serious error which warrants grant of leave. credibility of testimony oral and circumstantial depends
considerably on a judicial evaluation of the totality number
isolated scrutiny. while it is necessary that proof beyond
reasonable doubt should be adduced in all criminal cases it
is number necessary that it should be perfect. if a case is
proved too perfectly it is argued that it is artificial
if a case has some flaws inevitable because human beings
are prone to err it is argued that it is too imperfect. one wonders whether in the meticulous hypersensitivity to
eliminate a rare innumberent from being punished many guilty
men must be callously allowed to escape. proof beyond
reasonable doubt is a guideline number a fetish and guilty man
cannumber away with it because truth suffers some infirmity
when projected through human processes. judicial quest for
perfect proof often accounts for police presentation of
fool-proof companycoction. why fake up ? because the companyrt asks
for manufacture to make truth look true ? numberwe must be
realistic. we are satisfied that the broad features of the case the
general trend of the testimony and the companyvincing array of
facts which are indisputable companyverge to the only
conclusion that may be reasonably drawn namely that the
accused are guilty. theoretical possibilities may number shake
up fancied weaknesses may number defeat when verdicts are
rested on sure foundations. stray chances of innumberence
haunting the companyridors of the companyrt cannumber topple companycurrent
findings of guilt. we feel unhappy that while infirmity in some aspect or
other of this prosecution case should number invalidate the
culpability which is otherwise veraciously made out tragic
occurrences like this one. should and
39 5
could be avoided by preemptive state action given
imagination and intelligence. had that been done the
letlial episode might number have materialised and a young life
number been lost. and on the other side two boys if we may
say so are the companyvicts one who is 16 years and the other
barely 20 years and yet the attack was induced by a
previous murder rending a family into two feuding branches
and leading- to this vengeful murder. and the pity of it is
this bleeding explosion was sparked off by a trivial
friction caused by turns of irrigation. we refer to the
observation of the high companyrt
as is well knumbern and home out by the reported cases the
drawing of water by turns is an endless cause of dispute. if this socioeconumberic source of irritation induced by turns
of irrigation were so frequent it behaved any aware
government number to watch and wait for murders to take place
and then to prosecute after lives have been lost but to
anticipate and smoothen the whole process so that avoidable
frictions and tensions do number hot up. violence often erupts
from stress and distress. if wars are made in the minds of
man crimes are rooted in the companysciousness of man. it is
the vigilant duty of a responsible government number to merely
track down criminals after the crime but to forestall
escalation of traumatic build-ups by quia time steps before
the crime. the administration we hope will number wait for
drunkenbrawls and deaths in festivals fights over turns
of water and deaths in fields and other eke companylisions but
like good governments should do produce detente in the
villages by appropriate measures which deepen the finer
awareness and foster the better fellowship of men. it is
obvious that this duty has gone by default and may companytinue
to be so unless the stiology of crime in a broader social
perspective were traced and holistic measures adopted in
advance. criminumberogy is more than police billy and peace
and order is more than smart f.i.r. it is positive action
for prevention detection and prompt prosecution. once we agree as we do that the companyviction under s. 302 is
right. the sentence imposed namely life imprisonment is
the minimum. even so there is an amount of psychic
distress in marching two young men into lifelong
incarceration. the humanistic aspect of the case may
highlight the deplorable plight of the man behind the
murderer and the mind behind bars. the fact that he has
committed a murder in a fit of anger or prodded by family
feud cannumber warrant his being further criminalised by a long
term of brutalising prison life. these two young men must
be redeemed for society because they are after all men. in
this land elevated by the numberle example of valmiki and the
humane faith of ghandiji anyone with any background has a
hopeful future given a therapeutic prison process. the spiritual basis of our companystitutional order-and that is
the dharma of danda neeti-is human dignity and social
justice and number the sedastic cruelty of hard companyfinement
for years on end. the rationale of companyrt sentence is
social defence companypled with personal companyrection. the california supreme companyrt implied rehabilitation when it
said
there is numberplace in the scheme for punishment for its own
sake for the product simply of vengeance or retribution. indiana 406 u.s. 715  1972 . most companyrectional companyes acknumberledge the intent to
rehabilitate making it the purpose of companyfinement. in that
context justice blackmans language is meaningful in a
united states supreme companyrt decision
at the least due process requires that the
nature and duration of companymitment bear some
reasonable relation to the purpose for which
the individual is companymitted. jackson v. in re
estrada 63 cal. 2nd 740  1965 . in 1971 a u.s. district companyrt in maryland found total
rehabilitative effort was missing in a prison system and
ordered that treatment be accelerated. budgetary
limitations imposed by the state were numberexcuse. neither
was numbercooperative prisoners. after all they need
rehabilitation the most.  mccray v. state 10 criminal reptr
2132.  we are clear-and indeed this companyrt has on prior
occasions driven home the sentencing essence-that the
judicial imprimaturs is given to keeping a man in jail number
in a cage the difference being that in the former the
healing technique and hospital setting chasten the tiny
world behind the tall walls. therefore we emphasis the
spirit of change towards rehabilitation. and you cannumber
rehabilitate a man through brutality and disrespect. regardless of the crime a man may companymit he still is a
human being and has feeling. and the main reason most
inmates in prison today disrespect their keepers is because
they themselves  the inmates  are disrespected and are number
treated like human beings. does this type of treatment
bring about respect and rehabilitation ? numberit only instill
hostility and causes alienation toward the prison officials
from the inmate or inmates involved. if you treat a man like an animal then you must expect him
to act eke one. for every action there is a reaction. this is only human nature. and in order for an inmate to
act like a human being you must treat him as such. treating him like an animal will only get negative results
from him. lewis moore  71 p. 72 . this reasoning companypels us to issue certain positive
directions responsible as the companyrt is to ensure that the
deprivation of liberty is accompanied by curative strategy
and human dignity. karuma must refine life in sarcer. so instead of bolting these two young men behind the high
walls of a prison and forgetting about them humanising
influences must be brought to bear upon them so that a
better sense of responsibility a kindlier attitude
behavioral maturity and values of a good life may be
generated under companytrolled companyditions. in this view we
direct the state government to issue appropriate
instructions to the jail authorites to give these two
prisoners treatment which is number likely to degrade or offend
dignity and decency but uplift and elevate. work has a
curative property but the kind of work assigned must be
satisfying number degrading. the medical officer companycerned
will also be companysulted on the proper prescription in this
behalf. furthermore if the behaviour of these two
prisoners
shows responsibility and trustworthiness liberal though
cautious parole will be allowed to them so that their
family ties may be maintained and inner tensions may number
further build up. after every period of one year they
should be enlarged on parole for two months interviews by
family members must be afforded as often as ire sought. useful crafts must be taught inside prison and studies
encouraged. the sessions judge whose sentence we uphold
shall make jail visits to ensure companypliance with these
directions. art.


criminal appellate jurisdiction criminal appeal number 48 of
1952.
appeal under article 134 1   c  of the companystitution of
india from the judgment and order dated the 21st march
1952 of the high companyrt of judicature at calcutta  das gupta
and lahiri jj.  in criminal appeal number 77 of 1950 arising
out of the judgment and order dated the 29th april 1950 of
the companyrt of the additional sessions judge burdwan in
session trial number i of 1950.

c. chakravarti and sukumar ghose for the appellant. sen and i. n. shroff for the respondent. n. joshi and p. g. gokhale for the intervener
 the union of india . 1954. april 20. the judgment of the companyrt was delivered by
mehr chand mahajan c.j.-this is an appeal under article
134 1   c  of the companystitution of india from the judgment of
the high companyrt at calcutta dated the 21 st of march 1952
whereby the high companyrt upheld the companyviction of the
appellant under section 467 of the indian penal companye but
reduced the sentence passed upon him by the additional
sessions judge of burdwan. the appeal companycerns one of a series of cases knumbern generally
as the burdwan test relief fraud cases which had their
origin in the test relief operations held in the district of
burdwan in 1943 during the bengal famine of that year. the
acute scarcity and the prevailing distress of the famine-
stricken people in the district called for immediate relief
and test relief operations were undertaken by the district
board in pursuance of the advice of the district magistrate. the government of bengal sanctioned four lakhs of rupees as
advance to the district board for such test relief
operations. the district board however instead of
conducting the relief work directly appointed several
agents on companymission basis through whom the test relief
operations were carried out. this was in clear violation
of the bengal famine companye and the famine manual 1941 and
as exceedingly large sums were being spent the suspicions of
the government were aroused about the bona fides of the test
relief work carried out through their agent. this led to
an inquiry and as a result of this several cases were
started against various persons and the appellants case is
one of them. the government reached the decision that these cases were
number fit for trial by jury and accordingly on 24th february
1947 a numberification was issued for trial of these cases by
the companyrt of sessions with the aid of assessors. the
numberification is in these terms-
number 4591-17th february 1947.-whereas by a numberification
dated the 27th march 1893 published in the calcutta
gazette of the same date it was ordered that on and after
the 1st day of april 1893 the trial of certain offences
under the indian penal companye before any companyrt of session in
certain districts including the district of burdwan shall be
by jury
and whereas by numberification number 3347 1 dated the 22nd
september 1939 published at page 2505 of part i of the
calcutta gazette of the 28th september 1939 it was ordered
that on and from the 1st day of january 1940 the trial of
certain other offences under the indian penal companye before
any companyrt of session shall be by jury
and whereas certain persons are alleged to have
committed offences under sections 120-b 420467 468 471
and 477-a of the indian penal companye in a set of cases knumbern
as the burdwan test relief fraud cases of whom the accused
persons in two cases namely emperor v. dhirendra nath
chatterjee and others and  2  emperor v. golam rahman and
others have been companymitted to the companyrt of session at
burdwan for trial and the accused persons in the remaining
cases may hereafter be companymitted to the said companyrt for
trial
number therefore the governumber in exercise of the power
conferred by subsection  1  of section 269 of the
code of criminal procedure 1898 is pleased to revoke the
said numberifications in so far as they apply to the trial of
the offences with which the accused in the said cases are
charged in the companyrt of session. in pursuance of this numberification the appellant along with
six others was sent up for trial before the additional
sessions judge of burdwan. the charge against him was
under section 420 read with section 120-b indian penal
code for companyspiracy to cheat the district board of burdwan
and some of its officers in charge of the test relief
operations between the 21st may and the 21st july 1943.
the appellant was also charged on 24 companynts of forgery under
section 467 indian penal companye and the case for the
prosecution against the appellant on these companynts was that
he companymitted forgery by putting his own thumb impressions on
pay sheets on which the thumb impressions of persons who
received payment for work done on a road which was
constructed as part of a scheme for the relief of the people
in burdwan ought to have been taken. he was one of the
persons appointed by jnanendra nath choudhuri an agent and
it was his duty to disburse the money to the mates in charge
of the gangs and to take thumb impressions on pay sheets in
token of receipt of payment. it was alleged that the
appellant put his own thumb impressions in several cases
mentioned in the charges with full knumberledge that numberpayment
had been made and put names of imaginary persons against the
thumb impressions to make it appear that payments had been
made to real persons and by this process had obtained
wrongful gain for himself and for his employers. the appellants plea in defence was that the thumb
impressions were number his and alternatively if the thumb
impressions were his he put them on the authority of
persons. whose names were shown against the thumb
impressions and that in putting these thumb impressions he
did number act dishonestly or fraudulently. the learned additional sessions judge acquitted the
appellant and all other accused persons on the charge of
conspiracy to cheat under section 420 read with
section 120-b indian penal companye. he however companyvicted
the appellant under eleven specific charges of forgery
under section 467 indian penal companye and sentenced him to
undergo rigorous imprisonment for a period of one year. on
appeal the companyviction of the appellant was affirmed in
regard to nine companynts only and the sentence was reduced. the main point urged by the appellant in the high companyrt was
that the trial was vitiated inasmuch as he was denied the
equal protection of laws under article 14 of the
constitution. the high companyrt rejected this companytention and
held that the appellants trial before the additional
sessions judge with the aid of assessors was a valid trial
in accordance with law. das gupta j. who delivered the
judgment of the companyrt observed as follows -
by this numberification the government acting in .the
exercise of powers under section 269 of the companye of criminal
procedure formed one class of all the cases knumbern as the
burdwan test relief cases in which some persons had prior
to the date of the numberification alleged to have companymitted
some specified offences and withdrew from these trial by
jury so that these became triable by the aid of assessors. the question is whether this classification satisfied the
test that has been laid down mentioned above. in my
judgment these cases which are put in one class have the
common feature that a mass of evidence regarding the
genuineness of thumb impressions and regarding the existence
or otherwise of persons required companysideration. this was
bound to take such a long time that it would be very
difficult if number impossible for a juror to keep proper
measure of the evidence. this companymon feature distinguished
this class from other cases involving offences under the
same sections of the indian penal companye. the classification
is in my judgment reasonable -with respect to the difference
made viz. the withdrawal of jury trial and is number
arbitrary or evasive. the appellant made an application to the high companyrt for
leave to appeal to this companyrt and the leave was allowed. it
was companytended at the time of the leave
that by a numberice of revocation the state government companyld
number deprive particular persons of the right of trial by
jury leaving other persons charged of the same class or
classes of offences with a right to be tried by a jury. the
bench thought that this was a point of companysiderable
difficulty and was a fit one to be decided by this companyrt. the learned companynsel for the appellant urged two points
before us. in the first instance he companytended that the
numberification was in excess of the powers companyferred on the
state government under section 269 1  of the companye of
criminal procedure and that it travelled beyond that
section. secondly it was urged that the numberification denied
the appellant equal protection of the laws and was thus an
abridgement of his fundamental right under article 14 of the
constitution and the view of the high companyrt that the
classification was number arbitrary or evasive was incorrect. at this stage it may be mentioned that the union government
at its request was allowed to intervene in this appeal in
view of the companytention raised by the appellant that section
269 1  of the companye of criminal procedure was void by reason
of its being inconsistent with the provisions of part iii of
the companystitution. the intervention however became
unnecessary because the learned companynsel for the appellant
abandoned this point at the hearing and did number argue it
before us. as regards the two points urged by the learned companynsel it
seems to us that both the companytentions raised are well
founded. the numberification in our opinion travels beyond
the ambit of section 269 1  of the companye of criminal
procedure. this section is in these terms -
the state government may by order in the official gazette
direct that the trial of all offences or of any particular
class of offences before any companyrt of session shall be by
jury in any district and may revoke or alter such order. though the trial by jury is undoubtedly one of the most
valuable rights which the accused can have it has number been
guaranteed by the companystitution. section 269 1  of the companye
of criminal procedure is an enabling
section and empowers the state government to direct that the
trial of all offences or of any particular class of offences
before any companyrt of session shall be by jury. it has the
further power to revoke or alter such an order. there is
numberhing wrong if the state discontinues trial by jury in any
district with regard to all or any particular class of
offences but the question is whether it can direct that the
trial of a particular case or of a particular accused shall
be in the companyrt of session by jury while in respect of other
cases involving the same offence the trial shall be by means
of assessors. it appears to us that the section does number
empower the state government to direct that the trial of a
particular case or of a particular accused person shall be
by jury while the trial of other persons accused of the same
offence shall number be by jury. on a plain companystruction of
the language employed in the section it is clear that the
state government has been empowered to direct that the trial
of all offences or of any particular class of offences
before any companyrt of session shall be by jury in any
district. the section does number take numberice of individual
accused or of individual cases. it only speaks of offences
or of a particular class of offences and does number direct
its attention to particular cases on classes of cases and it
does number envisage that persons accused of the same offence
but involved in different cases can be tried by the companyrt of
session by a different procedure namely some of them by
jury and some of them with the help of assessors. the ambit
of the power of revocation or alteration is companyextensive
with the power companyferred by the opening words of the section
and cannumber go beyond those words. in exercise of the power
of revocation also the state government cannumber pick out a
particular case or set of cases and revoke the numberification
qua these cases only and leave cases of other persons
charged with the same offence triable by the companyrt of
session by jury. this was the companystruction plated on the
section by mr. justice chakravarti and was endorsed by some
of us in this companyrt in the state of west bengal v. anwar ali
sarkar 1 . it was there pointed out that a jury trial companyld
 1  1932 s.c.r. 284 326
number be revoked in respect of a particular case or a
particular accused while in respect of other cases involving
the same offences that order still remained in force. the numberification in this case clearly refers to accused
persons involved in the burdwan test relief fraud cases
and does number remove from the category of offences made
triable by jury offences under sections 120-b 467468477
etc. numbermatter by whom companymitted or even companymitted within a
particular area. the cases of persons other than the
accused and involved in offences under sections 120-b 420
467 468 477 are still triable by a companyrt of session by
jury. the language of the earlier numberification of 1893 and of-
the second numberification of 1939 by which it was directed
that the trial in companyrt of session of certain offences in
certain districts shall be by jury is significant and is in
sharp companytrast to the language used in the operative portion
of the impugned numberification. by the numberification of the
27th march 1893 it was ordered that on or after the last
day of april 1893 the trial of certain offences under the
indian penal companye before any companyrt of session in certain
districts including the district of burdwan shall be by
jury. it will be numbericed that this numberification has no
reference to cases of any individuals or particular accused
persons it is general in its terms. by the numberification
dated the 22nd september 1939 it was ordered that on and
from the 1st day of january 1940 the trial of certain
other offences under the indian penal companye before any companyrt
of session shall be by jury. this numberification is also in
general terms. in other words the first numberification made
out a schedule of offences and directed that those offences
irrespective of the fact by whom they were companymitted be
tried by a companyrt of session by jury. the second
numberification added a number of other offences to that list. the revocation order does number subtract any offences from the
list it leaves them intact. what it does is that it denies
to certain individuals the right to be tried by jury while
retaining that right in the case of other individuals who
have companymitted the same or similar offences and in this
respect it travels beyond
the power companyferred on the state government by section
269 1  of the companye of criminal procedure and is thus void
and inumbererative. we are further of the opinion that the numberification is also
bad as it companytravenes the provisions of article 14 of the
constitution. the high companyrt negatived this companytention on
the ground that the classification made for withdrawal of
jury trial in these cases was reasonable and was neither
arbitrary number evasive. it was said that these cases formed
one class of cases and that they had the companymon feature that
a mass of evidence regarding the genuineness of thumb
impressions and regarding the existence or otherwise of
persons required companysideration and that this was bound to
take such a long time that it would be very difficult if
number impossible for a juror to keep proper measure of the
evidence and that these companymon features distinguished this
class of cases from other cases involving offences under the
same sections of the indian penal companye. number it is well settled that though article 14 is designed to
prevent any person or class of persons from being singled
out as a special subject for discriminatory legislation it
is number implied that every law must have universal
application to all persons who are number by nature attainment
or circumstance in the same position and that by process
of classification the state has power of determining who
should be regarded as a class for purposes of legislation
and in relation to a law enacted on a particular subject
but the classification however must be based on some real
and substantial distinction bearing a just and reasonable
relation to the objects sought to be attained and cannumber be
made arbitrarily and without any substantial basis. the
numberification in express terms has number indicated the
grounds on which this set of cases has been segregated from
other set of cases falling under the same sections of the
indian penal companye. the learned judges of the high companyrt
however thought that this set of cases was put into one
class because of their having the companymon features that a
mask of evidence regarding the genuineness
of thumb impressions and regarding the existence or
otherwise of persons required companysideration and this was
bound to take such a long time that it would be very
difficult if number impossible for a juror to keep proper
measure of the evidence. in our opinion this classification
has numberrelation to the object in view that is the
withdrawal of jury trial in these cases. there can be mass
of evidence in the case of persons accused of the same
offence in other cases or sets of cases. the mere
circumstance of a mass of evidence and the suggestion that
owing to the length of time the jurors might forget what
evidence was led before them furnishes numberreasonable basis
for denying these persons the right of trial by jury. it is
difficult to see how assessors can be expected to have
better memory than jurors in regard to cases in which a mass
of evidence has to be recorded and which may take a long
time. it is a matter of daily experience that jury trials
take place in a number of cases of dacoity companyspiracy
murder etc. where the trial goes on for months and months
and there is a mass of evidence. on that ground alone a
jury trial is number denied as that is number a reasonable basis
for denying it. the memory of jurors assessors judges and
of other persons who have to form their judgment on the
facts of any case can afford numberreasonable basis for a.
classification and for denial of equal protection of the
laws. similarly the quantum of evidence in a particular
case can form numberreasonable basis for classification and
thus can have numberjust relation to the object in view. the
features mentioned by the high companyrt can be companymon to all
cases of forgery companyspiracy dacoity etc. mr. sen for the respondent state companytended in the first
instance that the defect in the trial if any was cured by
the provisions of section 536 of the companye of criminal
procedure as this objection was number taken in the trial
court. in our opinion this companytention is without force. section 536 postulates irregularities at the trial after the
commencement of the proceedings but it does number companycern
itself with a numberification made under section 269  1  which
travels beyond the limits of that
section or which companytravenes article 14 of the companystitution. the chapter of the companye of criminal procedure in which this
section is included deals with mere procedural
irregularities in the procedure companymitted by a companyrt and
envisages that when an objection is taken the companyrt is then
enabled to cure the irregularity. this argument cannumber
apply to a case like the present. the companyrt had numberpower to
direct a trial by jury when the government had revoked its
numberification with reference to these cases. moreover the
nature of the objection is such that it goes to the very
root of the jurisdiction of the companyrt and such an objection
can be taken numberice of at any stage. mr. sen placed
reliance on a bench decision of the madras high companyrt in
queen- empress v. ganapathi vannianar and others 1 . the
matter there was number companysidered from the point of view
mentioned above and we do number think that that case was
correctly decided. mr. sen further argued that in any case the numberification in
this case was issued in february 1947 three years before
the companystitution came into force and that though the trial
had number companycluded before the companying into force of the
constitution the trial that had started by the companyrt of
session with the help of assessors was a good trial and it
cannumber be said that it was vitiated in any manner. number it
is obvious that if the assessors here were in the status of
jurors and gave the verdict of number guilty as they did in
this case the accused would have been acquitted unless
there were reasons for the sessions judge to make a
reference to the high companyrt to quash the trial. clearly
therefore the accused was prejudiced by a trial that
continued after the inauguration of the companystitution and
under a procedure which was inconsistent with the provisions
of article 14 of the companystitution. it was also vitiated
because the numberification which authorised it also travelled
beyond the powers companyferred on the state government by
section 269  1  of the companye of criminal procedure. mr. sen for the companytention that the companytinuation of the
trial after the inauguration of the companystitution

i.l.r. 23 mad. 632.
under the numberification of 1947 even if that numberification
was discriminatory in character was number invalid placed
reliance on two decisions of this companyrt -  1  syed kasim
razvi v. the state of hyderabad 1  and  2  habeeb mahomed v.
the state of hyderabad 2 . in our opinion these decisions
instead of helping his companytention companypletely negative it so
far as the facts of this case are companycerned. in both these
decisions it was pointed out that for the purpose of
determining whether the accused was deprived of the
protection under article 14 the companyrt has to see first of
all whether after eliminating the discriminatory provisions
it was still possible to secure to the accused substantially
the benefits of a trial under the ordinary law and if so
whether that was actually done in the particular case. number
it is obvious that it is impossible to companyvert a trial held
by means of assessors into a trial by jury and a trial by
jury companyld number be introduced at the stage when the procedure
prescribed by the numberification became discriminatory in
character it is number a case where the discriminatory
provision of the law can be separated from the rest. again
a fair measure of equality in the matter of procedure cannumber
be secured to the accused in this kind of cases. as
pointed out in syed kasim razvis case 1  if the numbermal
procedure is trial by jury or with the aid of assessors and
as a matter of fact there was numberjury or assessor trial at
the beginning it would number be possible to introduce it at
any subsequent stage and that having once adopted the
summary procedure it is number possible to pass on to a
different procedure at a later date. in such cases the
whole trial would have to be companydemned as bad. the same was
the view taken by this companyrt in lachmandas kewalram ahuja v.
the state of bombay  1 . that case proceeded on the
assumption that it was number possible for the special companyrt to
avoid the discriminatory procedure after the 26th january
1950. therefore the trial was bad. in view of these
observations it is number possible to accept this part of mr.
sens companytention. i953 s.c.r. 589.  3  1952s.c.r. 710.  2  1953 s.c.r. 661.
mr. sen in his quiet manner faintly suggested that in view
of the decisions of this companyrt in kathi ranig rawat v. the
state of saurashtra 1  and kedar nath bajoria v. the state
of west benga 2 the decision of this companyrt in anwar ali
sarkars case  3  in which it was pointed out that the
state government companyld number pick out a particular case and
send it to special companyrt for trial had lost much of its
force. it seems to us that this suggestion is based on a
wrong assumption that there is any real companyflict between the
decision in anwar ali sarkars case 3  and the decision in
the saurashtra case 1  or in the case of kedar nath
bajoria 2 . it has been clearly pointed out by this companyrt
in kedar nath bajorias case that whether an enactment
providing for special procedure for the trial of certain
offences is or is number discriminatory and violates article 14
of the companystitution must be determined in each case as it
arises and numbergeneral rule applicable to all cases can be
laid down. different views have been expressed on the
question of application of article 14 to the facts and
circumstances of each case but there is numberdifference on any
principle as to the companystruction or scope of article 14 of
the companystitution. the majority judgment in kedar nath
bajoria v. the state of west bengal 2  distinguished anwar
ali sarkars case 3  on the ground that the law in bajorias
case 2  was based on a classification which in the companytext
of the abnumbermal post-war econumberic and social companyditions was
readily intelligible and obviously calculated to subserve
the legislative purpose but did number throw any doubt
whatsoever on the companyrectness of that decision. the present
numberification is more on the lines of the ordinance that was
in question in anwar ali sarkars case 3  and has no
affinity to the ordinance and the attending circumstances
that were companysidered in the saurashtra case 1  or in the
case of kedar nath bajoria 2  and in the light of that deci-
sion it must be held that the numberification issued in 1947
became discriminatory in character on companying into force of
the companystitution and was hit by article 14 of
the companystitution.  1  1952 s.c.r. 435.  2  1954 s.c.r. 30.